Amicus Curiae Brief — Locke v. Davey

No. 02-1315 SEP 8 2008

Gu The

Supreme Court of the Gnited States

o

GARY LOCKE, Gov., individually and in his official

capacity; MARCUS S. GASPARD, individually, and in his

official capacity as Executive Director of the Higher

Education Coordinating Board; BOB CRAVES,

individually, and in his official capacity as Chair of the

Higher Education Coordinating Board; JOHN KLACIK,

individually, and in his official capacity as Associate

Director of the Higher Education Coordinating Board,

Petitioners,

v.

JOSHUA DAVEY,

Respondent.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF THE INSTITUTE FOR JUSTICE,

THE CENTER FOR EDUCATION REFORM,

CATO INSTITUTE, CITIZENS FOR EDUCATIONAL

FREEDOM, AND THE GOLDWATER INSTITUTE AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

o

INSTITUTE FOR JUSTICE

RICHARD D. KOMER*

CLINT BOLICK

WILLIAM H. MELLOR

1717 Pennsylvania Ave., NW

Suite 200

Washington, DC 20006

(202) 955-1300

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

,

(55

TABLE OF CONTENTS

Page

ee iictrreicnccnndinsonneesnsesnssmnennen iii

INTEREST OF AMICI CURIAE .................00000ceeee0000 1

SUMMARY OF ARGUMENT ..................c.cccceeceeeeeeeees 3

SIIIIIIIET cinhithdindedntidigdindininbiabnieiemneimmminneneeneiee 5

EES Ce 5

II. WASHINGTON’S BLAINE AMENDMENT

CANNOT BE DIVORCED FROM ITS ANTE-

CEDENTS IN RELIGIOUS BIGOTRY.............. 9

III. WASHINGTON’S EFFORTS TO CONTROL

AND CHANNEL THE FREE AND INDE-

PENDENT CHOICES OF INDIVIDUALS

WITH RESPECT TO RELIGION VIOLATE

THE FEDERAL CONSTITUTION .................... 13

EE SESE SE nee Oe 13

B. Petitioners Wrongly Characterize the

Ninth Circuit’s Decision Below as Requir-

ing the State To Subsidize Davey’s Right

To Pursue a Degree in Theology.................. 16

C. The Ninth Circuit Correctly Held That

Washington Violated Davey’s Right to Free

Exercise of Religion ...............ccccccccscccsescsecees 20

D. Washington Violates the Free Speech

Clause By Engaging in Viewpoint Dis-

crimination When It Excludes Theology

STITT ioiethinieicaiasiaitiesh aiashbeeinetritipinieanemeinaneninninnets 22

E. Washington Violates the Establishment

Clause By Inhibiting Religion..................... 24

ii

TABLE OF CONTENTS - Continued

Page

F. Washington’s Discrimination Based on Re-

ligion Violates the Equal Protection Clause..

CONCLUSION

eee eee PPP eee eee eee eee ©

26

28

—<- < ——

—

iii

TABLE OF AUTHORITIES

Page

CASES

Agostini v. Felton, 521 U.S. 203 (1997)...............c.cccceeeeeees 25

American Sugar Refining Co. v. Louisiana, 179

Ica rrrrrrersnsnonsnnns 26

Americans United for Separation of Church and

State v. State of Colorado, 648 P.2d 1072 (Colo.

LE LL 14

Association de Maestros v. Torres, 137 D.P.R. 528,

1994 PR Sup. LEXIS 341 (1994)......... ccc eceeeeeeeeeeeeeees 6

Bd. of Ed. v. Allen, 392 U.S. 236 (1968) .................. 8, 14, 28

Bd. of Ed. v. Antone, 384 P.2d 911 (Okla. 1963)................. 7

Bd. of Ed. v. Grumet, 512 U.S. 687 (1994)..............004. 20, 25

Bd. of Ed. of Westside Comm. Schools v. Mergens,

Er 17, 25

Bloom v. Sch. Comm., 379 N.E.2d 578 (Mass. 1978) ......... 8

Burlington N. R.R. Co. v. Ford, 504 U.S. 648 (1994) ....20, 26

California Teachers Ass’n v. Riles, 632 P.2d 953

isc sesssneneneneneneny 8

Cammarano v. United States, 358 U.S. 498 (1959)........... 18

Capitol Square Rev. & Advisory Bd. v. Pinette, 515

EEE ee 25

Chittenden Town Sch. Dist. v. Dep’t of Ed., 738 A.2d

539 (Vt.), cert. denied, 528 U.S. 1066 (1999).................. 7

Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993) ..........cccccccccceeeeeereeeeeees 20, 21

Committee for Public Education v. Nyquist, 413

ica ncctiinsrcnsrsssoneserscnesesccss 15

iv

TABLE OF AUTHORITIES — Continued

Page

Davey v. Locke, 299 F.3d 748 (9th Cir. 2002)...................-. 19

Edwards v. Aguillard, 482 U.S. 578 (1987)...........ccccceceeeee 25

Employment Division v. Smith, 494 U.S. 872 (1990) ....22, 27

Epeldi v. Engelking, 488 P.2d 860 (Idaho 1971)................. 7

Everson v. Board of Education, 330 U.S. 1 (1947) ....passim

Fannin v. Williams, 655 S.W.2d 480 (Ky. 1983) ................. 8

Gaffney v. Dep't of Ed., 220 N.W.2d 550 (Neb. 1974).......... 8

Good News Club v. Milford Central Sch., 533 U.S.

Pa eee cccancentcncencenitsiinaniatiiaitiniibenaiuntintiiatninmaiiaibiinimaeneinneneatii 17

Griswold v. Connecticut, 381 U.S. 479 (1965) ................... 23

Harris v. McRae, 448 U.S. 297 (1980) ................... 16, 18, 19

Healy v. James, 408 U.S. 169 (1972) .00...........cccceeeeeeeeeeeeeee 24

Hobbie v. Unemployment Appeals Comm., 480 U.S.

Ie ere ransencencnstenrentnasemuniaemmnncmmmeumenimtaniienesntiits 27

Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999)................ 10

Lamb’s Chapel v. Center Moriches Union Free Sch.

eg ED Ce ND GD cccnccccncstscnstntncsnmmmesnnnssansennianes 17

Lee v. Weisman, 505 U.S. 577 (19938) .............cccececeseeeeeeeees 15

Lemon v. Kurtzman, 403 U.S. 602 (1971)...............0cccceeeees 25

Maher v. Roe, 432 U.S. 464 (1977)........ccccccccceeseeeeeeeeeee 16, 18

Matthews v. Quinton, 362 P.2d 932 (Alaska 1961)............. 7

McDaniel v. Paty, 435 U.S. 618 (1978)... cceceeeeeeneeeeees 22

McDonald v. Sch. Bd., 246 N.W.2d 93 (S.D. 1976)............. 8

McVey v. Hawkins, 258 S.W.2d 927 (Mo. 1953).................. 7

Meyer v. Nebraska, 262 U.S. 390 (1923)..........:cccscceeeeeeees 16

—_— -— ee

Vv

TABLE OF AUTHORITIES — Continued

Page

Mitchell v. Helms, 530 U.S. 793 (2000) ..................... 7,9,12

Mueller v. Allen, 463 U.S. 388 (1983) ................cccccsceeeeeeeee 14

Nat'l Endowment for the Arts v. Finley, 524 U.S.

