High court tackles dispute over student's desire to be minister

OLYMPIA, Wash. (AP) _ Joshua Davey's hard work and good grades won him a state scholarship, but his ambition to be a minister denied him the money. Now, his legal challenge has become another U.S.

Friday, November 28th 2003, 12:00 am

By: News On 6

OLYMPIA, Wash. (AP) _ Joshua Davey's hard work and good grades won him a state scholarship, but his ambition to be a minister denied him the money. Now, his legal challenge has become another U.S. Supreme Court battle over the separation of church and state.

Davey's case, set for oral argument on Tuesday, pits Washington state's tough ban on using public money for religious purposes against the federal Constitution's guarantee of freedom of religion.

A ruling in Davey's favor could overturn similar prohibitions in as many as 36 other states.

Davey _ who has since abandoned his ambition for the ministry in favor of Harvard Law School _ started the fight as a bid to use as he saw fit a state-funded scholarship he won fair and square.

``From my perspective it was very unfair and kind of arbitrary,'' said Davey, who sees the policy as disrespectful of the good he might have done society as a minister. ``I was being told that that value wasn't important and wasn't worth the state's money.''

In 1999, Davey of Spokane, Wash., qualified for a Promise Scholarship, a state-funded program for high-achieving students of modest means. But when Davey, a devout Christian, decided to study for the ministry at Northwest College in Kirkland, Wash., he was told he couldn't use the scholarship.

The Washington Constitution bans the use of public money for religious instruction, and the state argues that policy did Davey no harm.

``The government's decision not to fund the exercise of a fundamental right does not infringe that right,'' Solicitor General Narda Pierce wrote in the state's brief to the court. ``Washington's decision not to subsidize religious instruction to implement its state constitutional policy of separation of church and state does not infringe Davey's right to seek a theology degree.''

In 2000, Davey sued in federal court to overturn the policy, arguing that the rule violated his right under the U.S. Constitution to practice his religion freely.

Last year, the 9th U.S. Circuit Court of Appeals agreed, finding that the state had no compelling interest in limiting what Davey could study using the scholarship.

But the case is about more than the scholarship money _ less than $3,000 that's on hold pending the high court's ruling. Even without the money, Davey went on to graduate from Northwest College with honors this spring with a degree in religion and philosophy.

``It's all about the principle,'' Davey said. ``When you look at the cost of a four year college education, it's not that much money. I ended up taking out additional loans and working more outside of school than I had intended to do.''

From the start, Davey's case was argued by the American Center for Law and Justice _ a law firm founded by the Rev. Pat Robertson _ and championed by other advocates of weakening the barriers between church and state.

Among the issues at stake: similar scholarship programs around the country, and school-voucher systems that let students use taxpayer money to pay tuition at private schools.

``If we prevail, governmental programs that have a religious disqualifier would be suspect,'' said Jay Sekulow, the center's chief counsel. ``You're not going to be able to target out religion or religious activities any more.''

Various advocates for the barrier between religion and government have weighed in on the case, essentially using a states'-rights argument: the state constitution trumps the U.S. Constitution's guarantee of freedom of religion.

``A grand total of 37 states prohibit spending tax dollars on clergy training,'' said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. ``That's the way it should be in a country that believes that religion is voluntary and should be paid for by its supporters.''

But players on the other side _ including several states _ point out the irony in that argument, which in past years was used to defend various kinds of racial discrimination in the South.

``To defend a practice of state-sponsored religious discrimination is not just ironic in its parallel to erstwhile Southern anti-civil right rhetoric, it is antithetical to the core purpose'' of the U.S. Constitution,'' Alabama Attorney General Bill Pryor wrote in a friend-of-the-court brief.

The court's ruling, which likely won't come for months, will be a follow-up to last year's landmark opinion upholding school voucher programs. Also on tap, an appeal from the Bush administration over the phrase ``under God'' in the Pledge of Allegiance recited by school children. An appeals court ruled that it amounts to unconstitutional government promotion of religion.