Davey's plea: Blaine, Blair, Witters, and the protection of religious freedom.

Author:Viteritti, Joseph P.
Position:Congressmen James G. Blaine and James Blair
  1. WITTERS AS PRECEDENT A. The First Amendment B. The Limits of Federalism II. WASHINGTON'S VISION AS NATIONAL STANDARD A. The Washington Constitution B. Relevant Litigation III. DEFINING RELIGIOUS FREEDOM A. The Secular Court B. A Matter of Fairness CONCLUSION 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United States Supreme Court heard a Ninth Circuit case involving a man whose state-supported college scholarship was rescinded because he sought to use it to study for the ministry.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intended to major in pastoral ministries (with a second major in business administration), however, the scholarship was withdrawn.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. (9) On the other hand, however, Witters granted the states wide latitude to define their own contradictory standards, thereby undermining the First Amendment.

    Part I of this article analyzes the Witters ruling and its impact on federal and state constitutional law regarding religion. Part II traces the history of the religion clauses in the Washington Constitution and examines provisions in other state constitutions that will be affected by the outcome of the Davey decision. Part III compares the secularist (demanding strict separation) and neutralist (demanding neutrality) approaches to the First Amendment. It explains why the latter is a more compelling standard for protecting religious freedom and how its acceptance by the United States Supreme Court nullifies state law based on a more secularist standard.


    The Witters case was a three-act legal drama involving a blind student who had been denied the opportunity to use a state vocational rehabilitation grant while studying for the ministry at the Inland School of the Bible in Spokane, Washington. In 1984, the Washington Supreme Court ruled that such a use would violate the Establishment Clause of the First Amendment (Witters I). (10) Two years later, the United States Supreme Court reversed the decision (11) but left the door open for the state court to reconsider the case solely on the basis of its own constitution, finding that "the state court is of course free to consider the applicability of the 'far stricter' dictates of the Washington State Constitution" (Witters II). (12) The Washington judiciary did just that in 1989. Citing "sweeping and comprehensive" prohibitions in its own constitution, the Washington Supreme Court invalidated the student's eligibility to receive the funding while pursuing a degree in preparation for the ministry (Witters III). (13)

    The effect of the mixed signals communicated by the High Court in Witters II are widely apparent in the Davey case and are at the core of the disagreement between the trial court and the Ninth Circuit. At the trial level, Judge Barbara J. Rothstein took note that the facts in the two cases were "substantially similar," (14) writing:

    The Supreme Court intimated that Washington's constitution may be a more stringent barrier to state funding of religious education. The Court also declined to review the Witters III decision after remand. Because the Washington Constitution prohibits the funding of religious instruction, both by its express terms and as interpreted by the state's highest court, HECB is entitled to judgment as a matter of law on Davey's [state constitutional] claims. (15) The Ninth Circuit also recognized the similarity of the two cases and conceded that "the Washington Supreme Court's view of the Washington establishment clause is less accommodating than the United States Supreme Court's view of the federal Establishment Clause," (16) but added, "It]he real issue is whether that interest, no matter how stringently construed, is compelling enough to outweigh a credible free exercise challenge under the federal Constitution." (17) To that question, the panel responded in the negative. (18) The panel based its ruling on federal case law that preceded Witters, (19) as well as the more recent Zelman decision, (20) which was grounded in part on Witters. In so doing, the Ninth Circuit set limits on state prerogatives implicit in Witters II that have yet to be explicitly addressed by the Supreme Court. As it now stands, Witters II can be read to imply that no such limits exist. This would mean that rights protected under the federal Constitution could be circumscribed by the states as they see fit. Such a view cannot be reconciled with the Supremacy Clause of the United States Constitution. (21)

    1. The First Amendment

    Writing for a unanimous court in Witters II, (22) Justice Thurgood Marshall focused his review of the federal questions on criteria set down in the Lemon case, (23) specifically rejecting the state court's finding that the aid sought by Mr. Larry Witters served to advance religion. Justice Marshall reasoned that the aid in question was permissible because the aid was made directly to the student, any aid reaching a sectarian institution was available as a result of an independent choice made by the student, and the aid was furnished by the state without regard to religion and for the indirect benefit of public and non-public schools alike. (24) He further reasoned that it was unlikely that a significant portion of the monies expended under the program in question would end up at religious schools. (25)

    Though relatively brief in length, the Witters II decision sprouted three concurring opinions, filed respectively by Justices White, Powell, and O'Connor. Justice Powell's concurrence is especially noteworthy. Because Justice Powell had been the author of the more separationist Nyquist ruling that had helped anchor a decade of First Amendment jurisprudence, his opinion signaled a change of thinking on the High Court; co-signed by Chief Justice Burger and Justice Rehnquist, it laid the foundation for nearly two decades of First Amendment jurisprudence that would eventually follow. (26) Justice Powell focused his concurring opinion on the prior Mueller ruling, and protested that the Court had omitted an analysis of Mueller in developing a rationale for Witters. (27) Mueller approved a tax deduction in Minnesota that could be applied to a variety of education-related expenses, including tuition at religious schools. Drafted by the future Chief Justice, the Mueller ruling was based on two criteria that would later serve as signposts in the Rehnquist Court's thinking on aid to religious schools--neutrality (28) in the allocation of public benefits, and student or parental choice (and implicitly the indirect nature of aid to religious institutions). As if...

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