88
Davey v. Locke, Lexis-Nexis, p. 10159.
89
Davey v. Locke, Lexis-Nexis, p. 10161.
90
See McKeown’s opinion in Davey v. Locke, Lexis-Nexis, pp. 10166 - 10167
91
Davey v. Locke, Lexis-Nexis, p. 10163.
92
According to Rob Boston of Americans United, “Religious Right groups would like to see these
provisions made null and void and open the floodgates to numerous forms of government support for
religion, not just scholarship aid for needy students. They see Davey’s case as their best shot.” He also
notes that many similar voucher-related lawsuits are pending, most prominently in Florida and Colorado.
Boston, “Vouchers Reloaded. Washington State Scholarship Case At Supreme Court Could Rewrite
Church-State Law in America,” Church & State (July/August 2003), posted at
http://www.au.org/churchstate/03-07-feature1.htm
.
93
In its “Petition for a Writ of Certiorari” (February 24, 2003), Washington notes that “nineteen states
have constitutions that expressly prohibit using public funds to support religion” and that “[f]ourteen other
states have exactly the same or similar restrictions [on paying for the study of theology] in their statutes
authorizing financial aid for college students” (pp. 19, 22).
94
In Witters v. Washington Department of Services for Blind 474 U.S. 481, 489 (1986), the Supreme
Court held that there was no federal First Amendment consideration that prevented state vocational
assistance from paying the expenses of blind student training for the ministry, but remanded the case back
to the state court, “which is of course free to consider the applicability of the ‘far stricter’ dictates of the
Washington State Constitution.” Witters lost in the state courts (see Witters v. Commission for the Blind,
112 Wn. 2
nd
, 363) and the Supreme Court refused to grant certiorari for another appeal. Washington’s
“Petition” argues that “[t]he material facts of Witters III and the case at bar [Locke v. Davey] are identical”
(p. 11).
95
See Justice Thomas’ opinion for the plurality in Mitchell, p. 18.
96
He expands on this suggestion in his concurring opinion in Zelman, where he focuses on the due process
clause of the 14
th
Amendment and suggests that the protection (religious) liberty clearly trumps any
establishment concerns. See Thomas, Concurring Opinion, pp. 19 – 21.
97
In his dissent in Zelman, Justice Breyer, joined by Justices Stevens and Souter, acknowledged the anti-
Catholic origins of the Blaine Amendments (p. 37). Thus, as the “Brief in Opposition” to the petition puts
it, “A majority of this Court has acknowledged the Blaine Amendment’s origin in this shameful episode of
American history” (p. 16).
98
See Richard W. Garnett, “Deciding the Future of Choice,” National Review Online (May 25, 2003),
posted at
http://www.nationalreview.com/comment/comment-garnett052003.asp
, as well as Boston,
“Vouchers Reloaded.”
99
See the Legal Analysis of the Davey v. Locke appellate decision (July 18, 2002) by Ira Lupu and Robert
Tuttle at the Roundtable on Religion and Social Welfare Policy website
(
http://www.religionandsocialpolicy.org
), as well as Lupu and Tuttle, “Zelman’s Future,” 962n204. The
“Brief in Opposition” makes a similar point: “In sum, the challenged state rule—barring only first- and
second-year declared majors in theology taught from a religious perspective, regardless of the actual
courses studied, regardless of the ultimate major or career plans, and regardless of whether the scholarship
is even used for tuition…is so poorly tied to any supposed interest in ‘separation of church and state’ as to
be utterly arbitrary and irrational” (p. 18).
100
Quoted in Hosford, 650. The italicized language was added in 1993, but earlier versions of the
chaplaincy exception go back to 1904. See
http://www.courts.wa.gov/education/constitution/?fa=education_constitution.display&displayid=dsp_educa
tion_constitution_article01
101
Quoted in Hosford, 651. There are two other provisions in Article XXVI (“Compact with the United
States”), which provides that “[t]he following ordinance shall be irrevocable without the consent of the
United States and the people of this state”: “That perfect toleration of religious sentiment shall be secured
and that no inhabitant of this state shall ever be molested in person or property on account of his or her
mode of religious worship.” And “[p]rovision shall be made for the establishment and maintenance of
systems of public schools free from sectarian control which shall be open to all the children of said state.”
102
For accounts of the political background of the Blaine Amendment, see Ward McAfee’s remarks in
“Separation of Church and States,” pp. 9 – 12; Toby J. Heytens, “Note: School Choice and State
Constitutions,” 86 Virginia Law Review 117, 131 – 140 (February, 2000); Treene, “The Grand Finale,” pp.
Convention