The upcoming docket

Posted: Oct 14, 2003 12:00 AM

Four months ago, the Supreme Court Justices handed down decisions that invented a constitutional right to engage in homosexual sodomy (Lawrence v. Texas) and an affirmative action decision that  perfectly sums up how far our society has moved from the basic tenets of equality (Grutter v. Bollinger).

The October 2003 term again promises to impact on our exercise of individual liberty. The most anticipated case on the docket will test the legality of the McCain Feingold campaign finance reform bill. The Court's rendering could have a profound effect on how parties spend money in the upcoming presidential election.

Just as significant will be the courts rendering of Locke v. Davey, which pertains to whether a scholarship policy at Washington State University breeches the wall between church and state. In a nutshell, the policy bans Theology majors from receiving scholarship funds. In other words, if you design your own interdisciplinary study program examining the golden age of antique griddles, you're eligible for a scholarship. If you study theology, you are not. The logic being that offering scholarship funds to theology majors effectively funnels state money into a religious activity. That causes some people to quiver, not least of which being Justices Souter, Ginsberg, and Stephens, who tend toward strict separation or church and state.

And indeed, the separation between church and state is an important safeguard. But does that mean someone should be penalized for pursuing religion? That is what the Washington State policy effectively does-penalizes students for studying theology as opposed to, say, antique griddles. This places a condition on the scholarship money that violates the fundamental right to religious freedom.

Both sides have precedents to draw upon: Whereas  Pearl vs. Nyquist (1973) barred the government from directly funneling public funds into religious institutions, more recent rulings have draw an important distinction between directly subsidizing religious education and leaving it to an individual to chose their preferred course of study.

The major implication: the majority in this Supreme Court believes that how an individual uses his scholarship money is his own private choice and therefore of no concern of the state. By this perspective, Washington States University's scholarship money is no different than college grants or food stamps or virtually all other government assistance which provide aid, then leave it to the individual's discretion how he wishes to use his subsidy-on religious oriented goods, like, say, kosher deli meats, or otherwise.

Nonetheless, the liberal community continues to dig in their heels around the idea (as opposed to the law) of an absolute separation between church and state. What they fail to realize is that the founding fathers intended only for the state to remain neutral on religious matters. That means the state ought not get into the business of enforcing religious morals. It does not however mean that the state ought to actively prevent its citizens from deriving religious benefits from their public funds.

Writing for the Jewish Law Commentary, Nathan Diament put it nicely: "… states may not discriminate against religious individuals or institutions in the name of the constitution. If a state wishes to provide scholarships…on the basis of religion-neutral criteria-i.e., their poverty-and leave it in the hands of these…" recipient to make a private choice what course of study to major in, "that is not the establishment of religion."

One of the genuine phenomenons over the past four decades has been the liberal community's steadfast insistence that God should be barred from the public sphere. This is not law. It is religious prejudice. Hopefully Justices Souter, Ginsberg, and Stephens will be able to tell the difference this time around.