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Beyond 'Passion': faith, funding and freedom of religion
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

It’s been a very good month for America’s religion reporters. Working on news beats about faith and worship typically yields few rewards. Religion news stories are placed deep inside newspapers and magazines, and rarely garner television time.

But then came Mel Gibson’s “The Passion of the Christ,” a movie that inspired endless stories about its controversial content, community reaction and the depiction of faith in popular culture, all of which received front-page play and cover-story treatment.

It’s ironic that this focus on a film about faith left many unaware of another important development in religion in America – a U.S. Supreme Court ruling (Locke v. Davey) that permits a state to discriminate against those studying to become members of the clergy.

In a 7-2 vote, the justices upheld the right of Washington state to exclude theology students from a college scholarship program otherwise available to everyone in the state.

Joshua Davey was awarded a “Promise Scholarship” by Washington for his academic achievements, but the funding was taken away after he decided to pursue a degree in theology on his way to becoming a pastor. The scholarship program singles out theology students as being ineligible because of a provision in the state constitution barring the use of public funds for “any religious worship, exercise or instruction.” Similar restrictions are on the books in 36 other states.

This kind of limitation is designed to maintain the separation of church and state, a laudable goal at the heart of the First Amendment. But does that mean that a devout student can be deprived of a benefit available to everyone else?

A future accountant could have the scholarship. A future lawyer could receive the funds. In fact, anyone studying for any degree in the state – except one that culminates in the ministry – could receive this scholarship.

The First Amendment’s freedom of religion clause actually consists of two separate guarantees, which do not always work in perfect symmetry.

The Constitution prohibits government from sponsoring or promoting religion, a guarantee contained in the “establishment clause.” It also promises that Americans can worship as they choose, a promise contained in the “free exercise clause.” States must honor these constitutional guarantees, but may also strengthen them, as Washington did in this case.

In reaching a decision in favor of the state of Washington, the Supreme Court saw the restriction on funding as a logical and appropriate extension of establishment-clause principles. But in reaching that decision, it may have lost sight of the free-exercise clause.

In a nation in which we are all free to worship the God of our choice in the manner of our choice, these students are being deprived of a state benefit available to everyone else precisely because their faith is so strong that they wish to pursue it as a livelihood.

Justices Antonin Scalia and Clarence Thomas dissented from the majority opinion, arguing that Washington was engaging in unconstitutional discrimination against a religious minority.

The outcome of the case brought a collective sigh of relief from state governments concerned that a different ruling might have made school-voucher programs mandatory.

The Supreme Court had muddied the water in 2002 when it upheld a Cleveland voucher program that included parochial schools (in Zelman v. Simmons-Harris). That ruling, coupled with this new decision, means that states may allocate funds to religious organizations along with secular organizations as part of a statewide initiative, but are not constitutionally required to do so.

Deprived of his scholarship, Davey pursued his theology degree anyway and later decided to go to law school.

Some believe this decision is a narrow one, turning on the specific wording in the Washington state constitution. The ruling also clearly reinforces the importance of the establishment clause at a time when many are challenging the separation of church and state.

But Scalia warns that deprivation of benefits to citizens because of their participation in the clergy is a slippery slope.

“What next? Will we deny priests and nuns their prescription-drug benefits on the grounds that taxpayers’ freedom of conscience forbids medicating the clergy at public expense?” Scalia wrote.

States have great latitude in designing scholarship programs. For example, they can limit funding to those studying technology or engineering, or restrict awards to those attending state schools.

Yet when a state offers funding to everyone except those who wish to minister to others, there’s a sense that some are being punished for their deep and abiding faith. That may not be unconstitutional, but will strike many as unfair.


Florida college criticized for 'Passion' ban

Community College says its unwritten practice is to prohibit showing any R-rated film unless it's part of classroom instruction. 01.21.05

High court draws a line on state-funded religion
By Tony Mauro In Locke v. Davey decision, Supreme Court may feel it had gone far enough in allowing government support for religious practices. 02.26.04

Locke v. Davey overview

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