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The Supreme Court set the stage on May 19 for its next major church-state battle, agreeing to hear the case of a Washington state man who was denied a state scholarship because he planned to use the money to study theology. The case of Locke v. Davey, No. 02-1315, will be the first direct test of the so-called Blaine amendments, a series of mostly 19th century constitutional provisions enacted in 37 states that impose strict prohibitions on the use of state funds for any religious purpose. At least 14 states also specifically state that theology students are not eligible for state scholarships. These laws became vulnerable in the wake of the Supreme Court’s decision last year in Zelman v. Simmons-Harris, which said that the federal Constitution permits state-funded vouchers to go toward parochial school tuition as one of several options for parents and students. In that decision, as in others, several justices expressed disapproval of the Blaine amendments as remnants of anti-Roman Catholic sentiment. They are named for James Blaine, a 19th century Republican senator and congressman from Maine who unsuccessfully pushed for a federal constitutional amendment banning aid to religious schools. “This case will highlight the unsavory history of the Blaine amendments, which seven justices have already focused on in other cases,” says Kevin Hasson of the Becket Fund for Religious Liberty, which is challenging Blaine amendments. Hasson says that, as a result of subsequent legislation and court rulings, only 16 states still have “Blaine or Blaine-like amendments with teeth.” Joshua Davey, a student at Northwest College in Kirkland, Wash., won a $1,125 state “Promise Scholarship” in 1999. But when he declared a double major in pastoral ministries and business administration at the sectarian school, the school did not forward his name to the state to receive the scholarship because of the state’s Blaine amendment and a law against using scholarship money for theology studies. Davey challenged the state policy in court. The U.S. Court of Appeals for the 9th Circuit sided with Davey, finding that the state law discriminated on its face against religion. State Attorney General Christine Gregoire appealed the ruling, arguing that under Supreme Court precedents, it was proper for Washington to ban the use of state funds for religious instruction. “People who want to enter the ministry should pay their own way, not hand the bill to the taxpayer,” says Barry Lynn, executive director of Americans United for the Separation of Church and State. “This case could open the floodgates to massive taxpayer funding of religious institutions.” The case will be argued in the fall. The Supreme Court took several other actions on May 19. • The Court set aside what was said to be the largest personal-injury award ever upheld on appeal. At issue in Ford Motor Co. v. Romo, No. 02-1097, was a $290 million verdict levied against Ford for an SUV rollover crash that killed three members of a family. The case was returned to lower courts for re-evaluation in light of State Farm Mutual Automobile Insurance Co. v. Campbell, a recent ruling in which the high court imposed new limits on punitive damage awards. • The Court ruled in favor of a Maine prescription drug discount program that had been attacked by the pharmaceutical industry as an unconstitutional state regulation of interstate commerce. The splintered 6-3 opinion in Pharmaceutical Research and Manufacturers of America v. Walsh, No. 01-188, held that the Maine Rx program, which was enjoined before it ever took effect, could go forward. But the Court majority signed on to four different opinions, the net effect of which is to leave the Maine program subject to other challenges. It could be stopped by the actions of lower courts or the Department of Health and Human Services. “We cannot predict at this preliminary stage the ultimate fate of the Maine Rx program,” wrote Justice John Paul Stevens. The Bush administration opposed the program before the Court, arguing that it interfered with the federal Medicaid program. Under the program, drug companies were encouraged to discount their products for sale to all Maine residents, not just Medicaid recipients. Companies that did not go along would have to go through a case-by-case approval process to sell their drugs to Medicaid recipients. In addition to its commerce clause claim, the drug industry asserted that the Maine program illegally used the clout of the Medicaid program to win benefits for the general population, including those who are not poor. Industry lawyer Carter Phillips of Sidley Austin Brown & Wood said at oral argument that even Stephen King, the wealthy author from Maine, would benefit from the program. Bernie Horn of the Center for Policy Alternatives, which supports the program, says the pending Maine litigation had slowed efforts in 16 states to replicate the program, but the May 19 decision will “turn that around.” Maine had gotten the support of 29 states that filed a brief with the Court. But Phillips says the ruling was “as narrow a decision as the Court can write.” He says it will be hard for the industry to keep programs like Maine’s from taking effect, but “states will still have to be careful and would be well-advised to seek HHS approval beforehand.” Also on May 19, the three-judge panel that ruled on May 2 on the McCain-Feingold campaign finance law granted motions by defenders of the law to delay implementation of the ruling. The 2-1 decision allows the law to operate as if the panel had not ruled — even though it declared significant parts of the law unconstitutional. D.C. Circuit Judge Karen LeCraft Henderson and U.S. District Judge Colleen Kollar-Kotelly said they agreed to the stay because of their desire to “prevent the litigants from facing potentially three different regulatory regimes in a very short timespan, and the Court’s recognition of the divisions among the panel about the constitutionality of the challenged provisions.” The stay, in turn, can be appealed to the Supreme Court, which appears likely to consider the entire law on appeal in its fall term.

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