The Supreme Court searches for breathing room in its religion cases.

The First Amendment to the U.S. Constitution contains two provisions that nervously coexist—the constitutional equivalent of Ernie's relationship to Bert—in that no one really wants to say out loud that they hate each other. The amendment provides that Congress shall "make no law respecting an establishment of religion" but adds that Congress can't prohibit "the free exercise thereof" [italics mine]. There is, as various members of the high court observe this morning, not always much room for "play in the joints" here: States may do nothing to promote a specific religion over others or (as courts have come to interpret it) to promote religion in general, but they also cannot interfere with a citizen's right to practice their religion. No establishing, no impeding. Whether there is even a hairsbreadth of space between these values is the subject of today's oral argument in Locke v. Davey, one of the most important religious freedom cases the Rehnquist Court will decide.

The case was brought by Joshua Davey after a university scholarship he'd been given by the state of Washington was rescinded when he declared that one of his two majors would be in "pastoral ministries" at a Christian college in Kirkland, Wash. Washington is one of 37 states with broader prohibitions on public spending for religious education than is required under the federal constitution. The state's constitution bars the spending of public monies on religious instruction, and they've drawn a distinction between spending on religion when it's taught in a secular manner and spending on training students for the ministry. Davey and his supporters, including the Bush administration, contend that this discriminates against the religious. Washington says it's just policing the wall between church and state.

Davey prevailed on his claim in the 9^th Circuit Court of Appeals, which viewed the Washington policy as violating the federal constitutional right to the free exercise of religion. The court must now address a problem it's been dodging: Do government policies that ostensibly honor the constitutional requirement of not establishing religion (by refusing to fund it with taxpayers' money) evince an unconstitutional hostility toward religious free expression?

Narda Pierce is Washington state solicitor general, and she barely opens her mouth before Justice Sandra Day O'Connor (Say it with me now: "the crucial swing voter in this case") interrupts to ask whether the Washington scholarship program is "like a voucher program." This is, of course, crucial since the court found voucher programs that fund religious schools constitutionally permissible less than two years ago in Zelman v. Simmons-Harris. O'Connor was the deciding vote in that case. But whereas Zelman held that taxpayer dollars could go to sectarian schools (through a mysterious alchemy in which "private choice" on school spending by parents produces only "incidental" benefits to religion), the issue in Davey is whether it's discriminatory not to allow such dollars to go to religious schools.

Justice Antonin Scalia tries to get Pierce to admit that the Washington law at issue is a bigoted "Blaine Amendment," a set of antireligious laws adopted in the 1800s that were fueled by hatred of Catholic immigrants. Pierce insists that the state Blaine Amendment is not at issue here. Scalia argues that if the state can constitutionally discriminate against all religious study, it could constitutionally discriminate only against, say, Jewish studies. When Piece can't answer this charge, Justice David Souter does it for her: "Aren't you making a distinction between training to be religious and studying religion in general?" He adds that if Washington had religious training programs for atheists, scholarships used for atheist training would similarly violate the state constitution.

Scalia doesn't accept that the statute, which prohibits the funding of the study of "theology," could possibly include the study of atheism. He hammers at Pierce some more on the notion that discriminating against religion in general is no different than singling out a specific religion for hostility.

Justice Anthony Kennedy is also obsessing today. Like Scalia, he makes the same point about seven times: He's bothered by the fact that Davey had his scholarship revoked simply because he'd declared a double major in pastoral ministries and business administration. According to Kennedy, Davey could have just declared the business major, taken theology courses, and kept his funding. Kennedy asks, over and over, "What is the state interest in denying him funding simply because he declared a double major?" Finally Ruth Bader Ginsburg has to answer him: "I thought the interest was the state doesn't want to fund the training of clergymen."

Scalia wonders if the state can "decline to provide fire protection for churches and synagogues." Souter answers for Pierce: "Washington's position is that it will put out a fire in a church, but it won't spend money ensuring that people will go inside a church."

Justice Stephen Breyer confuses his colleagues by asking what standard of scrutiny is required to analyze this case under the Constitution's Equal Protection Clause. Rehnquist points out that this isn't an Equal Protection case. Breyer observes that Equal Protection is the doctrine used in discrimination cases. Presto! Part of the problem: These freedom of religious exercise cases have been analyzed as free speech cases for so long, there's no good doctrine to lean on when the plaintiff isn't "speaking." It's constitutional pinball day, with the court pinging wildly between the progeny of the so-called Lemon Test, various free speech cases, and discrimination doctrine. 

In response to a question from Ginsburg, Pierce describes being caught between the Establishment and Free Exercise clauses as akin to being in "pincers."