February (Web-only) 2004

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Supreme Court: States don't have to treat "devotional theology" like all other subjects
The Supreme Court stood on its head today. Actually, had five of the seven justices actually done headstands in the Supreme Court building, it would perhaps have been less of a surprise than today's decision in Locke v. Davey.

Here's a little history: In Rosenberger v. Rector & Visitors of the University of Virginia (1995), the Supreme Court said that the government must fund a religious publication if it funds other student publications. In Good News Club v. Milford Central School (2001), the Supreme Court similarly said that a public school can't ban a religious group if it opens the door to all other groups.

Hear the principle? Open the door to some, open the door to all—even the religious.

It seemed straightforward enough, but apparently the Supreme Court is singing from a different songbook than thought. Today, it said that Washington State may deny scholarships to students pursuing religion-related degrees even if the door is open to all other areas of study. In other words, it seems, the state may discriminate against religion.

Washington is one of 36 states with what's known as a "Blaine amendment" in the state constitution. These amendments, part of an anti-Catholic campaign a century and a half ago, ban any public funding of religious education. And seven of the justices have no problem with that.

"Washington's program imposes neither criminal nor civil sanctions on any type of religious service or rite," Chief Justice William H. Rehnquist wrote for the court majority. "It neither denies to ministers the right to participate in community political affairs … nor requires students to choose between their religious beliefs and receiving ...