HLS 1L’s case arrives at Supreme Court

BY CLINTON DICK

One-L Joshua Davey was on the mind of the nine Supreme Court justices on Tuesday. His lawsuit challenging Washington State’s Promise Scholarship program, which provides funding to students who attend accredited colleges in the state based on merit and financial need but excludes students pursuing degrees in theology, has found its way to the highest court in the land. Davey was denied funding by Washington because he had chosen to major in pastoral ministry, according to Linda Greenhouse of the New York Times. He sued claiming the program was an unconstitutional burden on the free exercise of religion.

A federal appeals court ruled for Davey, and Washington appealed to the Supreme Court.

The case, Locke v. Davey, is sure to have broad implications for church-state constitutional law, which should at least give Davey a slight advantage next year if he signs up for a constitutional law course.

During oral arguments, Davey’s lawyer Jay A. Sekulow, who is chief counsel of the American Center for Law and Justice, a legal organization founded by Rev. Pat Robertson and Solicitor General Ted Olson (who argued as a friend of the court), faced tough questions from skeptical justices who feared that striking down the Washington law would open up the field of litigation in government funding of religious activities, according to Greenhouse.

“If your side wins,” Justice Breyer told the solicitor general, “every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments” would all be subject to the argument “that they cannot be purely secular, that they must fund all religions who want to do the same thing,” Greenhouse writes.

Justice O’Connor asked Olson if restricting government funding of religious instruction hasn’t simply been “as old as the country itself.” Olson replied: “Well, yes it is. But there is the other tradition that is as old as the country itself, the free exercise component of the religion clauses, which this court has said repeatedly mandates neutrality.”

Mr. Olson said that “the clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged,” adding that “the person who wants to believe in God or wants to have a position of religious leadership is the one that’s singled out for discriminatory treatment,” Greenhouse writes.

Greenhouse reported the more moderate Justices O’Connor and Kennedy “worried aloud that a decision striking down the Washington program would have the effect of compelling any state that offered tuition vouchers in a ‘school choice’ program to include religious schools, regardless of whether the state wanted such an inclusive program.”

Davey attended the oral argument and was not available for comment.

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