Sometimes, it’s the attorney general that doesn’t bark. While it remains unclear whether Attorney General Spitzer’s office will file a brief in one of the most important educational and religious liberty cases to go before the Supreme Court in some time, New York has at least foreclosed the option of speaking up on the side of discrimination. The case is that of Davey v. Locke, where Washington State’s Higher Education Coordinating Board denied Joshua Davey a state-funded scholarship because he chose to declare a religion major and pursue a religious vocation.

New York well could have been expected to chime in on the Evergreen State’s behalf. New York has a law banning state scholarships for theology instruction and, like Washington and more than 30 other states, has a constitution blighted by an anti-Catholic Blaine Amendment, containing stricter language regarding religion than that in the federal Constitution. But when briefs were filed last month on the side of Washington, and a number of state attorneys general threw in their lot, New York’s was not among them.

Those familiar with the moves recently from the attorney general’s office to expand the realm of religious liberty in New York State were not surprised. It was Mr. Spitzer, after all, who convened a commission that last year released a “Report on Non-Public Education” which explored what further aid the state might be able to offer private and religious schools. It was also Mr. Spitzer who declined to intervene on the side of New York City’s school system when it barred a local church, the Bronx Household of Faith, from using school facilities open to other groups; in that case, the city was left defending its actions on state law, all the way up to the Court of Appeals for the Second Circuit, without aid from the state’s attorney. The city lost the case.

In the case of the Blaine Amendment, Mr. Spitzer’s silence says volumes. The brief filed by five other states — Vermont, Massachusetts, Missouri, Oregon, and South Dakota — cites New York’s law as saying that “no [general and academic performance awards] shall be used to obtain professional instruction in theology.” By not defending this law, Mr. Spitzer is in effect signalling the view that the state’s own law is unconstitutional. We don’t mind saying that it’s a bold and progressive stance for Mr. Spitzer to take, one that will set an informal precedent.

Mr. Spitzer could do one better by submitting a brief skirting the legal questions while reiterating some of what was said in his report on non-public education. That would offer more than a little insight into the origins of Blaine Amendments, under which Washington State justifies its actions. As is written in Mr. Spitzer’s report: “The drafters of [New York’s Blaine Amendment] stated that its purpose was to protect the State’s public school system ‘from all sectarian influence or interference,’ and to ensure that ‘public money shall not be used, directly or indirectly, to propagate [sic] denominational tenets or doctrines.'” Court historians wouldn’t miss the code words for Catholic.