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Unleveling the Playing Field

Last week's Supreme Court ruling unfairly burdens the free exercise of religion

By Michael B. Broukhim

The Supreme Court just unleveled the playing field, and religion is stuck in the divot. In a ruling against first-year Harvard Law School student Joshua D. Davey, the Court upheld a Washington state statute, which effectively rescinded Davey’s Promise Scholarship after he chose to pursue an undergraduate degree in theology at his parochial university. Had Davey chosen to pursue any other degree at his religiously-affiliated university—or theological studies at a secular university—his scholarship would have been funded. Such a standard discriminates against religion when it ought to be neutral on the issue.

Though the principle of separation of church and state is a valuable one—embodied in the establishment clause of the United States Constitution—funding Davey’s study of theology would not have been a government endorsement of religion. Rather, government’s exclusion of scholarship funds for theology majors actively and unnecessarily burdens religion. If the state had kept Davey’s scholarship, it would have been treating religion as equal to any other pursuit. There would be an inherent pluralism in such a system. Non-religious and religious studies would receive equal treatment; and within religious studies, all religions would receive equal treatment. By singling out religion and ultimately subjugating it to any other choice of studies, the statute violates norms of neutrality. It asks youth who want to study religion to overcome hurdles that their counterparts do not encounter. Steeped in an ideological paranoia about the potential collusion of secular and religious interests, the Court failed to advance the rights of the individual.

On the short end of a 7-2 decision, Justice Antonin Scalia writes compellingly in his dissent: “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax...[Davey] seeks only equal treatment—the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys.” Traditionally the Court’s most outspoken conservative, Scalia in this case rightly advocates individual choice.

Stacking the odds against religion is just as deplorable as stacking the odds in its favor. That Davey had enough credits to graduate with a degree in business administration from the same university and would have received his scholarship funds had he chosen to (having still taken the same courses in theology) adds to the hypocrisy of the ruling. Fundamentally, such treatment amounts to government endorsement of atheism over religion and asks the religious minority to accept their place in a divot on the unleveled playing field.

Michael B. Broukhim ’07, a Crimson editorial editor, lives in Pennypacker Hall.

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