LAST WEEK the Supreme Court overruled the Ninth Circuit U.S. Court of Appeals. For any other case, this would hardly come as a surprise. But in this case, the Court voted to allow Washington state to deny merit scholarships for theology students, overruling the Ninth Circuit's order to treat students equally regardless of religion. This reversal of roles between the nominally conservative Court and the Ninth Circuit -- which sits on the Left Coast as the country's kookiest court -- was seismically equivalent to a California earthquake. Not only had the Ninth Circuit for once emerged from its psychedelic wonderland, the Supreme Court had a brain fart to boot.
The case, Locke v. Davey, involved Washington student Joshua Davey, who earned a college merit award under the state's Promise Scholarship Program. While allowing gifted students to freely follow their academic pursuits, Washington attached one major string: They could not study religion. Undeterred by this iniquity, Davey fought the state's discrimination against faith and won in court. As reported by Northwest College's news services, he graduated with a double major in theology and business administration at Seattle's Northwest College and is now a student at Harvard Law.
To appreciate how out of step the Supreme Court was to endorse Washington's prohibition on religion, consider the court it overruled. More than any other court's decisions, those of the Ninth Circuit are consistently overturned on appeal, and for good reason. Not only has the Ninth Circuit banned the Pledge of Allegiance in schools, but also last fall it postponed the recall election in California, thus prolonging the ill-fated reign of Democratic Gov. Gray Davis. Moreover, it has refused to enforce federal marijuana and pornography laws. Thus, when the Ninth Circuit actually shows some sound judgment in protecting freedom of religion and not imposing freedom from religion, the Court should give the court a star rather than a spanking.
While the Supreme Court ruled the Washington program was not motivated by animosity for religion, common sense tells us otherwise. While the state could have designated the scholarship for some particular academic area it wanted to promote, it did not. Thus, Josh Davey could have used the grant to study music, physical education or women's studies. Certainly theology is no less worthy an academic pursuit than any of these subjects, and yet Washington singled out religion. It doesn't take a merit scholar to figure out this scholarship places a demerit on religion.
Whatever ill intent Washington lawmakers may have had in creating the program, the state attempted to hide behind its constitution, citing its strict prohibition on a state "establishment" of religion. But the only thing Washington's scholarship establishes is a reward for good students. Giving a merit award to a college student who majors in theology establishes religion no more than it establishes football when a student majors in physical education.
Washington's "establishment" doubletalk is precisely what the Supreme Court has rejected in previous cases but flip-flopped on last week. In 2002, the Court ruled in Zelman v. Simmons-Harris that states could provide school vouchers to students going to private schools without violating the federal Constitution's prohibition on an "establishment of religion." This was despite the fact that most vouchers wound up at parochial schools.
As Justice Sandra Day O'Connor pointed out in the vouchers case, the Court has also allowed Pell Grants and Medicare to be used at Catholic universities and hospitals. Thus it was especially puzzling to see her vote last week to endorse Washington's discrimination against religion. The Court is supposed to be above politics, but politicians, who frequently accuse each other of "saying one thing and doing another," don't hold a candle to Justice O'Connor.
While a state has a right to make different laws from the federal government's, where they conflict, the federal law prevails. Thus, the state of Washington can choose to disfavor religion, but it cannot interfere with a citizen's federal constitutional right to practice and study religion without discrimination. Perhaps the impulse to overrule the Ninth Circuit has become such a knee-jerk impulse that if the circuit court ever wishes to stop religious persecution again, it should vote the wrong way so that when it is overturned, we will have the right result.
Eric Wang's column appears Wednesdays in The Cavalier Daily. He can be reached at ewang@cavalierdaily.com.
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