who can apply the funds to “any education-related expense, including food and housing[,]
application to religious instruction is remote at best.”
88
Preventing even the most
attenuated appearance of endorsement is hardly a compelling state interest, according to
the majority opinion.
The dissent, written by Judge M. Margaret McKeown, takes up a different line of
argument. For her, the issue is whether a denial of funding is an infringement on free
exercise. “The simple truth,” she says, “is that Washington has neither prohibited nor
impaired Davey’s free exercise of his religion. He is free to believe or practice his
religion without restriction.”
89
The fact that he has a right to the free exercise of religion
does not mean that the state is required to fund it. Thus the closest analogue to Davey’s
situation is that of a woman who has a right to an abortion, but is not thereby entitled to
receive government funding for it. Just as the state may constitutionally decide whether
or not financially to support abortions (while nevertheless funding other medical
procedures, including childbirth), it may also decide whether or not to fund religious
education (while nevertheless funding other forms of education).
90
The state’s policy,
which “facially” discriminates with respect to religion, does not imply state animosity
toward religion, but merely “reflects its strong desire, as reflected in its constitution since
ratification in 1889, to insulate itself from the appearance of endorsing religion….”
91
With a Supreme Court decision on the horizon, this case has potentially far-reaching
consequences.
92
We have here an attempt by a state to “go further” than the federal
government in the direction of disestablishment
93
, a prospect that was acknowledged with
Convention