BJC, other amici argue that states not required to fund religious training

August 23, 2003

In a case to be argued in the fall of 2003, the state of Washington is asking the U.S. Supreme Court to reverse the decision of the 9th U.S. Circuit Court of Appeals in Davey v. Locke, 299 F.3d 748 (9th Cir. 2002). Davey held that the Free Exercise Clause of the U.S. Constitution requires the state to fund religious instruction if it provides college scholarships for secular instruction. The following is a summary of the brief amici curiae filed in support of the state of Washington by the American Jewish Congress, on behalf of itself, the American Federation of Teachers, the American Jewish Committee, and the Baptist Joint Committee.

I. HISTORY AND PRECEDENT ARGUE AGAINST MANDATORY FINANCIAL SUBSIDIES

The modest tone of the 9th Circuit's decision belies its broad sweep. In the course of invalidating a single aspect of one state's college aid program, the court adopts a broad rule that threatens to invalidate numerous provisions of state constitutions, federal and state statutes, and court opinions. The decision fails to respect the discretion states enjoy to determine whether to fund religious enterprises where that funding is compatible with the federal Establishment Clause. Instead, the court adopts an unyielding, uniform rule of equal funding. The decision fundamentally changes the question in funding cases from "Is this aid permissible under the Establishment Clause?" to "Is this aid required under the Free Exercise Clause?"

A. PRECEDENTS OF THIS COURT GRANT STATES DISCRETION NOT TO FUND RELIGIOUS INSTITUTIONS

The U.S. Supreme Court has long observed that the U.S. Constitution does not require states to provide parochial schools or their students all aid the Establishment Clause permits. States can "rationally conclude as a matter of legislative policy that constitutional neutrality" is best served by withholding state assistance to parochial schools. See Norwood v. Harrison (1973). A series of cases affirmed by the U.S. Supreme Court demonstrates the discretion states enjoy under state constitutions. Moreover, none of the U.S. Supreme Court's recent cases upholding certain aid to religious schools hint that free exercise or equal protection requires legislatures to extend benefits for secular schools to religious ones.

B. THE COURT HAS RECOGNIZED "PLAY IN THE JOINTS" IN THE RELIGION CLAUSES

Discretion of states to interpret their own no establishment provisions reflect the longstanding approach of finding room for "play in the joints" between what the Establishment Clause allows and what the Free Exercise Clause mandates. See Walz v. Tax Commission (1970). In Walz, the Court noted that "[T]here is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." This "play in the joints" means that many religion-specific rules are constitutional, protecting religious exercise, without violating the Establishment Clause. Likewise, the concept of "play in the joints" should allow rules that reflect concern for non-establishment principles, that do not violate free exercise.

C. STATE COURTS ACKNOWLEDGE, "PLAY IN THE JOINTS"

States have long enforced tighter restrictions on the subsidization of religion than required by the federal Constitution, just as many states enforce stricter free exercise laws. Washington's constitution provides greater protection for religious liberty, both in free exercise and no establishment, than the federal constitution. The diversity of opinion on these issues among the states is not surprising in light of our federal system of laws and the diversity of views on the important subject of church-state relations among members of the U.S. Supreme Court.

D. CONGRESS IS COGNIZANT OF "PLAY IN THE JOINTS"

The decision below is unwarranted in light of the longstanding and widespread practices of recognizing differing state policies regarding the funding of religious education. Congress has repeatedly acknowledged the constitutional legitimacy of differing state policies regarding funding of education in such laws as the Elementary Secondary Schools Assistance Act, "charitable choice" provisions of the Welfare Reform Act of 1996, and the recently enacted No Child Left Behind Act.

II. ALTHOUGH THE STATE'S DISCRETION IS NOT UNLIMITED, WASHINGTON IS WELL WTIHIN CONSTITUTIONAL BOUNDARIES

A. THE DENIAL OF A SUBSIDY DOES NOT UNCONSTITUTIONALLY RELEGATE RELIGION TO OUTLAW STATUS

Of course, federal concerns of free exercise and equal protection do not disappear simply because a state's law is based upon its own constitution. State constitutional provisions can be invalidated on federal constitutional grounds, as where a state relegates religious institutions to outlaw status by failing to provide police and fire protection services. A failure to subsidize an otherwise permissible activity, such as studying for the ministry, does not rise to the level of a constitutional violation. Washington's challenged rule and the constitutional policy it implements is premised on a conception of church-state separation that has deep roots in American history.

