Wednesday, December 03, 2003
Neutrality vs. Antagonism: The Supreme Court yesterday heard oral arguments in the case of a Washington State student who received a merit scholarship that was rescinded after he decided to major in pastoral ministry.
In the past, the court has decided that vouchers could legally be awarded to students, even if the students used those vouchers to attend parochial schools.
At first blush, this appears to be an open-and-shut case based on previous Supreme Court decisions. The state of Washington is awarding scholarships based on need and merit to students. The student then chooses his or her own course of study.
This exchange, between Solicitor General Theodore Olson and liberal Justice John Paul Stevens, summarizes the issue nicely:
Justice John Paul Stevens questioned how state officials, in denying Davey the scholarship, had hampered his ability to practice his religion.
"Can't he practice his religion just as he always would and become a minister?" Stevens asked. "He just has to pay for it."
Responded Olson: "He can practice but he practices it at a price."
"He practices it without a subsidy," Stevens shot back.
Said Olson: "He practices it without the same subsidy that is made available to every other citizen except someone who wants to study to be a minister."
This is the crux of the difference between neutrality towards religion and antagonism. If a qualified student wants to study biology, this isn't an issue. If a qualified student wants to study philosophy, this isn't an issue. It even appears that if a qualified student wanted to study religion with the goal of teaching it at a public university that it would be allowed. But if a qualified student wants to serve the community in a spiritual capacity, then that is not allowed by the Washington State Constitution.
Why? Well, it's a provision called the "Blaine Amendment," which made its way into various state constitutions in the late 19th Century as part of an anti-Catholic undercurrent.
Much of the reporting about yesterday's oral arguments suggested that the swing votes of Sandra Day O'Connor and Anthony Kennedy were leaning to the left on this decision -- suggesting that the state can treat religion worse than it treats non-religion.
It's another bit of evidence that the judiciary, at least, is increasingly anti-religion and the bogus "wall of separation" between church and state is well-entrenched in legal theory.
Atheism is increasingly becoming the state religion.
*UPDATE* Eugene Volokh and Professor Bainbridge, both UCLA law professors, take aim at some of the liberal arguments in this case.