The Supreme Court of the United States made a very bad call Wednesday, in the case of a student from Washington state named Joshua Davey.
Davey was the valedictorian of his high-school class, whose grades and income qualified him to receive a merit and need-based state scholarship of $1,125 a year to attend a private college. When the Washington state authorities discovered that he intended to elect a double major in theology and business administration to prepare himself for the Christian ministry, they revoked his scholarship. They did so on the basis of a so-called Blaine Amendment in the state constitution that prohibited the use of public money to fund religious studies.
Both the student and the school were in all other respects qualified to receive the scholarship money. The only question raised by the state was Davey’s choice of undergraduate major. Had he majored solely in business administration, his scholarship would not have been revoked, even if he had taken a large number of theology courses.
Davey, who has since enrolled in Harvard Law School, concluded that he was the victim of religious discrimination and sued for the restoration of his scholarship. The U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with him in a 2-1 decision.
Davey’s case rests on an interpretation of the First Amendment of the Constitution, especially the clause mandating the “free exercise of religion.” The new American republic decided in its First Amendment not to imitate the nations of Europe, which had sponsored state-approved religious groups. For example, no one in 18th-century England could attend either Oxford or Cambridge who was not a member of the Church of England. Higher education was barred by a religious test.
The Blaine amendments, named after the 19th-century Republican politician, James G. Blaine, were intended as anti-Catholic measures designed to protect Protestantism as the unofficial but de facto majority religion of the United States. They achieved this end by blocking all use of public funds to support Catholic parochial schools. Meanwhile, the public schools were safely in the hands of Protestants, who guaranteed that the values of the mainline Protestant majority would be well represented.
The First Amendment was written to save Americans from discriminatory laws like the Blaine amendments, whose end result was the state sponsorship of one religious perspective – in this case mainline Protestant – at the expense of all competitors, especially Roman Catholic. Blaine represents a relapse into the old establishmentarian mentality of Europe.
The authors of the Washington state constitution were, of course, right to believe they were under no obligation to give any public money at any time to any private person, group, or institution of whatever kind. But when Washington state officials decided to offer a broad-based scholarship program for college undergraduates, they were obliged to do so as impartially as possible. That Washington state deprived Joshua Davey of his modest stipend on the basis of a state constitutional provision that is clearly discriminatory in its origin seems on the face of it to deny Davey’s free exercise of religion and so violate the free-exercise clause of the federal Constitution.
That at least is what the Ninth U.S. Circuit Court in San Francisco concluded. But the Supreme Court, evidently worried by the vision of religious organizations bellying up to the public trough, disagreed. It decided 7-2 for the state of Washington and against Joshua Davey. By doing so, it may have inadvertently eroded rather than strengthened the ideal of the religiously neutral state. Worse yet, it may have re-established the old and discredited principle that the state can require a religious test for college aid.
The public good is rarely advanced by the perpetuation of small injustices. Americans can surely find a way to draw a reasonable line between church and state without doing so at the expense of college students who are smart, religious and poor.
Too bad the Supreme Court failed to do so.
David C. Steinmetz is the Amos Ragan Kearns Professor in the Divinity School of Duke University in Durham, N.C. Distributed by Knight Ridder/Tribune Information Services.