According to Dahlia Lithwick of Slate, the First Amendment's Establishment and Free Exercise clauses are the "constitutional equivalent of Ernie's relationship to Bert - in that no one really wants to say out loud that they hate each other." Last year, in Zelman v. Harris, the Court dealt with the first clause, and found that providing public money to religious schools in the form of school vouchers does not violate the Establishment Clause of the First Amendment. This week, the Court heard arguments in Locke v. Davey, a case that challenges the constitutionality of Washington state's Blaine Amendment under the second clause. (Blaine Amendments, named after 19th century Republican Representative James G. Blaine, were added to 37 state constitutions after Blaine's failed 1875 attempt to pass an amendment to the U.S. Constitution barring governments from providing any public money to "sectarian" - read, Catholic - schools.)
In this case, Joshua Davey claimed that his First Amendment right to the free exercise of religion was violated when Washington State rescinded its state-funded Promise Scholarship only after he declared that he would double major in pastoral ministry and business. (The state's scholarships are awarded to students on the basis of academic merit and financial need, and can be given to students who attend accredited colleges in the state, including schools with religious affiliations.) In 1999, Davey's freshman year, Washington's Higher Education Coordinating Board decided that students majoring in theology were ineligible for the scholarship because providing funding to students majoring in theology violated the state's Blaine Amendment. The Ninth Circuit Court of Appeals overturned the state agency's decision on the grounds that it "facially discriminates on the basis of religion. . . . The state may not offer a benefit to all but exclude some on the basis of religion." In his appeal, Washington Governor Gary Locke (D) argues that states should be free to "erect a higher wall between church and state than the federal Constitution, as interpreted by the Supreme Court, does."
According to news reports, the court appeared "deeply divided" at the hearing, and experts predict that the court may split 5-4, with Justice Sandra Day O'Connor casting the tie-breaking vote (as she did in last year's landmark Zelman case). While many have argued that the Blaine Amendments should be struck down because of their blatantly anti-Catholic and discriminatory intentions, the Justices seemed to be more concerned with whether, as Justice Ginsberg put it, there was "any space between what a state is permitted to fund under the Establishment Clause and what it must fund under the Free Exercise Clause" - in other words, whether the fact that states can provide public money to both religious and secular forms of education and instruction under the U.S. Constitution necessarily means that they must do so equally.
The Court is expected to hand down its ruling this summer, the outcome of which will have far-reaching consequences on voucher programs throughout the country, particularly in states whose constitutions also have Blaine Amendments, like Colorado (for more information on the court battles there, see the News and Analysis piece below) or Connecticut (where Jay Greene recently proposed enacting voucher programs to combat persistent school segregation).
"Court weighs religious studies," by George Archibald, Washington Times, December 3, 2003
"US high court mulls religious student state scholarship ban," Wall Street Journal, December 2, 2003 (subscription required)
"The Blaine game," editorial, Wall Street Journal, December 2, 2003 (subscription required)
"Justices weigh case on state spending and religion," New York Times, December 2, 2003 (registration required)
"Rock of ages and a hard place," by Dahlia Lithwick, Slate, December 2, 2003
"Justices resist religious study using subsidies," by Linda Greenhouse, New York Times, December 3, 2003 (registration required)
"Vouchers for integration," by Jay Greene, Hartford Courant, November 30, 2003 (registration required)
"The neutrality principle," by James E. Ryan, Education Next, Fall 2003