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U.S. Supreme Court Ruling Divides Jewish Organizations

February 26, 2004
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A U.S. Supreme Court ruling allowing states to deny scholarships to theology students drew praise from Jewish civil liberties groups and outrage from Orthodox Jews.

The 7-2 decision Wednesday ruled that it was constitutional for the state of Washington to deny Joshua Davey a state-sponsored college scholarship because he was majoring in pastoral studies.

The ruling may have major implications for the crafting of school voucher programs and other church-state issues.

Jewish groups had filed briefs supporting both sides in Locke v. Davey.

Those supporting Washington had argued that denying the student the aid does not restrict free expression of religion and maintains the separation of church and state.

Orthodox groups had argued that the state was discriminating against students studying religion. The Orthodox Union called the decision a “frontal assault” on the U.S. Constitution.

Supporters of the separation of church and state were concerned that a ruling for Davey would have set the standard that religious institutions must be funded in the same manner as non-religious entities.

“The court said it would have been constitutional to extend the aid to Davey and it also said it didn’t have to,” said Marc Stern, a lawyer for the American Jewish Congress. “That’s going to drop everything into the hands of the legislatures.”

The ruling is not likely to affect whether state and local municipalities create voucher programs, because the high court already has said they are constitutional. However, Wednesday’s ruling could affect the crafting of such programs because it clarifies that religious teachings need not be included in government funding of education.

The issue also could affect faith-based initiatives, which deal with whether government funds can be allocated to religious institutions.

Chief Justice William Rehnquist wrote in the majority opinion that Washington was not forcing students to choose between their religious beliefs and receiving a government benefit. And it was not discriminating against the study of religion, only denying a benefit for the pursuit of training for religious professions.

“Training someone to lead a congregation is an essentially religious endeavor,” Rehnquist wrote. “Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit.”

Rehnquist also said that denial of the scholarship was not a heavy burden for Davey.

“It imposes neither criminal nor civil sanctions on any type of religious service or rite,” the opinion read. “It does not deny to ministers the right to participate in the political affairs of the community.”

Justices John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Rehnquist.

Justice Antonin Scalia, in a dissent joined by Justice Clarence Thomas, argued that withholding a benefit to some individuals solely on the basis of religion was a violation of the Free Exercise Clause.

“The First Amendment, after all, guarantees free exercise of religion, and when the state enacts a financial penalty of almost $3,000 for religious exercise — whether by tax or by forfeiture of an otherwise available benefit — only religious practice is anything but free,” he wrote.

Davey was denied a taxpayer-funded Promise Scholarship after he opted for a double major in pastoral studies and business administration. The state argued that the policy was in keeping with its constitutional mandate that no public money go to religious instruction.

The scholarship did not forbid Davey from taking the same course load, only from declaring his major to be pastoral studies.

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

Orthodox groups expressed anger at the high court’s ruling,

“Today is a sad day for America’s ‘first freedom’ of religious liberty,” said Nathan Diament, director of the O.U.’s Institute for Public Affairs. “Our nation’s highest court has approved state action which denies a person a government benefit solely upon the basis that the person is engaged in what the court acknowledges is constitutionally protected religious exercise.”

Briefs filed by the Orthodox Union and Agudath Israel of America suggested that liberties of those studying theology were being compromised.

David Zwiebel, Agudath’s executive vice president for government and public affairs, said there was a silver lining in that the court went out of its way to soften the impact of the case.

Rehnquist noted in his opinion that Washington’s scholarship “goes a long way toward including religion in its benefits.”

It allows money to be used for religious-studies classes and at predominantly religious schools.

Orthodox officials believe this statement suggests the court is open to government funding of religious schools and programs as long as it is not theology.

The Jewish groups supporting Washington included the American Jewish Committee, the American Jewish Congress and the Anti-Defamation League.

Leaders of these organizations suggested that the ruling prevented a major defeat for church-state separation but does not represent a regression from recent rulings allowing religious schools to receive vouchers and other federal aid.

“The court has really adopted an unremarkable perspective that simply to say a religious activity may be funded is not to say it must fund all programs,” said Richard Foltin, legislative director of the AJCommittee.

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