Circling themselves like dogs chasing their own tails, advocates for the complete separation between church and state have twisted the Supreme Court’s most recent Establishment Clause opinion in an attempt to eliminate other "religious" programs, including school vouchers and President Bush’s Faith-Based Initiatives.

At issue in the controversial case of Locke v. Davey was Washington State’s Promise Scholarship program that awards a partial scholarship to applicants meeting certain academic and financial criteria. The state’s constitution prohibits underwriting degrees that are "devotional in nature or designed to induce religious faith." Thirty-six states have similar constitutional barriers to supporting religious institutions with public money.

The First Amendment states that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Undergraduate student and qualified Promise Scholarship recipient Joshua Davey sued the State of Washington, claiming the state violated his rights of free exercise, speech and equal protection after his scholarship was yanked because he sought a pastoral ministries degree.

In a 7-2 decision rendered last week, Supreme Court Chief Justice William Rehnquist, writing for the majority, said the "play in the joints" between the two religion clauses of the First Amendment — the Establishment Clause and the Free Exercise Clause — permits, but does not require, states to support divinity studies. In other words, just because state action isn’t prohibited by the anti-establishment mandate doesn’t mean the state must provide it under the free-exercise guarantee.

Nonetheless, along came the spinmeisters. In hundreds of media pronouncements, bricklayers for an even higher wall separating church and state have worked overtime to convince the media, the public and maybe even themselves that, if you read between the lines, all religious programs supported by the government, whether directly or indirectly, are now in trouble.

Could we possibly be reading different opinions?

Even though Chief Justice Rehnquist veered from the generally reliable conservatism that has him regularly voting with Justices Scalia and Thomas, he did not venture as far as some would like us to think that he did. Although the decision is extremely difficult to reconcile with Establishment Clause principles that routinely require the government to be neutral — not hostile — toward religion and religious expression, the majority opinion carefully narrows the ruling, explicitly noting that the Court "need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the state of Washington."

Far from rejecting the constitutionality of school vouchers, the Rehnquist Court ratified and strengthened the case for school choice advocates by refusing to overrule its earlier precedent in that heated constitutional debate. In fact, the Court emphatically reaffirmed its earlier ruling, making it clear that the Court was relying on Zelman v. Simmons-Harris, a case decided in 2002 which upheld a school voucher program in Cleveland, Ohio, that permits low-income parents to use vouchers, or tuition stipends, to send their children to religious-affiliated schools. On page 5 of the majority opinion, the Court cites Zelman to underscore that "(u)nder our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. ... As such, there is no doubt that the State could, consistent with the Federal Constitution, permit (scholarship recipients) to pursue a degree in devotional theology."

Indeed, the Locke ruling should be seen as a states’ rights decision, rather than any new pronouncement on the Constitution’s religion clauses, because the Court continued its recent movement to preclude the federal government from preempting the state governments’ authority in matters of religion. In holding that the interest of the states outweighed the claim of religious discrimination, the Chief Justice wrote, "The state has merely chosen not to fund a distinct category of instruction."

Here’s where hell freezes over. Justice Antonin Scalia, joined by Justice Clarence Thomas, offered a scathing dissent that sided with the opinion of the generally liberal U.S. Court of Appeals for the 9th Circuit. "Let there be no doubt," said Justice Scalia, "[t]his case is about discrimination against a religious minority. … One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional." In his view "when a state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured." Justice Thomas, a Holy Cross graduate, offered a brief dissenting opinion, noting that the study of theology also includes a non-devotional, purely academic component.

Perhaps it is only coincidence that the Supreme Court issued its Locke opinion on the same day as the opening of Mel Gibson’s "Passion." More ironic, however, is that it was also Ash Wednesday, when Christians begin a period of sober reflection, self-examination, and spiritual redirection.

Speaking of redirections, Joshua Davey did not become a minister, deciding instead to attend Harvard Law School. Maybe someday he will be back in court to help answer Justice Scalia’s "What’s next?" question: "Will we deny priests and nuns their prescription-drug benefits on the ground that the taxpayers’ freedom of conscience forbids medicating the clergy at public expense?"