Petitioners Brief — Witters v. Washington Department of Services for the Blind
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No. 84-1070
ALEXANOER L. STEWVAGS:
“+ CLERK
ian
IN THE
Supreme Court of the Gnited States
OcTOBER TERM, 1984
LARRY WITTERS,
Petitioner,
V.
STATE OF WASHINGTON
DEPARTMENT OF SERVICES FOR THE BLIND,
Respondent.
On Writ Of Certiorari To The
Supreme Court Of The State Of Washington
BRIEF FOR PETITIONER
MICHAEL P. FaRRIs,
General Counsel
CONCERNED WOMEN For AMERICA
EDUCATION & LEGAL DEFENSE FOUNDATION
122 C Street, N.W.
Suite 800
Washington, D.C. 20001
(202) 628-3014
Counsel of Record for Petitioner
PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662
i
QUESTIONS PRESENTED
A blind student who was medically eligible for voca-
tional rehabilitation funds was denied assistance by the
Washington State Commission for the Blind on the sole
ground that his vocational objective was to be a pastor,
missionary, or Christian education director.
1. Does the Establishment Clause of the First
Amendment prohibit a blind student who is studying for
the ministry from participation in a federal and state
funded vocational rehabilitation program for which he is
statutorily and medically eligible?
2. Did the Supreme Court of Washington State err by
applying the “tripartite” Establishment Clause test to a
single, blind student rather than examining the entire
statutory program?
3. Did the Department for Blind violate the Free
Exercise Clause of the First Amendment by denying
participation in a vocational rehabilitation program to a
blind student for the sole reason that his vocational objec-
tive was to be a minister, missionary, or Christian educa-
tion director?
PARTIES
All parties are listed in the caption.
ii
TABLE OF CONTENTS
Page
yp iii
Ne ne eccaseseecs l
IE 2
CONSTITUTIONAL AND STATUTORY PROVISIONS IN-
cece ceeeceseees 2
STATEMENT OF THE CASE ........ cc cccccccccccccces 3
SUMMARY OF ARGUMENT. .........ccccccccccccccccs 8
ARGUMENT
I. Participation By A Blind Ministerial Student In A
Neutral Program Of Vocational Rehabilitation
Which Is Open To All Does Not Violate The Estab-
ESE eee 10
A. Ministerial Students Are Not Precluded From
Be wee a Nag Benefits of Public Welfare Leg-
islation” By Virtue Of The Establishment
eee tec edebenaduess 13
1. This is a neutral poaree of student aid
broadly available to all blind persons ... 14
2. The Washington Supreme Court Misap-
plied “Sweeping Utterances” From Two
Aid-To-Religious-Institution Cases ..... 21
3. Two Decisions On The Merits By This
Court Direct Area a The Establish-
ment Clause Decision By The Washington
ee ei iéntececesee + 23
B. It Is Improper To Evaluate “The Primary
Effect” Of A Program For Aid To Individual
Persons By Focusing On A Single Student Who
Is Receiving A Religious Education ........ 29
C. Lessons From History Suggest That Students
For The Ministry “Ought Therefore To Possess
- ER SE 34
1. Jefferson And Madison: The Founders
Favored Equality ................00. 34
2. Our Nation’s Recent History Affirms Wit-
ters’ Right Of Participation: The G.I. Bill 37
Il THE FREE Exercise CLAusE Is VioLatep By
SINGLING OuT MINISTERIAL STUDENTs For Dis-
ARATE TREATMENT 2 once cccccccccccccccccccs 40
AES I ee 50
TABLE OF AUTHORITIES
CASES: Page
Abington School District v. Schempp, 374 U.S. 203 (1963) 33
Americans United Jy Separation of Church and State v.
Blanton, 423 F.Supp. 97; aff'd 434 U.S. 803
Lee ceeéligdGn Khe dennennsece 25, 26, 27, 28
Board of Education v. Allen, 392 U.S. 226
i eid's cocs cduestesveeteneeeses 16, 17, 32, 33
Cantwell v. Connecticut, 309 U.S. 626 (1940).......... 10
Committee for Public Education v. Nyquist, 413 U.S. 756
Ey errr rrr errr ry passim
Committee for Public Education v. Regan, 444 U.S. 646
DT chee hese eer eebeennedsantnseed deeees 17
Durham v. McCloud, 259 S.C. 409, 192 S.E.2d 202 (1972);
appeal dism’d,413 U.S. 902 (1973). .......... 24, 25, 28
Everson v. Board of Education, 330 U.S. 1 (1947)... passim
Hicks v. Miranda, 422 U.S. 332 (1975) ............4-. 25
Hunt v. McNair, 413 U.S. 734 (1973). ..........4-. passim
Lemon v. Kurtzman, 403 U.S. 602 (1971)............. 11
Levitt v. Committee for Public Education, 413 U.S. 472
een sidan ekhdnekanndseeees 23, 25
Lynch v. Donnelly, ___ U.S. ~-_, 79 L. Ed. 2d 604
TR TCAG ded dnkenenkbeehbeeaessesesseesecens 35
Marsh v. Chambers, 463 U.S. 783 (1983). ........... 35, 39
McDaniel v. Paty, 485 U.S. 618 (1978). ............ passim
Meek v. Pittenger, 421 U.S. 349 (1975)..... 17, 19, 27, 28, 33
Mueller v. Allen, 463 U.S. 388 (1983). ............. passim
New York Trust Co. v. Eisner, 256 U.S. 345 (1921)..... 38
Roemer v. Board of Public Works, 426 U.S. 736
EE EA ee reer reer 12, 21, 22, 23
Sherbert v. Verner, 374 U.S. 398 (1963). ............ passim
Sloan v. Lemon, 413 U.S. 825 (1973) ..............45. 25
Thomas v. Review Board, 450 U.S. 707 (1981)...... passim
Tilton v. Richardson, 403 U.S. 672 (1971)........ 12, 23, 31
Walz v. Tax Commission, 397 U.S. 664 (1970).... 14, 21, 30
Weiss v. Bruno, 82 Wn. 2d 199, 509 P.2d 973 (1973) .... 41
West Virginia v. Barnette, 319 U.S. 624 (1943)......... 43
Widmar v. Vincent, 454 U.S. 263 (1982)............ passim
Wolman v. Walter, 483 U.S. 229 (1977). ............4.. 17
iv
Table of Authorities—Continued
CONSTITUTIONAL PROVISIONS
U.S. Constitution:
Washington State Constitution:
SIRI IES so EA a 49
I dt eS ere roe ae ae gt 8S 49
STATUTES
Washington State:
EE en eee ee 11, 40
a ar i a 40, 41
TE EE EDS PE NS A Be 40
I NI ie a 41
I etd does tc dueddb dae dveceneoux@aveus 6
Federal:
a it is ail tok oll Miata old, 38
| Py Cnn an cen se len ane 39
The Vocational Rehabilitation Act of 1920, 66th Congress,
2nd Session, June 2, 1920..............ccccueeee 38
The Vocational Rehabilitation Act Amendments of 1943,
P.L. 16, 78th Congress (1943) .................5. 38
The Servicemen’s Readjustment Assistance Act of 1944,
P.L. 346, 76th Congress, June 22, 1944........... 38
Korean Conflict Veteran's Readjustment Assistance Act
of 1952, P.L. 550, 82nd Congress (1952)........... 39
The Veterans’ Readjustment Benefit Act of 1966, P.L.
ee cc enccuseuabe 39
P.L. 96-466, October 17, 1980...................0000. 39
es SS eee 39
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1984
No. 84-1070
LARRY WITTERS,
Petitioner,
V.
STATE OF WASHINGTON
DEPARTMENT OF SERVICES FOR THE BLIND,
Respondent.
On Writ Of Certiorari To The
Supreme Court Of The State Of Washington
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Supreme Court of the State of Wash-
ington is reported at 102 Wn. 2d 625, 689 P.2d 53 (1984).
The oral opinion of the Superior Court of Spokane County,
Washington, the Honorable Marcus M. Kelly, made on
December 11, 1981, was included in the Petition for Cer-
tiorari as Appendix D.! It is unreported. The Findings of
1 References to the opinions below contained in the Petition for
Certiorari in Appendixes A-F are cited as C.P. A-1, etc. References
to the Joint Appendix are cited as J.A. at , ete.
2
Fact and Conclusions of Law entered on May 26, 1982, in
said Superior Court appear in the Joint Appendix at 7.
Two unreported written decisions were entered by the
Office of Hearings of the State of Washington, Depart-
ment of Social and Health Services. The initial decision
was entered on October 28, 1980 by Paul B. Hutton,
Hearings Examiner. This decision is attached as Appen-
dix F to the Petition for Certiorari. This decision was
affirmed on administrative review on December 3, 1980
by Monty Foster, Review Examiner. This decision is
attached as Appendix E to the Petition for Certiorari.
JURISDICTION
This case was decided and judgment was entered by the
Supreme Court of the State of Washington on October 4,
1984. The jurisdiction of this Court is invoked under Title
28 of the United States Code Sec. 1257(3). The Petition for
Certiorari was filed on January 2, 1985, within the 90 days
provided by Supreme Court Rule 12.1.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
U.S. Constitution, Amendment I:
“Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise
thereof. .. .”
U.S. Constitution, Amendment XIV:
“..+ UN]or shall any State deprive any person of
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.”
Revised Code of Washington 74. 16.181:
3
“The commission may maintain or cause to be
maintained a program of services to assist visually
handicapped persons to overcome vocational hand-
icaps and to obtain the maximum degree of self-
support and self-care. Services provided for under
this section may be furnished to clients from other
agencies of this or other states for a fee which shall
not be less than the actual costs of such services.
Under such program the commission may:. . .
(3) Provide for special education and/or training
in the professions, business or trades under a voca-
tional rehabilitation plan, and if the same cannot be
obtained within the state, provisions shall be made
for such purposes outside of the state. Livin
maintenance during the period of such education an
or —s within or without the state may be fur-
nished.”
