The Court & religion

Divining the 'Davey' case

In 1999, Joshua Davey, a resident of Washington, received an academic scholarship from the state for $1,125. He used it to attend Northwest College in Kirkland, Washington, a college and seminary operated by the Assemblies of God. When he decided to major in theology, however, the state withdrew the award.

Davey sued in federal court, and eventually the Ninth Circuit Court of Appeals, in a 2-1 ruling, reinstated his scholarship. The U.S. Supreme Court granted review of that decision and will hear the case on December 2. Both the U.S. Catholic bishops and a number of Catholic colleges and universities, as well as other religious groups, have filed amicus briefs arguing that Davey’s claim is just. Groups opposed to Davey, including Americans United for Separation of Church and State, argue that any direct or indirect aid to a seminary is clearly a violation of the First Amendment’s prohibition against the establishment of religion. Court watchers think this argument will appeal to three or four justices, including David Souter, a practicing Episcopalian who is one of the Court’s most learned and persuasive advocates of a strict separation of government and religion.

Since its landmark Everson ruling in 1947, which allowed school districts to reimburse parents for the cost of bus transportation to Catholic schools, the Court has struggled to balance the separation of church and state with the First Amendment’s protection of religious liberty.

It would not be rash to say that the Court has been inconsistent and even incoherent in some of its subsequent decisions. Davey is important because the complex issues involved go to the core of how we look at the role of religion in American life and culture. There has always existed in American jurisprudence an attitude toward religion and its practice that recognizes religion’s historic centrality in American history. That reverence toward religion has led to decisions sustaining tax exemptions for church property and benefits to clergy. Justice William O. Douglas’s 1952 decision in Zorach, which allowed classes in religion to be held on public school premises, may prove relevant in the Davey case. Douglas noted that “we are a religious people whose institutions presuppose the existence of a Supreme being.” If that is still true, denying Joshua Davey a scholarship to study theology is discriminatory.

The State of Washington’s scholarship program was established in 1999 by Governor Gary Locke, a Democrat, for all students who graduate in the top 10 percent of their high school class when their parents’ income falls below a certain range. Davey qualified, but his is hardly an open-and-shut case. Northwest College requires all its students to profess a belief in Jesus Christ. Chapel services are compulsory, and many students become ministers. Since the school is also a seminary, its administration routinely reminds students that they are not eligible for the state’s scholarships if they are studying for the ministry.

The central issue is the constitutionality of Washington’s strict ban-both in its state constitution and by statute-on any aid to religion, including one law that specifically states, “no aid shall be awarded to any student pursuing a degree in theology.” The Washington law is similar to bans in ten other states against state aid to religion. Furthermore, the constitutions of some thirty-five states still include amendments modeled after the so-called Blaine amendment (which failed in Congress), the notorious late nineteenth-century anti-Catholic initiative sponsored by Senator James Blaine of Ohio that proposed banning government aid to religious schools.

Despite the unambiguous nature of Washington’s statutes, the state’s denial of aid to Davey appears, on the face of it, to be inconsistent with recent Supreme Court rulings. In 1986, the Witters decision held that the State of Washington could not deny a blind student his right to student assistance simply because he attended a seminary. Similarly, in a different context, the Court ruled in 1971 that federal grants for buildings may be given to Catholic or church-related colleges, as long as the buildings are not used for religious purposes. Nor has any court questioned the right of those eligible for the GI Bill to attend religiously affiliated colleges-even Catholic seminaries. In 1995, in Rosenberger, the Court ruled that if the University of Virginia funded the publication of secular student journals, it must extend financing to religious periodicals. And in 2002, it upheld the awarding of vouchers to individual parents so that their children could attend any school of their choice, including Catholic schools.

These precedents did not persuade Ninth Circuit Judge Margaret McKeown, who dissented in the Davey case. Her arguments merit close scrutiny because they may prove persuasive to a number of Supreme Court justices. McKeown’s dissenting opinion begins by noting that the 1899 Constitution of the State of Washington provides that “no money or property shall be appropriated for or applied to any religious worship, exercise or instruction in support of any religious establishment.” She then rejects Davey’s contention that denial of a state grant interfered with his religious freedom, since the state has no duty to subsidize the religious exercises of its subjects. Finally, she points out that when Washington was admitted to the union it specifically opted not to fund religious instruction, and that in the name of federalism, that decision must be respected.

Those who believe in the mission, including the civic mission, of church-sponsored colleges, disagree strongly with the point of view expressed by McKeown, but she added to the weight of her argument by observing that the State of Washington and the lower federal court had ruled that the theology courses in which Davey majored were taught from a “devotional” standpoint, one “designed to induce religious faith.”

Millions of citizens and many wise scholars believe that a clear separation of government and religion is good for both. Many other Americans think that state “neutrality” often impedes the free exercise of religion, especially in the funding of education, and that a rigid separationist understanding of the First Amendment is unjustified. Davey may help clarify this constitutional conundrum. end

Published in the 2003-11-21 issue: 

Robert F. Drinan, SJ, served in the U.S. House of Representatives from 1971 to 1981 as a representative from Massachusetts. He was professor of law at Georgetown University Law Center until his death in 2007.

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