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Law: Establishment Clause clash reframes issue

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One of the things I like about Byte Back is that its proprietor is a reporter’s reporter. Big, easy to grasp, news stories get talked to death in the blogosphere. However, he can be counted on to look into less sexy, but significant stories. Say ‘SCOTUS’ and most of us immediately focus on last year’s decisions on affirmative action and gay rights or wonder if they will ever say ‘no’ to John Ashcroft. Byte Back is looking at an intriguing, but less easily blogged, decision.

Court OKs Denial of Divinity Scholarships

WASHINGTON (AP) – The Supreme Court, in a new rendering on separation of church and state, voted Wednesday to let states withhold scholarships from students studying theology, even when money is available to students studying anything else.

The court’s 7-2 ruling said the state of Washington was within its rights to deny a taxpayer-funded scholarship to a college student who was studying to be a minister.

“Training someone to lead a congregation is an essentially religious endeavor,” Chief Justice William H. Rehnquist wrote for the court majority. “Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit.”

the Bush administration argued that the state had been wrong to yank the scholarship from former student Joshua Davey.

Davey won a state Promise Scholarship, but the state rescinded the money when it learned what he planned to study.

Like 36 other states, Washington prohibits spending public funds on this kind of religious education. Bans on public funds for religious education, often known as Blaine amendments, date to the 19th century, when anti-Catholic sentiment ran high.

“It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The state has merely chosen not to fund a distinct category of instruction.”

Justices Antonin Scalia and Clarence Thomas dissented.

Particularly in the last quote there I can only say “huh?”

“The state has merely chosen not to fund a distinct category of instruction.”

So if the state decided to not fund teaching, that would be OK?

Or am I looking over the simple fact that he is studying in a church, not in a regular school?

Decision link here (PDF).

Though attention has been focused on attempts by the Christian Right to erode the barrier between Church and State, I believe this case comes at the topic from a different and interesting angle. The Christian Science Monitor summarizes it well.

The right to practice one’s religion without government interference does not trump a state’s desire to maintain a high wall separating church and state.

In a major decision, the US Supreme Court Wednesday ruled 7 to 2 that religious liberty as guaranteed under the First Amendment does not supersede efforts by state governments to uphold a different part of the First Amendment – the separation of government and religion.

The case marks something of a reversal at the nation’s highest court under Chief Justice William Rehnquist, with other recent rulings emphasizing government neutrality toward religion and the religious rather than strict separation of church and state.

The problem, from one perspective, is that the ministry is considered a valid education and career path like any other. So, does it make sense to declare it verboten in regard to financial aid from the state? Analysis would be simpler if there was a major in ‘atheist studies.’ But, there isn’t. So, an argument can be made that giving the young man the scholarship would be favoring religion in regard to absence of religion, which does violate the Establishment Clause. But, one could come back with the response that the content of education, as long as it meets the standards set by accrediting bodies, is not the issue. Society probably benefits more from people who study medicine than from people who study art history, but we don’t encourage content discrimination in regard to funding scholarships most of the time. Why should a religion major be treated differently? I don’t have a definitive answer in regard to this case, but it is the kind of meaty topic I like to think about.

Note: This entry is an except from a column at Mac-a-ro-nies.

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About The Diva

  • http://www.bhwblog.com bhw

    This story slipped by me.

    I think the ruling is consistent with the one that said public money could be used, in the form of school vouchers, by private citizens to send their kids to religious schools. I think part of the reasoning was that the states are obligated to provide education up to a certain age. If the state offers vouchers, then the private citizen gets to choose how to use the voucher.

    This more recent case deals with scholarship money that the state isn’t obligated to provide. We’re not talking about vouchers or obligations. The ruling doesn’t prevent states from allowing scholarship money to be used for religious education. But it says they don’t have to if they don’t want to.

    Personally, I would have preferred that the SC disallow the use of voucher and scholarship money for religious schools. I don’t know how that’s not state-sponsored religion. It’s not direct, but it’s still taking money from some people to provide religious education to other people. That still doesn’t sit well with me, but I can live with it.

  • http://macaronies.blogspot.com Mac Diva

    Good points, bhw. This decision is also interesting when considered in regard to the ruling in the Bob Jones University case.

    I’m going to write more about this after more people have time to read the slip opinion and form opinions. Byte Back is very interested in the topic, too. If readers here have time, do drop by his blog and let him know there are blog readers who care about more than Janet’s boob. He will appreciate that.

  • http://www.bhwblog.com bhw

    What happened in the Bob Jones U. case?

  • http://macaronies.blogspot.com Mac Diva

    The issue was whether an institution of higher education can use violate the Equal Protection Clause and still be tax exempt. Bob Jones University forbade interracial dating or marriage. (Students of color were discouraged from attending, period. Not surprising, considering the school’s segregationist roots.) Breaching the rules was grounds for expulsion. When it was sued, BJU defended its discriminatory policies claiming religion required it to discriminate. You know, the old the Bible requires segregation argument. Here’s a capsule.

  • http://www.bhwblog.com bhw

    Whoa! There’s nothing more fun than having people articulate and try to justify their racism in front of the SC, is there?

    [Oops, I used the “R” word! Isn’t’ that verboten around here now?]

    The Supremes were right — there’s no way those schools should be tax exempt.