Is government required to fund religious instruction?

Hollman Report
By K. Hollyn Hollman

September-October 2003

This fall the U.S. Supreme Court will hear arguments in the case of Locke vs. Davey, a case that challenges a college scholarship program in the state of Washington, but that will likely have much greater repercussions for church-state relations in general. The case, brought by a student studying for the ministry at an Assemblies of God-sponsored college near Seattle, is certain to be controversial.

Recipients of Washington Promise Scholarships may attend any accredited post-secondary institution in the state. Based upon past court rulings, we know that the program would be upheld as permissible under the federal Establishment Clause.

Here is the twist. In Locke vs. Davey the court will decide whether the federal Free Exercise Clause requires the state to fund religious instruction when it pays for secular instruction, despite the state's own constitutional provisions that prohibit it.

The federal Constitution defines minimum substantive rights; state law may provide greater protections. Washington's constitution provides more stringent anti-establishment and free exercise protections than the First Amendment. Specifically, it prohibits use of public money "for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." This section is based on the statement that "absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual ... ."

According to an 1891 opinion of the state attorney general, these provisions were not "the work of the enemies, but of the friends of religion." The drafters "were unwilling that any man should be required, directly or indirectly, to contribute toward the promulgation of any religious creed, doctrine or sentiment to which his conscience did not lend full assent."

The scholarship program respects that concern for freedom of conscience by disallowing scholarship funds for religious training. The scholarships are available for in-state students graduating from high school who meet certain requirements. A student must meet academic criteria (certain class rank or score on college admissions test), income criteria (a set percentage below state's median income), and enrollment criteria (enrolled at least half-time in an accredited post-secondary institution in Washington, not using the scholarship to pursue a theology degree). The state relies on the school to designate whether the student is pursuing a degree in theology. Scholarship students are not restricted from taking religion courses or even using their scholarship to major in religion where that major is available and does not amount to a course of training for the ministry.

This program seems designed to balance principles of free exercise and no establishment, which often are in tension with one another. Government should not interfere with the religious choices of individuals. Likewise, government must avoid sponsorship of religion. In between what the Establishment Clause permits and the Free Exercise Clause requires there is room for constitutional policymaking, what the Supreme Court has called "play in the joints." That is the value that the Baptist Joint Committee is supporting in its amicus brief to the Supreme Court in this case. (For more information see a summary of our amicus brief.)

Three important points deserve particular attention. First, it would be easy, but wrong, to equate any government funding program with a government-created speech forum in which religious speech must be treated like other types of speech not sponsored by the government. By doing just that, the court below failed to acknowledge the state's interest in avoiding sponsorship and financial support of religion. As Justice O'Connor has noted, tax support for religion raises special Establishment Clause concerns.

Second, there is a distinction between a government regulation that truly burdens religion and one that merely avoids sponsoring a religious practice. As Justice William O. Douglas once observed, "The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."

Third, in addition to ignoring important Establishment Clause values (avoiding state-sponsorship of religion) and misinterpreting free exercise rights (equating paying for religious education with removing a burden on religious practice), the lower court's decision equates Washington's law with hostility toward religion. It is a popular tactic in the courts, as well as in legislatures these days. Unfortunately, it misses the mark and threatens to trivialize our well-grounded constitutional tradition.