Davey v Locke [part 2 of 2]

II

     The Court makes no serious attempt to defend the program's neutrality,
and instead identifies two features thought to render its discrimination less
offensive. The first is the lightness of Davey's burden. The Court offers no
authority for approving facial discrimination against religion simply because
its material consequences are not severe. I might understand such a test if
we were still in the business of reviewing facially neutral laws that merely
happen to burden some individual's religious exercise, but we are not. See
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872,
885 (1990). Discrimination on the face of a statute is something else. The
indignity of being singled out for special burdens on the basis of one's
religious calling is so profound that the concrete harm produced can never be
dismissed as insubstantial. The Court has not required proof of "substantial"
concrete harm with other forms of discrimination, see, e.g., Brown v. Board
of Education, 347 U. S. 483, 493-495 (1954); cf. Craig v. Boren, 429 U. S.
190 (1976), and it should not do so here.

     Even if there were some threshold quantum-of-harm requirement, surely
Davey has satisfied it. The First Amendment, after all, guarantees free
exercise of religion, and when the State exacts a financial penalty of almost
$3,000 for religious exercise--whether by tax or by forfeiture of an
otherwise available benefit--religious practice is anything but free. The
Court's only response is that "Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution from where
they are studying devotional theology." Ante, at 7, n. 4. But part of what
makes a Promise Scholarship attractive is that the recipient can apply it to
his preferred course of study at his preferred accredited institution. That
is part of the "benefit" the State confers. The Court distinguishes our
precedents only by swapping the benefit to which Davey was actually entitled
(a scholarship for his chosen course of study) with another, less valuable
one (a scholarship for any course of study but his chosen one). On such
reasoning, any facially discriminatory benefits program can be redeemed
simply by redefining what it guarantees.

     The other reason the Court thinks this particular facial discrimination
less offensive is that the scholarship program was not motivated by animus
toward religion. The Court does not explain why the legislature's motive
matters, and I fail to see why it should. If a State deprives a citizen of
trial by jury or passes an ex post facto law, we do not pause to investigate
whether it was actually trying to accomplish the evil the Constitution
prohibits. It is sufficient that the citizen's rights have been infringed.
"[It does not] matter that a legislature consists entirely of the
purehearted, if the law it enacts in fact singles out a religious practice
for special burdens." Lukumi, 508 U. S., at 559 (Scalia, J., concurring in
part and concurring in judgment).

     The Court has not approached other forms of discrimination this way.
When we declared racial segregation unconstitutional, we did not ask whether
the State had originally adopted the regime, not out of "animus" against
blacks, but because of a well-meaning but misguided belief that the races
would be better off apart. It was sufficient to note the current effect of
segregation on racial minorities. See Brown, supra, at 493-495. Similarly,
the Court does not excuse statutes that facially discriminate against women
just because they are the vestigial product of a well-intentioned view of
women's appropriate social role. See, e.g., United States v. Virginia, 518
U. S. 515, 549-551 (1996); Adkins v. Children's Hospital of D. C., 261 U. S.
525, 552-553 (1923). We do sometimes look to legislative intent to smoke out
more subtle instances of discrimination, but we do so as a supplement to the
core guarantee of facially equal treatment, not as a replacement for it. See
Hunt v. Cromartie, 526 U. S. 541, 546 (1999).

     There is no need to rely on analogies, however, because we have rejected
the Court's methodology in this very context. In McDaniel v. Paty, 435 U. S.
618 (1978), we considered a Tennessee statute that disqualified clergy from
participation in the state constitutional convention. That statute, like the
one here, was based upon a state constitutional provision--a clause in the
1796 Tennessee Constitution that disqualified clergy from sitting in the
legislature. Id., at 621, and n. 1 (plurality opinion). The State defended
the statute as an attempt to be faithful to its constitutional separation of
church and state, and we accepted that claimed benevolent purpose as bona
fide. See id., at 628. Nonetheless, because it did not justify facial
discrimination against religion, we invalidated the restriction. Id., at
629.3

