Commentary: Church and State

JSPAN COMMENTARY - March, 2004 Washington State excludes funding to pursue a theology degree from its otherwise-inclusive scholarship aid program. In Locke v. Davey, the Supreme Court held that this does not violate the Free Exercise Clause. A JSPAN commentary follows. ---------------------------------------------------------


Church and State in the February 26 Supreme Court Decision By Ted Mann and Barry Ungar Barry UngarTed Mann On February 26, the United States Supreme Court handed down an important decision supporting the view of most of the Jewish community that when states fund educational programs, sectarian education may be excluded. Some relevant background: Eighteen years ago the Court decided that the establishment clause of the First Amendment would not be violated if a blind student receiving college funding from the State of Washington's vocational rehabilitation program for the blind were permitted to use the funds to study for the ministry. In so holding, the Court noted that "importantly, nothing in the record indicates that…any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education." That was one very significant way the case differed from the long line of previous decisions invalidating aid to religious education. But last year the Court in a 5-4 decision validated a voucher program in which more than 96% of the vouchers were used in parochial schools. Some were concerned that soon the other shoe would drop and the Court would hold that such programs must permit recipients to use the funds for sectarian education purposes; that to deny them that right would violate their religious freedom. The other shoe hasn't dropped, and is not likely to. Last week the Court held that the free exercise of religion clause of the First Amendment would not be violated if the State of Washington funded college scholarships for all students except those pursuing a devotional theology degree. The Ninth Circuit Court of Appeals had held that if benefits were provided to students seeking secular degrees such benefits must also be provided to a student seeking a degree in devotional theology, absent a compelling state interest, and that there was no such compelling state interest. By a surprising 7-2 majority, in an opinion written by Chief Justice Rehnquist, the Supreme Court disagreed. With only Justices Scalia and Thomas dissenting, the Court held that the Washington law simply codified Washington's Constitution prohibiting the funding of students who pursue degrees that are devotional in nature or are designed to induce religious faith. In rejecting the student's claim that both the law and the state constitution evidenced an animus toward religion, Justice Rehnquist referred extensively to the founding fathers' views opposing financial support of religion in any amount, and to Madison's Memorial and Remonstrance as well as the many state constitutions that forbad the use of tax dollars to support any ministry. He stated that there is nothing in the history of either the Washington statute or its constitution that suggests any animus toward religion, and that "given the historic and substantial state interest" involved, the denial of funding for religious instruction is not constitutionally suspect. There is "play in the joints" connecting the two religion clauses in the First Amendment, the Court held. Just because action by a state may be permitted under the establishment clause does not mean it is constitutionally required by the free exercise clause. In brief then, as long as the link between government and the funding of religious education is broken by the independent and private choice of the recipients, a state may choose to fund all college education across the board (as the federal government did with the GI Bill of Rights), or it may choose to explicitly carve out religious education. The decision has important implications in the continuing struggle over where the line will be drawn between religion and government action. The Court dealt a significant blow to those who argue that because public funding of vouchers does not violate the establishment clause, it must follow that the denial of such aid to those who use it for religious education is discriminatory, in violation of the religious freedom clause. Not so. Those of us who share the founding fathers' view that government must not support religion or religious education should remain alert to continuing attempts to change the meaning of the religion clauses in the First Amendment. They are essential to all our freedoms. -------------------------------------------------------------------------------- Ted Mann and Barry Ungar are both practicing attorneys in Philadelphia. Mr. Mann served as National Chairman, Jewish Council on Public Affairs (JCPA) (1976-80), Conference of Presidents of Major American Jewish Organizations (1978-80), National Conference on Soviet Jewry (1981-83), American Jewish Congress (1984-88), MAZON - A Jewish Response to Hunger (Founding Chair, 1985-90), Project Nishma (1988-97), Israel Policy Forum (1997-2001-Executive Committee Chairman) and is a founding Board Member of JSPAN. Mr. Ungar served as Chair of the Jewish Community Relations Council in Philadelphia and as National Vice-Chair of the Jewish Council on Public Affairs (JCPA). -------------------------------------------------------------------------------- JSPAN invites your response to this commentary for publication on the JSPAN web site. Please send all replies to