State Can’t Limit Scholarships

A Washington college student who wants to use a state-funded scholarship to study “pastoral ministries” must be allowed to do so despite a state ban on using government funds for religious instruction, the U.S. 9th Circuit Court of Appeals ruled Thursday.

The 2-1 decision comes less than a month after a different 9th Circuit panel drew vociferous criticism nationally by ruling in another case involving church and state that the U.S. Constitution forbids the words “under God” from being used in public school recitations of the Pledge of Allegiance.

Thursday’s ruling that a state cannot prevent a person from using educational funds to study for the ministry, appears to have important implications for the nationwide debate over school vouchers, legal experts said.

Opponents of giving tax funds to parents who want to send children to private religious schools lost a major case in the U.S. Supreme Court last month, when the justices said that such vouchers do not violate the Constitution. But opponents have argued that they could fight vouchers using provisions in many state constitutions that specifically forbid giving tax funds to religious schools.

Thursday’s ruling implies that those state constitutional provisions might be vulnerable, said USC constitutional law professor Erwin Chemerinsky, who called the decision “extraordinary.”

“This opinion says that, if government provides aid for secular instruction, it has to provide it for religious instruction,” Chemerinsky said.

The recent Supreme Court decision found that vouchers were permissible, he said, but “this is the first case I know of where a court has said that a government is required to subsidize religious instruction.”

The central figure in Thursday’s case is Joshua Davey, who qualified for one of the Promise Scholarships the state of Washington established in 1999 for students from low- and moderate-income families who graduate in the top 10% of their high school classes.

Davey enrolled at Northwest College, located in a Seattle suburb--a school affiliated with the Assembly of God denomination. He signed up for a double major in business management and pastoral ministries.

But the law governing the scholarship prohibits eligibility for any student “pursuing a degree in theology.”

Davey dropped the scholarship rather than change his major. But he also sued in federal court in Seattle, alleging that state officials had violated his constitutional right to the free exercise of religion.

U.S. District Judge Barbara J. Rothstein threw out the suit, agreeing with state officials that they had acted properly.

The Washington attorney general’s office cited the statutory language of the scholarship program and a provision of the state Constitution, adopted in 1889, mandating that “no public money ... shall be appropriated to any religious worship, exercise or instruction, or the support of any religious establishment.”

Thursday’s 9th Circuit ruling rejected that argument and overturned Rothstein’s decision.

The state’s decision to deny Davey the scholarship solely because he decided “to pursue a degree in theology from a religious perspective infringes his right to the free exercise of his religion,” wrote Appeals Court Judge Pamela Ann Rymer, an appointee of former President Bush. Judge Ronald M. Gould, a President Clinton appointee, joined Rymer’s opinion.

The state policy barring scholarships for theology degrees is not neutral toward religion, even though the scholarship program itself is neutral, Rymer said.

Because the Washington scholarship program “discriminates on the basis of religion,” the state must offer a “compelling reason” to justify it, Rymer wrote. “Washington’s interest in avoiding conflict with its own constitutional” ban on giving money to religious schools does not meet that test, she concluded.

But dissenting Judge M. Margaret McKeown, also a Clinton appointee, said that Washington had “successfully navigated the tensions between the free exercise of religion and the prohibition of its endorsement when, at the time of statehood, it decided to refrain from funding religious instruction.”

“Washington has neither prohibited nor impaired Davey’s free exercise of his religion,” McKeown wrote. “He is free to believe and practice his religion without restriction.” The only action the state has taken was to decline to pay for it.

Because Davey “was still able to pursue his chosen major in the absence of funding, he would be hard-pressed to argue” that the state’s action had the effect of “suppressing his religious exercise,” she said.

The ruling is “the flip side of the pledge case,” said Jesse Choper, a constitutional law professor at UC Berkeley’s Boalt Hall School of Law, who had predicted in a legal article two years ago that Supreme Court decisions would lead to a result of this sort.

The fact that two panels of 9th Circuit judges had issued diverging rulings in religious freedom cases within the same month is not surprising, he said, because of the tension that has long existed between the constitutional provision that protects the “free exercise” of religion and the one that forbids the “establishment” of religion.

The Supreme Court decisions in this area “carry conflicting implications,” Choper said. “It is worse than muddy.”

Davey was represented by Stuart J. Roth of the American Center for Law and Justice, a conservative public interest group. Roth said he was pleased, but not surprised, at the outcome. Earlier Supreme Court rulings “demanded this result,” Roth said.

Washington state Assistant Atty. Gen. Michael J. Shinn said he disagreed with the ruling, but he said his office had not decided if it will seek a rehearing from a larger panel of 9th Circuit judges.