WASHINGTON — The Bush administration has stepped into the Supreme Court’s next major church-state case, seeking to allow some states to spend tax money on college students’ religious education.
The administration, in briefs this week on an appeal of a Washington state case, said states that set up general scholarship programs cannot deny money to those who want to study for ministry careers.
“Such a stigmatizing religious classification is prohibited by the First Amendment and inconsistent with our traditions,” Solicitor General Theodore Olson wrote.
Also this week at the high court, the California man who wants the words “under God” removed from the Pledge of Allegiance asked Justice Antonin Scalia to stay out of the case because of public remarks that Scalia made this year at a religious event.
Michael Newdow, a Sacramento doctor and atheist, said in a court filing that Scalia violated conduct rules that prevent judges from discussing the merits of cases, and that there are questions about his impartiality. The court is expected to consider whether to hear appeals involving the pledge during a closed-door session on Sept. 29.
Justices have not yet said when they will hear arguments in the scholarship case, a follow-up to last year’s landmark ruling upholding school-voucher programs.
Olson said that Washington state’s scholarship program is unconstitutional because it treats people who want to study theology at religious schools differently than other students.
The history of Washington’s ban on state spending for religious classes stems from opposition in the 19th century to the Catholic Church, Olson said, which “provides all the more reason to reject any reliance on the provision here as a means of justifying the discriminatory treatment.” More than 30 states have these Blaine amendments.
On the other side, many groups told the court that the Washington ban was not passed to suppress religion and that states should be allowed to control their own rules for church-state policies.
“This is an activist administration that has sought at every opportunity to erode the wall that separates church and state and to interject religion into governmental operations at every turn,” said Ayesha Khan, legal director of Americans United for Separation of Church and State, one of the groups supporting Washington.
In the Pledge of Allegiance case, Newdow persuaded a federal appeals court last year that the classroom salute to the American flag is unconstitutional because of the reference to God. The decision has been appealed to the Supreme Court.
Scalia, considered the high court’s most conservative member, referred to that ruling in a January speech as an example that courts are misinterpreting the Constitution. He said at a Knights of Columbus rally in Fredericksburg, Va., that the framers did not intend to “exclude God from the public forums and from political life.”
Newdow said in the filing that justices may be religious but they “cannot give the appearance of a bias which might interfere with impartial legal analysis.”
Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents, said Scalia did not specifically discuss the pledge case. “It doesn’t surprise me that Mr. Newdow would seek to gain numerical advantage by encouraging Justice Scalia to recuse himself. I doubt that the justice will feel any obligation to do so, nor should he,” Kmiec said.
The cases are Locke v. Davey, 02-1315, and United States v. Newdow, 02-1574, Elk Grove Unified School District v. Newdow, 02-1624, and Newdow v. Congress, 03-7.