Washington constitutional section does not violate Free Exercise or Equal Protection Clauses
How later courts described this case
- Washington constitutional section does not violate Free Exercise or Equal Protection Clauses
- rejecting an equal protection challenge where the classification at issue served the Legislature’s interest in complying with constitutional requirements
- “This case is dissimilar to those in which persons have been pressured by state 5 policies to choose between benefits or rights and practicing their religion.”
- "[T]his court has used contemporary newspapers' accounts of the state constitutional convention to supplement the official minutes since no verbatim record of the convention exists." (citing Yelle v. Bishop, 55 Wn.2d 286, 293 , 347 P.2d 1081 (1959))
Written by the judges who cited it.
The opinion
Durham, J.
(dissenting) — I agree with Justice Utter that article 1, section 11 of the Washington State Constitution— the State's version of the federal establishment clause— does not bar the Washington State Commission for the Blind (Commission) from paying vocational benefits to Larry Witters, even though he intends to use the funds to attend a Christian college with the ambition of becoming a pastor, missionary or church youth director. However, Justice Utter relies on a number of arguments to reach this conclusion, only one of which is necessary to resolve the issues in this case.
*398 The United States Supreme Court has already held that the Commission would not violate the federal establishment clause by disbursing the funds to Witters. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 , 88 L. Ed. 2d 846 , 106 S. Ct. 748 , reh'g denied, 475 U.S. 1091 (1986). The Court reasoned that the funds were neutrally available to all aid recipients and the decision to use the funds to benefit religion was made by the individual recipient, not the State. 23 Witters , at 487-89. As Justice Utter points out in section IV of his dissent, consideration of the Gunwall criteria reveals that there is no reason to interpret the corollary state constitutional provision any differently on this particular point. Accordingly, the Commission would not violate Const. art. 1, § 11 by providing the funds to Witters.
Thus, I concur in section IV of Justice Utter's dissent. I also agree with much of the analysis in section II because it substantially mirrors the Supreme Court's analysis that is summarized above. I make no comment on sections I and III because there is no need to reach these issues.
The opinion also notes that "importantly, nothing in the record indicates that, if petitioner succeeds, any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education." Witters , at 488. However, five Justices disagree with the importance of this fact. Justice Powell's concurrence, expressing the position of four other Justices, states that there would be no First Amendment violation in this case even if most of the funds distributed under the state program were eventually applied to religious education. See Witters, at 491 n.3 (Powell, J., concurring, joined by Burger, C.J., and Rehnquist, J.); see also Witters, at 490 (White, J., concurring) (agreeing with "most" of Justice Powell's analysis of this point); Witters , at 493 (O'Connor, J., concurring in part and concurring in the judgment) (finding this analysis "persuasive").