ETC hristiinienenntatniecndaincnainaaltapiabaniiiaanpaaabiniiniatadiebindiiahiis 16, 26

Niemotko v. Maryland, 340 U.S. 268 (1951)................ 20, 26

Opinion of the Justices, 216 A.2d 668 (Del. Sup.

ITT aescssnenscheieiaitiiiataandidaiadinteilii teil iatieetiaaieaietcaaaani 7

Pastor v. Tussey, 512 S.W.2d 97 (Mo. 1974).............ccccceeeees 8

Pierce v. Society of Sisters, 268 U.S. 510 (1925)...11, 13, 16, 18

Regan v. Taxation Without Representation, 461 U.S.

TUITE hncesnnssineeuidepsiasicsianeninesensennieteteniantinaiusnenetininne 16, 18

Regents of the Univ. of California v. Bakke, 438 U.S.

ITIP cisocinesicininsinnnnsnieenaniebdacmanasiadaanpatenintinemeesiinaneias 23

Rosenberger v. Rectors & Visitors of the University

of Virginia, 515 U.S. 819 (1995).............cccceessesreeeeees 17, 20

Rust v. Sullivan, 500 U.S. 173 (1991).............cccceceeeeeeeeeees 16

Sch. Dist. Of Abington Township v. Schempp, 374

Sherbert v. Verner, 374 U.S. 398 (1963)................ccceeceeeeeee 27

Spears v. Honda, 449 P.2d 130 (Haw. 1968)...............c200+0 7

State ex rel. Nussbaum, 115 N.W.2d 761 (Wis. 1962)......... 7

Thomas v. Review Bd., 450 U.S. 707 (1981)....................4 27

United States v. American Library Ass’n, 123 S. Ct.

IIIT GI ceccasenitmienaeeinnanennbeinsnsiensnnumneemmennatinieinnes 24

United States v. Armstrong, 517 U.S. 687 (1996)........ 20, 26

vi

TABLE OF AUTHORITIES — Continued

Page

Visser v. Nooksack Valley School Dist., 207 P.2d 198

EP EER, Sei hercnissncenenecsscnsntenesnnesnenedmmenintiimeameennnmsenes 7,8

Wallace v. Jaffree, 472 U.S. 38 (1984) ..........cccccceceeeeeeeeeeees 25

Walz v. Tax Comm., 397 U.S. 664 (1970)..........cceeeesesreeeees 27

Widmar v. Vincent, 454 U.S. 263 (1981)...............cccececeeeees 17

Witters v. Washington Dept. of Servs. for the Blind,

a es Cae Ca crtcnceenneqneennsecnnsenninentnsnenectiannesd 8, 14, 16

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .....1, 7, 14

Zobrest v. Catalina Foothills School Dist., 509 U.S.

Get hciitisiinsnideesntneetbaaisintincendintineedniabeatiidntiannnennenene 14

CONSTITUTIONAL PROVISIONS

RE Leer ener 3

CODES AND STATUTES

25 Stat. 676-77 (1889) (Enabling Act of 1889)................... 11

20 U.S.C. § 1070 et seq. (Pell Grants).................cceeeseeeeeeees 12

20 U.S.C. § 1070a et seg. (Guaranteed Student Loans)........ 12

38 U.S.C. § 3451 et seq. (G.I. Bill)................cccccccccecesereseees 12

Wash. Rev. Code section 28B.10.814 .0...........ccccccecseseeeeeeees 21

OTHER PUBLICATIONS

Bolick, Voucher Wars: Waging the Legal Battle Over

BI III CTT ccrnensenscennntnnnnenbinmnmtennnnennnionmeinen 7

ow ew

Vii

TABLE OF AUTHORITIES -— Continued

Page

Gall, The Past Should Not Shackle The Present:

The Revival of a Legacy of Religious Bigotry By

Opponents of School Choice, 59 N.Y.U. Ann. Surv.

I a ii ia ae intel 10

Jorgenson, The State and the Non-Public School;

I aaa ai i re 10

Viteritti, Blaine’s Wake: School Choice, the First

Amendment, and State Constitutional Law, 21

Harv. J. L. & Pub. Pol’y 657 (1998)....................cccceeeeeeees 5

Volokh, Equal Treatment Is Not Establishment, 13

Notre Dame J. L. & Pol. 341 (1999)................cccceeeeeeeeees 20

1

INTERESTS OF AMICI CURIAE'

The Institute for Justice is a 501(C)(3) nonprofit,

public interest law firm dedicated to protecting individual

liberties. One of the core areas on which the Institute

focuses its activities is the promotion of parental choice in

education. Since its founding 12 years ago, the Institute

has participated in the defense of every parental choice

program passed by the various state legislatures, includ-

ing Zelman v. Simmons-Harris, 536 U.S. 639 (2002),

usually by representing as defendant-intervenors parents

of schoolchildren attending schools using scholarships

made available under these programs. A primary legal

issue in these cases has been whether the inclusion of

parental options to choose a religious school for their

children to attend comports with the federal and state

constitutions’ religion clauses.

The Center for Education Reform (“CER”) is a

national voice for more choices in education and more

rigor in education programs, both of which are key to more

effective schooling. CER delivers practical, research-based

information and assistance to engage a diverse lay audi-

ence — including parents, policymakers and education

reform groups — in taking actions to ensure that U.S.

schools are delivering a high quality education for all

children in grades K-12.

* This brief is filed with the consent of the parties. No counsel to

any of the parties to this matter authored this Brief in whole or in part.

No person or entity other than the amici curiae made a monetary

contribution to the preparation and submission of this brief.

2

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedicated to

advancing the principles of individual liberty, free mar-

kets, and limited government. Cato’s Center for Constitu-

tional Studies was established in 1989 to help restore the

principles of limited constitutional government and to

secure those rights, both enumerated and unenumerated,

that are the foundation of individual liberty. Towards

those ends the Institute and the Center undertake a wide

variety of publications and programs. The instant case

raises squarely issues of increased choice in the educa-

tional marketplace and the interaction of the First

Amendment Establishment Clause and Free Exercise

values and thus is of central interest to Cato and the

Center.

