Intrigued to learn that the Supreme Court decided to hear Davey v. Locke, 299 F.3d 748 (9th Cir. 2002) (holding that, under the Free Exercise Clause, Washington state could not revoke scholarship it granted to college student solely because scholarship recipient chose to pursue a degree in theology from a Christian-affiliated university), I decided to read the Ninth Circuit's opinion for myself. What I found surprised and challenged me: In a politically master-crafted dissent, Judge McKeown sets up a real challenge for the knee-jerk conservative Justices to tackle next fall.

Before getting into that, though, I will spell out my relevant prejudices from the onset since I have no illusion that I read the opinion with any semblance of objectivity. I would characterize myself as someone who pretty much tows the conservative line. Moreover, while I tend to be bothered by what I consider to be encroachment on religious freedom, I view many Establishment Clause claims with skepticism. In short, I was prepared to support the plight of the theology student wholeheartedly and have my blood boil while reading Judge McKeown's dissent. In terms of the outcome, I definitely fall in line with the majority. The idea that a state could revoke a privilege it granted to me simply because I wanted to become a Christian minister offends me deeply. To me, it reeks of the same viewpoint discrimination raised in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). (However, as Judge McKeown's dissent notes, Davey v. Locke is not a public forum/free speech case.)

Don't get me wrong, my blood pressure did skyrocket while reading Judge McKeown's dissent and the expletives began to flow so freely that I had to shut my office door. However, Judge McKeown did something that I think will put many "knee-jerk" conservatives in a real quandry. Judge McKeown's dissent starts by characterizing the case as a funding case and notes "the indistinguishable similarity between this case and those that address abortion funding cases." Obviously, this argument has some holes - believe me, I spent the better part of my morning trying to come up with them. Fundamentally, though, it also has some appeal. Paraphrased, the argument is: If a state can fund medical procedures generally but except out abortion, then it ought to be able to fund scholarships generally but except out scholarships for theological study.

Judge McKeown's use of the abortion funding cases as a comparision, however, is not the challenge that interests me most. At the very end of the dissent, Judge McKeown throws down this gauntlet on federalism:

In the Court's most recent pronouncement in the religion arena, Zelman v. Simmons-Harris, --- U.S. ----, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), Justice Thomas specially concurred to express his opinion that "state action should be evaluated on different terms [in the context of the Establishment Clause] than similar action by the Federal Government," concluding that federal courts should "strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other." Id., 122 S.Ct. at 2481 (Thomas, J., concurring). Concededly, Justice Thomas was suggesting that states should be allowed more constitutional freedom to experiment with involvement in religion, id., but I cannot conclude that such federalism concerns should represent a one-way street when it comes time for a state to decide whether to enter into the ill-defined terrain of the Establishment Clause's jurisprudence.

It will be interesting to see how the Supremes respond.
- posted by Anonymous @ 7:36 PM