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The Supreme Court ruled 7-2 last week that states are free to deny college scholarship money to students majoring in theology. The surprisingly lopsided decision in Locke v. Davey, No. 02-1315, slows the Court’s trend toward greater acceptance of public support for religious practices and was viewed as a setback to the school voucher movement. The ruling upheld the Promise Scholarship program in Washington state, which gives college scholarship money to needy high school students, so long as they do not use the money toward a theology degree. Two years ago, the Supreme Court encouraged voucher supporters by saying that vouchers could go toward tuition at religious schools without violating the First Amendment’s establishment clause. In Locke, advocates hoped the Court would take the next step by ruling that states, under the free exercise clause, had to include religious schools in voucher programs. But the Court dashed those hopes, instead giving states leeway to establish their own constitutional lines and declining to force states to support religious training. Chief Justice William Rehnquist, writing for the majority, said the “play in the joints” between the two religion clauses allows states — but does not require them — to support divinity studies. “The state’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars,” wrote Rehnquist. “If any room exists between the two Religion Clauses, it must be here.” Justices Antonin Scalia and Clarence Thomas dissented, with Scalia bitterly asking, “What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense?” But other critics of the ruling interpret the decision as a narrow one limited to divinity training at the college level, with little impact on the voucher issue. “There was a big upside for us in the case, and we did not get that,” says Richard Komer, who wrote a brief in the case for the Institute for Justice and other voucher supporters. Komer says the fight for vouchers will continue state-by-state, with the Feb. 25 decision playing a small role if any. Voucher opponents and advocates of church-state separation celebrated a rare victory from the Court. “This is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries,” says the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Americans clearly have a right to practice their religion, but they can’t demand that the government pay for it.” In framing his ruling, Rehnquist gave considerable deference to states in drawing constitutional lines, using language that could surface in other disputes, possibly including litigation over state decisions on marriage, which, like education, has long been the province of state law. States are entitled to treat religious training differently from other kinds of training in their funding decisions, Rehnquist stated. “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,” Rehnquist wrote. “Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, it is scarcely novel.” Rehnquist cited the “antiestablishment” movement from the nation’s early history that rejected public funding for the training of ministers. That tradition, Rehnquist said, demonstrated that Washington state’s exclusion is “not evidence of hostility toward religion.” By invoking that period of history, Rehnquist leapfrogged over a central part of the dispute in Locke. The case had been viewed as a key test of so-called Blaine amendments, enactments from the 19th and early 20th centuries that barred the use of government funds for religion in more than 30 states. Briefs in the case battled over whether the Blaine amendments were driven by anti-Roman Catholic sentiment and whether Washington state’s version was the inspiration for the scholarship program’s exclusion of theology majors. Rehnquist gave the issue short shrift in a footnote that accepted the assertion at oral argument by Washington Solicitor General Narda Pierce that another part of the state constitution — not her state’s Blaine amendment — was at issue in the case. “The Blaine Amendment’s history is simply not before us,” Rehnquist said. The Court’s sidestep was a disappointment, says Kevin Hasson, president of the Becket Fund for Religious Liberty, which has targeted state Blaine amendments around the country. But language in the decision, Hasson says, suggests that a majority of the Court thinks Blaine amendments were motivated by anti-religious sentiment, “so ultimately our battle will be won.”

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