What is the cost of discipleship? It cost Joshua Davey $2,500 when he decided to declare a major in pastoral studies.
Joshua won a Washington State scholarship based on academic achievement and financial need to pursue almost any field of study—including religion if he studied it from a dispassionate academic view at a place such as the University of Washington. But he would lose the scholarship if he chose to major in religion at a college that taught religion from a viewpoint of faith—such as the Assemblies-of-God-affiliated Northwest College, where Joshua was enrolled.
What is the cost of discipleship? It cost Joshua Davey $2,500 when he decided to declare a major in pastoral studies.
Joshua won a Washington State scholarship based on academic achievement and financial need to pursue almost any field of study—including religion if he studied it from a dispassionate academic view at a place such as the University of Washington. But he would lose the scholarship if he chose to major in religion at a college that taught religion from a viewpoint of faith—such as the Assemblies-of-God-affiliated Northwest College, where Joshua was enrolled.
The question is: in taking Joshua’s scholarship away, was Washington state merely avoiding state sponsorship of religion—or was it guilty of invidious religious discrimination?
In answering this, a federal appeals court ruled that the state was guilty of religious discrimination, and struck down the exclusion of theology students from the program. This decision was at odds with a decision of the Washington State Supreme Court. Thus, the United States Supreme Court has agreed to hear the case. 
The High Court’s ruling could create a sea change in the area of voucher law, making religious institutions not only eligible for vouchers, but requiring states to give vouchers to religious institutions if they provide them to secular organizations. For this reason, the case has attracted more than a dozen friend-of-the-court-briefs, representing scores of religious and civil rights groups across the country.
But despite the strong feelings on both sides of the dispute, Joshua’s case seems a particularly difficult one for people to decide which side they are on. The right result seems to change depending on how the case is framed.
Thought of in terms of improper state support of religion, it seems to be a case at the center of the Constitution’s prohibition against state funding of the church. What is more of a religious calling than that of the ministry? And how can one more directly support organized religion than to financially support those who preach and teach it, or are training to do so?
The founders strongly opposed tax funds going to ministers or teachers of religion. James Madison wrote his famed Memorial and Remonstrance Against Religious Assessments as a challenge to a bill to provide funds to all teachers of religion. Madison’s arguments were so well received that not only was the bill defeated, but impetus was created to pass an opposing bill by Thomas Jefferson that explicitly prohibited tax funds from going to ministers.
Jefferson’s bill, which became the Virginia Act for Establishing Religious Liberty, stated: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves . . . is sinful and tyrannical, and even forcing him to support this or that teacher of his own religious persuasion, is depriving him of . . . liberty.”
VA. CODE ANN. § 57-1
The special role of clergy in relation to their churches and temples is embedded in our law today. Courts recognize that the close-knit relationship calls for special legal protections, and have described ministers, priests, rabbis, and similar church leaders as the “lifeblood” of the church. They are thus exempt from certain legal oversights by the state.
Known as the “ministerial exemption,” this constitutionally based protection exempts religious leaders from the coverage of employment discrimination statutes such as Title VII. The courts are loath to involve themselves in the close and special relationship between religious leaders and their congregations or religious hierarchy.
So how can the state now fund the education of the very persons that it has termed to be so religious as to be exempt from discrimination laws? Groups such as the ACLU, People for the American Way, the American Jewish Congress, and the Baptist Joint Committee say that it cannot, and that the Supreme Court should reverse the decision below.
But other groups, even some traditionally supportive of church/state separation, believe there is another way to look at the case. And indeed, thought of in terms of discrimination, Joshua’s case seems a straightforward case of improper religious discrimination by the state.
To the onlooker, the Washington State program seems to target those of religious belief for second-class treatment. Anyone who is academically and financially qualified can get the scholarship to study any subject matter except religion, and then only when taught from a faith perspective. Thus the exclusion arguably penalizes persons of certain religious beliefs.
One may be a rabid Republican or Democrat or Marxist, and can major in government studies, and be taught by teachers who may promote the views of Republicans or Democrats or Marxists, and still receive the state aid. One could be an avid atheist, and major in philosophy or even religion, taught by teachers who believe and promote atheism, and still receive the state aid. It is only those who believe in and study about religion, taught by teachers who believe it as well, who cannot receive the state aid.
Any notion that sending money to ministerial students causes the state to endorse a religious view seems undercut by the indirect nature of the aid. The state does not choose which schools and programs the money is spent on. Rather, the aid money goes directly to the student who, from a wide variety of largely nonreligious choices and options, chooses to spend the money on the program, religious or otherwise, that he or she desires.
To argue that the state is endorsing the views of the program at which the money ends up seems specious. The state would be no more endorsing the views of either Joshua or the religion professors at Northwest College than it would be the views of the rabid Republican or Democratic or Marxist or atheist students and professors in the prior illustration.