     It may be that Washington's original purpose in excluding the clergy
from public benefits was benign, and the same might be true of its purpose in
maintaining the exclusion today. But those singled out for disfavor can be
forgiven for suspecting more invidious forces at work. Let there be no doubt:
This case is about discrimination against a religious minority. Most citizens
of this country identify themselves as professing some religious belief, but
the State's policy poses no obstacle to practitioners of only a tepid, civic
version of faith. Those the statutory exclusion actually affects--those whose
belief in their religion is so strong that they dedicate their study and
their lives to its ministry--are a far narrower set. One need not delve too
far into modern popular culture to perceive a trendy disdain for deep
religious conviction. In an era when the Court is so quick to come to the aid
of other disfavored groups, see, e.g., Romer v. Evans, 517 U. S. 620, 635
(1996), its indifference in this case, which involves a form of
discrimination to which the Constitution actually speaks, is exceptional.


* * *

     Today's holding is limited to training the clergy, but its logic is
readily extendible, and there are plenty of directions to go. What next? Will
we deny priests and nuns their prescription-drug benefits on the ground that
taxpayers' freedom of conscience forbids medicating the clergy at public
expense? This may seem fanciful, but recall that France has proposed banning
religious attire from schools, invoking interests in secularism no less
benign than those the Court embraces today. See Sciolino, Chirac Backs Law To
Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17. When
the public's freedom of conscience is invoked to justify denial of equal
treatment, benevolent motives shade into indifference and ultimately into
repression. Having accepted the justification in this case, the Court is less
well equipped to fend it off in the future. I respectfully dissent.

------------------------------------------------------------------------


GARY LOCKE, GOVERNOR OF WASHINGTON, et al.,
PETITIONERS v. JOSHUA DAVEY


on writ of certiorari to the united states court of appeals for the ninth
circuit

[February 25, 2004]

------------------------------------------------------------------------

     Justice Thomas, dissenting.

     Because the parties agree that a "degree in theology" means a degree
that is "devotional in nature or designed to induce religious faith," Brief
for Petitioners 6; Brief for Respondent 8, I assume that this is so for
purposes of deciding this case. With this understanding, I join Justice
Scalia's dissenting opinion. I write separately to note that, in my view, the
study of theology does not necessarily implicate religious devotion or faith.
The contested statute denies Promise Scholarships to students who pursue "a
degree in theology." See Wash. Admin. Code §250-80-020(12)(g) (2003)
(defining an " 'eligible student,' " in part, as one who "[i]s not pursuing a
degree in theology"); Wash. Rev. Code Ann. §28B.10.814 (West 1997) ("No aid
shall be awarded to any student who is pursuing a degree in theology"). But
the statute itself does not define "theology." And the usual definition of
the term "theology" is not limited to devotional studies. "Theology" is
defined as "[t]he study of the nature of God and religious truth" and the
"rational inquiry into religious questions." American Heritage Dictionary
1794 (4th ed. 2000). See also Webster's Ninth New Collegiate Dictionary 1223
(1991) ("the study of religious faith, practice, and experience" and "the
study of God and his relation to the world"). These definitions include the
study of theology from a secular perspective as well as from a religious one.

     Assuming that the State denies Promise Scholarships only to students who
pursue a degree in devotional theology, I believe that Justice Scalia's
application of our precedents is correct. Because neither party contests the
validity of these precedents, I join Justice Scalia's dissent.

------------------------------------------------------------------------

FOOTNOTES
Footnote 1

 The State does not require students to certify anything or sign any forms.
App. 86, 89.

Footnote 2

 The relevant provision of the Washington Constitution, Art. I, §11, states:

     "Religious Freedom. Absolute freedom of conscience in all matters of
religious sentiment, belief and worship, shall be guaranteed to every
individual, and no one shall be molested or disturbed in person or property
on account of religion; but the liberty of conscience hereby secured shall
not be so construed as to excuse acts of licentiousness or justify practices
inconsistent with the peace and safety of the state. No public money or
property shall be appropriated for or applied to any religious worship,
exercise or instruction, or the support of any religious establishment."

