Pursuant to a state constitutional provision that prohibits public money from being "applied to any religious worship, exercise or instruction," students majoring in "theology" are ineligible for a state-funded university scholarship program. The plaintiff, a student in "Pastoral Ministries" at a sectarian college, challenged this prohibition. The district court ruled in the State’s favor, but the Ninth Circuit reversed, holding that the Free Exercise Clause bars discrimination on the basis of religion (which the court found to constitute "viewpoint discrimination") unless justified by a compelling interest, and that compliance with the State’s constitution is not compelling. The Supreme Court took the case and, on July 17, 2003, we joined with other civil rights groups in an amicus brief arguing that the Ninth Circuit’s decision leaves no room for "play in the joints" between the Free Exercise and Establishment Clauses, turning every effort on the part of a state to provide greater separation of church and state than required by the Establishment Clause into a violation of the Free Exercise Clause. We argued that a state should have discretion to prohibit the funding of clergy training because such training lies at the heart of religious advancement, there is a longstanding history of states’ refusal to subsidize it, and the lack of a subsidy creates only a minimal burden on religious exercise. We further argued that a prohibition on funding the pursuit of theology is viewpoint-neutral because training for the ministry lacks a secular counterpart. On February 25, 2004, the Supreme Court issued a 7-2 decision, written by Justice Rehnquist, that endorsed many of the arguments we made in our brief. The Court held that the denial of funding fell within the "play in the joints" between the Free Exercise and Establishment Clauses. The prohibition imposes only a "minor burden": "The State has merely chosen not to fund a distinct category of instruction." The Court found that the decision to treat religious education differently than non-religious education does not evince hostility toward religion, but reflects a central anti-establishment interest reflected in many state constitutions. The Court also noted that the program does not violate the Free Speech Clause because it does not involve a forum for speech, and does not violate the Equal Protection Clause because the prohibition is rationally based in anti-establishment concerns. Justices Scalia and Thomas dissented.
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