WASHINGTON -- Supreme Court justices suggested Tuesday that state officials could refuse to award scholarships to students majoring in theology, despite claims that excluding these students amounted to discrimination based solely on their religious views.
During a lively hour-long session that showcased the court's deep divisions on issues regarding the separation of church and state, the court's more liberal justices clearly were sympathetic to arguments that taxpayers should not have to subsidize a student's religious training.
Their concerns about the far-ranging implications of a ruling forcing states to include those students in scholarship programs seemed to strike a chord with moderate Justice Sandra Day O'Connor, who generally is considered the key vote in controversial church-state cases that typically are decided 5-4.
O'Connor appeared deeply troubled that a decision ordering the state to fund religious scholarships would have far-ranging implications on school voucher programs and call into question dozens of state constitutions that erect a high barrier between church and state.
"What you're urging here would have a major impact, would it not, on voucher programs?" O'Connor asked a lawyer for a theology student challenging his exclusion from a scholarship program in Washington state.
Attorney Jay Sekulow, chief counsel of the American Center for Law and Justice, conceded that a decision for the student could force states to include religious schools in their private school voucher programs if they didn't already do so.
O'Connor also expressed concern that a ruling for the student would disrupt long-held beliefs on government funding of religion.
"There's been a couple of centuries of practice in this country of not funding religious instruction by tax money," she told a lawyer for the Bush administration, which is supporting the student's case. "That's as old as the country itself, isn't it?"
Her more liberal colleagues, sensing her concern and seeking to draw her to their side, repeatedly emphasized that the implications would be "breathtaking"--a word used by Justice Stephen Breyer--if the court ruled for the student.
"It would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments ... that they cannot be purely secular, that they must fund all religions who want to do the same thing," Breyer told Solicitor General Theodore Olson, arguing on behalf of the administration.
Olson said it "was not a major step at all" for the court to hold that those funding programs "cannot distinguish and not discriminate" based on religion.
Justice Anthony Kennedy, another moderate, suggested that the court write a narrow opinion in which the student would prevail but the impact of the case would be limited. O'Connor did not appear convinced.
The case addresses whether excluding theology students from aid programs penalizes them because of their religious beliefs, in violation of the U.S. Constitution's 1st Amendment. A California-based federal appeals court ruled that Washington state officials had discriminated against theology student Joshua Davey when they revoked his state-funded scholarship just two months after he enrolled in a Christian college near Seattle.
The appeals court agreed with Davey that singling him out and denying him scholarship money because of his religious major violated his ability to freely exercise his religious beliefs, as guaranteed by the 1st Amendment.
In urging the Supreme Court to reverse that ruling, Washington officials insist that they weren't discriminating against religious students, but instead complying with their state constitution. Written in 1889, it prohibits the state from using taxpayer money for religious instruction.
Narda Pierce, Washington's solicitor general, told the justices that the state constitution limits the involvement of government in religion to "preserve freedom of conscience for all its citizens in matters of religious faith and belief."
"One of the underlying values of our freedom of religion clauses at the federal and state level is not to require people to support the promotion of a doctrine or religious belief with which they may not agree," Pierce said.
But several justices took issue with her position, notably Justice Antonin Scalia, who suggested that the state constitutional provision must give way to the 1st Amendment, which prohibits state and federal governments from interfering with a person's ability to freely exercise his religious beliefs.
But the more liberal justices said states were entitled to treat religion differently and that Washington officials were not violating Davey's rights.
"The state has decided it does not want to fund the training of clergymen," said Justice Ruth Bader Ginsburg.
Justice John Paul Stevens questioned how state officials, in denying Davey the scholarship, had hampered his ability to practice his religion.
"Can't he practice his religion just as he always would and become a minister?" Stevens asked Olson. "He just has to pay for it."
Responded Olson: "He can practice, but he practices it at a price."
"He practices it without a subsidy," Stevens shot back.
Said Olson: "He practices it without the same subsidy that is made available to every other citizen except someone who wants to study to be a minister."
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