High Court Finds Religion Constitutionally
Distinctive
by Martha McCarthy, Ph.D.
In February
2004 the United States Supreme Court rendered a significant
decision, Locke v. Davey, upholding state constitutional mandates requiring greater
separation of church and state than demanded by the Establishment
Clause of the First Amendment. At issue in Locke was the Promise Scholarship Program established by
the state of Washington to provide college aid for students
who meet academic and income requirements. The scholarships
can be used in public or private accredited institutions of
higher education, but the scholarships cannot be used to pursue
devotional theology degrees. This prohibition is grounded in
the state constitutional stipulation that public money or property
cannot be used for religious worship, exercise, or instruction.
Joshua Davey
was awarded a scholarship and enrolled in Northwest College,
which is affiliated with the Assemblies of God. After declaring
his double major in pastoral ministries and business management/administration,
Davey learned that he could not use his scholarship for a pastoral
degree. He challenged the state action in rescinding his scholarship
as abridging First and Fourteenth Amendment rights.
Since the Supreme
Court had already ruled in 1986 that the Establishment Clause
does not preclude the use of public funds to prepare for the
ministry, the question raised in Locke was whether a more stringent state antiestablishment
provision impairs federal constitutional rights. Davey contended
that religious and secular majors should be treated the same
in the scholarship program, but the Supreme Court disagreed.
Reversing the Ninth Circuit’s decision, the Supreme Court
held that although the use of the Promise Scholarships to pursue
a pastoral degree would be allowed under
the Establishment Clause, the Free Exercise or Free Speech
Clauses does not require it.
The Court found minimal burden on religion and no Equal Protection
Clause violation in singling out pastoral degrees for differential
treatment. The Court reasoned that the Washington constitutional
provision was intended to keep schools free from sectarian
control and rejected the contention that it represented hostility
toward religion.
Implications
of the Locke decision are not as dramatic as they would have been
if the Ninth Circuit’s decision had been affirmed, because
under such a precedent, antiestablishment provisions in thirty
six state constitutions would have become impotent. Nonetheless,
the Supreme Court ruling has noteworthy implications for state
aid to nonpublic schools and the relationship between federal
and state constitutional mandates. The Locke decision will likely stimulate litigation testing the
limits of state constitutional provisions barring the use of
public funds for religious purposes. Indeed, one of the
most significant implications of Locke might
be an increase in state church/state
cases.#
Martha McCarthy,
Ph.D. is Chancellor Professor, School of Education, Indiana
University.