‘Citizens for Educational Freedom (“CEF”) is a

national, grassroots organization with its headquarters in

Missouri. Founded in 1959, CEF is dedicated to supporting

parents’ rights to ck»ose schools for their own children.

The Educational Freedom Foundation is a charitable

foundation affiliated with CEF and serves to educate the

public about parental rights in education and school choice

issues.

The Goldwater Institute, established in 1988, is a

nonprofit, independent, nonpartisan, research and educa-

tional organization dedicated to the study of public policy.

Through its research papers, editorials, policy briefings

and forums, the Institute advocates public policies founded

upon the principles of limited government, economic

freedom and individual responsibility. One of the central

missions of the Goldwater Institute is studying and

3

promoting parental decision making and control in educa-

tion.

+

SUMMARY OF ARGUMENT

The U.S. Constitution does not permit states to

control or channel the free and independent choices of

individuals in matters of religion or speech. Yet, in the

case under consideration, that is precisely what the state

of Washington has sought to do under the aegis of the

state constitution’s Blaine Amendment (Wash.Const. art.

1, section 11). More broadly, the state has asserted the

right to subsidize individuals’ choices of secular higher

education while denying equal benefits to those who would

choose an education with religious purpose. This consti-

tutes discrimination on the basis of religion, violating no

less than four provisions of the Federal Constitution.

As the Ninth Circuit held below, Washington’s denial

of a Promise Scholarship to Joshua Davey solely because

he had chosen to pursue a Pastoral Studies major at a

religious college violated his rights under the Free Exer-

cise of Religion Clause of the First Amendment. His choice

of this major was religiously motivated, and Washington’s

denial was unquestionably based upon its conclusion that

to fund his scholarship would violate the state’s Blaine

Amendment language prohibiting the application of state

funds to religious instruction or the support of any reli-

gious establishment.

Washington’s action also constituted viewpoint dis-

crimination under the Free Speech Clause. Were Davey

studying theology courses at .. public or private secular

university he would have received the scholarship. It was

4

only because his college was religious and taught theology

from the perspective of religious truth that Washington

disqualified him from state aid.

In distinguishing between theology programs and

courses at religious versus secular institutions, Washing-

ton plainly draws a line on the basis of religion, a suspect

classification under the Equal Protection Clause of the

Fourteenth Amendment and subject to strict scrutiny

under this Court’s precedents. Washington lacks a compel-

ling justification for this religious discrimination, nor is its

exclusion of Mr. Davey narrowly tailored to meet such a

justification.

Finally, by discriminating against individuals choos-

ing to major in religious studies offered from a religious

perspective at religious colleges, Washington violates the

Establishment of Religion Clause by deliberately hinder-

ing religion as against non-religion. The religious neutral-

ity called for by this Court’s Lemon test for Establishment

Clause violations forbids programs with a primary effect

either advancing or inhibiting a particular religion or

religion in general. Extending the reach of Washington’s

Blaine Amendment to encompass the free and independent

choices of private individuals plainly has the primary

effect of inhibiting religion.

5

ARGUMENT

I. INTRODUCTION

Washington, like 36 other states, has a religion clause

in its state constitution familiarly known as a Blaine

Amendment.’ Some 29 states, not including Washington,

have what commentators characterize as “compelled

support” clauses involving religion in their constitutions.’

All told, only three states have neither sort of provision in

their constitutions.‘ Virtually all of these religion clauses

were adopted long before — in some cases, more than a

century before — this Court held in 1947 that the federal

Constitution’s religion clauses apply to the states in

Everson v. Board of Education, 330 U.S. 1 (1947). The

existence and prevalence of these state religion clauses

create a myriad of opportunities for conflicting interpreta-

tions of state and federal requirements. One area where

* The common denominator of what we term the Blaine Amend-

ments is a prohibition on state aid to sectarian (i.e., religious) institu-

tions. A number of states adopted such provisions before the federal

Blaine Amendment narrowly failed to pass Congress with the requisite

two-thirds majorities in 1876. The anti-Catholic Republican majorities

in both houses of Congress had mc’ » than enough votes to subsequently

require through enabling legislation that new applicants for statehood

(such as Washington) include Blaine amendments in their state

constitutions. See generally Viteritti, Blaine’s Wake: School Choice, the

First Amendment, and State Constitutional Law, 21 Harv. J. L. & Pub.

Pol’y 657 (1998).

* The common denominator of “compelled support” clauses is

language stating ‘hat no person shall be compelled to attend or support

any church or religious ministry without his consent. Generally of an

earlier derivation than the Blaine Amendments, these clauses disestab-

lished state churches/religions by stripping them of their previous state

— mandated support.

* Louisiana, Maine, and North Carolina.

6

these conflicts are particularly acute involves parental

choice programs in education.

Increasing dissatisfaction with the current condition

of America’s public elementary and secondary education

system, particularly in America’s inner cities, where a

huge proportion of minority students are educated in

school districts whose performance can at best be de-

scribed as dismal, has spawned an intense interest in

educational alternatives. Among the most promising

alternatives are reforms premised on parental choice, in

which parents are empowered to select private schools for

their children by receiving scholarships or vouchers.* Such

reforms engender fierce opposition on the part of organiza-

tions, such as the teachers’ unions, that have a stake in

preserving the near monopoly that public school systems

exercise by virtue of their provision of free education. One

of their most common allegations against parental choice

proposals is that such proposals violate state constitu-

tional religion clauses like the Blaine Amendments and

compelled support provisions. They routinely subject such

programs to legal challenges under the Blaine Amend-

ments, often disrupting the programs and the precious

educational opportunities they provide.®

* Amici include in this category tax credit programs that allow

parents tax credits for private educational expenses or that help

generate private scholarships by tax credits for donations to scholarship

funds.

* For example, in 1994 the Puerto Rico Supreme Court invalidated

an innovative parental choice program under its Blaine Amendment

because it permitted parents to use scholarships to send their children

to religious schools as well as private secular schools. Association de

Maestros v. Torres, 137 D.P.R. 528, 1994 PR Sup. LEXIS 341 (1994).

(Continued on following page)

7

These allegations are premised on the same reasoning

that opponents presented to this Court under the Estab-

lishment Clause in Zelman v. Simmons-Harris, 536 U.S.

639 (2002). They interpret these provisions to prohibit aid

to individuals who are given a free and independent choice

of schools for their children to attend and who choose a

religious provider, on the theory that the parents are

inconsequential conduits of aid to the religious schools

they've chosen. In essence, opponents of such programs

equate aid to the families to aid given directly to the

schools as schools.’ A number of state supreme courts have

in the past adopted this reasoning, sometimes conscious

they were adopting a more restrictive approach than this

Court has taken in analogous cases under the Establish-

ment Clause.*

Similarly, in 1999, the Vermont Supreme Court reinterpreted the

compelled support language in its constitution to prevent parents from

selecting religious schools under its longstanding school choice pro-

gram. Chittenden Town Sch. Dist. v. Dep't of Ed., 738 A.2d 539 (Vt.),

cert. denied, 528 U.S. 1066 (1999). Absent a definitive ruling from this

Court that the Federal Constitution prohibits singling out religious

schools and their patrons for adverse treatment, state parental choice

programs will continue to be subjected to constant litigation reaching

divergent results. See generally Bolick, Voucher Wars: Waging the Legal

Battle Over School Choice (2003).

