Top Court To Hear Student's Argument

A first-year Harvard Law School (HLS) student will head to Washington, D.C., today for the final phase of his lawsuit against the State of Washington: oral arguments before the U.S. Supreme Court at 10 a.m. tomorrow morning.

Joshua D. Davey sued his home state in 2000 after his state-awarded scholarship was revoked upon his decision to study theology from a religious perspective.

The case, Gov. Gary Locke, et al. v. Joshua Davey, addresses whether strict state bans on the use of public funds for religious purposes violates constitutional freedom of religion. It is expected to be a decisive ruling in the definition of the separation between church and state outlined in the First Amendment.

Involvement in the case has affected Davey’s life significantly—even leading him to HLS after he says he witnessed the possibilities available for serving the community as a Christian attorney.

Despite increased media attention over the last month, Davey has managed to keep a low profile on campus. He says that while some of his professors know about the case, he doesn’t know how many have connected it to him.

But many of his friends and classmates are aware of the suit, Davey says. Friend Emily D. Zimmer, also a first-year at HLS, says Davey’s case gives a rare personal connection to significant national litigation.

“It’s very exciting. I feel like it’s a unique opportunity to see the whole experience through his eyes as a plaintiff in a real-life case the Supreme Court is hearing,” she says. “It is an important case as the decision will have wide-reaching implications on the 30-some states that have similar amendments to Washington.”

Upon graduating from high school in 1999, Davey was awarded a Washington Promise Scholarship, given by the state to high-achieving low income students planning to study at approved in-state institutions. However, he received word he could not use the money a month into his first year at Northwest College, which is affiliated with the Assemblies of God church, due to his choice to major in theology in the hopes of becoming a minister.

Had he been studying religion at a school that taught from a secular perspective, or taken the same courses but not as a theology major, he says he would have been allowed to keep the money.

The cause was Article I, Section 11 of Washington’s state constitution, which states, “No public money or property shall be appropriated or applied to any religious worship, exercise, or instruction.”

Washington is one of 37 states with a so-called Blaine-style amendment in the state constitution. The amendments are the result of historic legislator James G. Blaine’s 1875 attempt to introduce a similar amendment to the Federal Constitution. While his proposal was narrowly defeated, Congress did pass legislation requiring all future applicants for statehood to incorporate the measure into their state constitution.

With the help of the American Center for Law and Justice (ACLJ), Davey sued the state for violation of the Free Exercise clause of the Federal Constitution, and although the District Court found in the State’s favor, the 9th Circuit Court reversed the decision 2-1 on appeal. The state has now appealed to the Supreme Court.

At this point, the case is hardly about the money—a sum of less than $3,000 is at stake. Instead, the principle behind the case has attracted high profile supporters on both sides.

In a fund-raising letter, ACLJ’s chief counsel Jay Sekulow wrote, “This case gives us the opportunity to end, once and for all, discrimination targeted at religious faith, while removing laws that have been in place for nearly 150 years.”

However, in the state’s brief to the court, Solicitor General Narda Pierce denies that Davey’s rights have been infringed.

“Washington’s decision not to subsidize religious instruction to implement its state constitutional policy of separation of church and state does not infringe Davey’s right to seek a theology degree,’’ she wrote.

While Davey is a strong supporter of federalism, he says he thinks in this case Washington is violating his constitutional rights—and taking government intervention too far. He also says indirect funding isn’t a violation of the constitutional bans on state-sponsored religion.

“I don’t think it’s unconstitutional,” he says. “When they’ve set up a program like scholarships or vouchers that’s available to everyone, and then they come in and say you can’t be a part of it because you want to study religious views or go to a religious school, that’s unconstitutional.”

While a decision will likely not be handed down until May or June at the earliest, Zimmer says she thinks the final outcome will favor Davey—and she thinks a number of HLS professors would agree.

“I think that the Supreme Court will affirm the 9th Circuit Court’s opinion but that the decision will probably be fairly close, like 5-4, and hearing several law professors discuss the case, I think that they hold the same opinion,” she says.