Footnote 3

 Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.
S. 819 (1995), contends that the Promise Scholarship Program is an
unconstitutional viewpoint restriction on speech. But the Promise Scholarship
Program is not a forum for speech. The purpose of the Promise Scholarship
Program is to assist students from low- and middle-income families with the
cost of postsecondary education, not to " 'encourage a diversity of views
from private speakers.' " United States v. American Library Assn., Inc., 539
U. S. 194, 206 (2003) (plurality opinion) (quoting Rosenberger, supra, at
834). Our cases dealing with speech forums are simply inapplicable. See
American Library Assn., supra; Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc., 473 U. S. 788, 805 (1985).

     Davey also argues that the Equal Protection Clause protects against
discrimination on the basis of religion. Because we hold, infra, at ___, that
the program is not a violation of the Free Exercise Clause, however, we apply
rational-basis scrutiny to his equal protection claims. Johnson v. Robison,
415 U. S. 361, 375, n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618
(1978) (reviewing religious discrimination claim under the Free Exercise
Clause). For the reasons stated herein, the program passes such review.

Footnote 4

 Promise Scholars may still use their scholarship to pursue a secular degree
at a different institution from where they are studying devotional theology.

Footnote 5

 Justice Scalia notes that the State's "philosophical preference" to protect
individual conscience is potentially without limit, see post, at 5; however,
the only interest at issue here is the State's interest in not funding the
religious training of clergy. Nothing in our opinion suggests that the State
may justify any interest that its "philosophical preference" commands.

Footnote 6

 Perhaps the most famous example of public backlash is the defeat of "A Bill
Establishing A Provision for Teachers of the Christian Religion" in the
Virginia Legislature. The bill sought to assess a tax for "Christian
teachers," reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 74
(1947) (supplemental appendix to dissent of Rutledge, J.); see also
Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was
to support "clergy in the performance of their function of teaching
religion"), and was rejected after a public outcry. In its stead, the
"Virginia Bill for Religious Liberty," which was originally written by Thomas
Jefferson, was enacted. This bill guaranteed "that no man shall be compelled
to frequent or support any religious worship, place, or ministry whatsoever."
A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas
Jefferson 546 (J. Boyd ed. 1950).

Footnote 7

 The amici contend that Washington's Constitution was born of religious
bigotry because it contains a so-called "Blaine Amendment," which has been
linked with anti-Catholicism. See Brief for United States as Amicus Curiae
23, n. 5; Brief for Becket Fund for Religious Liberty et al. as Amici Curiae;
see also Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). As
the State notes and Davey does not dispute, however, the provision in
question is not a Blaine Amendment. Tr. of Oral Arg. 5; see Reply Brief for
Petitioners 6-7. The enabling Act of 1889, which authorized the drafting of
the Washington Constitution, required the state constitution to include a
provision "for the establishment and maintenance of systems of public
schools, which shall be ... free from sectarian control." Act of Feb. 22,
1889, ch. 180, §4, ¶ ;Fourth, 25 Stat. 676. This provision was included in
Article IX, §4, of the Washington Constitution ("All schools maintained and
supported wholly or in part by the public funds shall be forever free from
sectarian control or influence"), and is not at issue in this case. Neither
Davey nor amici have established a credible connection between the Blaine
Amendment and Article I, §11, the relevant constitutional provision.
Accordingly, the Blaine Amendment's history is simply not before us.

