澳门跑狗论坛

The U.S. Supreme Court once again appeared sharply divided as it heard arguments last week in a church-state dispute that could ultimately yield a ruling that would require鈥攏ot merely permit鈥攑ublicly financed school voucher programs to include religious as well as secular schools.

Eighteen months after the high court鈥檚 landmark 5-4 ruling upholding Cleveland鈥檚 school voucher program, the justices pointedly questioned lawyers on both sides of an appeal concerning a college-scholarship program in Washington state that excludes students who major in theology.

Supporters and opponents of publicly financed tuition aid for students in private schools are closely watching Locke v. Davey (Case No. 02- 1315), and the justices鈥� questions during the Dec. 2 oral arguments made clear that their interest is not misplaced. The case involves Joshua Davey, a college student who contends that Washington state鈥檚 policy of no aid to theology majors violates his First Amendment right to free exercise of religion.

Justice Sandra Day O鈥機onnor, who is often the swing vote in important church-state cases, made especially clear that the case鈥檚 implications for the voucher issue were of paramount concern for her. Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, and David H. Souter also expressed keen interest in how the outcome would reverberate in elementary and secondary education.

鈥淲hat you鈥檙e urging here would have a major impact, would it not, on voucher programs?鈥� Justice O鈥機onnor asked Jay A. Sekulow, a Washington lawyer representing Mr. Davey.

鈥淲ell, it would,鈥� he replied.

The upshot of a decision siding with Mr. Davey, several justices suggested, would be to say to states: If you choose to offer vouchers for use at secular private schools but not at religious schools, then you violate the U.S. Constitution鈥檚 free-exercise-of-religion clause.

But Justice Kennedy鈥� who was in the majority in last year鈥檚 Zelman v. Simmons-Harris voucher decision鈥攕uggested that the court could rule in Mr. Davey鈥檚 favor on grounds that would avoid another sweeping ruling on vouchers.

鈥淎s I understand your answer to Justice O鈥機onnor, if we decide in your favor, we necessarily commit ourselves to the proposition that an elementary and secondary school voucher program must include religious schools if it includes any other private schools,鈥� Justice Kennedy told Mr. Sekulow. 鈥淚t seems to me that your case can be resolved on a much narrower issue than that.鈥�

A Clash of Traditions

Joshua Davey was denied scholarship aid because he majored in theology. 鈥擯hotograph by Allison Shelley/澳门跑狗论坛

Washington state鈥檚 law against aid to theology majors stems from a provision in its constitution that bars public money from being 鈥渁ppropriated for or applied to any religious worship, exercise, or instruction.鈥� A separate but related provision in the state鈥檚 114-year-old constitution requires that schools supported 鈥渨holly or in part鈥� by public funds 鈥渟hall be forever free from sectarian control or influence.鈥�

Some 36 other states also have constitutional provisions that block aid to religious schools, and opponents and supporters alike see such clauses as major obstacles to the spread of vouchers.

While voucher opponents view such provisions as valid efforts by states to require strict separation of church and state, supporters portray them as illegitimate relics of 19th-century anti- Catholicism. (鈥淐ourt Is Flooded With Briefs on Implications for Vouchers,鈥� this issue.)

Washington鈥檚 constitutional ban on financing religious instruction was not the product of anti-Catholic sentiment, state Solicitor General Narda Pierce told the high court. Instead, she said, it is part of a long American tradition of protecting taxpayers from effectively being forced to subsidize faiths to which they do not adhere.

鈥淲ashington鈥檚 interest expressed in 1889 was to protect the freedom of conscience of all its citizens,鈥� Ms. Pierce told the justices.

Justice O鈥機onnor picked up that theme in questioning U.S. Solicitor General Theodore B. Olson, who presented the Bush administration鈥檚 view that Washington鈥檚 policy violates the First Amendment.

鈥淭here鈥檚 been a couple of centuries of practice in this country of not funding religious instruction by tax money,鈥� she said. 鈥淭hat鈥檚 as old as the country itself, isn鈥檛 it?鈥�

Replied Mr. Olson: 鈥淲ell, yes, it is. But there is the other tradition that is as old as the country itself ... the free-exercise component of the religion clauses, which this court has said repeatedly mandates neutrality.鈥�

Opponents of vouchers cited Justice O鈥機onnor鈥檚 questioning as grounds for hope that the court would reverse last year鈥檚 2-1 ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that Washington鈥檚 policy infringed on Mr. Davey鈥檚 right to the free exercise of his religion.

Among the states with active voucher programs, Florida, Ohio, and Wisconsin allow students to use them at religious schools, while Maine and Vermont do not. A Colorado voucher program approved last spring is also open to religious schools, but the program was blocked last week by a state judge. (鈥淐olo. Judge Puts State鈥檚 Vouchers on Hold,鈥� this issue.)

鈥淚 think Justice O鈥機onnor is very troubled by the notion that states would have to include religious institutions in these kinds of programs,鈥� said Julie Underwood, the general counsel of the National School Boards Association.

But Mr. Sekulow said he did not necessarily view the justices鈥� focus on vouchers as boding ill for Mr. Davey.

鈥淭he ramifications are very significant, and we don鈥檛 run from that,鈥� he said. 鈥淭hat鈥檚 one of the reasons the justices decided to take the case.鈥�

鈥楻eligious Conscience鈥�

The four dissenters in the Cleveland voucher ruling鈥擩ustices Souter, Ginsburg, John Paul Stevens, and Stephen G. Breyer鈥攙oiced varying degrees of sympathy last week for Washington state鈥檚 defense of its Promise Scholarship program.

Justice Souter said the state might have done 鈥渁 bad job of line drawing鈥� when it disqualified theology majors from receiving aid available to other students who could be enrolled in identical faith-oriented courses at the same institutions. The scholarships are available to students at in-state colleges with good high school grades but modest family incomes.

Yet such concerns are beside the point, Justice Souter suggested, in examining whether states can decide not to subsidize instruction they deem to be promoting religious faith, an issue that he said is of fundamental importance in the voucher debate.

Pursuing his point that the case turned on questions that do not necessarily extend to the voucher issue, Justice Kennedy said he saw no justification for a policy that forced a student to choose between accepting a state scholarship and openly declaring a theology major. That situation, he said, creates a 鈥渟evere violation of religious conscience鈥� and thus could be grounds for a ruling that would not directly implicate vouchers.

But Justice Souter insisted that a ruling for Mr. Davey would hand voucher supporters a potent argument against any program that excluded religious schools: 鈥渢hat the religious student must somehow surrender a conscientious belief鈥� by forgoing a religious school in favor of 鈥渁 nonreligious private school or a public one to get the voucher.鈥�

One of the court鈥檚 staunchest critics of strict church- state separation, Justice Antonin Scalia, avoided direct references to the K- 12 context during the argument.

He suggested that he views the state鈥檚 policy as singling out religious people for ill treatment in a manner no different than denying aid to students of only particular faiths, such as Judaism.

Chief Justice Rehnquist, who wrote the majority opinion in the Zelman case, pointed out that states are not required to offer vouchers for private schooling. In Zelman, he concluded that the Cleveland voucher program did not run afoul of the constitutional ban on a government establishment of religion because public funding was given to individuals who had a choice among religious and secular schools.

鈥淚t鈥檚 only when it starts funding some private schools that you get into the religious question,鈥� he said last week.

A decision in the case is expected by next spring or early summer.