News Release

September 10, 2003

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Washington State's Blaine Amendment Violates the U.S. Constitution
State May Not Exclude Theology Students from Scholarship Program

WASHINGTON, D.C. - The Cato Institute, joined by the Institute for Justice, the Center for Education Reform, Citizens for Educational Freedom, and the Goldwater Institute, has filed a friend-of-the-court brief in Locke v. Davey, challenging Washington's exclusion of a theology student from the state's Promise Scholarship program. The case will be heard this coming term by the U.S. Supreme Court.

At the end of its 2001-02 term, the Supreme Court held that vouchers enabling parents to choose a sectarian school to educate their children need not offend the Establishment Clause of the First Amendment. That case, Zelman v. Simmons-Harris, was a huge victory for school choice proponents. This coming term, the Court will decide the flip-side of the school choice question: If a state elects to offer scholarships, but denies equal benefits to students who choose an education with religious elements, does the state violate the U.S. Constitution? That question is especially important because many state constitutions contain so-called Blaine Amendments, which might otherwise foreclose state funds from being used for religious purposes.

The brief argues that Washington has violated "no less than four provisions of the federal Constitution." First, the state's denial of a scholarship to Davey solely because he opted to pursue pastoral studies at a religious college violated his rights under the Free Exercise Clause of the First Amendment. Second, Washington's action constituted viewpoint discrimination under the Free Speech Clause. It was only because Davey's college "taught theology from the perspective of religious truth that Washington disqualified him from state aid." Third, in excluding theology majors, the state "plainly draws a line on the basis of religion, a suspect classification under the Equal Protection Clause of the Fourteenth Amendment." Finally, Washington has deliberately hindered religion as against non-religion. That violates the principle of neutrality that the Court has invoked in its Establishment Clause cases.

"Originally, Blaine Amendments were a bigoted attempt by the Protestant majority to fund their own schools while denying funds to Catholic schools," commented Roger Pilon, Cato's vice president for legal affairs. "Washington is not constitutionally required to provide scholarships to anyone, and may certainly exclude recipients on a religiously-neutral basis," Pilon continued. "But the state may not refuse a scholarship to Davey merely because his chosen curriculum was theology."

Robert A. Levy, Cato's senior fellow in constitutional studies added that "Washington's Blaine Amendment has the practical effect of favoring students who pursue non-religious rather than religious majors. By its implicit preference for secular education, the state has engaged in discrimination that the U.S. Constitution cannot permit."

The full text of the brief is available at: http://www.cato.org/pubs/legalbriefs/locke.pdf.