" Amici are not arguing that direct aid to religious schools is or is

not constitutional — that issue, left open by Mitchell v. Helms, 530 U.S.

793 (2000), is not raised by this case.

* See Visser v. Nooksack Valley Sch. Dist., 207 P.2d 198 (Wash.

1949); McVey v. Hawkins, 258 S.W.2d 927 (Mo. 1953); Matthews v.

Quinton, 362 P.2d 932 (Alaska 1961); State ex rel. Nussbaum, 115

N.W.2d 761 (Wis. 1962); Bd. of Ed. v. Antone, 384 P.2d 911 (Okla. 1963);

Opinion of the Justices, 216 A.2d 668 (Del. Sup. 1966); Spears v. Honda,

449 P.2d 130 (Haw. 1968); and Epeldi v. Engelking, 488 P.2d 860 (Idaho

1971), all disallowing the transportation of children to religious schools

(Continued on following page)

8

The Washington Supreme Court is the most notorious

in this regard. In Visser v. Nooksack Valley School Dist.,

207 P.2d 198 (Wash. 1949), just two years after this Court

held in Everson that states were subject to the federal

religion clauses in a case upholding New Jersey's practice

of subsidizing the transportation of all children to their

schools, including religious schools, the Washington

Supreme Court held that its Blaine Amendment forbade a

similar program in Washington. Similarly, after this Court

issued its unanimous Establishment Clause decision in

Witters v. Washington Dept. of Servs. for the Blind, 474

U.S. 481 (1986), holding that it was constitutional for

Washington to allow Witters to pursue a religious vocation

by attending a religious college with state assistance, but

remanding the case to the Washington Supreme Court for

a ruling on the effect of the Washington constitution, that

court held that its Blaine Amendment prohibited Witters

from using his entitlement at a religious college. Witters v.

Washington Comm’n for the Blind, 771 P.2d 1119 (Wash.),

cert. denied, 493 U.S. 850 (1989).

It is this state court interpretation of the Washington

Blaine Amendment that has led to the case under consid-

eration. Washington continues to treat aid given to

under state religion clauses post-Everson. See Gaffney v. Dep't of Ed.,

220 N.W.2d 550 (Neb. 1974); Pastor v. Tussey, 512 S.W.2d 97 (Mo. 1974);

McDonald v. Sch. Bd. , 246 N.W.2d 93 (S.D. 1976); Bloom v. Sch. Comm..,

379 N.E.2d 578 (Mass. 1978); California Teachers Ass’n v. Riles, 632

P.2d 953 (Cal. 1981); and Fannin v. Williams, 655 S.W.2d 480 (Ky.

1983), all disallowing free secular textbooks for children in religious

schools under state religion clauses after this Court upheld a similar

program under the Establishment Clause in Bd. of Ed. v. Allen, 392

U.S. 236 (1968).

c+ ow oes e eee ee ee CS

9

individuals as aid to religious schools, even where the

individuals choose such schools in a religiously-neutral

program with a surfeit of secular choices. In so doing,

Washington is applying a state constitutional provision

that was designed to disadvantage Catholics in a way that

now disadvantages all religions. This more “catholic”

discrimination is equally repugnant to the principles of

religious liberty incorporated into the U.S. Constitution,

notwithstanding Washington’s and its supporting amici’s

attempts to justify its actions as simply a more rigorous

and purportedly virtuous separation of church and state.

II. WASHINGTON’S BLAINE AMENDMENT CAN-

NOT BE DIVORCED FROM ITS ANTECEDENTS

IN RELIGIOUS BIGOTRY.

Members of this Court have recognized that state

Blaine Amendments are not a benign expression of a

desire for a stricter separation of church and state. Justice

Thomas, writing for the four-member plurality in Mitchell

v. Helms, 530 U.S. 793, 828 (2000), stated that “hostility to

aid to pervasively sectarian schools has a shameful pedi-

gree that we do not hesitate to disavow. ... Consideration

of the [Blaine] Amendment arose at a time of pervasive

hostility to the Catholic Church and to Catholics in gen-

eral. And it was an open secret that ‘sectarian’ was a code

word for ‘Catholic.’” Similarly, the Arizona Supreme Court

refused to apply its Blaine Amendment, which was mod-

eled on Washington’s, to a tax credit program, noting that

“(t]he Blaine amendment was a clear manifestation of

religious bigotry, part of a crusade manufactured by the

10

contemporary Protestant establishment to counter what

was perceived as a growing ‘Catholic’ menace.” Kotterman

v. Killian, 972 P.2d 606, 626 (Ariz. 1999).°

Petitioners, and particularly their amici Historians

and Law Scholars on Behalf of Petitioners, seek to obfus-

cate and deny this well-established history. In an effort

that can at best be characterized as disingenuous, those

amici contend that the federal Blaine Amendment arose

from a variety of factors of which anti-Catholicism was but

one, and that there is no evidence that Washington’s

Blaine Amendment was motivated by anti-religious or

anti-Catholic animus. Rather, they suggest that state

constitution drafters, both before and after the failed effort

to enact the federal Blaine Amendment, were “primarily

concerned with the survival of the nascent public schools

and in securing their financial security.”

What this analysis fails to put into proper perspective

is that the “nascent public schools” these amendments

sought to protect were in fact pervasively and intention-

ally Protestant institutions, hostile to the Catholic faith.”

Protecting their monopoly over the use of state education

* The court went on to say that “we would be hard pressed to

divorce the amendment’s language from the insidious discriiuinatory

intent that prompted it.” Jd.

” Brief Amicus Curiae of Historians and Law Scholars on Behalf of

Petitioners at 17.

" See generally Jorgenson, The State and the Non-Public School;

1825-1925 (1987); Gall, The Past Should Not Shackle The Present: The

Revival of a Legacy of Religious Bigotry By Opponents of School Choice,

59 N.Y.U. Ann. Surv. Am. L. 413 (2003).

— - oe

11

funds was hardly a religiously-neutral act in that con-

text.”

