Church and State at the High Court . . .

The Supreme Court yesterday upheld a Washington State law that provides scholarships to students studying anything but theology. It was a 7 to 2 decision in which the dissenting justices were Antonin Scalia and Clarence Thomas. Reading Justice Scalia's dissent, we were reminded again that religious people are, along with smokers and the overweight, among the few groups that it is acceptable to discriminate against in polite society these days.

"Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith," Mr. Scalia wrote. "Those the statutory exclusion actually affects — those whose belief in their religion is so strong that they dedicate their study and their lives to the ministry — are a far narrower set. One need not delve too far into the 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" — and here Mr. Scalia cites a 1996 Supreme Court ruling overruling an anti-gay referendum passed in Colorado — "its indifference to this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional."

Justice Scalia went on to speculate: "What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today." We're not sure we'd go as far as Justices Scalia and Thomas in arguing that it is unconstitutional for the state of Washington to have such a program. But if we were in the Washington State Legislature, we sure wouldn't see the wisdom of funding college students in, say, post-colonial studies but not in theology.

The constitutionalist we have found most illuminating on these matters, David Zwiebel of the Agudath Israel of America, an Orthodox Jewish group, noted that the majority decision from the Supreme Court yesterday wasn't all bad news for Americans of faith. Said Mr. Zwiebel, "The Court emphasized that while Washington was not constitutionally required to make these scholarships available to theology majors, it also would not have been constitutionally prohibited from doing so had it so chosen. This acknowledgement, agreed to by all nine Justices, should once and for all put to rest the specious claim that the establishment clause forbids use of these types of funds for religious schooling."

This case is very much pertinent here in New York State, where the state's Tuition Assistance Program offers New York students scholarships of up to $5,000 a year for four years — so long as they don't study theology. The right response by Governor Pataki and the New York State Legislature to yesterday's Supreme Court ruling would be to change the New York law to make theology students eligible for the same public benefits as everyone else. They do, after all, pay the same taxes. Making this change in New York State law would send the message that while Washington State may legally discriminate against those of deep religious conviction, it is not the policy that we choose to implement here in the state of New York.