STATEMENT OF THE CASE
Larry Witters is a young blind man who, at the time
this case began, was studying to become a pastor, mis-
sionary, or Christian youth director. J.A. 7-8. He was
enrolled as a student at Inland Empire School of the Bible -
in Spokane, Washington J.A. 7.
Inland Empire is a non-denominational Christian
school offering a one-year bible certificate, a three-year
Bible diploma, and a four-year Bachelor of Arts Degree.
J.A. 8. It is a private institution supported by donations
and tuition payments and is managed by a board of direc-
tors. J.A. 8. At the time he originally applied for aid,
Witters was enrolled in the three-year program. But at
the time of the Superior Court hearing he had switched to
the four-year Bachelor of Arts Program.? J.A. 8. The
2 The State Supreme Court correctly points out in its opinion that
Witters’ four-year program was in joint participation with Whitworth
4
curriculum for his course of study to become a pastor
included Old and New Testament studies, ethics, speech,
and church administration. J.A. 8.
Witters met the medical and physical eligibility
requirements of R.C.W. Chap. 74.16 for status as a legally
blind person qualifying him to receive educational
assistance from the State Commission for the Blind.? J. A.
7.Witters applied to the Department for the Blind to
participate in a vocational rehabilitation program which it
administered. The program is funded by approximately
80 percent federal funds and 20 percent state funds. J.A.
7.
Witters’ application for participation was denied for the
sole reason that his vocational objective was to become a
minister. J.A. 8.
The Department for the Blind adopted a policy state-
ment which provided, in part:
Private institutions or out of state institutions: The
Washington Constitution forbids the use of public
College. C.P. A-3. Whitworth is a private Presbyterian college also in
Spokane. The Department for the Blind complains in its Brief in
Opposition to the Petition for Certiorari that Whitworth’s participa-
tion in the program was not a part of the Findings of Fact and thus
“not a part of the record below.” Brief in Opposition 2. However, the
Department did not object when Whitworth’s participation was indi-
cated in the briefs in the State Supreme Court. See Brief of Appellant
2. Thus, the State Supreme Court adopted this fact in its decision. In
any event, Petitioner sees no constitutional significance to this
alleged “dispute” of facts. Both schools are private religious colleges
and Witters was pursuing the same religious vocational objective.
3 The Commission's name has been subsequently changed to “State
of Washington, Department of Services for the Blind.” Hereinafter
we will refer to this agency as the “Department for the Blind.”
- 5
funds to assist an individual in the pursuit of a career
or degree in theology or related areas.
J.A. 4.
The Department for the Blind viewed Witters’ desired
career as a pastor as falling within the “related areas” toa
degree in theology.
The policy does not prohibit attendance at religious
schools, so long as the student is studying for a career
other than the ministry. J.A. 4. The sole reason for the
disqualification of Larry Witters was his goal to be a
minister. The fact that his college was religious in nature
was not considered in disqualifying him.
An administrative review of the Commission’s decision
resulted in a reaffirmation of the initial denial of
assistance. This decision was affirmed by the initial hear-
ings examiner in the administrative process on October
28, 1980. This examiner acknowledged that Witters
raised federal constitutional questions in written memo-
randum but “dismisse[d] Appellant’s U.S. Constitutional
arguments since he does not have the authority or juris-
diction to hear and decide such cases.” C.P. F-6.
Upen internal administrative review, the review exam-
iner gave more consideration, but once again rejected
Witters’ federal constitutional claims which had been
raised in the written memorandum of authorities. The
review examiner noted:
The Appellant finally urges that even if the state
constitution is construed to deny aid, such denial
violates the 14th Amendment and it also violates the
First Amendment’s guarantee of free exercise of
religion. The Appellant’s arguments concerning the
14th Amendment of the United States Constitution
are discussed above [C.P. E-4] and will not be further
6
discussed here. The First Amendment to the United
States Constitution guarantees free exercise of
religion. It does not require that the state subsidize
religious study.
C.P. E-7-8.
An appeal was taken to the Spokane County Superior
Court pursuant to the Washington Administrative Pro-
cedure Act. R.C.W. 34.04. The Superior Court upheld the
Department's denial of funds based upon the provisions of
the Washington State Constitution which prohibit aid to
religious schools. J.A. 9-10.
Witters again raised free exercise and equal protection
claims under the United States Constitution in the Supe-
rior Court by way of trial brief and oral argument. The
Superior Court rejected, albeit somewhat reluctantly,
Petitioner's federal constitutional arguments. The trial
judge said:
Mr. Farris, you have raised some intriguing argu-
ments that have given this Court fits, for want of a
better term. The area that gives me the most concern
in this case, is I do not see a conflict here between
what is done here and either the First Amendment of
the United States Constitution, the Establishment
Clause, the practice [free exercise] clause. The area
that gives me concern is the equal protection. That
gives this Court some concern.
C.P. D-31-32.
An appeal was taken to the Washington State Court of
Appeals, which then certified the issue to the State
Supreme Court because of the importance of the issues.
At both the trial court level and on appeal, the Peti-
tioner took the position that the State Constitution, prop-
erly construed, did not prohibit his participation in this
program, but if the State Constitution did mandate his
7
exclusion, the State Constitution was in violation of the
Federal Constitution’s Free Exercise and Equal Protec-
tion Clauses.
Faced with federal constitutional challenges to the
State Constitutional provisions, on October 4, 1984, thie
Washington State Supreme Court ruled, by a seven-to-
two vote, that the Establishment Clause of the First
Amendment of the United States Constitution prohibited
aid to Larry Witters because he wanted to be trained to be
a minister. Because of this ruling, the State Supreme
Court did not reach a decision on the state constitutional
issues.
The Washington Court focused on the “second prong” of
the Establishment Clause test and ruled that permitting
Larry Witters to participate in this vocational rehabilita-
tion program would have the “primary effect” of advanc-
ing religion since his goal was to be a minister.
The majority considered and rejected Witters’ free
exercise and equal protection arguments in light of its
ruling that the Establishment Clause prohibited govern-
ment aid for his studies. “We hold that the Commission's
refusal to provide financial assistance did not violate the
free exercise clause of the federal constitution.” C.P.
A-16. “This precludes any need to determine whether the
denial of aid on state constitutional grounds would violate
the equal protection clause of the Fourteenth Amend-
ment.” C.P. A-17.
In effect, the Department for the Blind has taken the
position that its own statute is unconstitutional as applied
to Larry Witters. Petitioner has taken the position
throughout the proceeding that the funding program
which is open to all medically eligible persons is constitu-
tional, but to deny him aid violates voth the Free Exercise
8
and Equal Protection Clauses of the United States Consti-
tution.
SUMMARY OF ARGUMENT
For a statute to survive a challenge under the Estab-
lishment Clause of the First Amendment this Court has
required a three-part showing: (1) the statutory program
must have a secular purpose, (2) the principal or primary
effect of the program must neither advance nor inhibit
religion, and (3) the aid must not foster excessive govern-
ment entanglement with religion. In this case, the second
portion of this test is in dispute.
The Department for the Blind has taken the position
that its own statute is unconstitutional as applied to Larry
Witters. The Washington Supreme Court found that the
source of this “unconstitutionality” was that the primary
effect of permitting Witters to participate in the program
of vocational rehabilitation advanced religion and thus
violated the Establishment Clause.
This analysis is in error. The primary effect of a pro-
gram which neutrally provides public assistance benefits
to all blind citizens does not advance religion. Even if a
ministerial student participates in the program, the pri-
mary effect of the program remains the same—it helps
blind people obtain training and find employment.
This Court has consistently ruled that programs of
financial aid which merely allow students who are receiv-
ing a religious education to participate on an equal basis
with all other students does not have the primary effect of
advancing religion. The aid is for the benefit of students,
not religious institutions.
The central error of the state court was its focus solely
on Witters’ training as a minister to judge the primary
9
effect of this program. To properly judge whether the
program has the primary effect of advancing religion, the
program as a whole must be examined. When it is so
examined, it becomes obvious that its primary effect is to
aid blind people vocationally. Any effect upon religion is
incidental.
The idea of excluding ministers or ministerial students
from participation in a neutral government program is
contrary te the intent of the Framers of the First Amend-
ment. James Madison and Thomas Jefferson clearly
advocated that ministers should be treated by the govern-
ment on an equal basis with doctors, lawyers and other
professions.
Denying Witters’ participation also is contrary to the
long standing practice of the United States Congress to
permit veterans to use their G.I. Bill benefits to study for
the ministry. If the State Supreme Court is not reversed,
this aspect of the G.I. Bill will be implicitly ruled uncon-
stitutional since the programs are indistinguishable for
Establishment Clause purposes.
While the Establishment Clause does not require dis-
parate treatment of a blind ministerial student because of
his religious vocational choice, the Free Exercise Clause
forbids it. Witters has been singled out for an exception to
the general rule of p~ticipation solely because he has
chosen a religious cai
He is not asking for a special exception to a general rule
because of his religion. Nor is he asking for government
funding when the state legislature has not seen fit to grant
it. He asks only for equal treatment according to the
terms of the state statute. Since his only disqualifying
factor is his religious career choice, the Free Exercise
Clause demands that he receive the equality of treatment
he seeks.
10
ARGUMENT
I
PARTICIPATION BY A BLIND MINISTERIAL STUDENT IN
A NEUTRAL PROGRAM OF VOCATIONAL
REHABILITATION WHICH IS OPEN TO ALL DOES NOT
VIOLATE THE ESTABLISHMENT CLAUSE
This Court is once again confronted with an agency of
state government which seeks to insure the “separation of
church and state” with such zeal that the right of equal
participation by religious citizens has been trampled in
the process. Just as the state university in Widmar v.
Vincent, 454 U.S. 263 (1981), and the Tennessee Constitu-
tion, in McDaniel v. Paty, 435 U.S. 618 (1978), sought to
prohibit participation by religious persons, the Washing-
ton Department for the Blind seeks to deny to Larry
Witters benefits which are generally available to all cit-
izens* because his career goal is “too religious.”
