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Jews Divided As U.S. Supreme Court Hears Case on Funding Study of Religion

December 3, 2003
See Original Daily Bulletin From This Date

A case before the U.S. Supreme Court on state scholarships for theology students could have a major impact on controversial school voucher programs.

The justices heard the case Tuesday of a Washington state man who was denied a state scholarship after he decided to seek a double major in pastoral studies.

At issue was whether the state violated his free expression of religion by denying him the aid.

While the justices seemed almost evenly divided over whether Joshua Davey was discriminated against by the state, several focused on the case’s ramifications for school vouchers, which the high court found constitutional last year.

The justices acknowledged that a ruling for Davey would set the precedent that religious instruction must be included in funding from states that give money to any private institution, as opposed to being an option for states.

“If we decide in your favor, we necessarily commit that a elementary school voucher program must include religious schools if it includes any private schools,” said Justice Anthony Kennedy.

Justice Stephen Breyer said the implications of the case, Locke v. Davey, would be “breathtaking.”

Theodore Olsen, the Bush administration’s solicitor general, arguing in support of Davey before the Supreme Court, said it would not be a great leap to suggest that under the First Amendment clause that grants free exercise of religion, states would have to treat religious schools in the same manner as other private schools.

Jewish groups are divided on the case, as they are on most issues that affect the separation of church and state.

Several groups — including the American Jewish Committee, the American Jewish Congress and the Anti-Defamation League — filed briefs against Davey’s position, saying that Davey was not harmed from pursuing a religious education, only from receiving a state benefit.

Justice John Paul Stevens seemed to argue that point, suggesting that Davey’s freedom to practice his religion was not impaired, but that he practiced it without a government subsidy.

In contrast, Orthodox groups — including the Orthodox Union and Agudath Israel of America — argued in a brief that students studying religion were being discriminated against.

Justice Antonin Scalia made that point.

“It’s treating religion differently from non-religion,” he said. “Why is that not a violation of the principle of neutrality?”

Defining the line between what states should be allowed to fund and what they should not is at the center of the case.

The state of Washington contends that crafting a policy that denies the state’s Promise Scholarship to students majoring in theology incorporates the state constitution’s mandate that no public money go to religious instruction.

Davey lost his lawsuit in trial court, but the U.S. Court of Appeals for the 9th Circuit reversed the lower court’s ruling, saying Davey’s right to the free exercise of religion was violated.

“The legislation was attempting to identify an area of study that requires a great deal of religious instruction,” Narda Pierce, the Washington state solicitor general, said after the hearing.

But, as several of the justices noted, students were not denied the funds for taking theology classes, only for majoring in a theology program. One justice suggested that a student could take the exact same course load, and wait a year to declare his major, and still receive the aid.

Other justices questioned the line between the study of religion — popular in programs like Judaic studies — and the study of the promotion of a religious belief.

Justice David Souter suggested that the line should be drawn between the study of religion and an educational program “that says this belief is valid, and you ought to go out and persuade others of this belief.”

Some Jewish organizational officials who heard the arguments Tuesday said they were confident that the court would not deliver a wide-ranging ruling that would mandate states to provide vouchers or other funds to religious education.

“They’re very hesitant to say that simply because some form of funding is allowed it’s therefore required,” said Richard Foltin, legislative director of the American Jewish Committee. “I’d be shocked if the court used this case to reach a far-reaching decision that strips aside all state distinctions that bar funding of religious education.”

Nathan Diament, director of the O.U.’s Institute for Public Affairs, said he believed those who support Washington’s ruling used the voucher argument to scare the court.

“I think they are trying to hold out all kinds of boogeymen,” he said.

A ruling is expected next summer.

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