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The Supreme Court last month unexpectedly reminded us that, under the Constitution, religion is still distinctive. Its Locke v. Davey opinion clarifies that the First Amendment does not require governments to finance religious activities the same way it funds secular ones. The idea that the Constitution requires equal treatment for the religious and nonreligious, often referred to as the “neutrality” principle, had been gaining ground in recent years. But in Locke, the Court reaffirmed that state constitutions may, consistent with the First Amendment, establish not a level playing field, but a wall — and the neutrality principle just ran into it. In Locke, the Court, by a 7-2 majority, held that the First Amendment does not require Washington state to finance the education of ministers as part of a state-funded college scholarship program. The case involved Washington’s Promise Scholars program, which awarded grants to qualified college students to use at any accredited college in the state, so long as the student did not major in “devotional theology.” The ban arose from Washington’s state constitution, which explicitly prohibits the use of public money for “religious worship, exercise, or instruction.” (Many states have comparable restrictions in their constitutions.) Joshua Davey received a Promise Scholarship, but the money was revoked when he chose to major in pastoral ministry. MANDATING RELIGIOUS FUNDING? Davey sued to recover the scholarship, arguing that Washington’s ban on using its funding for majors in devotional theology violated his rights under the free exercise clause. The Supreme Court held in Witters v. Washington Department of Services for the Blind (1986) that the establishment clause would permit the state to finance scholarships that could be used for the education of ministers. So Davey took the next step, contending that the free exercise clause mandated that Washington fund his devotional studies; the state’s refusal to do so, he claimed, amounted to religion-based discrimination. The district court held against Davey. But the U.S. Court of Appeals for the 9th Circuit embraced Davey’s argument. It held that the scholarship program’s restriction violated the First Amendment. When the Supreme Court agreed to hear the state’s appeal from that decision, Davey’s allies surged with optimism that the high court might go even farther than the 9th Circuit and effectively invalidate all state constitutional provisions that limit public support of religious activity beyond what the federal establishment clause requires. Davey’s backers had reason for hope. Thanks to a series of Court decisions in recent years, the neutrality principle had gained ground. The Court has insisted that religious groups and individuals be given access to governmental resources for free speech, such as public meeting rooms, on terms equal to that accorded the nonreligious. Religious organizations are now equally eligible to participate in government funding programs that have secular purposes, such as Cleveland’s school voucher program. The Court has ruled that religiously motivated individuals deserve no special exemptions from laws that burden everyone equally, such as a restriction on the use of peyote or other drugs. Davey’s arguments seemed to be a logical extension of such neutrality. But to the surprise of many, the Supreme Court reversed the 9th Circuit. Writing for the Court, Chief Justice William Rehnquist reasserted the constitutional distinctiveness of religion. He wrote: “Training for religious professions and training for secular professions are not fungible. . . . The subject of religion is one in which both the United States and state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions.” Drawing primarily from the history of church-state interaction since the founding, the Court held that distinctive treatment of religion does not create a presumption of anti-religious hostility. The Court found that Washington’s ban on scholarships for theology majors was a reasonable application of the state’s limit on funding religious instruction. NO GREAT SURPRISE In hindsight, the Court’s decision is no great surprise. Four votes came from Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens, justices who have consistently supported a relatively strong separation between church and state. They have lost recent battles over the interpretation of the establishment clause. But Locke gave them an opportunity to permit state laws, rather than the federal Constitution, to take the lead in separating church and state. The other three votes came from Justice Anthony Kennedy, Justice Sandra Day O’Connor, and Chief Justice Rehnquist, all of whom have consistently supported greater freedom of states from federal control. By giving greater deference to states’ restrictions on the funding of religion, Locke reaffirms the philosophy of federal-state relations that has become the hallmark of the Rehnquist Court. Moreover, the chief justice has persistently defended the right of government, both state and federal, to maintain discretion over spending choices, even when constitutional values are at stake. For example, the chief has joined in opinions that reaffirm the right of government to pay for childbirth but not abortion; and to hold back government funding for “indecent” art. In both of those cases, the government refused to pay for something that it could not prohibit outright. Whether or not it was a surprise, Locke should also serve as a reminder that the neutrality principle’s march has been more halting than its proponents generally acknowledge. In two crucial contexts, courts have held fast to the view that religion retains a measure of distinctiveness under the U.S. Constitution. First, the government remains largely forbidden to speak with a religious voice. The restriction on prayer in public schools has expanded in the past 20 years, and courts frequently order religious holiday displays and plaques of the Ten Commandments removed from public buildings. Later this month, when the Pledge of Allegiance case is argued, the Court will have an opportunity to decide just how far this limitation reaches. Second, the Court’s establishment clause jurisprudence continues to prohibit direct governmental support for religious activities, such as worship or faith-intensive substance abuse treatment, even though the government is perfectly free to finance virtually any nonreligious activities. The Constitution, in short, remains decidedly non-neutral where religion is concerned. The Court’s decision in Locke, however, offers little suggestion that an unyielding wall of separation is on the horizon. The decision imposes no new restrictions on government funding of religion. It simply allows states the latitude to impose somewhat greater restrictions on religious funding than the federal establishment clause requires. To enjoy the deference recognized by the Court in Locke, a state will need to show that its funding restriction arises from a concern similar to Washington’s ban on the funding of devotional theology. What else will meet that test? What about state restrictions on support for faith-based social services, or education vouchers redeemable at religious schools, or grants for the historic preservation of houses of worship? In Locke, the Court answered by looking to the history of church-state interaction. Unfortunately, history offers little help when the questions arise from the modern state’s expansive reach. A close look at the founding generation does not tell us much about historic preservation or substance abuse treatment programs. The Court’s analysis in Locke nonetheless reflects deep constitutional norms. The First Amendment, and the various state constitutional provisions that prohibit public support for places of worship or religious ministries, embody a core limit on the power of civil government to assert authority over things sacred. To reinforce that core limitation, the First Amendment bars compulsion and regulation of worship and religious instruction. Limiting the state’s financing of these experiences arises from the same set of constitutional concerns, and Locke recognizes that states may advance such concerns as part of their own constitutional policy. THE NEXT TEST The next big test of these constitutional principles will arise when a state creates a voucher program for education or substance abuse treatment, but excludes from that program providers whose service includes religious instruction or transformation. Had Joshua Davey prevailed, a lawsuit challenging the exclusion of faith-intensive providers would have been nearly impossible for the state to defend. Instead, the Court’s decision in Locke gives states significant freedom to fashion independent policies of church-state relations. A state defending such a lawsuit will now point to Locke and to its own constitution, and assert its obligation not to finance worship or religious education. Of course, one Supreme Court case will not eliminate the political debates concerning state funding of religious studies and social services. Supporters of such funding may yet prevail in state courts and legislatures. But, after Locke v. Davey, federal courts will not rely on the principle of neutrality to pre-empt the discussions. Ira C. Lupu and Robert W. Tuttle are professors of law at George Washington University in Washington, D.C. They also are co-directors of legal analysis for the Roundtable on Religion and Social Welfare Policy (www.religionandsocialpolicy.org).

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