Justices weigh scholarships for religious schools

Wednesday, December 3, 2003

WASHINGTON -- The Supreme Court justices considered a church-state case involving a college student who lost his taxpayer-funded scholarship because he chose to major in theology.

The Bush administration's top Supreme Court lawyer argued it was improper for Joshua Davey to lose the Promise Scholarship he was awarded by the state of Washington. The scholarship was rescinded after Davey declared his major because state officials deemed it an unconstitutional blending of church and state.

"It's treating religion differently from nonreligion," Justice Antonin Scalia told Washington's attorney, Narda Pierce. "You can study anything you like and get it subsidized, except religion. Why does that not violate the principle of neutrality?"

Several justices seemed skeptical, suggesting that the country has long had a hands-off policy when it comes to the training of clergy and that states have considerable leeway in spending money.

Justice Stephen Breyer told Olson that the Supreme Court could force a vast reordering of government spending if it sides with Davey.

A broad ruling that Davey had a constitutional right to the scholarship money would mean government would have to be careful not to exclude religious programs or organizations in many areas, Breyer said.

"The implications of this case are breathtaking," he said.

That "sense of doom" is unwarranted, Olson assured Breyer.

Davey qualified for the scholarship along with students studying other fields. Only his chosen field was excluded, his lawyers said. Davey's backers say that violated the Constitution's guarantee that people may worship freely.

Davey continued his schooling without the financial aid. So, Justice John Paul Stevens asked, how did loss of the money prevent Davey from practicing his religion?

"He practices it at a price," Olson replied.

"He practices it without a subsidy," Stevens shot back.

The Davey case is a follow-up to the court's major ruling last year that allowed parents to use public tax money to send their children to religious schools. A ruling in Davey's favor would make it easier to use vouchers in many states, because it could overturn provisions in state constitutions like the one at issue in Washington.

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