While some scholars have argued that there is, in terms of both grammar and purpose, only one religion clause in the First Amendment, the language of the courts has typically been framed in terms of an “establishment clause” and a “free exercise clause,” and the presumed goal is then to find an accomodation between the two clauses. Most of the cases involving religion heard by the United States Supreme Court are brought by unbelievers asserting that some governmental action violates the establishment clause, which provides that government “shall make no law respecting an establishment of religion.”

In recent years, many such cases have been decided in ways favorable to religion, notably in Zelman v. Simmons-Harris (2002), which upheld the constitutionality of a school-voucher program in Cleveland. Seldom, however, does the Court hear a case brought by believers asserting that some governmental action lviolates the free exercise clause, which provides that government shall make no law “prohibiting the free exercise” of religion. The reason for this is that the American people have not often used the power of government against religion.

In February 2004, however, the Court decided a free exercise case in Locke v. Davey . The facts of the case are straightforward. The state of Washington established a scholarship program for students who meet certain academic and financial criteria and study at an accredited college within the state. At the same time, the relevant statute, implementing a similar provision in Washington’s constitution, provided that “no aid shall be awarded to any student who is pursuing a degree in theology,” which the parties agreed meant “devotional” theology, not merely the scholarly investigation of religion. The plaintiff, Joshua Davey, met all of the applicable criteria, but because one of his majors was pastoral ministry (the other was business administration), he was denied a scholarship worth almost three thousand dollars. He sued the state, claiming that Washington’s decision to except only theology students from the benefits it provides under the program violated his free exercise rights. But the Supreme Court, in an opinion by Chief Justice William Rehnquist, held by a vote of 7-2 that Washington’s scholarship program is constitutional. Justices Antonin Scalia and Clarence Thomas dissented.

The case should have been easy. When by its very terms a law discriminates on bases that the Court thinks deserve special protection”such as race, or the content of one’s speech, or, as in this case, religion”the Court subjects the law to “strict scrutiny,” meaning that it will sustain the law only if it serves a “compelling government interest” by “narrowly tailored means.” That is, a law discriminating on such a basis will survive constitutional challenge only if it serves some very important end by means that discriminate only to the extent necessary to achieve that end. In Church of Lukumi Babula Aye, Inc. v. Hialeah (1993), for example, the Supreme Court applied strict scrutiny in striking down a law that prohibited ritualistic animal sacrifice of the kind practiced in the Santeria religion. The Ninth Circuit Court of Appeals, which heard the Davey case before it was appealed to the Supreme Court, had also applied strict scrutiny to Washington’s scholarship program and concluded that excepting only students studying theology served no compelling governmental interest and so was unconstitutional.

But the Chief Justice’s opinion in Davey changed all this. The opinion declines to apply strict scrutiny but never states under which of various less stringent standards it is reviewing the law. Nor does it announce a general principle that it thinks controls the case. Rather, its reasoning proceeds in stages.

The opinion begins by noting that, had the state allowed its scholarship program to fund students studying theology, this would not have violated the establishment clause. In other words, there is no constitutional requirement that students studying theology be excluded from the program. Given the Court’s recent decision in Zelman , this part of the decision was clearly right. Since the Court wants to say, however, that Washington’s scholarship program is constitutional, the opinion appeals to what it calls “the play in the joints” between the establishment clause and the free exercise clause”that is, the class of government actions neither prohibited by the former nor required by the latter.

The Court next distinguishes Lukumi from Davey by saying that Joshua Davey was not being subjected to criminal or civil penalties; he was only losing a public benefit, his scholarship, of a kind that others enjoy. This is true as far as it goes, but it is not a distinction that the Court generally recognizes in such contexts. In an age in which citizens receive all manner of financial benefits from the government, from social security payments to unemployment compensation to government-backed student loans, clearly the free exercise clause should prevent the government from discriminating on the basis of religion in providing such benefits. In other contexts, such as that of government discrimination based on speech or race, the Court has generally recognized this. As Justice Scalia wrote in his dissent in Davey , “When the state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured.”

Responding to Justice Scalia on this point, the majority opinion comes to what is, I think, the real issue. The state funding in this case is supporting training for the ministry, which, the Court argues, “is an essentially religious endeavor” that is “akin to a religious calling as well as an academic pursuit.” That is, the Court will allow government to discriminate against religion in providing public benefits when individual recipients choose to use those benefits for essentially religious purposes (e.g., training for the ministry), but it will not allow government to discriminate against religion in providing public benefits when the benefits are being used in ways not essentially religious. This kind of discrimination against religion is justified, in the Court’s view, because the state of Washington has a “historical and substantial” interest in not funding activities such as studying for the ministry.

