Davey Ruling Leaves Vouchers in Play

Published April 1, 2004

Sometimes a mere footnote to a U.S. Supreme Court decision can lend important clues to the decision’s impact for social policy and future litigation.

As supporters and foes of school vouchers examine the February 25 Locke v. Davey ruling–which concluded Washington State was within its rights in denying scholarship aid to a college student studying for the ministry–they may want to take a close look at Footnote 7 of the prevailing opinion. The question is what effect Locke could have on battles in various states to enact K-12 school choice vouchers.

Writing for the 7-2 majority, Chief Justice William Rehnquist stated clearly that the so-called Blaine Amendment in the constitution of Washington (and those of most other states) was “not at issue in this case.” Born of late nineteenth century bigotry toward Catholic immigrants, those provisions in the state constitutions sought to erect bars to any form of aid to “sectarian” schools.

In its landmark 2002 Zelman v. Simmons-Harris decision, the Supreme Court held that Cleveland’s vouchers for families choosing religious schools did not violate the Establishment Clause of the federal Constitution because parents were able to exercise “true private choice” among a variety of educational options, religious and secular. Voucher opponents then pegged their hopes on halting the spread of vouchers largely on Blaine Amendments in state constitutions.

Those voucher foes interpreted Locke as the broadly based ban they are seeking.

“This maintains an important barrier to efforts to fund school vouchers and other faith-based programs,” declared the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. “Americans clearly have a right to practice their religion, but they can’t demand that the government pay for it.”

But Footnote 7, together with the historical context Rehnquist provided in his opinion, suggested the High Court was reaching back to the American founding to uphold only a narrow point–a state’s prerogative not to subsidize vocational training of ministers. Kevin J. Hasson, president of the Becket Fund for Religious Liberty (whose amicus brief provoked Footnote 7), predicted the Locke decision “will have a very positive impact” on cases involving Blaine Amendments.

“Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry,” Rehnquist wrote. While Washington State chose to enforce that specific bar, its Promise Scholarship Program–begun in 1999 and at issue in this case–actually “goes a long way toward including religion in its benefits,” which is permissible, the Chief Justice added. Students may use their scholarships to attend religious schools so long as those institutions are accredited.

Officials of the Institute for Justice (IJ), the libertarian legal organization that is defending school voucher programs in Florida and Colorado as well as challenging the exclusion of religious options from long-standing school choice plans in Maine and Vermont, saw the Locke decision as no setback for their legal position or the school voucher movement generally.

“This decision should have no impact on our defense of Florida’s Opportunity Scholarship Program because, unlike the program at issue in Washington State, Opportunity Scholarship funds are not training anyone to be ministers,” said Clark Neily.

The IJ senior attorney added that while the Blaine Amendments, “with their notorious history of religious bigotry, had no bearing whatsoever on the Davey decision,” opponents of school choice in Florida, by contrast, “have built their entire challenge to the school choice program around the state’s Blaine Amendment.”

To be sure, the High Court’s reasoning disappointed those advocates who deemed as unfair Washington State’s denial of a scholarship to Joshua Davey solely because of his plans to seek a career in the ministry. Davey was double-majoring in Pastoral Studies and Business Management and Administration at the private Northwest College; he had been granted a Promise Scholarship on the basis of academic excellence and financial need. State officials stripped him of the aid when he disclosed his career plans.

The American Center for Law and Justice, a public interest law firm associated with religious broadcaster Pat Robertson, represented Davey. ACLJ chief counsel Jay Sekulow said the decision “clearly sanctions religious discrimination” and runs counter to 50 years of Supreme Court precedent on the free exercise of religion. While the majority decision does not prohibit states from structuring scholarship programs to include seekers of degrees in devotional theology, he added, the High Court “missed an important opportunity to protect the constitutional rights of all students.”

In a stinging dissent, Justice Antonin Scalia declared that, “When a state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.” Scalia was joined in dissent by Justice Clarence Thomas.

The Pew Forum on Religion and Public Life predicted that in practical terms “the ruling in this case could affect not only government aid programs for students who attend religious colleges and universities, but also government voucher programs for elementary and secondary education and faith-based initiatives in which government funding flows to religious social service providers.”

But the ruling did not alter the reality that under the United States Constitution, the use of vouchers to promote school choice is permissible. The Zelman decision settled that. The battle over state constitutional provisions now moves across the country from Washington State to Florida.

Robert Holland is a senior fellow at the Lexington Institute, a think tank in Arlington, Virginia. His email address is [email protected].

For more information …

The Locke v. Davey decisions is available through PolicyBot™. Point your Web browser to http://www.heartland.org, click on the PolicyBot™ button, and search for documents #14599 (syllabus, 3pp.), #14597 (Rehnquist majority opinion, 12pp.), #14598 (Scalia dissent, 10pp.), and #14600 (Thomas dissent, 2pp.). Background information on the case is available on the Pew Forum Web site at http://pewforum.org.