The Supreme Court last week got two propositions badly confused. States do not have the obligation to subsidize anyone’s constitutional rights, but until now, it was also true that states could not discriminate on the basis of faith in the allocation of general benefits.
In Locke v. Davey, the Court approved overt religious discrimination. That the Court’s opinion excludes religious believers, notwithstanding the Constitution’s express guarantee of the free exercise of religion is surely ironic given that it has so recently and so casually manufactured constitutional protections for those who wish to engage in homosexual sodomy or display virtual pornography on the Internet.
The state of Washington’s Promise Scholarship was a general benefit program available to everyone meeting academic merit standards, except, as it turns out, Joshua Davey, and others like him, who wanted to study both secular and religious subjects. In Joshua’s case, he sought to combine business and pastoral ministry.
That a public law in 2004 discriminates on its face against religious believers is extraordinary enough. That seven justices thought this was perfectly fine is disheartening. The Supreme Court admitted that including religious students would not offend the “no establishment” clause. This is obvious since including religious students on evenhanded terms with everyone else could not reasonably be construed as an establishment of a church or an endorsement of a student’s particular faith choice.
If keeping church and state separate does not justify such blatant discrimination, what does? Not much. Washington does have a state constitutional provision that “no public money…shall be appropriated for or applied to any religious worship, exercise or instruction….” College study of theology may well be such instruction, but merely reciting the state provision hardly supplies a federal constitutional answer when the paramount law of the land prohibits states from passing any law “prohibiting the free exercise of religion.”
Here, the Court not only begged the question, but disregarded precedent. For example, the Court had previously held that a state legislature couldn’t just exclude clergymen from its state assembly or employ municipal laws to selectively prohibit religious practices. While the Court tries to distance itself from these settled matters by saying these were criminal or civil penalties, not merely an exclusion from benefits, that is a distinction without a difference–especially given the pervasiveness of government programs in all of our lives.
Surely the Washington State cannot now decide that clergymen, or perhaps all religious believers, can be excluded from workman’s compensation, or health or disability funds. Only time will tell, but Justice Scalia in dissent thought there no limiting principle in the opinion to prevent it. Moreover, it is fair to assume that the opinion will be readily waved about to slow the expansion of school choice or the role of highly effective faith-based social services.
Largely unexamined in the case was the fact that state constitutional provisions explicitly discriminating against religious participation in public programs exist in 37 states, and were a product of a nativist, anti-Catholic movement in the 19th century associated with the political movement of the so-called “Know-Nothings.” Were the discriminations of the present day to be more clearly premised upon the bigotry of the past, the Court might yet reach a different conclusion. Let’s hope so: Abraham Lincoln wrote: “When the Know-Nothings get control, [the Declaration of Independence] will read ‘all men are created equal except Negroes and foreigners and Catholics, a fact that so disgusted Lincoln that he surmised that “when it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty.”
In the end, the only explanation Washington could give for disadvantaging students of faith was because it wanted to do so. By anyone’s constitutional calculus that should be an inadequate basis for denying an express constitutional right. It is far less than even a pretense of religious liberty.
–Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He a is former constitutional legal counsel to Presidents Reagan and Bush.