Similarly, the absence of evidence regarding Anti-

Catholicism in the debates on the Washington Constitu-

tion of 1889, in which the state Blaine Amendment lan-

' guage first appeared, is hardly dispositive of the question

whether the Amendment was improperly motivated,

because of the simple fact that the federal Enabling Act of

1889 required the state to establish a system of public

schools free of sectarian control.” That Act effectively

permitted the customary “nonsectarian” public schools

(i.e., generically Protestant public schools), while denying

funding to “sectarian” Catholic schools.“ That the federal

government required Washington to incorporate the

Blaine approach into its constitution in order to become a

state simply means that the discriminatory motivation

" The amici do appear to concede that the public schools of the

19th century had a “Protestant nonsectarian complexion” (Amici Brief

at 19) and that “nonsectarian” meant a “watered-down Protestantism”

in which doctrines distinguishing sects of Protestants were not taught

(id. at 18). They fail to draw the obvious conclusion, however, that the

effort to preserve the public school monopoly on funds was thus a

bigoted and hypocritical effort by the Protestant establishment to retain

funds for its schools and deny funds to those of the Catholics.

* See Enabling Act, ch.180, section 4, 25 Stat. 676-77 (1889).

“ The effort of Oregon in 1923, fueled by the Ku Klux Klan among

others, to require that all schoolchildren attend public schools that led

to this Court’s decision in Pierce v. Society of Sisters, 268 U.S. 510

(1925), takes on a distinctly religious cast when one realizes that the

public schools were generically Protestant.

12

existed at least at the federal level and possibly at the

state level as well.”

This Court need not go so far as to invalidate Wash-

ington’s Blaine Amendment in toto, but must overrule

interpretations of it that conflict with federally-protected

rights." Given the current state of federal religion clause

jurisprudence, some forms of direct assistance to religious

schools gua schools would probably still fail to pass federal

muster under Mitchell v. Helms, and can be similarly

foreclosed by state Blaine Amendments. But denying

assistance such as Promise Scholarships on a discrimina-

tory basis, where individuals choose religious educational

options and where such assistance is clearly permissible

under the federal Constitution,” cannot be permitted.

* In the analogous context of race discrimination, school districts

that segregated African-American students pursuant to state law were

not immune from suit if plaintiffs could not show evidence the district

agreed with the state policy and would have adopted it without state

coercion.

“ After all, virtually all state religion clauses were adopted at a

time when no one seriously thought the federal religion clauses applied

to the states. Accordingly, they were usually intended to provide

parallel protections to the Federal Constitution’s guarantees of religious

liberty. Thus, the failed federal Blaine Amendment itself contained

language prohibiting state establishments of religion and protecting

free exercise, before going on to forbid aid to sectarian institutions.

" Similar federal student assistance programs like the G.I. Bill, 38

U.S.C. § 3451 et seg., Pell Grants, 20 U.S.C. § 1070 et seg., and Guaran-

teed Student Loans, 20 U.S.C. § 1070a et seg., do not exclude ministe-

rial students or students majoring in theology. While virtually all states

have student assistance programs similar in many respects to Washing-

ton’s Promise Scholarships, Washington notes in its Petition for

Certiorari that only 14 have statutes that prohibit using public funds to

pay for a degree in theology. Pet. at 22.

13

III. WASHINGTON’S EFFORTS TO CONTROL AND

CHANNEL THE FREE AND INDEPENDENT

CHOICES OF INDIVIDUALS WITH RESPECT

TO RELIGION VIOLATE THE FEDERAL CON-

STITUTION.

A. Introduction

In Pierce v. Society of Sisters, 268 U.S. 510 (1925), this

Court rebuffed Oregon’s efforts to require that all its

schoolchildren attend public schools. In doing so, the Court

said:

[W]e think it entirely plain that the Act of 1922

unreasonably interferes with the liberty of par-

ents and guardians to direct the upbringing and

education of children under their control. As of-

ten hitherto pointed out, rights guaranteed by

the constitution may not be abridged by legisla-

tion which has no reasonable relation to some

purpose within the competency of the State. The

fundamental theory of liberty upon which all

governments in this Union repose excludes any

general power of the State to standardize its

children by forcing them to accept instruction

from public teachers only. The child is not the

mere creature of the State; those who nurture

and direct his destiny have the right, coupled

with the high duty, to recognize and prepare him

for additional responsibilities.

268 U.S. at 534-35.

Amici believe it is this preexisting right to direct the

education of their children that underpins and justifies

distinguishing between programs in which governments

provide assistance directly to schools and those in which

assistance is provided to individuals or families to allow

them to select schools. In the line of cases commencing

14

with Everson, 330 U.S. 1 (1947), continuing through Board

of Ed. v. Allen, 392 U.S. 236 (1968), Mueller v. Allen, 463

U.S. 388 (1983), Witters, 474 U.S. 481 (1986), and Zobrest

», Catalina Foothills School Dist., 509 U.S. 1 (1993), and

culminating in Zelman v. Simmons-Harris, 536 U.S. 639

(2002), this Court has permitted the individual beneficiar-

ies of government programs to select a religious education

for themselves or their children, where “any aid ... that

ultimately flows to religious institutions does so only as a

result of the genuinely free and independent choices of aid

recipients.” Witters, 474 U.S. at 487.

By excluding students pursuing theology degrees from

religious colleges’* Washington seeks to exercise “a general

power to standardize its children by accepting instruction

from [secular] teachers only.” Petitioners argue that in

limiting their program to secular instruction they are

merely enforcing a more rigorous “separation” of church

and state. But there can be no question that their actions

place those persons wishing to pursue an education

containing religious elements for themselves or their

children at a significant disadvantage. Petitioners’ position

reflects a fundamental misunderstanding of their powers

“ Some states such as Colorado exclude all students attending

“pervasively religious” colleges from their student assistance programs,

rather than just theology students at such colleges. See, for example,

Americans United for Separation of Church and State v. State of

Colorado, 648 P2d 1072 (Colo. 1982) (upholding under Colorado's

Blaine Amendment the inclusion of students at religiously-affiliated but

not pervasively-sectarian colleges). These broader exclusions suffer

from the same constitutional deficiencies as the narrower Washington

exclusion because they discriminate on the basis of religion.

|

15

to discriminate against religious options and in favor of

secular ones.

Petitioners, as well as those states that have similarly

interpreted their religion clauses to preclude individual

recipients of educational assistance from selecting reli-

gious educational providers,” have fundamentally misun-

derstood their role with respect to religion. This Court has

made clear in its modern religion clause jurisprudence

that government-operated schools must be secular, be-

cause for such schools to teach religion would reflect

governmental endorsement and coerce individuals through

the taxing power to support that endorsement.” This

jurisprudence has of course resulted in the “de-

religification” of the formerly Protestant public schools, a

development amici have supported as a long overdue

elimination of religious bias. But just because publicly-

operated schools must be secular does not mean that

privately-operated schools must be secular if their clientele

benefits from public assistance. So long as government is

not deliberately using individuals as a means of aiding

religion (i.e., not creating one of “the ingenious plans for

channeling aid to sectarian schools that periodically reach

this Court” (Committee for Public Education v. Nyquist,

413 U.S. 756, 785)), “the fact that aid goes to individuals

means that the decision to support religious education is

” See note 7, supra, citing cases in which states have taken a non-

parallel interpretation to circumvent this Court’s interpretation of the

Establishment Clause.

