In the December 2005 issue of the University of Florida Journal of Law and Public Policy, several cases which presented discussions on the so-called controversy between the Article I Section 11 of the Washington State Constitution and the First Amendment were taken up for analysis.
The author of this paper would like to highlight these cases in a bid to show where the gray area lies between these two provisions. In the case of Locke vs. Davey , the respondent qualified for the Washington Promise Scholarship, which is a state-funded college scholarship designed to assist students with educational expenses when attending an eligible in state institution. To comply with the Washington State Constitution, the Promise Scholarship guidelines prohibited use of awarded funds for Respondent's pursuit of a degree in devotional theology. Respondent filed suit against the State of Washington in the U. S.
District Court for the Western District of Washington, alleging that denial of scholarship funds based on Respondent's chosen course of study violated the Free Exercise Clause of the First Amendment. The district court rejected Respondent's claims, and granted summary judgment. The U. S. Court of Appeals for the Ninth Circuit reversed the district court's decision, holding that denying an otherwise eligible student a scholarship based on the student's chosen major singled out religious instruction, and constituted a violation of the Free Exercise Clause. The U.
S. Supreme Court granted certiorari, and in reversing the Ninth Circuit's decision, HELD, that Washington's refusal to fund Respondent's devotional theology instruction did not violate Respondent's rights under the Free Exercise Clause. The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. " Separately, the Establishment Clause and the Free Exercise Clause serve different purposes, and state action regarding religion often places the two clauses in tension with one another.
However, some state actions fall within "the joints" and are permitted by the Establishment Clause but not required by the Free Exercise Clause. In another case, Witters v. Washington Department of Services for the Blind, the U. S. Supreme Court reviewed whether a Washington state commission could refuse vocational assistance to a blind student pursuing a religious education at a Christian college. The vocational assistance was paid directly to students.
Students could then apply the aid to the educational institution of their choice. The Court acknowledged that some religious institutions might benefit from the state aid program, but found that such benefits would be the result of the independent choice of the aid recipient. The Court held that because the state was not directly contributing to religiously affiliated institutions, the program did not violate the Establishment Clause.
Another case that has used the Gunwall guidelines in determining whether the Federal or state constitution should prevail is that of First Covenant Church v. City of Seattle where the Supreme Court of Washington employed the Gunwall criteria in analyzing the free exercise language in Article I, Section 11, and concluded that the protections of Article I, Section 11, are sufficiently different from those of the federal First Amendment to require independent analysis.
In applying the Gunwall criteria, the court found that the free exercise language in the Washington Constitution is stronger than the language in the First Amendment because Washington "absolutely" protects freedom of worship rather than limiting government action. Furthermore, the Court noted that Article 1 Section 11 is sufficiently different from those of the federal First Amendment to require independent analysis.
Thus, in applying the Gunwall criteria, the court found that the free exercise language in the Washington Constitution is stronger than the language in the First Amendment because Washington "absolutely" protects freedom of worship rather than limiting government action. The court noted that Article I, Section 11, protects individuals from being "disturbed" on the basis of religion and protects all religious conduct so long as it is not "licentious" or inconsistent with public "peace and safety. "
Moreover, the court also looked to differences in structure between the federal and state constitutions, as well as the state constitutional and common-law history, to find that Article I, Section 11, provides broader protection for religious freedom than does the First Amendment. Finally, the court noted that a broader interpretation of the state constitution is warranted because while the federal constitution grants limited power to the federal government, the Washington Constitution is structured to limit the plenary power of the state.