This case, like Widmar and McDaniel, involves the
interplay between the Establishment Clause and the
Free Exercise Clause® of the First Amendment.
However, before the proper harmony between the two
Religion Clauses can be found, each requires separate
analysis. We turn first to the Establishment Clause.
Establishment Clause cases are generally analyzed
under three criteria: (1) the statutory program must have
a secular purpose, (2) the principal or primary effect of the
programs must neither advance nor inhibit religion, and
* Provided, of course, that they meet the medical criteria of visual
impairment.
° Both Clauses have, of course, become applicable to the states by
virtue of this Court's decisions interpreting the Fourteenth Amend-
ment Due Process Clause. See, e.g., Cantwell v. Connecticut, 309
U.S. 626 (1940).
ll
(3) the sid must not foster excessive government
entanglement with religion. Lemon v. Kurtzman, 403
U.S. 602 (1971).
We discuss the first and third parts of this test initially,
because there is little dispute concerning the issues of
“secular purpose” or “excessive entanglement.”
The statutory purpose is set forth in R.C. W. 74.16.181:
The commission [for the blind] may maintain or cause
to be maintained a program of services to assist
visually handicapped persons to overcome vocational
handicaps and to obtain the maximum degree of self-
support and selfcare.
The Washington Supreme Court had no trouble in find-
ing that said legislative purpose was constitutionally per-
missible.
The state clearly has an interest in assisting the
visually handicapped. We need only look to the above
quoted statement of p se found in RCW 74. 16.181
to hold that this statute has a valid secular legislative
purpose.
102 Wn. 2d, at 628, 689 P.2d, at 56.
We antic’ ate no dispute on this point by the Depart-
ment for the Blind. Helping blind people with vocational
training is a legislative purpose which is both commenda-
ble and clearly secular.
There is absolutely no evidence in the record that per-
mitting Larry Witters to participate in the vocational
rehabilitation program would foster any entanglement
between church and state, much less an excessive
entanglement which would render his participation
unconstitutional. The Washington Supreme Court said:
The case before us is much different. This case
involves one person’s effort to get financial assistance
12
for his theological training. The three-pronged
“entanglement” inquiry is ill-suited to this case. In
addition, the administrative and trial court records
do not provide an adequate factual basis to make the
type of inquiry contemplated by the Supreme Court.
102 Wn. 2d, 630, 689 P.2d, at 57.
The factor upon which this case turns is the second
portion of the tripartite test, to wit: whether the program
has the “primary effect” of aiding or inhibiting religion.
This Court has consistently held that programs which
aid students do not have the primary effect of advancing
religion, while programs which aid religious institutions
oftentimes do.* Therefore, to determine the “primary
effect” in this case, this Court must decide if this program
primarily aids blind students or whether it primarily aids
religious institutions.7
The Washington Supreme Court held that the “primary
effect” test of Establishment Clause would be violated if
Witters were permitted to participate in the state-admin-
® Even aid to religious institutions is not unconstitutional per se. If
the aid to the institution is segregated to its secular functions only,
this Court has often found such aid to be permissible under the
Establishment Clause. See, e.g., Tilton v. Richardson, 403 U.S. 672
(1971); Hunt v. McNair, 413 U.S. 734 (1973); Roemer v. Board of
Public Works,426 U.S. 736 (1976).
*Even if this case were found to constitute aid to institutions,
rather than direct aid to students, the issue would still remain
whether this program had the primary effect of aiding religious
institutions. This Court has rejected any notion that incidental aid to
religious institutions violates the Establishment Clause. “One fixed
principle in this field is our consistent rejection of the argument that
‘any program which in some manner aids an institution with a
religious affiliation’ violates the Establishment Clause.” Mueller v.
Allen, 463 U.S. 388, 393 (1983).
13
istered program of vocational rehabilitation for the blind.
The sole factor leading to this conclusion was that his
career objective is to be a pastor, missionary, or Christian
youth worker.
We would submit that this conclusion erroneously con-
strues the Establishment Clause in several respects: (1)
The state court improperly treated the case as if it
involved direct aid to a religious institution; (2) The state
court improperly focused on Witters’ participation rather
than the statutory program as a whole to judge whether
the “primary effect” was to advance religion; and (3) The
state court ignored the intent of the Framers of the First
Amendment and the lessons of history in denying Witters’
right of participation.
A
Ministerial Students Are Not Precluded From “Receiving The
Benefits of Public Welfare Legislation” By Virtue Of The
Establishment Clause
In 1973, this Court observed that “[mJost of the cases
coming to this Court raising Establishment Clause ques-
tions have involved the relationship between religion and
education.” Committee for Public Education v. Nyquist,
413 U.S. 756, 772 (1973). This case falls into that general
trend. The Court, however, noted that there were gener-
ally two types of religion-education cases: “those dealing
with religious activities in the public schools, and those
involving public aid in varying forms to sectarian institu-
tions.” Id.
Although this case clearly does not fall into the former
category, it is erroneous to conclude that it falls into the
latter. Cases which have been decided by this Court
“involving aid in varying forms to sectarian institutions”
usually look quite different from the situation presented
id
by the case at bar. The “state aid to religious institution”
cases are usually the result of what the Cuurt in Nyquist
termed “ingenious plans for channeling state aid to sec-
tarian schools.” 413 U.S., at 785.
When the Washington legislature enacted its program
of aid to blind students, although it did not exclude stu-
dents in religious schools or those studying for religious
careers, it was clearly a program that was without the
type of “ingenuity” the Court referred to in Nyquist. The
Washington program was designed purely and simply to
aid blind people. No one has dared to suggest that the
Washington legislature was looking for a way to maneuver
around the various decisions of this Court in order to
channel some state funds to religious institutions.
1. This Is A Neutral Program Of Student Aid Broadly Avail-
able To All Blind Persons.
It would appear that a third class of Establishment
Clause cases has arisen. They are succinctly identified by
this Court’s recent observation in Mueller v. Allen, 463
U.S. 388, 398-399 (1983):
As Widmar and our other decisions indicate, a pro-
gram... that neutrally provides state assistance to
a broad spectrum of citizens is not readily subject to
challenge under the Establishment Clause.
We would submit that the statutory program for voca-
tional rehabilitation for blind people in the State of Wash-
ington, which includes all classes of students, those in
public and private schools, those in secular and sectarian
schools, and those with secular and religious career objec-
tives, is such a program.
The decision by the Supreme Court of Washington is
wholly reliant upon principles and “sweeping utterances”
Walz v. Tax Commission, 397 U.S. 664, 668 (1970), from
15
the line of cases involving aid to religious institutions. A
far different result is reached when the correct line of
authority is applied. This Court has consistently upheld
the right of religious individuals to participate in neutral
programs in the face of Establishment Clause challenges.
Any analysis of the distinction between aid to religious
institutions and the right of religious persons to partici-
pate in programs open to the public at large must begin
with Everson v. Board of Education, 330 U.S. 1 (1947). In
that case this Court upheld the constitutionality of a New
Jersey statute which permitted “tax-raised funds to pay
the bus fares of parochial school pupils as a part of a
general program under which it pays the fares of pupils
attending public and other schools.” 330 U.S., at 17. This
Court held that the Establishment Clause did not forbid
students who were receiving a religious education from
participating in these kind of public programs. In what
has become a well-used series of examples of permissible
“aid to religion,” this Court reasoned that allowing stu-
dents to ride buses at taxpayers’ expense was no more
violative of the Establishment Clause than providing
“ordinary police and fire protection, connections for
sewage disposal, public highways and sidewalks” 330
U.S., at 17-18, for religious schools and institutions. The
Court reasoned that the State of New Jersey “cannot
exclude individual Catholics, Lutherans, Moham-
medans, Baptists, Jews, Methodists, Non-Believers,
Presbyterians, or the members of any other faith, because
of their faith, or the lack of it, from receiving the benefits
of public welfare legislation.” 330 U.S., at 16. (Italics in
original, bold print added for emphasis).
Like the students in Everson, Witters is receiving a
religious education. Aid to the blind for vocational
rehabilitation is precisely the kind of public welfare legis-
16
lation which the language of Everson authorized. In
Board of Education v. Allen, 392 U.S. 236 (1968), the
Court clearly indicated that this principle of the right of
equal participation declared in Everson was to be broadly
construed. In discussing Everson, the Court said: “the
Establishment Clause does not prevent a State from
extending the benefits of state laws to all citizens without
regard for their religious affiliation . . .” 392 U.S., at 242.
(Emphasis added).
In Board of Ed. v. Allen, this Court permitted the loan
of textbooks to all students of the state without regard to
their enrollment in public, private, or religious school.
But it is clear from the language of the Court in both
Everson and Board of Ed. v. Allen, that this principle is
not limited to police and fire protection, sewers, side-
walks, transportation, textbooks, or public welfare legis-
lation. The principle that the Establishment Clause does
not prevent a state from allowing religious citizens from
participating equally® in its programs is a principle which
extends to all “state laws.” 392 U.S., at 242.
Although this Court recognized in both Everson and
Board of Ed. v. Allen that there was incidental benefit to
religious schools,? the program in each case was held to be
one where “the financial benefit is to parents and children,
not to schools.” Board of Ed. v. Allen, 392 U.S., at 244.
When the reverse is true, this Court’s general rule has
been:
® We discuss in Section II, the requirements of the Free Exercise
Clause which demands equal treatment of religious persons. For
Establishment Clause purposes it is sufficient to demonstrate that
equal treatment is not prohibited.
* Everson, 330 U.S., at 17; Board of Ed. v. Allen, 392 U.S., at 244.
17
Thus, the schools, rather than the children, truly are
the recipients of the service and, as this court has
recognized, this fact alone may be sufficient to invali-
date the program as impermissible direct aid.