* See, e.g., Sch. Dist. of Abington Township v. Schempp, 374 U.S.

203 (1963) (outlawing mandated prayer in public schools), and Lee v.

Weisman, 505 U.S. 577 (1993) (outlawing school-sponsored prayer at

graduation ceremonies).

16

made by the individual, not the State.” Witters, 474 U.S. at

488. Under Pierce and Meyer v. Nebraska, 262 U.S. 390

(1923), parents are ultimately responsible for the educa-

tion of their children and have every right to teach them,

either directly or through surrogates, about religion,

without the state questioning whether they are “indoctri-

nating” their offspring. Empowering parents, or individu-

als such as Joshua Davey, through a religiously-neutral

program of financial assistance that allows them to effec-

tively exercise their pre-existing right to direct their own

or their children’s education does not constitute state aid

to religion.

B. Petitioners Wrongly Characterize the Ninth

Circuit’s Decision Below as Requiring the

State To Subsidize Davey’s Right To Pursue

a Degree in Theology.

Citing Maher v. Roe, 432 U.S. 464 (1977); Harris v.

McRae, 448 U.S. 297 (1980); Regan v. Taxation Without

Representation, 461 U.S. 540 (1983); Rust v. Suliivan, 500

U.S. 173; and Nat’l Endowment for the Arts v. Finley, 524

U.S. 569 (1998), for the proposition that the government's

decision not to fund the exercise of a fundamental right

does not infringe that right, Petitioners contend that this

case falls squarely within that category. Their argument

fundamentally misunderstands those cases and the nature

of what Washington has done in applying its Blaine

Amendment to exclude Davey from the scholarship pro-

gram’s benefits. While nothing in the federal Constitution

requires Washington to provide Promise Scholarships to

any individuals at all, nor prevents Washington from

funding individuals in specified classes defined by a

religiously-neutral line such as whether they attend public

17

colleges or study engineering, Washington has excluded

Davey pursuant to a line drawn on the basis of religion.

He is excluded because he chose to pursue a religious

vocation.

Just as the University of Missouri did not have to

provide free meeting rooms to student groups in Widmar v.

Vincent, 454 U.S. 263 (1981), once it did so this Court held

that it could not deny such facilities to religious student

groups, nor rely on its state Blaine Amendment as a

justification for the discrimination. Similarly, just as the

University of Virginia did not have to subsidize student

publications in Rosenberger v. Rectors & Visitors of the

University of Virginia, 515 U.S. 819 (1995), once it did so,

this Court held that it could not refuse to fund publica-

tions taking a religious perspective.” Once Washington

chose to provide scholarships for its residents attending

colleges in Washington, it could not deny them scholar-

ships on the basis of religion, nor can it justify such

discrimination against religion in general on the basis of

its Blaine Amendment.” In short, while Washington

has no affirmative obligation to subsidize any of its citi-

zens’ rights to pursue particular degrees, once it starts

* See also Bd. of Ed. of Westside Comm. Schools v. Mergens, 496

U.S. 226 (1990); Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993); and Good News Club v. Milford Central Sch.,

533 U.S. 98 (2001).

* Amici cannot help from noting the irony that the Blaine

Amendments, designed to preserve Protestant hegemony over the

public schools and public fisc. against Catholic challenges, have

transmuted over the years into engines for discrimination against

religion in general.

18

subsidizing some of its citizens it becomes obligated not to

deny subsidies to others on an unconstitutional basis.

Petitioners’ reliance on the Maher line of cases mis-

construes those decisions and their relationship to Wash-

ington’s discriminatory classification scheme, as the Ninth

Circuit correctly concluded below. While these cases quite

properly distinguish between burdening a constitutional

right, as occurred in Meyer «nd Pierce, and failing to

subsidize one, they also reccgnize that the refusal to

subsidize cannot be on the basis of a suspect classification.

See, e.g., Regan, 461 U.S. 540, 548 (noting “[t]he case

would be different if Congress were to discriminate invidi-

ously in its subsidies in such a way as to ‘aim ... at the

suppression of dangerous ideas’”) (quoting Cammarano v.

United States, 358 U.S. 498, 513 (1959)). In denying Davey

the Promise Scholarship because he wished to major in

theology taught from a religious perspective, Washington

discriminates invidiously in its subsidies, treating the

religious perspective as a dangerous idea requiring sup-

pression.

In Harris v. McRae, 448 U.S. 297 (1980), the sequel to

Maher, this Court rejected the claim that by funding

childbirth services for indigent women the government

violated equal protection principles by refusing to fund

their abortions. Saying that “[tJhe guarantee of equal

protection ... is a right to be free of invidious discrimina-

tion in statutory classifications and other governmental

activity,” 448 U.S. at 322, this Court held that financial

need is not a constitutionally suspect classification subject

to strict scrutiny. Religion, however, is a constitutionally

i |

19

suspect classification,” and the free exercise of religion a

constitutionally protected right. While in Harris, this

Court held that Congress was permitted to “establish

incentives that make childbirth a more attractive alterna-

tive than abortion for persons eligible for Medicaid,” 448

U.S. at 324, Washington is not permitted to establish

incentives that encourage students to pursue a secular

education by discriminating against religion.”

Nor is the decision below a case involving government

speech, as Petitioners and their amici seek to characterize

it. By subsidizing the educations of the scholarship recipi-

ents, Washington is not itself the provider of the educa-

tion, except where the recipients select a public college or

university, in which case the Establishment Clause inde-

pendently prohibits the state from teaching about religion

or a particular religion from a viewpoint of religious truth.

The Ninth Circuit below found that “pursuing a course of

study of one’s own choice” is part of “the expressive con-

duct, creative inquiry, and the free exchange of ideas [that]

the educational enterprise is all about.” Davey v. Locke,

* See section III. F., infra.

* Amici are not arguing that Petitioners violate the constitution by

discriminating on the basis of religion by funding and operating secular

public schools and universities, because the Establishment Clause quite

properly requires that such institutions be secular because the govern-

ment is operating them. But where as here the government does not

operate the institutions, the government has no right to encourage, nor

rational basis for encouraging, individuals to choose secular schools or

programs. The First Amendment is intended to keep the government

neutral in matters of faith, not only by ensuring that governmental

institutions be religiously-neutral, but also by ensuring that govern-

ment not encourage or discourage private choices that may be influ-

enced by religion.

