Religion uniquely disfavored.

Author:Miller, Robert T.

While some scholars have argued that there is, in terms of both grammar and purpose, only one religion clause in the First Amendment, the language of the courts has typically been flamed in terms of an "establishment clause" and a "flee exercise clause," and the presumed goal is then to find an accomodation between the two clauses. Most of the cases involving religion heard by the United States Supreme Court are brought by unbelievers asserting that some governmental action violates the establishment clause, which provides that government "shall make no law respecting an establishment of religion."

In recent years, many such cases have been decided in ways favorable to religion, notably in Zelman v. Simmons-Harris (2002), which upheld the constitutionality of a school-voucher program in Cleveland. Seldom, however, does the Court hear a case brought by believers asserting that some governmental action lviolates the free exercise clause, which provides that government shall make no law "prohibiting the free exercise" of religion. The reason for this is that the American people have not often used the power of government against religion.

In February 2004, however, the Court decided a free exercise case in Locke v. Davey. The facts of the case are straightforward. The state of Washington established a scholarship program for students who meet certain academic and financial criteria and study at an accredited college within the state. At the same time, the relevant statute, implementing a similar provision in Washington's constitution, provided that "no aid shall be awarded to any student who is pursuing a degree in theology," which the parties agreed meant "devotional" theology, not merely the scholarly investigation of religion. The plaintiff, Joshua Davey, met all of the applicable criteria, but because one of his majors was pastoral ministry (the other was business administration), he was denied a scholarship worth almost three thousand dollars. He sued the state, claiming that Washington's decision to except only theology students from the benefits it provides under the program violated his free exercise rights. But the Supreme Court, in an opinion by Chief Justice William Rehnquist, held by a vote of 7-2 that Washington's scholarship program is constitutional. Justices Antonin Scalia and Clarence Thomas dissented.

The case should have been easy. When by its very terms a law discriminates on bases that the Court thinks deserve special protection--such as race, or the content of one's speech, or, as in this case, religion--the Court subjects the law to "strict scrutiny," meaning that it will sustain the law only if it serves a "compelling...

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