Wolman v. Walter, 483 U.S. 229 (1977).
In a variety of other religion-and-education cases, this
Court has consistently followed the principle of approving
aid to students while disapproving most direct aid to
religious institutions. The Court has upheld the constitu-
tionality of programs if, in the Court’s judgment, the true
effect of the laws is to aid parents and . tudents as opposed
to “ingenious plans for channeling state aid to sectarian
schools.” Committee for Public Education v. Nyquist,
supra, 413 U.S., at 772. Thus in Meek v. Pittenger, 421
U.S. 349 (1975), this Court upheld the constitutionality of
Pennsylvania's textbook loan program on the grounds
that it constituted a “financial benefit . . . to parents and
children, not to the nonpublic schools.” 421 U.S., at 361.
But at the same time in Meek, the Court ruled that loans
of instructional materials and the provision of “auxiliary
services” violated the Establishment Clause because
those portions of the program were direct aid to the
religious institutions. 421 U.S., at 369. See also, Wolman
v. Walter, supra; Committee for Public Education v.
Regan, 444 U.S. 646 (1980).
Even if the form of the aid appears to be directed
toward students or parents, this Court has held such aid
to violate the Establishment Clause if “the effect of the aid
is unmistakably to provide desired financial support for
nonpublic, sectarian schools.” Committee for Public Edu-
cation v. Nyquist, supra, 413 U.S., at 783.
The principles set forth in Mueller v. Allen, supra, are,
we would submit, especially applicable to this case. In
18
Mueller, this Court sustained the constitutionality of a
Minnesota program which permitted income tax deduc-
tions for special tuition and related school expenses.
Although the tax deduction had special practical signifi-
cance to those whose children attended private and par-
ochial schools, the deduction was available to all parents
including those with children in the public school. The
Court said that programs which “neutrally provide state
assistance to a broad spectrum of citizens is not readily
subject to challenge under the Establishment Clause.”
463 U.S., at 398-399.
The Court identified factors which help to determine
whether an aid program is truly for the benefit of students
and parents, or whether, as in Nyquist, the aid to parents
is a ruse. First, in Mueller, the Court noted that “under
Minnesota’s arrangement public funds become available
only as a result of numerous, private choices of individual
parents of school-age children.” 463 U.S., at 399. Second,
the Court said: “Where, as here, aid to parochial schools is
available only as a result of decisions of individual parents,
no ‘imprimatur of state approval,’ Widmar, supra, at 274,
can be deemed to have been conferred on any particular
religion or on religion generally.” Jd. -
The only reason any state funds would flow directly or
indirectly to Inland Empire School of the Bible or Whit-
worth College is the result of “numerous, private choices”
made by Larry Witters. First of all, Witters was required
to choose to become trained for a vocation. He could have
chosen to sit idly without training and without work
because of his visual handicap. Second, Witters made the
private choice to study for the ministry. And finally, Wit-
ters had to choose to enroll in the particular program
which the two schools provided.
19
Neither the state nor the religious schools played any
role in his decisions. This case seems much “cleaner” in
this regard than some of the other programs this Court
has found to be constitutionally permissible. For exam-
ple, in Meek v. Pittenger, supra, this Court permitted
loans of textbooks to students in religious schools. The
method in which the books were chosen required, as a
practical matter, some influence and participation by the
religious school. The student made his “request” to the
nonpublic school. The school in turn “summarized” the
requests and forwarded them to the state agency. 421
U.S., at 361. One could safely assume that in a nonpublic
high school history course, for example, it would be desir-
able for all of the students to use the same textbook.
Either the school exerted some influence on the choice, or
the students showed unanimity of thought which is
uncharacteristic of most teenagers.
No one but Witters was involved in his series of choices
to study for the ministry. It takes an active imagination to
suggest that the “imprimatur of State approval” abides on
Witters’ decision when in Meek, no such imprimatur was
found.
Blind students may choose to go to public or private
colleges. They may choose between sectarian and nonsec-
tarian schools. They may choose secular occupations, and
insofar as the State legislature was concerned, they could
choose a religious occupation. They may choose to become
a teacher. Once becoming a teacher, they may choose to be
employed in a variety of schools—one that is nervasively
religious, one which has a religious foundation but is
essentially secular, one that is a private secular school, or
they may teach in a public school.
20
The Department for the Blind has no means of prevent-
ing one who is trained in a secular field from turning that
training into a religious career. In addition to teachers,
one could major in a foreign language and could choose a
religious career as a Bible translator for a mission society.
Or such a student could choose a secular career and work
at the United Nations as a translator. A blind student
could major in social work and go to work for a group like
the Union Gospel Mission, and do missionary work among
the nation’s poor. The same student could make a secular
choice and become employed by a government agency. A
person could be trained as an airplane mechanic and work
for a mission society like Missionary Aviation Fellowship
or the student could choose a secular use of his or her
training by working for one of the nation’s commercial
airlines.
The choices as to which school to attend and which
career to pursue are entirely up to the blind individual.
No agency of the state has the power to influence the
choice. Neither does any agency of religion have the
power under the program to influence which choices stu-
dents make.
Since it is clear that the program of aid to the blind is
one where individuals receiving a religious education
“receive the benefit of public welfare legislation,” Ever-
son, 330 U.S., at 16, on an equal basis with all other
citizens, the Department for the Blind’s decision to dis-
allow Witters’ participation in the name of “separation of
church and state” was clearly not required by the Estab-
lishment Clause. This Court’s decisions are without
exception. If the program is available to all, it is not
unconstitutional to permit those who receive a religious
education to participate on an equal basis with all other
citizens.
eo oe oe
21
2. The Washington Supreme Court Misapplied “Sweeping
Utterances” From Two Aid-To-Religious-Institution
Cases.
The decision of the Washington court was founded not
on a logical analysis of the principles of this court’s deci-
sions in Establishment Clause cases, rather, it lifted a
single phrase from each of two cases involving institu-
tional aid to religious schools and applied the phrases in an
inappropriate manner.
This Court has itself made a rather forthright observa-
tion of the danger in taking quotations from its decisions
and stretching their application beyond what was origi-
nally before the Court. In Walz v. Tax Commission,
supra, 397 U.S., at 668, this Court stated:
The considerable internal inconsistency in the opin-
ions of the Court derives from what, in retrospect,
may have been too sweeping utterances on aspects of
these clauses that seemed clear in relation to the
particular cases but have limited meaning as general
principles.
What the Washington court did was to take “sweeping
utterances” from two aid-to-institutions cases and treat
them as general principles when in fact they should not be
so applied. First, the state court relied upon language
from Hunt v. McNair, supra, which said that state aid
was impermissible “when it funds a specifically religious
activity in an otherwise substantially secular setting.”
413 U.S., at 734. The second phrase comes from Roemer
v. Board of Public Works, supra. In that case this Court
said: “The State may not, for example, pay for what is
actually a religious education, even though it purports to
be paying for a secular one, and even though it makes its
aid available to secular and religious alike.” 426 U.S., at
747. Both Hunt and Roemer involved state aid which was
22
made directly available to religious colleges. The constitu-
tionality of the aid was sustained in both cases.
These “sweeping utterances” cannot be reconciled with
many of this Court’s decisions unless they are understood
to apply only to cases involving aid to religious institu-
tions. The meetings by the religious group in Widmar v.
Vincent, supra, could be appropriately characterized as
“a specifically religious activity in an otherwise substan-
tially secular setting.” However, this Court found that the
religious student group had the right to engage in such
specific religious activity because the secular setting had
been opened to all. Also, there was no finding by the
Court in Everson, that the parochial schools were not
providing “what is actually a religious education.” In fact
just the opposite is true, the Court said, “[tJhese church
schools give their students, in addition to secular educa-
tion, regular religious instruction conforming to the
religious tenets and modes of worship of the Catholic
Faith.” 330 U.S., at 3. New Jersey was unquestionably
funding one aspect of “a religious education,” yet this
Court upheld the aid.
Widmar and Everson were not decided in error. Rather
the Washington Court applied the language from Hunt
and Roemer in error. These cases, which supplied the
“magic phrases” used by the lower court, were not
addressing the issue of aid to a general class of students,
some of whom received a religious education. Their lan-
guage should not be stretched beyond the institutional aid
situation.
In the cases where the Court has permitted direct aid
to religious institutions, it has required that there be a
clear demarcation between the secular functions and the
23
religious functions in order to permit the aid.!° If the
school is actually being funded to perform a “specifically
religious activity in an otherwise substantially secular
setting,” it is not permitted. Likewise, if the school uses
its state funds to provide a religious education, then direct
aid is impermissible. Even the mere possibility that state
aid could be diverted for such purposes is sufficient to
invalidate the program. !!
But there is not a single decision of this Court which has
denied equal participation in a neutral government pro-
gram to a person receiving a religious education. If these
phrases were actually generally applicable rules of consti-
tutional law, then this Court has “ov »rruled” them when it
said in Mueller, “a program . . . that neutrally provides
state assistance to a broad spectrum of citizens is not
readily subject to challenge under the Establishment
Clause.” 463 U.S., at 398-399.
Numerous decisions of this Court become inexplicable
if these phrases from Hunt and Roemer are given the
talisman-like effect employed by the Washington court.
Widmar, McDaniel, Mueller, and Everson, just to name a
few, cannot be reconciled if these phrases are principles of
constitutional law applicable outside the aid-to-religious-
institution cases.
3. Two Decisions On The Merits By This Court Directly
Contradict The Establishment Clause Decision By The
Washington Court.
The presupposition of the Washington Supreme Court
was that Witters was receiving an education that was so
10 See, e.g., Tilton v. Richardson, 403 U.S. 672, 679 (1971); Hunt v.
McNair, 413 U.S. 734, 744 (1973).
11 See, e.g., Levitt v. Committee for Public Education, 413 U.S.
472, 480 (1973).
24
religious that the Establishment Clause was violated by
his participation, even though the program itself was
neutral.