20

299 F.3d 748, 755 (2002). The state has no more business

encouraging students to approach religion from a secular

viewpoint in theology majors than it would in encouraging

them to approach religion classes from a religious view-

point.

C. The Ninth Circuit Correctly Held That

Washington Violated Davey’s Right to Free

Exercise of Religion.

It is often the case that a classification made on a

prohibited basis violates multiple federal constitutional

protections. Cases such as this one involving discrimina-

tion based on religion frequently do so, because religion is

not only the special concern of the First Amendment’s two

religion clauses, see, e.g., Everson, 330 U.S. 1 (1947)

(Establishment Clause), and Church of the Lukumi Ba-

balu Aye v. City of Hialeah, 508 U.S. 520 (1993) (Free

Exercise Clause), but also frequently involves speech

implicating the Free Speech Clause, see, e.g., Rosenberger,

515 U.S. 819 (1995), and constitutes a suspect classifica-

tion for purposes of the Fourteenth Amendment’s Equal

Protection Clause, see, e.g., Niemotko v. Maryland, 340

U.S. 268, 272 (1951). Washington’s efforts to exclude

Davey for choosing to pursue a religion major at a reli-

gious college violates all of these provisions. The Ninth

Circuit’s decision focuses primarily on the Free Exercise

* See also United States v. Armstrong, 517 U.S. 687, 716 (1996);

Bd. of Ed. v. Grumet, 512 U.S. 687, 715 (1994); Burlington N. R.R. Co.

v. Ford, 504 U.S. 648, 650 (1992); and Volokh, Equal Treatment Is Not

Establishment, 13 Notre Dame J. L. & Pol. 341 (1999).

21

Clause and correctly concludes that Washington violates

the clause through application of its Blaine Amendment.

In Lukumi, 508 U.S. 520 (1993), Justice Kennedy

opened his opinion for the Court by saying, “The principle

that government may not enact laws that suppress reli-

gious belief or practice is so well understood that few

violations are recorded in our opinions.” 508 U.S. at 520.

In that case, this Court concluded that the challenged laws

had an impermissible object, the suppression of Santeria

religious practices, and pursued their asserted secular

ends only with respect to conduct motivated by religious

belief. In the case under review, the interpretation of the

Washington Constitution and its implementation in Wash.

Rev. Code section 28B.10.814” differs from the city of

Hialeah’s actions in only two ways: first, in seeking to

suppress religion in general rather than a particular

religion; and second, in doing so overtly rather than trying

to camouflage its motives in secular garb. Surely these

differences cannot be a basis justifying a different out-

come.

Washington treats all religions alike in denying their

adherents aid if pursuing a theology/religion degree.” The

only religion majors the state will fund are those pursuing

their studies from a secular point of view. Washington

* That section provides in relevant part that “[nJo aid shall be

provided to any student who is pursuing a degree in theology.”

* As this Court said in Lukumi, “At a minimum, the protections of

the Free Exercise Clause pertain if the law at issue discriminates

against some or all religious beliefs or regulates or prohibits conduct

because it is undertaken for religious reasons.” 508 U.S. at 532 (empha-

sis added).

22

makes no efforts to hide that this is what it is doing;

instead, it seeks to justify its actions as implementing the

more thoroughgoing separation of church and state sup-

posedly mandated by its constitution. Tennessee offered a

similar rationale for denying ministers the right to par-

ticipate as legislators and delegates to constitutional

conventions, a position this Court rejected as violating the

First Amendment in McDaniel v. Paty, 435 U.S. 618

(1978). As Justice Brennan said in his concurring opinion

in McDaniel, the Free Exercise Clause was violated

because “governrnent may not use religion as a basis of

classification for the imposition of duties, penalties,

privileges or benefits.” 435 U.S. at 639 (Brennan, J.,

concurring). See also Employment Division v. Smith, 494

U.S. 872, 877 (1990), in which this Court said that under

the Free Exercise Clause “[t]he government may not...

impose special disabilities on the basis of religious views

or religious status.” Unlike Smith, which involved secular

objectives pursued using religion-neutral criteria, in this

case Washington uses religious criteria to pursue an

objective that is anything but religiously-neutral. It puts

individuals pursuing religious studies from a religious

perspective at a disadvantage against individuals pursu-

ing all other studies, including religious studies from a

secular perspective.

D. Washington Violates the Free Speech Clause

By Engaging in Viewpoint Discrimination

When It Excludes Theology Majors.

Education is essentially speech. It is communication

between teachers and students, usually occurring in the

confines of a school or college. Just as the Free Speech

Clause prevents government from banning private schools,

23

it prevents government from banning religious schools. In

Griswold v. Connecticut, 381 U.S. 479, 482-83, this Court

said that “the State may not, consistently with the spirit of

the First Amendment, contract the spectrum of available

knowledge. The right of freedom of speech and the press

includes not only the right to utter or to print, but the

right to distribute, the right to receive, the right to read

and freedom of inquiry, freedom of thought, and freedom to

teach — indeed, the freedom of the entire university com-

munity.” Rosenberger applied these free speech principles

to government action subsidizing secular viewpoints but

denying equal treatment to religious viewpoints. Just as

the University of Virginia was under no obligation to

subsidize any viewpoints, but couldn’t exclude those that

were religious once it undertook to subsidize all others, so

Washington, having undertaken to subsidize theology

classes and majors taught from a secular viewpoint,

cannot refuse to subsidize Davey’s choice of theology

taught from a religious viewpoint.

By excluding otherwise qualified students of theology

from a merit-based program whose purpose is not to

advance any particular field of knowledge, Washington has

also violated Davey’s academic freedom as protected by the

Free Speech Clause. “Academic freedom, though not a

specifically enumerated constitutional right, long has been

viewed as a special concern of the First Amendment.”

Regents of the Univ. of California v. Bakke, 438 U.S. 265,

312 (1978) (Powell, J., concurring). Academic freedom

properly functions to prevent the government from influ-

encing the marketplace of ideas by invidiously supporting

or disfavoring particular viewpoints. It denies the govern-

ment’s authority to limit, burden, or otherwise discourage

citizens’ access to readily available information, unless

24

that information is itself unprotected by the First Amend-

ment. See United States v. American Library Ass’n, 123

S. Ct. 2297 (2003).

Davey was denied his scholarship for no reason other

than that the government has singled out theological

studies for special disfavor. In so doing, Washington

artificially burdens the choice of any scholarship recipient

who might desire to study theology, thereby violating the

principle of academic freedom. Washington’s limitation vis-

a-vis theology programs plainly interferes with the free

“marketplace of ideas” that academic freedom is intended

to promote and protect.”

E. Washington Violates the Establishment

Clause By Inhibiting Religion.