What are we to make of this claim of a “historical and substantial” interest? On the historical issue, the Court notes that many states around the time of the founding placed in their constitutions formal prohibitions against using public funds to support the ministry, and, it argues, the state of Washington’s refusal to fund Davey’s theology degree thus comports with the original understanding of the free exercise clause. But this is entirely unconvincing, for, as Justice Scalia notes, all of these founding-era laws were proscribing special benefits that only the clergy would enjoy, not generally available benefits that the clergy might receive on equal terms with everyone else. The modern welfare state being inconceivable at the time of the founding, such legislation does not suggest that the framers of the federal Constitution intended to allow religious training to be subject to special disapproval by the state.

More important, prior to Davey it seemed that states had no establishment clause interests other than in avoiding violations of it. The Supreme Court now says that a state can have a substantial establishment clause interest in not doing something (i.e., giving Davey his scholarship) that the Court has also specifically said would not violate that clause. If true, this opens the door to much discrimination against religion in the provision of public benefits because, in the Court’s jurisprudence, “substantial” governmental interests can in certain cases support significant discrimination.

But the Court is patently wrong when it says that a state can have an establishment clause interest in not doing something that the establishment clause allows, for this would require a miracle of logic. It amounts to saying that it is very important to keep church and state separate in ways in which their cooperation is entirely permissible. This is, on its face, incoherent. When smart people say such silly things, something unspoken is probably at work.

And I think I know what it is. As I recently wrote in these pages (FT March), the Third Circuit Court of Appeals held last year in United States v. DeJesus that a government prosecutor may use peremptory challenges to remove jurors who display a “heightened religious involvement” as evidenced by much reading of Scripture and extensive participation in church activities. That court said it would not allow religion-based challenges to be used against members of particular denominations, but it would allow challenges against those who show “a rather consuming propensity to experience the world through a prism of religious beliefs.” In other words, government may not discriminate among religions, but it may discriminate against devoutly religious people of whatever religion.

The same force is at work in Davey . Certainly the Supreme Court would not allow government to discriminate in providing public benefits in favor of some religious groups and against others”as if Protestants were to receive larger social security checks than Catholics. But when the discrimination is in favor of the dominant belief system of our intellectuals (aggressive secularism) and at the expense of that system’s primary rival (orthodox religion), then the Court will allow a certain measure of discrimination. Justice Scalia has sniffed it out: “Let there be no doubt,” he notes in his Davey dissent, “this case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the state’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects”those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry”are a far narrower set.” Davey , like DeJesus , involves religious discrimination of the kind that in practice matters most today: discrimination by thoroughly secular people against devoutly religious people.

This discrimination may seem trivial because it is limited to the matter of providing public benefits, but this is wrong, for two reasons. First, such discrimination has no logical endpoint. Davey, for example, was denied a scholarship to which he was otherwise entitled because he wanted to use it to study theology; if he was also entitled to social security or welfare payments, would the Court say that government may deny him these benefits, too, if he wants to use them to study theology or”an even more essentially religious endeavor”to support the worship life of his church?

I do not seriously suggest that the Court would ever reach so unthinkable a result (though of course many things that were once unthinkable have eventually come to pass in the Court’s jurisprudence). But I do say that the Court has no principled way to distinguish such a result from the result in Davey ”which means that the decision in Davey is a lawless one.

Second, the decision is important because it is unjust. In 1779, Thomas Jefferson, in his “Draft for a Bill Establishing Religious Freedom,” wrote that “to compel a man to furnish contributions of money for the propagation of opinions he disbelieves, is sinful and tyrannical.” For good or ill, the United States”which taxes its citizens to support the National Endowment for the Arts, the National Endowment for the Humanities, hundreds of state universities, thousands of public schools, all manner of scientific research and publication, National Public Radio, the Smithsonian Museum, the Library of Congress, and thousands of other institutions”has long ago passed the point in its history when it could subscribe to Jefferson’s punctilious view of the matter. If we maintain a Jeffersonian view of the separation of church and state”or, as the Court would now have it, if we recognize establishment clause interests that justify denying to religious people public benefits otherwise generally available”then religion will be uniquely disfavored in all areas of life into which government expands. Allowing government to disfavor religion in this way amounts to imposing a tax on everyone and distributing its benefits to everyone except the religious. The economic effect is exactly the same as imposing a special tax on the religious for the benefit of the secular. It’s robbing Peter to pay Caesar.

And what happened to Joshua Davey, who originally went to college to train for the ministry? He just finished his first year at Harvard Law School.

Robert T. Miller is a John M. Olin, Jr. Research Fellow in Law at the Columbia University Law School.

Articles by Robert T. Miller

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