This Court has directly rejected this line of reasoning
twice in summary dispositions, which are given the effect
of decisions on the merits.
In the case of Durham v. McCloud, 259 S.C. 409, 192
S.E.2d 202 (1972), the Supreme Court of South Carolina
was faced with an Establishment Clause challenge to a
state guaranteed student loan program. Students could
get state guaranteed loans to “to defray their expenses at
any institution of higher learning.” 192 S.E.2d, at 203.
“No restriction [was] placed upon the course of study
undertaken by a borrower.” Jd. Thus, the program was
just like the aid to the blind program in Washington state
insofar as the eligibility of those attending sectarian
schools, including those who were studying for the minis-
try. In discussing the Establishment Clause challenge the
court said:
We find no merit in this claim. The Act is scrupulous-
ly neutral as between religion and irreligion and as
between various religions. It simply aids and encour-
es South Carolina residents in the pursuit of higher
ucation, and leaves all eligible institutions free to
compete for their attendance and dollars, neither
advantaged or disadvantaged by the operation of the
Act. If, on the other hand, sectarian schools had been
excluded from the category of eligible institutions,
such schools would have been materially disadvan-
taged by the intervention of the State’s loan program.
192 S.E.2d, at 204.
This is, of course, a direct parallel to the program in
Washington state. If the South Carolina program can
survive a federal Establishment Clause claim, then the
25
Washington program must be treated in the same man-
ner.
The appeal of this South Carolina case to this Court was
dismissed for lack of a substantial federal question. 413
U.S. 902 (1973). Such a dismissal is a decision on the
merits entitled to precedential weight as a decision of the
United States Supreme Court, Hicks v. Miranda, 422
U.S. 332, 343-344 (1975).
The dismissal of the Durham case came on the same
day, June 25, 1973, as this Court decided Nyquist, Hunt v.
McNair, supra, Sloan v. Lemon, 413 U.S. 825 (1973), and
Levitt v. Committee for Public Education, 413 U.S. 472
(1973). The timing of the decision adds special significance
to a decision that is, by virtue of the precedents of this
Court, entitled to precedential weight.
A Tennessee program which also gave secular and
religious students an equal opportunity for state
assistance was challenged under the Establishment
Clause in Americans United for Separation of Church
and State v. Blanton, 433 F.Supp. 97 (1977). Tennessee
gave financial aid to college students “solely on the basis of
a student’s financial need.” 433 F.Supp., at 99. The stu-
dents were permitted to attend any accredited college in
the State. The act specifically stated that “no effort is to
be made by state officials . . . to influence a student's
selection of institutions.” Jd.
The program was challenged because students were
allowed to attend sectarian institutions. The three judge
panel rejected the challenge, holding:
In the instant case, as in Durham, the emphasis of
the aid program is on the student rather than the
institution, and the institutions are free to compete
for the students who have money provided by the
26
program. No one religion is favored by the program,
nor are private or religious institutions favored over
public institutions.
In enacting the Tennessee Student Assistance
Program, the Tennessee General Assembly sought
to provide needy students with the opportunity to
attend the higher education institution of their
choice, be it public, private, sectarian, or nonsec-
tarian. To ensure that the neutral purpose would not
be compromised, the General Assembly enacted a
student aid program rather than an institutional aid
program. The statute passes the relevant three-
pronged vy mip and the Court finds that the pro-
gram on its face and in its application, does not offend
the values protected by the Establishment Clause.
433 F.Supp., at 104-105.
If the words “blind students” were substituted for the
words “needy students” in the above quotation, one would
have a ready-made analysis of the Witters case. The only
possible argument which could be raised to attempt to
show a distinction between Blanton and the present case
is: “While it is true that in Blanton, students could attend
sectarian institutions, Witters’ education for the ministry
is so religious as to justify a different rule.”
Three points quickly destroy this argument. First,
there was nothing in the Tennessee program to prevent
students from using their aid to study for the ministry.
Second, the Establishment Clause does not recognize
distinctions between education that is “a little religious”
and education which is “very religious.” And third, the
record in the Blanton case shows that some of the stu-
dents were using their state aid to obtain education that
was “very religious” indeed.
27
The plaintiffs appealed the decision of the three judge
panel to this Court. In their jurisdictional statement, !2
the plaintiffs in Blanton describe the record as being
“replete with illustrations of the overwhelming sec-
tarianism of the three colleges with respect to which
appellants offered evidence.” J.S., at 13. Upon reviewing
the evidence cited by the Blanton appellants, it is appar-
ent that the schools were at least as religious as the
program that Witters was pursuing. !3
Faced with a record which demonstrated that the Ten-
nessee program permitted sectarian schools to train
“future leaders of the Church,” this Court summarily
affirmed the decision of the three judge panel in Blanton.
434 U.S. 803 (1977). Just like a dismissal for want of a
substantial federal question, a summary affirmance by
this Court “was a decision on the merits . . . entitled to
precedential weight.” Meek v. Pettinger, supra, 421 U.S..,
12 No. 77-250.
'3 The Jurisdictional Statement notes the following:
The “supreme purpose” of David Lipscomb College is to teach
the Bible as the revealed word of God. The first object of the
college is “[t]o provide the best in Christian liberal arts educa-
tion under the direction of Christians in a distinctly Christian
environment.” Other major objectives include “train/ ing]
future leaders in the church, and hold{ing] up Christ as the
aoe iy to follow in every field of activity. . . . (Emphasis
Chapel attendance is compulsory for both faculty and students
and are conducted for worship. Further, every student must take
a Bible lesson daily.
In response to a question from the trial judge, the President of
the College admitted that the college attempts to make the
~ . on influence in the school “pervasive.” (Footnotes omit-
JS. (77-250), at 13-15.
28
at 370, fn. 20. In Meek, this Court said that a summary
affirmance “directly support([s], if not compell[s]” the
same result in another case which raises the same issues
that were raised in the case summarily affirmed.
Thus, Blanton and Durham, stand as powerful and
directly applicable precedents, and although the deci-
sions were penned by lower courts, the nature of this
Court's disposition of both cases causes them to be direct
“if not compell[ing]” support for Petitioner herein.
Furthermore, the principles enunciated in the two
“summary disposition” cases are directly supported by
the full opinions of this Court in Nyquist and Mueller.
Reading Nyquist and Mueller together demonstrates
that this Court has already considered and rejected the
proposition advanced by the Washington Supreme Court.
These cases hold that the Establishment Clause is not
offended by a state aid program where there is evidence of
“the significantly religious character of the statute’s bene-
ficiary.” Nyquist, 413 U.S., at 782, fn. 38.
The Court in Nyquist specifically reserved the question
of whether an aid program similar to the G.I. Bill would
survive an Establishment Clause challenge until a case
arose with evidence that such aid was being used by the
“statute’s beneficiary” who was “significantly religious.”
Id. In Mueller, the Court said in the opening paragraph of
its decision that it was answering the “question [which]
was reserved in Committee for Public Education v.
Nyquist. . . .” 463 U.S. at 390.
The result in Mueller, of course, was to affirm the
principle of equal participation in state programs even if
the beneficiaries of the state program used their state aid
to obtain a religious education. To state the result of these
cases in another way, Nyquist reserved the question: “Ifa
29
recipient of a general state aid program is significantly
religious, will that factor create an Establishment Clause
violation?” Mueller answered: “[A] program ..., that
neutrally provides state assistance to a broad spectrum of
citizens is not readily subject to challenge under the
Establishment Clause.” 463 U.S., at 398-399.
Although this Court has never directly decided
whether or not a student studying for the ministry can
participate in a neutral state program for the blind and
not violate the Establishment Clause, the decisions of this
Court by way of both summary affirmance and full opin-
ions are unmistakably in Petitioner's favor. His right to
participate cannot be denied on the basis of the Establish-
ment Clause of the First Amendment.
B
It Is Improper To Evaluate “The Primary Effect” Of A Program
For Aid To Individual Persons By Focusing On A Single Student
Who Is Receiving A Religious Education
The only reason that the Washington court found that
the primary effect of the program of aid for the blind
advanced religion was that the court focused solely on
Larry Witters and not the program as a whole to make the
evaluation. The constitutionality of the program is readily
apparent if the program as a whole is the measure of
whether or not it has the “primary effect” of advancing
religion.
The Department has failed to develop any evidence that
there are numerous blind people who would choose to
study for the ministry if Witters prevail. Insofar as the
record has been developed, Witters is the only blind per-
son in the history of the State of Washington who has
applied for aid for the purpose of studying for the minis-
try.
30
It is obvious to all that the program as a whole trains
blind people for a wide variety of careers, skills, and
occupations. It would be patently ridiculous to suggest
that, if judged as whole, the program has the primary
effect of advancing religion. The primary effect of this
program as a whole is unquestionably secular in nature.
The state court upheld the “secular purpose” of the
statute by looking at the program as a whole. But then, it
switched to an examination of Witters alone to judge the
“primary effect” of the program. This switch was totally
improper in this kind of case.
The State court once again took a sentence out of one of
this Court’s decisions, and misapplied it in a way so as to
become another “sweeping utterance.” Walz v. Tax Com-
mission, supra, 397 U.S., 668. The state court said:
The second part of the Lemon test, that the pri-
ed effect of the state aid must neither advance nor
inhibit religion, requires that we “narrow our focus
from the statute as a whole to the only transaction
resently before us.” Hunt v. McNair, 413 U.S. 734,
42... (1973). Rather than look to the face of the
rehabilitation statute, which is neutral in that bene-
fits are provided to the student irrespective of the
type of school attended or the degree sought, we
focus our attention on the particular aid sought by
the appellant.
