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The Supreme Court struggled Tuesday over a key church-state case challenging a Washington state law that excludes theology majors from eligibility for state scholarships. While justices seemed troubled by the exclusion, many appeared equally concerned about striking down the law in a way that could force states to fund a broad range of religious activities. “The implications of this case are breathtaking,” said Justice Stephen Breyer during the hour-long arguments, suggesting that if the Washington law is found unconstitutional, all government programs from schools to social welfare benefits “must fund all religions.” Arguments in Locke v. Davey drew a large crowd to the Supreme Court. Among those in attendance was litigant Joshua Davey, who first sued the state after being told in 1999 that his plan to major in pastoral studies at Northwest College made him ineligible for a $1,125 scholarship. Davey, 23, is now a first-year student at Harvard Law School. The arguments featured a torrent of questions from the bench, making it virtually impossible for any of the three advocates to make an argument cleanly. “My notes could have been lost in the wind, and it wouldn’t have mattered,” said Davey’s lawyer Jay Sekulow afterward. “I had not one chance to get to a thematic point I planned to make.” Sekulow, chief counsel of the American Center for Law and Justice, argued that Washington had improperly “targeted religion” for unfavorable treatment. Sekulow said the session left him optimistic that the ruling by the 9th U.S. Circuit Court of Appeals striking down the Washington law will be upheld. But others in the audience were less certain, suggesting that Justice Sandra Day O’Connor, a key swing vote in the case, might have been scared off by the seemingly broad implications of the case. O’Connor repeatedly compared the Washington state law to school voucher programs and seemed worried that a ruling in Davey’s favor would make it mandatory — not optional — for states to include parochial schools in voucher programs. The Court in 2002 said tax dollars in the form of vouchers could go toward tuition at religious schools, but O’Connor on Tuesday wondered aloud whether states “must … fund all private and religious schools” as a result of the case now before the Court. Neither Sekulow nor Solicitor General Theodore Olson, who also argued against the Washington law, calmed the justices’ fears entirely, both acknowledging that a decision in the Davey case could significantly impact voucher programs. But Olson did assure the Court that it could rule narrowly, telling Breyer the case is “not as far-reaching as the sense of doom your tone suggests.” Olson described the Washington law as “the plainest form of religious discrimination,” sending out a clear message that religious study is “disfavored and discouraged.” Reflecting her doubts about the case, O’Connor quickly replied that refusal to fund religious activities was “as old as the country itself.” The case reflected the Court’s long-running debate over how to ease the tension between the establishment clause and the free exercise clause of the First Amendment. In trying to avoid establishment clause problems by choosing not to subsidize the education of future priests and ministers, did Washington necessarily violate the equally protected right of Davey to exercise his religion free of government restraint? In Davey’s case, an overlay of state constitutional law makes the balance even trickier. When Washington became a state in 1889, it was required to adopt a constitutional provision that strictly barred the use of any public funds for religious exercise or instruction. It was an outgrowth of the so-called Blaine Amendment movement that some say was motivated in part by 19th-century nativist and anti-Catholic sentiment nationwide. Washington’s solicitor general, Narda Pierce, quickly tried to dispel that historical image, telling the justices that there was “no evidence in Washington of any anti-Catholic motive” in the constitutional amendment that spawned the scholarship provision excluding theology majors. Several justices grilled Pierce about the rationale for excluding theology majors and no one else, noting that nontheology majors could take the same courses and still be eligible for state scholarships. Justice Breyer called it a “very crude effort” to identify those who plan to become ministers, and Justice David Souter called it a “bad job of line-drawing.” Justice Anthony Kennedy, viewed as another potential swing vote in the case, seemed particularly critical of the Washington law. He repeatedly asked what the state’s interest was in singling out theology majors. At one point he also said the law forced students to “surrender their religious beliefs,” which he said was a “very serious violation of religious conscience.” Pierce said excluding theology majors was a better way to accomplish the state’s goal of not sponsoring religion than a more entangling “class by class determination” of students’ course choices. She also tried to appeal to the Court’s respect for states’ rights. Under numerous Court precedents, she said, states had been given “wide latitude to make their own funding choices.”

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