http://www.nationalreview.com/comment/dokupil200402270920.asp
Open Door to Religious Discrimination
The Supreme's Locke ruling.
By Susanna Dokupil
Pop Quiz: Which of the following is constitutional?
(a) A city council passes ordinances designed to prohibit religious animal
sacrifices.
(b) A state creates a college scholarship program designed to exclude
students who plan to study theology.
According to the Supreme Court opinion in Locke v. Davey, the answer is (b).
In a 7 to 2 opinion, it upheld Washington State's Promise Scholarship
program, which awards scholarships to graduating high-school seniors based
on class rank, standardized-test scores, and family income. These students
must enroll in an accredited college within Washington State. But, although
a scholarship recipient may use the money to attend a religious college, he
may not use it to pursue a religious degree. Joshua Davey, for instance,
earned such a Promise Scholarship, but he could not use it because he
intended to train for the ministry.
In recent years, the Court has repeatedly held that where the government
extends a benefit on neutral criteria, that benefit may go to religion as a
result of independent private choices without violating the Establishment
Clause. Indeed, it held in [Witters v. Washington Department of Services for
the Blind (1986) that the State may allow aid awarded on neutral criteria to
sponsor theological study. But in Locke v. Davey, the Court refused to hold
that the Free Exercise Clause required such sponsorship. Instead, it held
that Washington State could refuse scholarships to students pursuing
religious degrees in the interest of protecting its citizens against an
establishment of religion.
Washington State's program wrongfully discriminates against religion.
Everyone meeting the neutral criteria receives a scholarship except for
those pursuing a degree in theology. A previous Supreme Court opinion,
Church of Lukumi Babalu Aye v. Hialeah (1993), held that the city of
Hialeah, Florida, wrongfully prohibited ritualistic animal slaughter because
it singled out religion for disfavor.
But Chief Justice Rehnquist, writing for the court, found that Washington
State's scholarship program is acceptable because disfavors religion less
than the statute in Hialeah. It imposes no criminal or civil penalties on
religious exercise, nor does it require students to choose between their
religious beliefs and a government benefit. (One questions how this is
possible, given that a calling to the ministry is essentially a personal
religious belief.) Justice Scalia, in dissent, rightly explains that because
the state funds training for all professions, it may not carve out a special
exception for religious professions.
The majority opinion found it significant that many states around the time
of the Founding prohibited the use of tax dollars to support the ministry.
Certainly, it should be unconstitutional for states to pay pastors'
salaries. But here, Washington State is excluding a certain group of
students from money they would otherwise receive - solely because they want
to study theology.
Education is distinct from worship. Washington State has a broad funding
program for education, not only through the Promise Scholarships, but
through its public-school system. To the extent that the State's education
dollars here would support religion is only owing to the individual choices
of the students, not the state's.
Moreover, to distinguish between a religious college and a religious major
exalts form over function. At Joshua Davey's alma mater, Northwest College,
which is affiliated with the Assembly of God Church, every student must
profess "a personal commitment to Jesus Christ as Lord and Savior." In many
religious colleges, every class is taught from a religious perspective, so
it makes little sense to say Washington State may exclude just that small
fraction of students who wish to pursue a ministerial calling.
The Supreme Court has blessed Washington State's exclusion of a small slice
of religion from a public benefit. Still more disconcerting is the principle
that some discrimination against religion may be acceptable in order to
guard against a violation of the Establishment Clause. Could Washington
State also exclude pastors from having library cards to ensure that public
money does not sponsor sermon preparation? Or, could it redraw bus routes
specifically to avoid churches?
Locke v. Davey erodes the principle of neutrality toward religion. The
government should not be able to sponsor professional training of everyone
except ministers any more than it may allow all animal slaughters except
religious sacrifices. But, the Court has merely allowed states a freer hand
in enacting measures that may discriminate against religion - it has not
mandated it. To the extent the Locke ruling may have pernicious effects, the
best protection against them is the vigilance of each state's citizens.
--
Atheism teaches that there is no God, hence no God-given rights. That
ideology coupled with a system that believed in the superiority of the state
at the expense of the individual was murderously synergistic.
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