102 Wn. 2d 628, 689 P.2d, at 56.
This quotation from Hunt, we would submit, was never
intended by this Court to be an ironclad principle of
constitutional analysis, especially in cases involving an
individual person. In Hunt, this Court made the above-
quoted statement in connection with a case involving a
religious college construction project with state-backed
revenue bonds totalling $1,250,000. 413 U.S., at 738. This
ee ee
31
is a materially different situation than a single individual
participating in a neutral program of public welfare legis-
lation. While we do not suggest that dollar amounts alone
require a different means of analysis, programs which aid
a specific religious institution with over $1 million in state
backed funds naturally suggest some individualized
attention.
Even more important than the amount of the funds is
the fact that Hunt was dealing with aid to an institution.
The Court’s reasoning and authority for “narrow[ing its]
focus from the statute as a whole to the only transaction
presently before us” was stated in Hunt as follows:
Aid normally may be thought to have a primary
effect of advancing religion when it flows to an
institution in which religion is so pervasive that a
substantial portion of its functions are subsumed in
the religious mission or when it funds a specifically
religious activity in an otherwise substantially secu-
lar setting. In Tilton v. Richardson, supra, the
Court refused to strike down a direct federal grant to
four colleges and universities in Connecticut. Mr.
Chief Justice Burger, for the plurality, concluded
that despite some institutional rhetoric, none of the
four colleges was pervasively sectarian, but held that
possibility open for future cases:
“Individual epee can be properly evaluated if
and when challenges arise with respect to particular
recipients and some evidence is then presented to
show that the institution does in fact possess these
characteristics.” 403 U.S., at 682. (Emphasis added).
413 U.S., at 743.
The Washington court borrowed a phrase from Hunt,
while studiously ignoring Hunt’s reasoning and the rea-
soning from Tilton upon which it was founded. In both of
those cases this Court was careful to state that “a narrow
focus” was to be used in evaluating aid to religious institu-
32
tions. This Court said nothing about using a narrow focus
to judge an individual person participating in a program
open to all.
In fact this Court has directly rejected such an
approach in Widmar v. Vincent, supra. In Widmar, a
student group, Cornerstone, wanted to resume its
religiously oriented meetings on the state university cam-
pus. The meetings included religious worship. The univer-
sity argued that the Establishment Clause prohibited it
from permitting religious groups to participate in an open
forum which it had established for all student groups.
This Court unanimously rejected this argument. 454
U.S., at 270-275; Stevens, concurring, id., at 280-281;
White, dissenting on other grounds, id., at 282. The Uni-
versity argued that the focus should be on the religious
group and whether including it in the limited public forum
would have the primary effect of advancing religion. This
Court replied:
The University’s argument misconceives the nature
of this case. The question is not whether the creation
of a religious forum would violate the Establishment
Clause. The University has opened its facilities for
use by student groups, and the question is whether it
can now exclude groups because of the content of
their speech. ... In this context we are unper-
suaded that the primary effect of the = forura,
open to all forms of discourse, would be to advance
religion. (Emphasis added).
454 U.S., at 273.
If the language from Hwnt were really a rule requiring
“a narrow focus’ on a religious participant,then why did
this Court focus on the whole of the public forum in
Widmar? The obvious answer is that Hunt was never
intended to create such a “rule.”
33
This Court has consistently looked at the program as a
whole whenever it has adjudicated a program where the
aid was directed toward individual!s rather than religious
institutions. See, e.g., Mueller v. Allen, supra; Meek v.
Pittenger, supra; Board of Education, v. Allen, supra;
Everson v. Board of Education, supra. There is not a
single decision of this Court where the Court has “nar-
rowed its focus” upon a religious individual, and found that
because of his religiosity, a neutral program became
unconstitutional as applied to him.
In McDaniel v. Paty, supra, Tennessee had, in a sense,
“narrowed its focus” on ministers. In McDaniel, the
provision in the Tennessee Constitution which prohibited
ministers from holding legislative office was challenged on
Free Exercise grounds. Just as in the present case, the
State defended saying that its rule excluding ministers
was justified on the basis of preventing an establishment
of religion. This argument was rejected by this Court. 435
U.S., at 628-629.
Mr. Justice Brennan, in his concurrence, found that not
only did the act of participation by a minister not offend
the Establishment Clause, but that the exclusion of minis-
ters in fact constituted a violation of both the Free Exer-
cise Clause and the Establishment Clause as well. “The
Establishment Clause, properly understood, is a shield
against any attempt by government to inhibit religion as
it has done here; Abington School District v. Schempp,
374 U.S. 203, 222 (1963). It may not be used as a sword to
justify repression of religion or its adherents from any
aspect of public life.” 435 U.S., at 641 (Emphasis added).
The same result is indicated in the present case.
Nothing in the Establishment Clause nor in the prece-
dents of this Court suggests that it is appropriate to
34
dents of this Court suggests that it is appropriate to
“narrowly focus” on Witters and his religious education.
When the State selects a ministerial student out for spe-
cial treatment, not only are there Free Exercise viola-
tions, as we argue below, but there is, what could be
termed, a “reverse Establishment Clause” violation of the
type Mr. Justice Brennan found in McDaniel.
The program of aid to the blind must be judged as a
whole.!4 Its primary effect is clearly secular as the
Supreme Court of Washington itself said: “(T]he
rehabilitation statute . . . is neutral in that benefits are
provided to the student irrespective of the type of school
attended or the degree sought. . . .” 102 Wn. 2d, at 629,
689 P.2d, at 56.
C
Lessons From History Suggest That Students For The Ministry
“Ought Therefore To Possess The Same Rights”
1. Jefferson And Madison: The Founders Favored Equality.
In reaching decisions on the Religion Clauses of the
Constitution, this Court has treated the views of our
14 Even if the focus were placed solely on Larry Witters, there is
some doubt that the primary effect of allowing him to study for the
ministry under the Department's program would have the primary
effect of advancing his religion. He is, presumably, already a com-
mitted Christian. His personal faith will not be enhanced. Nor will his
sense of “calling” to serve others be enhanced. The spiritual aspect of
his calling to the ministry is unaffected by the grant or denial of
government benefits.
What has been affected is his ability to take the course of practical
training, such a church administration and speech, which enable him
to translate his spiritual calling into a job which pays hima salary. The
primary effect, even as to Witters, is to simply prepare him for a job
which he has chosen. This is clearly secular in nature.
35
founding fathers as guiding lights which can illuminate an
area of law which is fraught with difficulty and contro-
versy.!5 No two individuals have been used in this way
with greater reliance than James Madison and Thomas
Jefferson. Both Madison and Jefferson were stalwart
advocates of the principles which led to the creation of the
Establishment Clause. But neither man would, on the
basis of their writings, advocate carrying the principle of
the “separation of church and state” to the point of deny-
ing equality of treatment for one studying for the minis-
try.
Madison's greatest contribution to the area of religious
freedom, other than his direct work on the First Amend-
ment, was his authorship of his famous Memorial and
Remonstrance Against Religious Assessments. Al-
though the Memorial was directed against a specific bill in
the Virginia legislature, the various points Madison made
have long been regarded as enunciating principles of
religious liberty which should be generally applicable in
our nation.
The fourth point of Madison’s great work declares:
[T]he bill violates that equality which ought to be the
basis of every law, and which is more indispensible, in
proportion as the validity or expediency of any law is
more liable to be impeached. If “all men are by nature
equally free and independent,” all men are to be
considered as entering into Society on equal condi-
tions; as relinquishing no more, and therefore retain-
7 less, one than another, of their natural rights.
Above all are they to be considered as pee an
“equal title to the free exercise of Religion according
15 See, e.g., Lynch v. Donnelly, ___. U.S. —___, 79 L. Ed.2d 604,
611 (1984); Marsh v. Chambers, 463 U.S. 783 (1983); Everson v.
Board of Education,330 U.S. 1, 8 (1947).
36
to the dictates of conscience.” . . . As the Bill violates
equality by subjecting some to peculiar burdens; so it
violates the same principle, by granting to others
peculiar exemptions. (Emphasis added).
Quoted in full by Mr. Justice Jackson in his dissent in
Everson, supra, 330 U.S., at 66.
Madison consistently argued for equality as one of the
necessary ingredients for religious freedom. As this
Court noted in McDaniel v. Paty, swpra, 435 U.S., at
623-624, Madison opposed a provision which would pro-
hibit ministers from holding public office in Virginia while
Thomas Jefferson initially supported the ministerial
exclusion. Madison’s response was forcefully stated:
”Does not the exclusion of Ministers of the Gospel as
such violate a fundamental principle of liberty by
trees be religious profession with the privation of
a civil rig t? does it [not] violate another article of the
plan iself which exempts religion from the —
of Civil power? does it not violate justice by once
taking away a right and prohibiting a compensation
for it’ does it not in fine violate impartiality by shut-
ting the doors [against] Ministers of one Religion and
pel + for those of every other.” 5 Writings of
James ison 288 (G. Hunt ed. 1904)
Quoted by Mr. Chief Justice Burger in McDaniel, supra,
435 U.S., at 624.
The Washington Department for the Blind has
“punished a religious profession with the privation of a
civil right.”16 Any suggestion that this privation is man-
‘6 We are not arguing that there is a “civil right” to have blind
people vocationally rehabilitated. The “civil right” here is not the
“right” to an education, but the right to equal treatment in a govern-
ment program. “It is too late in the day to doubt that the liberties of
religion and expression may be infringed by the denial of or placing of
conditions upon a benefit or privilege.” Sherbert v. Verner, 374 U.S.
398, 404 (1963).
37
dated by the federal Establishment Clause is contrary to
the historical arguments of one of the chief authors of that
Clause.
Jefferson eventually conceded that Madison had been
right. Again, as noted by Mr. Chief Justice Burger in
McDaniel, 435 U.S., at 623-624, fn.4, Jefferson wrote in
1800 saying:
“[A]fter 17 years of more experience & reflection, I
> not +4 sal ss, - lof mS Foye me a of a
clergyman from being elec ec getting
themselves established by law, & tnaraited | into the
machine of government, have been a very formidable
engine against the civil and religious rights of man.