B. "PLAY IN THE JOINTS" IS NOT APPROPRIATE IN PUBLIC FORUM CASES

Cases involving religious speech in a government-owned forum do not control the outcome of this case. While cases such as Widmar v. Vincent (1981) and Good News Club v. Milford Central School (2001) provide religious groups equal access to speech forums, they do not involve cash subsidies. The U.S. Supreme Court has noted that subsidies evoke special historical concerns. While the Court has refused to find state law concerns sufficient to justify an exclusion of religious groups in speech forum cases, those cases are demonstrably different from the case here. Under the circumstances of those cases, the Court found no state involvement and no possibility of such. No one would ascribe to the state the religious activity because of the state's creating the forum. Here, by contrast, there is no question that the tax funds extracted and expended by the state are at issue and thus raise real concerns about state sponsorship of religion. While the private choice aspect attenuates the state's responsibility, the resulting transfer remains undeniable.

As the state of Washington argues, failure to subsidize speech or other activity is not the same as a penalty for engaging in constitutionally protected activity. See American Library Assn. (2003); Rust v Sullivan (1991); Regan v. Taxation With Representation (1983).

C. A STATE'S DIFFERENT VIEW OF CHURCH-STATE SEPARATION CAN BE COMPELLING

The Court in Widmar did not recognize Missouri's interest in maintaining stricter state rules for separation between church and state than the federal Constitution provides as sufficiently compelling to warrant content-based speech discrimination. It did not address, however, whether there can be compelling interest when a state refuses to provide subsidies for religious education. Questions of the relations between institutions of government and those of faith are matters of great importance. A state's decision to respect its constitutional commitment to the separation of church and state should not be easily dismissed.

III. THE FREE EXERCISE CASES ARE NOT DISPOSITIVE

Respondent Davey's case rests primarily on three free exercise or free speech cases, none of which involve the subsidization of religious education or justify the court's decision below. It would be a surprise to find that the Free Exercise Clause required the subsidization of religious education because that Clause is "written in terms of what the government cannot do to the individual, not what the individual can exact from the government." See Sherbert v. Verner (1984).

The Sherbert Court found a South Carolina unemployment compensation law violated the free exercise rights of an individual who was disqualified because she refused to work on the Sabbath. That case did not involve funding flowing to a religious institution. Justice Brennan, the primary author of Sherbert v. Verner, also affirmed decisions recognizing the limits on government funding of religion provided in state constitutions. Justice Brennan would be surprised, along with others who joined in that case and in Wisconsin v. Yoder (1972), to see the supposed conflict between those cases and summary affirmances discussed in section I.A. above.

Church of the Lukumi Babalu Aye v. City of Hialeah (1993), likewise, is unhelpful to Respondent's case. That case involved a rare regulatory effort to suppress an unpopular religion, circumstances wholly dissimilar to the facts of the present case. Nothing in Lukumi suggests that the Court was thinking of the quite different problem of a state's refusal, in compliance with its own constitution, to subsidize religious education.

The third case relied upon is Rosenberger v. Rector (1995). The Court in Rosenberger emphasized that that case did not involve tax funds and that the student organization at issue was not a "religious institution" at least in the usual way that term is used in case law. These cases suggest a tolerance for line-drawing that would be unconstitutional under analysis of the court below. The benefit at issue here is not access to forum but a paid theological education. Neither Rosenberger nor Widmar suggest a state is barred from concluding that in some circumstances it would be violating its own constitution. It is hardly new that paying for theological training is outside the purview of government. Respect for federalism and the role of states as laboratories for policy experimentation weigh heavily against the rule adopted below. See Grutter v. Bollinger.

IV. WASHINGTON IS NOT SUPPRESSING RELIGIOUS IDEAS

The Court below treated this case as if "aimed at the suppression of dangerous ideas," instead of at preserving independence of church and state. In fact, the design of the program at issue demonstrates that such a charge is baseless. Washington does not withhold grants from students who take religion classes or attend colleges where religion permeates the curriculum.

This case is not penalizing the exercise of First Amendment rights. Washington did not deny Davey tuition benefits because he was religious or had taken theology classes. It simply refused to pay for the training of ministers. Washington simply made the rational decision that the training of ministers was not an appropriate activity to subsidize with tax funds.

V. WASHINGTON'S CONSTITUTION IS NOT ROOTED IN DISCRIMINATION

The concept of "play in the joints" does not permit official discrimination against any religious group. The ban on singling out a religious group for unfavorable treatment is the "clearest command" of the Establishment Clause. See Larson v. Valente (1982). A plurality of this Count has suggested that much of the law barring aid to religious schools is rooted in anti-Catholic bigotry. That suggestion, however, oversimplifies and threatens to misrepresent the meaning of strong separation provisions in many state constitutions.

That anti-Catholic and anti-immigrant sentiments sometimes tainted the nineteenth century debates over state aid to religious education is undeniable. It is a mistake, however, to conclude that state constitutional amendments, such as Washington's, were simply the result of raw bigotry. Many vigorous efforts to reinforce church-state separation in the 19th century were in response to positions of the Catholic Church, which gave rise to a legitimate fear that the Catholic Church sought exclusive political power, and that, if it could, would establish itself as the sole official church. Opponents of the Catholic Church's view of church-state relations were entitled to vigorously oppose their efforts without being subsequently condemned as bigots.