Footnote 8

 Washington has also been solicitous in ensuring that its constitution is not
hostile towards religion, see State ex rel. Gallwey v. Grimm, 146 Wash. 2d
445, 470, 48 P. 3d 274, 286 (2002) ("[I]t was never the intention that our
constitution should be construed in any manner indicating any hostility
toward religion." (citation omitted)), and at least in some respects, its
constitution provides greater protection of religious liberties than the Free
Exercise Clause, see First Covenant Church of Seattle v. Seattle, 120
Wash. 2d 203, 223-229, 840 P. 2d 174, 186-188 (1992) (rejecting standard in
Employment Div., Dept. of Human Resources of Ore. v Smith, 494 U. S. 872
(1990), in favor of more protective rule); Munns v. Martin, 131 Wash. 2d 192,
201, 930 P. 2d 318, 322 (1997) (holding a city ordinance that imposed
controls on demolition of historic structures inapplicable to the Catholic
Church's plan to demolish an old school building and build a new pastoral
center because the facilities are intimately associated with the church's
religious mission). We have found nothing in Washington's overall approach
that indicates it "single[s] out" anyone "for special burdens on the basis of
.... religious callings" as Justice Scalia contends, post, at 6.

Footnote 9

 The State notes that it is an open question as to whether the Washington
Constitution prohibits nontheology majors from taking devotional theology
courses. At this point, however, the Program guidelines only exclude students
who are pursuing a theology degree. Wash. Admin. Code §250-80-020(12)(g)
(2003).

Footnote 10

 Although we have sometimes characterized the Establishment Clause as
prohibiting the State from "disproving of a particular religion or religion
in general," Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532
(1993) (citing cases), for the reasons noted supra, the State has not
impermissibly done so here.

FOOTNOTES
Footnote 1

 Equally misplaced is the Court's reliance on founding-era state
constitutional provisions that prohibited the use of tax funds to support the
ministry. Ante, at 9-10. There is no doubt what these provisions were
directed against: measures of the sort discussed earlier in text, singling
out the clergy for public support. See supra, at 2-3. The Court offers no
historical support for the proposition that they were meant to exclude
clergymen from general benefits available to all citizens. In choosing to
interpret them in that fashion, the Court needlessly gives them a meaning
that not only is contrary to our Religion Clause jurisprudence, but has no
logical stopping-point short of the absurd. No State with such a
constitutional provision has, so far as I know, ever prohibited the hiring of
public employees who use their salary to conduct ministries, or excluded
ministers from generally available disability or unemployment benefits. Since
the Court cannot identify any instance in which these provisions were applied
in such a discriminatory fashion, its appeal to their "plain text," ante, at
9, adds nothing whatever to the "plain text" of Washington's own
Constitution.

Footnote 2

 The Court argues that those pursuing theology majors are not comparable to
other Promise Scholars because "training for religious professions and
training for secular professions are not fungible." Ante, at 7. That may well
be, but all it proves is that the State has a rational basis for treating
religion differently. If that is all the Court requires, its holding is
contrary not only to precedent, see supra, at 1, but to common sense. If
religious discrimination required only a rational basis, the Free Exercise
Clause would impose no constraints other than those the Constitution already
imposes on all government action. The question is not whether theology majors
are different, but whether the differences are substantial enough to justify
a discriminatory financial penalty that the State inflicts on no other major.
Plainly they are not.

     Equally unpersuasive is the Court's argument that the State may
discriminate against theology majors in distributing public benefits because
the Establishment Clause and its state counterparts are themselves
discriminatory. See ante, at 7-8, 9-10. The Court's premise is true at some
level of abstraction--the Establishment Clause discriminates against religion
by singling it out as the one thing a State may not establish. All this
proves is that a State has a compelling interest in not committing actual
Establishment Clause violations. Cf. Widmar v. Vincent, 454 U. S. 263, 271
(1981). We have never inferred from this principle that a State has a
constitutionally sufficient interest in discriminating against religion in
whatever other context it pleases, so long as it claims some connection,
however attenuated, to establishment concerns.

Footnote 3

 McDaniel had no opinion for the Court, but nothing in the separate opinions
suggests disagreement over the issues relevant here. Cf. 435 U. S., at 636,
n. 9 (Brennan, J., concurring in judgment) (noting dispute over statute's
purpose but deeming it irrelevant).