Establishment Clause, Witters v. Washington Department of Services for the Blind

[A18]

Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)

A blind ministerial student in Washington State was denied the state vocational rehabilitation aid he was eligible to receive because he wished to use the funds at a Bible college in order to become a pastor.

JUDGES: MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and in Parts I and III of which O'CONNOR, J., joined. WHITE, J., filed a concurring opinion. POWELL, J., filed a concurring opinion, in which BURGER, C. J., and REHNQUIST, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment.

OPINION: JUSTICE MARSHALL delivered the opinion of the Court.

The Washington Supreme Court ruled that the First Amendment precludes the State of Washington from extending assistance under a state vocational rehabilitation assistance program to a blind person studying at a Christian college and seeking to become a pastor, missionary, or youth director. Finding no such federal constitutional barrier on the record presented to us, we reverse and remand. ...

[Emsworth]

The First Amendment does not compel the government to be hostile to religion. Religious bigotry, whether against one religion or against all, is harmonious with neither the spirit nor the letter of the establishment and free exercise clauses.

In this particular case, the government is not making a law respecting the establishment of religion. It is providing funds that individuals may use for educational purposes. They are just as entitled to spend the money on religious education, as they are on secular education.

The ruling is sound.

[A18]

I agree that the ruling is constitutionally sound.

Witters never got his aid, however. The case was remanded to the Washington Supreme Court, which then held the aid violated the state constitution.

[Emsworth]

Witters never got his aid, however. The case was remanded to the Washington Supreme Court, which then held the aid violated the state constitution.

The Washington Constitution is more stringent on the separation of church and state than the federal Constitution. The Washington Declaration of Rights (as it stood in 1986) provided, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction." It is quite clear, I think, that education at a Bible college is covered under the term "religious instruction."

The validity of this very provision was challenged in Locke v. Davey (2004). However, by a 7-2 margin, the Supreme Court held that this requirement did not violate the federal free exercise clause.

[A18]

Locke v. Davey makes no sense. If a state can not single out a particular religion, it can not single out every religion.

[Emsworth]

Locke v. Davey makes no sense. If a state can not single out a particular religion, it can not single out every religion.

I would disagree. If the government seeks to penalize some particular action, then the free exercise clause prohibits it from singling out one religion as well as singling out every religion. However, if the government is merely granting a discretionary benefit, the free exercise clause merely prohibits it from discriminating between religious views.

Here, Washington is neither penalizing free exercise, nor discriminating between religious views; it is merely excluding one particular category of instruction from a government program involving education. No doubt, if Washington refused to fund only Christian colleges, it would have violated the Constitution, as it would have penalized Christians for their views. But, funding for atheist colleges was just as forbidden as funding for evangelical Christian ones. All institutions which have anything to do with religion are equally denied these discretionary benefits.

As Chief Justice Rehnquist wrote, "the subject of religion is one in which both the United States and state constitutions embody distinct views--in favor of free exercise, but opposed to establishment--that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion."

[A18]

If a state requires that no person shall attend a college that teaches anything about religion, that has the clear effect of curtailing religious discussion. How is that not free exercise of religion? Washington's constitution has an effect of the same variety.

If state law prohibited an individual from burning down any building, except those used to discuss religion, would that not violate the free exercise of religion?

[Emsworth]

If a state requires that no person shall attend a college that teaches anything about religion, that has the clear effect of curtailing religious discussion. How is that not free exercise of religion?

Such a law would clearly be unconstitutional. The establishment clause in Washington's Constitution, however, is of an entirely different character. It only prevents the usage of public funds for religious instruction.

Such special treatment of religion is not at all unusual. The original Constitution of Pennsylvania stated, "no man ought or of right can be compelled to ... maintain any ministry, contrary to, or against, his own free will and consent." That of New Jersey provided, "no person shall ever be obliged to pay tithes, taxes or any other rates ... for the maintenance of any minister or ministry." The Georgia Constitution of 1789 mandated, "All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own." In each of these cases, only one particular profession--that of a minister--was prohibited from receiving public support. Every other profession was entitled to funding. As Rehnquist argued, "That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk."

[A18]

Those provisions were clearly directed against measures singling out the clergy for public support. They did not in any way curtail religious speech, and thus are of little relation or importance to this matter.

[Emsworth]

Those provisions were clearly directed against measures singling out the clergy for public support.

Scalia, as a matter of fact, advanced such a view, though Rehnquist disagreed.

Washington's laws neither curtail religious speech, nor discriminate between religious viewpoints. They merely forbid public funds from being used for earning theology degrees. Such a prohibition is no more unconstitutional than a ban on using public funds for science degrees, or law degrees, or politics degrees.