They are still so in many countries & even in some of
hens United States. Even in 1783 we doubted the
stability of our measures for reducing them to the
footing “of other useful callings. It now appears that
our means were effectual. The clergy here seem to
have relinquished all nena to privilege, and to
stand on a footing with lawyers, physicians, &c. They
ht therefore to possess the same rights.” 9 Works
of Jefferson 143 (P. ested. 1905). (Emphasis added).
Some 184 years after Jefferson penned these words,
the Washington Supreme Court decided that those who
desire to be ministers should have fewer rights than those
who desire to be “lawyers, physicians, &c.”17
Madison and Jefferson, as key representatives of our
tradition of religious freedom, have both articulated the
principle of equality of treatment for ministers. Those
who study for the ministry certainly should benefit from
the principle as well. The Department for the Blind’s
17 The trial judge demonstrated the unequal treatment between
these professions when he indicated that he had received part of his
training at Gonzaga University School of Law, a Catholic institution,
using his benefits under the GI Bill. C.P. D-26.
38
discriminatory decision to exclude Witters solely on the
basis of his intended career cannot be justified in light of
this history. In the words of Jefferson, Witters “ought
therefore to possess the same rights.”
2. Our Nation’s Recent History Affirms Witters’ Right Of
Participation: The G.I. Bill.
In at least one other Establishment Clause case which
has come before this Court, the argument has been made
that the government “aid to religion” before the Court is
indistinguishable from the G.I. Bill.!8 Committee for
Public Education v. Nyquist, supra, 413 U.S., at 7&2, fn.
38. The obvious reason for making such an argument is
that the G.I. Bill has been so historically accepted that
any court decision which would threaten its constitu-
tionality would be seriously questioned. As Mr. Justice
Holmes noted, “(a] page of history is worth a volume of
logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349
(1921).
The decision of the Supreme Court of Washington,
unless reversed by this Court, does indeed imperil a sig-
nificant aspect of the G.I. Bill. If Witters must be
excluded from studying for the ministry under the aid to
the blind program by virtue of the Establishment Clause,
then the same fate awaits those who study for the Minis-
try under the G.I. Bill. Constitutionally, the programs
are indistinguishable.
Since its inception, the G.I. Bill! has never contained
1838 U.S.C. $1651.
19 The G.I. Bill has its roots in the Vocational Rehabilitation Act of
1920, 66th Congress (enacted June 2, 1920). It was amended by Public
Law 16, Vocational Rehabilitation Act of 1943. The Servicemen’s
Readjustment Assistance Act of 1944, P.L. 346 (June 22, 1944) was
39
an exclusion from participation for those who desire to
study for the ministry.?° Today, a multitude of schools are
eligible to accept armed forces veterans to train them to
become ministers, priests, and rabbis.2! Inland Empire
School of the Bible is also approved by the Veteran’s
Administration for students who desire to use their G.I.
Bill benefits. It is hard to see a constitutional difference
between Witters studying under the aid to the blind pro-
gram and the student across the aisle studying under the
G.I. Bill.
Although this Court has said that “[s]tanding alone,
historical patterns cannot justify contemporary violations
of constitutional guarantees,” Marsh v. Chambers, 463
the first act labeled the “G.I. Bill.” It was modifed after the Korean
War, Veterans’ Readjustment Assistance Act of 1952, P.L. 550, 82nd
Congress. It was amended again in 1966, P.L. 89-358, Veterans’
Readjustment Benefit Act of 1966. The most recent revisions were
made in P.L. 96-466 (1980) and P.L. 97-295 (1982).
20 Congress has demonstrated that it knows how to create excep-
tions to the general and broad provisions of the G.I. Bill when it
desires to do so. At present, 38 U.S.C. §1673 lists a number of
courses which are excluded from the Bill’s coverage. These courses
include: “any course in bartending or personality development
course,” sales courses which do not provide specialized training for a
specific vocational field, avocational training, and independent study.
Study for the ministry is not excluded from the Bill’s coverage.
21 Included in the list of approved institutions for ministerial or
rabbinical studies are: Harvard Divinity School, Catholic University,
Jewish Theological Seminary, Reconstruction Rabbinical College,
Reformed Theological Seminary, Dallas Theological Seminary,
Wesley Theological Seminary, and Western Conservative Baptist
Theological Seminary. Also VA approved for rabbinical studies are
the following institutions in Israel: Rabbinical Seminary of America,
Yeshivas Torah Ore, Yeshivat Hamiutar, and Yeshivat Moharil Ash-
lag. Information from Veteran’s Administration Career Development
Center, 941 N. Capitol St., N.E., Washington, D.C. 20421.
40
U.S. 783, 790 (1983), the weight of the history of the G.I.
Bill is not insignificant.
If the experience of the G.I. Bill permitting veterans to
use government benefits ran counter to the stream of the
decisions of this Court on the Establishment Clause, its
weight alone would not supply the justification for allow-
ing Witters to participate. But it is the Supreme Court of
Washington, not the G.I. Bill that is swimming against
the tide of the decisions of this Court as well as the flow of
history.
THE FREE EXERCISE CLAUSE IS VIOLATED BY
SINGLING OUT MINISTERIAL STUDENTS FOR
DISPARATE TREATMENT
The factual posture of this case makes the consideration
of the F'ree Exercise issues considerably easier than other
situations which have been faced by this Court. Witters
does not come to this Court asking it to create a special
exception to a general rule because of his religion. Nor is
he asking this Court to grant him funding when the state
policymakers, the state legislature, has not seen fit to do
so. Witters comes to this Court seeking nothing more
than equal treatment with all other blind students. He
merely asks this Court to prohibit the Department for the
Blind from treating him in a disparate manner solely
because he has chosen a religious career.
The Washington legislature enacted the statutory
authorization for this program, R.C.W. 74.16.181, with-
out limitation as to the career one could pursue. The
eligibiliiy statute, R.C.W. 74.16.183,22 simply required
*2Since the filing of this case, this eligibility statute has been
repealed and replaced with R.C.W. 74.18.130 in 1983. The new
41
that eligible persons must have “no vision or . . . vision
with correcting glasses [which] is so defective as to pre-
vent the performance of ordinary activities for which
eyesight is essential or who has an eye condition of a
progressive nature which may lead to blindness.” It is
stipulated that Witters has met the statutory require-
ment for eligibility. C.P. C-2.
The Washington legislature has demonstrated that it
knows how to create an exception for those who are study-
ing for theological degrees?* when it chooses to do so. In
R.C.W. 28B. 10.836, the legislature prohibited a program
of general aid to students in private colleges from being
used by those who were studying for degrees in the-
ology.*4
R.C.W. 28B is the Higher Education Code for Wash-
ington, while R.C.W. Title 74, which contains the aid to
the blind program, is the Public Assistance Code for the
State. The legislature could, and apparently did, decline
statute provides in full:
“The department shall provide a program of vocational rehabilita-
tion to assist blind persons to overcome vocational handicaps and to
develop skills necessary for self-support and self-care. Applicants
eligible for vocational rehabilitation services shall be persons who are
blind as defined in R.C. W. 74. 18.020 and who also (1) have no vision or
limited vision which constitutes or results in substantial handicap to
employment and (2) can reasonbly be expected to benefit from voca-
tional rehabilitation services in terms of employability.”
This statute, like its predecessor, in no way limits the right of those
who are studying for the ministry to participate.
23 We assume that studying for the ministry would be fairly charac-
terized as a degree in theology or “related area.”
24 This entire program was declared unconstitutional on state con-
stitutional grounds in Weiss v. Bruno, 82 Wn. 2d 199, 509 P.2d 973
(1973).
42
to provide aid under the Higher Education Code to a
general college student who was seeking a degree in
theology. But in the area of Public Assistance, the legis-
lature used its discretion to provide aid to all blind persons
without a restriction against those studying for the minis-
try.
It was, therefore, not the policymakers of the State of
Washington who excluded Witters from participation. It
was the administrative agency which swa sponte decided
that it would be unconstitutional to permit Witters to
participate. It is interesting to note the Department’s
view of its legal requirements. The Assistant Attorney
General for the Department signed the following stipula-
tion:
At an earlier administrative hearing, the Deputy
Director for the Commission [ Hy eee. admitted
that its policy was such that the State would pay for
Larry Witters[’) training if he wanted to be a Com-
munist agitator if there was a job available after such
training, but that payments to train him to be a
pastor were illegal.
See, Petitioner’s Proposed Factual Stipulation before the
Office of Hearings (August 21, 1980) signed by counsel for
both parties. J.A. 6.
Thus, it is clear that the Department saw no restraint
on paying for training for a career which would advance a
*° The Commission for the Blind’s original decision cites R.C.W.
28B. 10.836 as requiring it to exclude Witters from participation. See,
letter of Bill Gannon dated March 11, 1980. J.A. 3. However, when
Witters pointed out that 28B.10.836 had no relevance to the aid for
the blind program, counsel for the Department abandoned the argu-
ment contending that said statute was cited for illustrative purposes
only. See, Respondent's Memorandum of Authorities, before the
Office of Hearings, (August 25, 1980) p.1.
—
43
political philosophy, but believed that it was illegal to pay
for the training of one who would advance a religion.*®
It was Witter’s choice of a religious career, nothing
more or less, which caused the administrative agency to
conclude that it would be “illegal” to permit Witters to
participate in the program.
The Free Exercise Clause challenge would be substan-
tially more difficult if it had been the policymakers, i.e.,
the state legislature, which had excluded Witters. But
this factual pattern demonstrates that it was a state
administrative agency which decided to meddle with the
authority of both the legislature and the courts by decid-
ing that Witters should not participate because it was
“unconstitutional” for him to do so.
The decisions of this Court leave no room for doubt that
a state agency which creates a special exception in order
to deny general public welfare benefits to a person solely
because of his religious occupation violates the Free Exer-
cise Clause of the First Amendment.
