Rock of Ages and a Hard SpaceThe Supreme Court searches for breathing room in its religion cases.

Is Joshua Davey's religious freedom being burdened?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.

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The case was brought by Joshua Davey after a university scholarship he'd been given by the state of Washington was rescinded when he declared that one of his two majors would be in "pastoral ministries" at a Christian college in Kirkland, Wash.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."

Jay Sekulow, the Supreme Court's go-to guy on God matters, represents Davey. He starts a lengthy recap of the facts but is interrupted by O'Connor, who wants to know whether he believes that a state with a voucher program "has to fund all schools, both secular and religious." O'Connor frets: "So what you're urging here would have a major impact on voucher programs?" This is, of course, the point. After the tremendous victory in the vouchers case, the funneling of state monies to religious schools has been widely blocked by laws like Washington's. Sekulow is in court precisely because the pro-voucherists want those state laws invalidated.

Ginsburg asks her pincers question again: "Is there any space between what the state is permitted to fund under the Establishment Clause and what it must fund under the Free Exercise clause?" Did Zelman pry open the Pandora's Box of mandatory funding for all religious education?

Sekulow says that "the court doesn't have to go that far," but O'Connor cuts him off, observing that, "Your brief and your presentation urge us to go that far." Souter dismisses Kennedy's objection—that one can go to a religious school and take theology courses but claim a secular major and still receive funding—as trivial, noting that just because "the state draws a funny line" doesn't mean no line can be drawn. Breyer makes the same point, cautioning the court not to decide this case based on "the odd example here and there." He says it's logical to assume that people who major in theology are likely to become ministers and that the state has chosen this as a "crude way to identify people" who are using state money to fund religious training. Ginsburg rephrases the question: "We know we can give funding to religious schools if we want to, but what if we don't want to?"

U.S. Solicitor General Theodore Olson has 10 minutes to make the case for the president, his faith-based initiatives, and the principle that you can't discriminate against the religious. O'Connor stops him to note rather tartly that there are "a couple of centuries of practice in this country, of not funding religious instruction with tax money." She adds that this idea is "as old as the country itself." Olson responds that another idea as old as the country itself is that religion can be freely exercised.

Pinch an inch of that.

John Paul Stevens urges that Davey is not being prohibited from exercising his religion; he "just has to pay for it." But Olson says that if subsidies are being made available to every other citizen, religious freedom is burdened.

Here's where Breyer lays it on the table: "The implications of this case are breathtaking," he tells Olson. "If your side wins, every program—nursing, hospital, social welfare, contracting program" will have a claim for funding religious programs as well.

Kennedy again questions whether affirming the 9^th Circuit's ruling for Davey necessarily means the court is "committed on school vouchers." He is trying to find a middle ground here that doesn't exist in any plane other than the astral.

Asks Breyer in great trepidation: "Is this case as far-reaching as my tone of voice suggests?"

Olson: "It's not as far reaching as your sense of doom suggests." He adds (without a trace of irony) that it "may have been considered far-reaching at one time, and thank heavens it is."

Souter makes one last effort to hold the line drawn by Washington, saying it's one thing to "fund education about a religion" and another to fund an education "that says this belief is valid and you ought to go out and persuade other people." Olson says this is the same case as the 1995 decision in Rosenberger v. Rector and Visitors. Souter says the students at Virginia weren't proselytizing. Olson says they were indeed proselytizing. Souter replies, "Look, you're writing my dissent. I couldn't get four colleagues to agree with me on that!"

There is a doctrinal tension built into the long tradition of walling off church from state, and also in the claim that this wall evinces no hostility toward the church. Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy. The Rehnquist court has made its name by slowly chipping away at this wall. The good news for them: This case affords them a chance to do away with that messy tension once and for all. The bad news for the rest of us? The only way to do so will be to get rid of the wall altogether.

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