Davey's Plea: Blaine, Blair, Witters, and the Protection of Religious Freedom

Article excerpt

 A. The First Amendment
 B. The Limits of Federalism
 A. The Washington Constitution
 B. Relevant Litigation
 A. The Secular Court
 B. A Matter of Fairness

On December 2, 2003 the United States Supreme Court heard a Ninth Circuit case involving a man whose state-supported college scholarship was rescinded because he sought to use it to study for the ministry. (1) The case centers on Washington State's Promise Scholarship Program, which the state created to encourage low- and middle-income students with excellent high school academic records to attend college. Under the program, scholarship money is available during the students' first two years of college ($1125 in the first year, $1542 in the second) that can be spent on any education-related expenses. (2) Joshua Davey received such an award in 1999 and subsequently enrolled at Northwest College, an accredited Christian school in Kirkland, Washington. When he informed state authorities that he intended to major in pastoral ministries (with a second major in business administration), however, the scholarship was withdrawn. The Washington Higher Education Coordinating Board (HECB) based its action against Davey on a provision in the state that disqualifies students who are pursuing a administrative code that disqualifies students who are pursuing a degree in theology, (3) and a broader prohibition within the state constitution against public support for religion, religious instruction, or religious institutions. (4)

The action by HECB was upheld by a federal district court when Davey sought a preliminary injunction pursuant to claims that the state had violated his constitutional rights pertaining to religion, speech, assembly, and equal protection. (5) A Ninth Circuit panel reversed this decision in a 2-1 ruling, which held that HECB's policy lacks neutrality and discriminates on the basis of religion. (6) In a long dissent, Judge M. Margaret McKeown contended that the majority had failed to appreciate the state of Washington's "vision of religious freedom" formed more than one hundred years ago, in 1889, when a constitutional convention first adopted the state charter. (7)

Such an historical examination is indeed worthwhile, but, contrary to what Judge McKeown suggests, it shows that the original intent behind the framing of the Washington Constitution was to flout protections then believed to be contained within the First Amendment. The state constitutional provision was conceived in a climate polluted by religious bigotry, launched by nativist Republicans against Catholic immigrants who were developing a political stronghold in American cities. It is directly traceable to an attempt by Congressman James G. Blaine of Maine to enact an amendment to the federal Constitution banning aid to religious schools and a later move by Senator James Blair of New Hampshire to incorporate a similar provision in the legislation that permitted Washington and other territories to apply for statehood.

More importantly, Washington's existing legal restriction is at odds with federal constitutional standards that have been defined by more contemporary case law. The Davey case presents the United States Supreme Court with an opportunity to correct a serious disparity between fundamental federal rights and state law provisions that undermine those rights. Because such restrictions are found in the great majority of state constitutions operative today, the Davey ruling could prove to be a landmark for defining religious liberty into the twenty-first century. To do justice to the questions presented in the Davey case, however, the Court must reassess its prior ruling in Witters, (8) a similar case that aided in perpetuating the dissonance between federal and state constitutional standards. On the one hand, Witters furnished legal grounding for a more accommodationist First Amendment jurisprudence that has evolved over the last two decades, culminating with Zelman. …