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Supreme Court: States don't have to treat "devotional theology" like all other subjects
The Supreme Court stood on its head today. Actually, had five of the seven justices actually done headstands in the Supreme Court building, it would perhaps have been less of a surprise than today's decision in Locke v. Davey.

Here's a little history: In Rosenberger v. Rector & Visitors of the University of Virginia (1995), the Supreme Court said that the government must fund a religious publication if it funds other student publications. In Good News Club v. Milford Central School (2001), the Supreme Court similarly said that a public school can't ban a religious group if it opens the door to all other groups.

Hear the principle? Open the door to some, open the door to all—even the religious.

It seemed straightforward enough, but apparently the Supreme Court is singing from a different songbook than thought. Today, it said that Washington State may deny scholarships to students pursuing religion-related degrees even if the door is open to all other areas of study. In other words, it seems, the state may discriminate against religion.

Washington is one of 36 states with what's known as a "Blaine amendment" in the state constitution. These amendments, part of an anti-Catholic campaign a century and a half ago, ban any public funding of religious education. And seven of the justices have no problem with that.

"Washington's program imposes neither criminal nor civil sanctions on any type of religious service or rite," Chief Justice William H. Rehnquist wrote for the court majority. "It neither denies to ministers the right to participate in community political affairs … nor requires students to choose between their religious beliefs and receiving a government benefit. … . The State has merely chosen not to fund a distinct category of instruction."

Ah, but the court didn't pretend like religion had nothing to do with it. "Training for religious professions and training for secular professions are not fungible," Rehnquist wrote. "Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit." And giving a state scholarship for that that, Rehnquist suggested, is troublesome and un-American. "We can think of few areas in which a State's antiestablishment interests come more into play," he said. "Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion."

How nice of the court to start considering Framers' intent, but as Justice Antonin Scalia wrote in his dissenting opinion (to which Justice Clarence Thomas signed on), "One can concede the Framers' hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers would have barred ministers from using public roads on their way to church."

Rehnquist denied that the court's previous "take one, take 'em all" decisions even applied in this case, since cases like Rosenberger applied to free speech. "The Promise Scholarship Program is not a forum for speech," Rehnquist wrote. "The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to encourage a diversity of views from private speakers." (But was Milford Central School District trying to "encourage a diversity of views from private speakers" when it started allowing extra-curricular clubs, or was it trying to assist and extend children's education and development?)

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February (Web-only) 2004, Vol. 48