FREE EXERCISE V. ANTI-ESTABLISHMENT

For this blog I have chosen cases and subjects about which I think you might be interested.  Sometimes I have written about high profile cases or ones the talk show hosts have either misunderstood or twisted to make them seem highly controversial.  But most of those cases have been easy to decide and resulted in unanimous decisions.  The truth is most of the cases that this court chooses to review are very close calls; the principles advocated by both sides have great merit.  These cases can be very, very difficult to decide.  Often, two important constitutional principles are in tension with one another and although we attempt to balance constitutional rights that are in tension, sometimes we just have to choose a side.

THE HISTORICAL BACKGROUND

The tension between freedom of religion and the separation of church and state is one example.  These constitutional principles, both intended to ensure religious choice, are embedded in the United States Constitution and many state constitutions.  The First Amendment to the United States Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  U.S.Const. amend. I.  I call these the “anti-establishment” and “free exercise” or sometimes just the “establishment” and “exercise” clauses for short.  These clauses come before all others in the Bill of Rights, because our founders were mindful of the religious intolerance in some of the colonies.  The Puritans of New England and even the Quakers of Pennsylvania were perhaps the worst.  Almost 100 years before the constitutional convention in Philadelphia, the Puritans adopted a legal code which enumerated five capital crimes.  If you are thinking murder was number one, you are wrong.  The first capital crime under Puritan law was idolatry; they would execute you for worshiping any other god but theirs.  The second capital crime was witchcraft and we know they burned at least 16 people at the stake; 15 women and 1 man.  Modern scholars believe those burned were mostly woman who were chafing against the absolute subjugation of women to the will of men; the Puritans found support for their view of male domination in the Bible.  A woman who spoke out repeatedly against male domination must, they reasoned, be possessed by the devil.  The third capital offense was blasphemy; to curse in the name of God the Father, Son, or Holy Ghost, or to curse God.  If you think that religious extremism, the subjugation of women, and harsh punishment is found only in other parts of the world, you are incorrect; that is part of the American Christian experience 300 years ago.  It was with this experience in mind, that the founders sought a purely secular government.

One hundred years after the United States Constitution was drafted, delegates met in Walla Walla to draft the Washington State Constitution.  Interim events caused those drafters to build numerous anti-establishment provisions into the Washington Constitution.  Anti-polygamy sentiment was high, numerous religious orders were under scrutiny, and the delegates were concerned about the sectarian influence of church run schools leading to the following: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”  Wash. Const. art. I, § 11, available athttp://www.leg.wa.gov/lawsandagencyrules/pages/constitution.aspx.  In addition, this State prohibits public funds from being spent on sectarian schools.  Wash. Const. art IX, § 4. As a result, Washington has a rich, and I must say very interesting, body of law on the separation of church and state which is quite different from that of our federal government.

THE CASE:  STATE EX REL GALLWEY V. GRIMM

In 2002, a case challenging a Washington State educational grant program came before my court.  Under the grant program, students with special needs and meeting certain criteria were eligible for scholarship grants which could be used at most state accredited colleges of their choice.  Among the qualifying colleges were five Christian and evangelical institutions which required Bible study, theology, and either required or encouraged chapel attendance and prayer in class.  The use of state grant funds to attend one of these five colleges would seem to surely violate article I, section 11 quoted above. The founders clearly did not want public funds spent on religious instruction.

But before you decide too quickly, our constitution also has a free exercise provision: “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion.”  Wash. Const. art. I, § 11. Surely, each student has the absolute right to choose his or her own spiritual path.  It would seem that the States freedom to exercise clause would prohibit the State from picking and choosing which college a student might attend based upon religion.  The scholarship grants went to the students, not the colleges.  Shouldnt the student be free to choose colleges without interference based upon religion?  Is it religiously neutral to provide scholarships for the University of Washington where one can practice being an atheist but not permit a student to attend Walla Walla College where the practice of the Seventh-Day Adventist Church is a distinctive part of the college experience?

How would you decide this case based upon the history and information I have given you?  How do you think the delegates to the Washington State Constitutional Convention would have answered this question?  To see how this court answered this question see http://www.mrsc.org/mc/supreme/recent//146wn2d/146wn2d0445.htm. Establishment versus exercise are among the most difficult cases for me to decide.