This Court’s long-standing interpretation of the Free
Exercise Clause is that “a person may not be compelled to
choose between the exercise of a First Amendment right
and participation in an otherwise available government
program.” Thomas v. Review Board, 450 U.S. 707, 716
26 The Department's view of what type of training it may assist is
curious in light of this Court’s statement in West Virginia v. Barnette,
319 U.S. 624, 642 (1943):
“If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein. If there are any
circumstances which permit an exception, they do not now occur to
us.” (Emphasis added).
44
(1981). See also, Sherbert v. Verner, 374 U.S. 398 (1963).
Since the decision of this Court in McDaniel v. Paty,
supra, it is beyond debate that the choice of the ministry
as a career falls within the protection of the Free Exercise
Clause. “(T]he right of the free exercise of religion
unquestionably encompasses the right to preach, pros-
elytize, and perform other similar religious functions, or,
in other words, to bea minister. . .” 435 U.S., at 626. The
language this Court applied to the Rev. McDaniel applies
with equal force to Witters. This Court said: “[T]o con-
dition the availability of benefits [including access to the
ballot] upon this appellant’s willingness to violate a car-
dinal principle of [his] religious faith [by surrendering his
religiously impelled ministry] effectively penalizes the
free exercise of [his] constitutional liberties.” 435 U.S., at
626.
Witters was disparately treated for precisely the same
reason as McDaniel, “the . . . disqualification operates
. . . because of his status as a ‘minister.’ . . .” 435 U.S, at
627. Witters faces the choice of giving up his chosen
vocation as a minister or giving up his right of participa-
tion in the program of aid for the blind. This is the same
type of choice which McDaniel faced and which this Court
ruled to be unconstitutional. “[U]nder the clergy-dis-
qualification provision, McDaniel cannot exercise both
rights simultaneously because the State has conditioned
the exercise of one on the surrender of the other. Or, in
James Madison's words, the State is ‘punishing a religious
profession with the privation of a civil right.’ ” 435 U.S.,
at 626.
In Thomas v. Review Board, supra, as in Sherbert v.
Verner, 374 U.S. 398 (1963), the employee quit his job
because of changed work conditions which required him to
choose between violating his religious faith and con-
45
tinuing his employment. In both of these cases, there was
a uniform policy that all persons who were unemployed for
personal reasons could not receive unemployment bene-
fits. This Court held, in both cases, that since the
employees had become unemployed solely in adherence to
their religious principles that it was a violation of the Free
Exercise Clause to apply the general rules which denied
benefits to them.
Perhaps, Mr. Justice Douglas, in Sherbert, framed the
question in a way that succinctly demonstrates the Free
Exercise problem here. He said: “If appellant is other-
wise qualified for unemployment benefits, payments will
be made to her not as a Seventh-day Adventist, but as an
unemployed worker.” 374 U.S., at 412. If Witters receives
payments from the Department for the Blind, it will be
because he is blind, not because he desires to be a minis-
ter. Just as Sherbert and Thomas could not be disqualified
from participation solely because of their adherence to
their religious faith, Witters may not be disqualified
solely because of his religious career choice.
While we rely on the authority of both Thomas and
Sherbert, we believe that the facts in this case demon-
strate such a clearcut violation of the Free Exercise
Clause that even the dissenters in Thomas and Sherbert
would agree with us here. In Thomas, Mr. Justice Rehn-
quist, in dissent, complained that the majority required
Indiana to create a religiously-based exception to their
general policy of excluding those who quit for personal
reasons for unemployment. 450 U.S., at 720-727. In the
same manner, in Sherbert, Mr. Justice Harlan, joined by
Mr. Justice White, dissented saying: “I cannot subscribe
to the conclusion that the State is constitutionally com-
pelled to carve out an exception to its general rule of
eligibility in the present case.” 374 U.S., at 423. Witters
46
does not ask for an exception to the general rule of eligi-
bility in his case. Rather, he asks that the general rule be
applied with equality to him despite his religion. He
became eligible for aid because of an eye disease, not
because of his religion. But his religion cannot, by virtue
of the command of the Free Exercise Clause, be the sole
grounds for his disqualification.
If Sherbert and Thomas were entitled to participation
in the neutral government program of aid for the unem-
ployed, as we believe they were, how much more should
Witters be entitled to aid when it cannot even be argued
that he is asking for an exception.
Justice Utter, dissenting in the State Supreme Court,
discussed the applicability of the Sherbert and Thomas
cases, concluding:
The tacts of this case are very similar to those in
Sherbert and Thomas. While the State is not obli-
gated to provide handicapped vocational education
assistance, once it decides to do so I believe that the
free exercise clause forbids the state from penalizing
those who have chosen religious careers by excluding
them from a general financial aid program solely for
that reason.
102 Wn. 2d, at 642, 689 P.2d, at 63-64.
In one sense this case is closer to Sherbert and Thomas
in that it involves eligibility for a neutral program of public
assistance. However, in another sense, it is closer to Wid-
mar since Witters is seeking equality, not a special excep-
tion.
In Widmar, the policymakers of the university decided
that religious groups should be excluded from the limited
public forum which the university had created. This Covrt
held that it was a violation of the Free Exercise Clause to
47
treat religious student groups disparately solely on the
religious content of their speech.
We believe that the principle of Widmar regarding the
Free Exercise Clause is controlling here. The Depart-
ment for the Blind has disparately treated Witters solely
because of the religious content of his vocational training.
Again, we rely on Widmar, but we believe that the facts
of this case not only brings us within the protection of its
principles, but also answers the dissent in that case. Mr.
Justice White dissented in Widmar, arguing that while
the Establishment Clause certainly would not be violated
by permitting a religious group to participate, it was
within the discretion of the board of the University to
decide whether or not to create exceptions to the general
rule. 454 U.S. at 282.
In the case at bar, it was not the policymakers who
excluded Witters for reasons within their discretion, it
was the administrative agency which superseded the
decision of the state legislature and made a determination
that it was unconstitutional to provide the aid. Thus,
Witters’ situation not only fits into the criteria announced
by the majority in Widmar, it also meets the concerns
raised in the dissent.
Thus, this case possesses a sufficiently similar factual
pattern to bring it within the precedential holdings of
Sherbert, Thomas, and Widmar. The factual distinctives
of this case demonstrate that the Department for the
Blind’s decision is more certainly violative of the Free
Exercise Clause than even these three cases which we
believe are controlling and upon which we rely.
We believe that we have demonstrated that the Depart-
ment for the Biind’s decision to exclude Witters from
participation violates his right to the free exercise of
48
religion. However, the possibility exists, however
remotely, that the Department could overcome this viola-
tion by demonstrating that their exclusion of Witters was
required to further some compelling state interest. This
Court has set forth the necessary showing which the
Department must make in order to justify its denial of the
free exercise of religion.
The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of
achieving some compelling state interest. However,
it is still true that “[t]he essence for all that has been
said and written on the subject is that only those
interests of the highest order. . can overbalance
_—— claims to the free exercise of religion.”
usconsin v. Yoder, [406 U.S. 205], 215 [(1972)},
Thomas v. Review Board, supra, 450 U.S., at 718.
The only reason that the Department for the Blind
disqualified Witters was its belief that it was unconstitu-
tional to permit him to participate. The Department con-
tended, and the state courts found, that his participation
was barred by the Federal Establishment Clause and by
similar state constitutional provisions.
While it is obviously important for states to obey the
Constitution of the United States and the State of Wash-
ington, this Court has repeatedly rejected similar justi-
fications for denying the free exercise of religion. In Sher-
bert, Thomas, Widmar, and McDaniel, the state in each
case raised the claim that the inroad on religious liberty
was justified in the name of preserving the “separation of
church and state.” And in each case this Court rejected
the claim whether it was based on the federal or the state
constitution.?7
27See, Sherbert,374 U.S., at 409-410; Thomas, 450 U.S., at
719-720; McDaniel, 435 U.S., at 628-629; and Widmar, 454 U.S., at
273.
49
The majority of the Washington Supreme Court chose
to avoid ruling on the state constitutional issues. None-
theless, even if they had ruled that permitting Witters to
participate violated the State Constitution, the applica-
tion of the Free Exercise Clause would still overrule the
state exclusion. Assuming that the State Constitution
does not permit Witters’ participation,?* the case is still
indistinguishable from Widmar. In Widmar this Court
assumed that the state constitution prohibited the stu-
dent group from meeting on campus. And in McDaniel,
the state constitution specifically prohibited ministers
from running for public office. Yet in both cases this Court
held that the Free Exercise Clause prevailed over the
state constitutional exclusions.
Thus, if the Department fails to convince this Court
that the federal Establishment Clause prohibits Witters’
participation, then their only claim to a compelling state
interest evaporates. We believe that we have shown that
the Establishment Clause cannot possibly be construed to
prohibit the aid, therefore the claim of a compelling state
interest which justifies the denial of the right of free
exercise must necessarily fail.
28 The two provisions of the State Constitution are Article IX §4,
which requires schools maintained with public funds to be free from
sectarian influence or control, and Article I §11 which prohibits
public monies from being used for religious worship, exercise, and
instruction, or the support of any religious establishment. See, Jus-
tice Utter’s excellent dissent in this case for a dispositive historical
analysis of the intent and meaning of these sections. 102 Wn.2d, at
643, 689 P.2d, at 64.
50
CONCLUSION
The Religion Clauses of the First Amendment must be
construed in harmony. When the Establishment clause is
extended beyond what this Court has said and what the
Founders intended, there is an inevitable danger that the
Free Exercise Clause may be violated in the process. This
is such a case.
Petitioner respectfully urges this Court to reverse the
decision of the Washington Supreme Court and to remand
with directions to allow him to participate in the program
of aid to the blind in accordance with the statute. If his
choice of a religious career is the sole basis for disqualifica-
tion, then he must be permitted to participate and to
recover amounts authorized for training he has already
taken.
June 6, 1985 Respectfully submitted,
MICHAEL P. FARRIS
Concerned Women for America
Education and Legal Defense
Foundation
Attorney for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.