Ever since Everson, this Court’s initial application of

its religion clause jurisprudence to the states, this Court

has recognized that the religious neutrality mandated by

the Establishment Clause requires evenhanded treatment

of religion and non-religion, not just an absence of a

preference for one religion or another. “(The First Amend-

ment] requires the state to be a neutral in its relations

with groups of believers and non-believers; it does not

require the state to be their adversary. State power is no

more to be used so as to handicap religions than it is to

favor them.” Everson, 330 U.S. at 18. Yet handicapping

* See Healy v. James, 408 U.S. 169, 180-81 (1972) (“the college

classroom with its surrounding environs is peculiarly the ‘marketplace

of ideas,’ and we break no new ground in reaffirming this Nation's

dedication to academic freedom”).

25

religion is precisely what Washington has sought to do in

this case.

Religious neutrality is, of course, the underpinning of

this Court’s longstanding Lemon test for assessing Estab-

lishment Clause cases.” While that test has undergone

restatement in recent years, see Agostini v. Felton, 521

U.S. 203 (1997), its core of evenhandedness has remained

intact —- government may not engage in actions that have

the primary effect of advancing or inhibiting religion. Nor,

under the “endorsement” aspect of the test, may govern-

ment express endorsement or disapproval of religion.” In

this case, Washington’s interpretation and application of

its Blaine Amendment plainly has the primary effect of

inhibiting religion and clearly conveys an unmistakable

message of disapproval.

If a private school student such as Joshua Davey

wants to pursue a theology major, as opposed to any other

major under the sun, then he must give up his entitlement

to the Promise Scholarship. It is solely because theology

involves religion that this occurs, and places religion at a

disadvantage vis-a-vis non-religion. If Davey desired to

* In Lemon v. Kurtzman, 403 U.S. 602 (1971), this Court formu-

lated the test for programs under the Establishment Clause as requir-

ing that a program have a secular legislative purpose, have a primary

effect that neither advances nor inhibits religion, and not foster

excessive governmental entanglement with religion.

” E.g., Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753,

778 (1995) (O’Connor, J., concurring in the judgment); Bd. of Ed. v.

Grumet, 512 U.S. 687, 720 (1994) (O’Connor, J., concurring in part and

concurring in the judgment); Bd. of Ed. v. Mergens, 496 U.S. 226, 249

(1990); Edwards v. Aguillard, 482 U.S. 578, 585 (1987); and Wallace v.

Jaffree, 472 U.S. 38, 56 (1984).

26

study sociology or economics from a Marxist point of view

(including one that taught Marxism as “truth”) and learn

how religion is the opiate of the masses, he could do so

without risking his Promise Scholarship. This result is far

removed from some abstract notion of the separation of

church and state. It has a primary effect of disadvantaging

religion in the marketplace of ideas that is the university.”

In exactly the same way that the Blaine Amendments

were intended to preserve the advantages of the Protes-

tant (public) schools over their Catholic (non-public)

counterparts, Washington’s Blaine Amendment now serves

to preserve the advantages of non-religion over religion by

channeling the choices of individuals toward non-religious

majors and away from religious ones. The Establishment

Clause cannot permit this.

F. Washington’s Discrimination Based on Re-

ligion Violates the Equal Protection Clause.

The Equal Protection Clause, by designating certain

classifications as suspect and strictly scrutinizing them,

asserts that certain characteristics should not be the basis

for governmental action. This Court has often said that

religious discrimination violates the Equal Protection

Clause.” Amici believe that religion should constitute a

" It is as if in Natl Endowment for the Arts v. Finley, 524 U.S. 569

(1998), the federal government could subsidize the art of Robert

Mapplethorpe and Andres Serrano disparaging Christianity, but deny

funding to any artist painting from a religious perspective.

™ See, e.g., United States v. Armstrong, 517 U.S. 687, 715 (1996);

Burlington N. R.R. Co. v. Ford, 504 U.S. 648, 650 (1992); Niemotko v.

Maryland, 340 U.S. 268, 272 (1951); and American Sugar Refining Co.

v. Louisiana, 179 U.S. 89, 92 (1900).

ee

27

suspect classification in the circumstances of this case,

and that Washington cannot provide a compelling justifi-

cation for discriminating against religion.

Though this Court has in modern days gone far

towards reducing government-sponsored religious dis-

crimination, there can be no serious question but that the

history of public education in the states (where the ple-

nary authority for education resides) is replete with

examples of religious bias, of which the Blaine Amend-

ments are but one aspect. Were this not the case, this

Court would never have been called upon to adjudicate so

many Establishment Clause cases. In many circum-

stances, the Equal Protection Clause presents a straight-

forward way of identifying and rectifying religious

discrimination, in much the same way that the Clause has

dealt with the prevalence of race discrimination.” Particu-

larly in programs providing assistance to individuals or

families rather than institutions where the concerns of

government sponsorship or endorsement of religion are

* Some of the confusion characterizing this Court’s religion clause

jurisprudence might be dispelled by use of equal protection analysis.

For example, Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review

Bd., 450 U.S. 707 (1981); and Hobbie v. Unemployment Appeals Comm..,

480 U.S. 136 (1987), might appear to be inconsistent with Employment

Div. v. Smith, 492 U.S. 872 (1990) (holding that a classification must be

based upon religion to be actionable under the religion clauses). This

has resulted in the Sherbert line of cases as being viewed as exceptions

requiring neutral rules to accommodate religion. They could, however,

also be viewed as discrimination cases, to the extent that non-religious

excuses for failing to meet the religion-neutral requirements were

accepted while religious excuses were not. Similarly, Walz v. Tax

Comm., 397 U.S. 664 (1970), upholding tax exemptions for church

property, can be analyzed as a case refusing to single out religious

institutions from the class of institutions afforded tax relief.

28

attenuated by independent private choices, review of the

Equal Protection Clause makes sense.“ Washington’s

action in denying Davey a Promise Scholarship based

upon the religious nature of the program he freely chose

violated his right to the equal protection of the laws.”

¢

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Ninth Circuit should be affirmed.

Respectfully submitted,

INSTITUTE FOR JUSTICE

RICHARD D. KOMER*

CLINT BOLICK

WILLIAM H. MELLOR

1717 Pennsylvania Ave., NW

Suite 200

Washington, DC 20006

(202) 955-1300

*Counsel of Record

“ If government refused to supply religious institutions with police

and fire protection because they were religious, one can easily see an

equal protection problem. Similarly, for New Jersey to provide free

transportation to students in all schools but religious ones (Everson) or

New York to supply free secular textbooks to all students but those

attending religious schools (Allen) would constitute religious discrimi-

nation under the Clause.

* Any suggestion that the federalism principles underlying the

Federal Constitution should permit the states greater leeway to

experiment with a more rigorous separation of church and state is as

mistaken as the idea that federalism should permit the states more

leeway in discriminating on the basis of race.