Indeed, if any tax money that went to religious programs inherently involved government endorsement, then state employees could not pay tithes and offerings to their church or temple. Neither could ordinary citizens use tax-credit checks for religious purposes.
The Supreme Court has accepted this direct/indirect aid distinction. Thus one thing that both sides in the dispute agree on is that Joshua’s case will not be decided by the federal constitution’s establishment clause. Almost 15 years ago the U.S. Supreme Court ruled in Witters v. Comm’n for the Blind, virtually an identical case to Joshua’s, that the federal constitution provided no barrier to the use of the Washington State scholarship funds by ministerial students.
The Witters court noted the indirect nature of the aid and that it was a private choice that sent the aid to the religious school. It noted the large number of choices a student had in using the aid, the majority of which were secular. It concluded that there was no danger that the state could be viewed as endorsing the religious study to which the funds were put.
But when Witters was sent back to the Washington court for a final decision, the state court decided that even though the federal constitution was no barrier to the funds, the state constitution barred the religious use of the funds. It ruled that the Washington State Constitution called for a wider separation of church and state than that mandated by the federal constitution.
So the question at the heart of Joshua’s case is: can a state have a greater separation of church and state than that required by the federal constitution?
Those who say no argue that any discrimination against religion not absolutely required by the establishment clause is prohibited as unlawful by the free exercise clause.
This might be described as the Yin/Yang view of the religion clauses, if one can envision the intertwined, black-and-white Chinese symbol of cosmic unity. Where one ends in requiring separation and exclusion, the other begins by mandating equality of treatment.
But there is another view of the clauses, one that has been termed “play in the joints.” This view holds that there is a gray area between the two clauses. That states can experiment with church/state relations, either protecting religion more strongly than mandated by the federal constitution, or separating church from state more widely than required by the same.
Once again, both sides agree on something: that there is some sort of “play in the joints.” Both sides have worked on projects to provide religious freedom at the state level that is more protective of religion than that required by the federal constitution.
Such an effort is based on “play in the joints.” Otherwise, protecting religion beyond that required by the free exercise clause would run smack into the law against the establishment clause’s prohibition against giving religion special benefits.
So is there only a one-way “play in the joints”? A flexibility only to benefit religion, but not to hamper it? Well, that remains to be seen. The oral arguments before the Supreme Court revealed a deeply divided court, with what seem to be four votes for and four against overruling the lower court decision.
The deciding vote, as happens frequently, will likely be cast by Justice O’Connor, whose questioning revealed concerns on both sides of the issue. While sensitive to issues of religious discrimination, she was also very troubled about the decision impact on voucher programs across the country. At one point Justice O’Connor asked Joshua’s attorney, “Suppose the state has a school voucher program that doesn’t provide aid to religious schools, do you take the position that they must fund all private and religious schools?”
“Yes,” answered Joshua’s lawyer.
“What you’re saying here,” O’Connor responded with concern, “would have a major impact on voucher programs.” Clearly, O’Connor is very nervous about putting state and local governments in a position of being forced to fund religious groups whenever a voucher program is created.
One way out of the dilemma would be to keep open the possibility for states to have a broader separation of church and state than that compelled by the federal constitution, but to rule that the justification given by Washington State in Joshua’s case is inadequate.
An earlier case, raised in oral argument, dealing with state laws against clergy serving in the legislature could serve as a good road map for such a result. In McDaniel v. Paty, the Court ruled that while such clergy-exclusion laws had a long historical pedigree, the state had not provided the factual basis to show how clergy serving in the legislature would presently threaten religious freedom.
Similarly, in Joshua’s case, Washington State has shown a long historical practice of not funding ministers or ministerial students. But the record is quite silent as to modern-day facts that show how such indirect funding would threaten the peace and stability of church/state relations. Without such findings, the exclusion of ministerial students becomes justified on grounds of tradition and antiquity alone—hardly a reliable basis for laws targeting religion for unfavorable treatment.
Such a result would seem supported by the rest of Joshua’s story. His experience with law inspired him to refocus his career. He is presently a law student at Harvard Law School. Joshua would not be the first to discover that a training in theology can serve as an excellent basis for fulfilling one’s calling in a pathway outside the conventional ministerial path. The author of this article also studied theology as an undergraduate before attending law school, as have many others.
Denying scholarship aid to theology students penalizes not merely future ministers, but all that view the path of discipleship as broader than the traditional ministerial path. It also penalizes society by depriving it of professionals schooled in the ethics and morality offered by traditional
religious studies.
That would be a shame in this day and age of Enron, Arthur Andersen, and celebrity inside trading. And it would hardly seem to be a necessary cost of discipleship. Or of the separation of church and state.
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Nicholas Miller, a lawyer and religious liberty advocate, writes from California."
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