Witters v. Commission for the Blind , 112 Wash. 2d 363 ( 1989 )

Andersen, J.

Facts of Case

In this case we consider for the second time whether error was committed when a visually handicapped student was denied state financial assistance to enable him to attend a private bible college with the goal of becoming a pastor, missionary or church youth director. We hold that when a person "is getting a religious education" (italics ours), to use the words of his attorney, that person comes squarely within the express prohibition contained in the Constitution of the State of Washington that " [n]o public money . . . shall be appropriated for or applied to any religious . . . instruction”. (Italics ours.) Const. art. 1, § 11 (part). Accordingly, the Washington State Commission for the Blind and the Superior Court for Spokane County did not err when they denied state financial assistance for his education. Phrasing it a bit differently, our state constitution prohibits the taxpayers from being put in the position of paying for the religious instruction of aspirants to the clergy with whose religious views they may disagree.

Appellant Larry Witters, who will be referred to herein as the "applicant", applied for vocational rehabilitation funds from the Washington State Commission for the Blind (Commission) in 1979.¹ He planned to use the funds to pursue a course of study that would prepare him for a career as a pastor, missionary or youth director. At the time of his request, the applicant was enrolled at the Inland Empire School of the Bible in Spokane pursuing a 3-year Bible diploma. Later, he switched to a 4-year program that would earn him a biblical studies degree from Inland Empire School of the Bible and a bachelor of arts degree from Whitworth College. His curriculum included Old and New Testament studies, ethics, speech and church administration.

The applicant qualifies as a legally blind person under the physical and medical eligibility requirements specified in RCW 74.16.² Funding for the Commission's assistance program is provided by both federal (80 percent) and state (20 percent) moneys. The Commission denied the applicant's request on the basis of its policy statement, which states: "Private institutions or out-of-state institutions: The Washington State Constitution forbids the use of public funds to assist an individual in the pursuit of a career or degree in theology or related areas." After an unsuccessful internal administrative review, the applicant appealed the action to the Superior Court for Spokane County under the state administrative procedure act.³ On May 26, 1982, following a hearing, the trial court entered findings of fact and conclusions of law affirming the Commission's order, also on state constitutional grounds.

In 1984, this court affirmed the decision of the Commission and the Superior Court holding that "the provision of state aid to a person studying to be a pastor, missionary, or church youth director violates the establishment clause of the first amendment to the United States Constitution." Witters v. Commission for the Blind, 102 Wn.2d 624, 626, 689 P.2d 53 (1984), rev'd sub nom. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, 106 S. Ct. 748, reh'g denied, 475 U.S. 1091 (1986). This court did not reach the state constitutional grounds on which both the Commission and the Superior Court had relied. Instead, it based its decision on the United States Supreme Court's 3-part test for determining the constitutionality of state aid under the establishment clause of the first amendment to the United States Constitution:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster "an excessive government entanglement with religion."

Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), quoted in Witters, 102 Wn.2d at 628. After concluding that the first criterion was met, this court held that the second criterion, primary effect, was not.⁴ The court declined to address entanglement, the third Lemon criterion.⁵ Finally, this court rejected the applicant's free exercise clause argument and declined to address his equal protection clause argument.⁶

In 1986, the United States Supreme Court reversed this court's 1984 decision. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, 106 S. Ct. 748, reh'g denied, 475 U.S. 1091 (1986). It rejected this court's analysis of the second Lemon criterion and remanded the case to us for further proceedings.

Pursuant to that remand, we now address three principal issues.

Issues

Issue One. Does the Constitution of the State of Washington prohibit the Commission from granting vocational rehabilitation funds to a visually handicapped applicant to use at a religious institution for a course of study designed to prepare him for a career as a pastor, missionary or youth director?

Issue Two. If the Constitution of the State of Washington is a bar to the applicant's request for educational assistance, is such denial of funds a violation of the free exercise clause of the First Amendment?

Issue Three. If the Constitution of the State of Washington is a bar to the applicant's request, is the denial of funds to the applicant a violation of the Fourteenth Amendment equal protection clause?

Decision

Issue One.

Conclusion. The Commission and the Superior Court did not err in denying state financial assistance for the applicant to use for religious instruction; the Constitution of the State of Washington, article 1, section 11, prohibits this.

As the United States Supreme Court observed in its opinion in this case, "[t]he Establishment Clause of the First Amendment has consistently presented this Court with difficult questions of interpretation and application."⁷ Then, after concluding that there was no violation of that clause of the federal constitution, and that the case should be remanded, the United States Supreme Court also held that "[o]n remand, the state court is of course free to consider the applicability of the 'far stricter' dictates of the Washington State Constitution, see Witters v. Commission for the Blind, 102 Wash. 2d, at 626, 689 P. 2d, at 55."⁸

Article 1, section 11 of the Constitution of the State of Washington provides in pertinent part:

No public money or property shall he appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. . .

(Italics ours.) Here, the applicant is asking the State to pay for a religious course of study at a religious school, with a religious career as his goal. This falls precisely within the clear language of the state constitutional prohibition against applying public moneys to any religious instruction. Indeed, as counsel for the applicant summarized at oral argument before this court:

We would concede that Larry Witters is getting a religious education.

(Italics ours.) Our state constitution prohibits the use of public moneys to pay for such religious instruction.

This court has twice construed the term "religious instruction".

In State ex rel. Dearie v. Frazier, 102 Wash. 369, 173 P. 35 (1918), the court struck down a school board resolution giving high school credits for Bible study done outside of school, even though the course of study covered only the "historical, biographical, narrative and literary features of the Bible".⁹

On the other hand, the court upheld the teaching of "English 390: The Bible as Literature" at the University of Washington in Calvary Bible Presbyterian Church v. Board of Regents, 72 Wn.2d 912, 436 P.2d 189 (1967), cert. denied, 393 U.S. 960 (1968). In Calvary, the court interpreted "religious instruction" as used in article 1, section 11 to mean "instruction that is devotional in nature and designed to induce faith and belief in the student."¹⁰ The court went on to say:

There can be no doubt that our constitutional bars are absolute against religious instruction and indoctrination in specific religious beliefs or dogma; but they do not proscribe open, free, critical, and scholarly examination of the literature, experiences, and knowledge of mankind.

Calvary, at 919.

In this case, Inland Empire School of the Bible is a Christian college. The applicant's course of study is designed to prepare him for a career promoting Christianity. His Bible study and church courses necessarily provide indoctrination in the specific beliefs of Christianity. Thus, for the Commission to provide vocational assistance funds to the applicant as he requests would violate article 1, section 11 of the Constitution of the State of Washington because public money would be applied to religious instruction.

The applicant urges that we examine the vocational rehabilitation program as a whole and not focus on his individual participation in the program. His argument ignores the "sweeping and comprehensive"¹¹ language of Const. art. 1, § 11, which prohibits not only the appropriation of public money for religious instruction, but also the application of public funds to religious instruction. Herein lies a major difference between our state constitution and the establishment clause of the first amendment to the United States Constitution. It follows that to apply federal establishment clause analysis to article 1, section 11 of the state constitution as the applicant urges would be inappropriate.

Having concluded, as we do, that article 1, section 11 of our state constitution is dispositive of the issue of whether the Constitution of the State of Washington prohibits the funding of the applicant's vocational rehabilitation plan, we need not consider the parameters of article 9, section 4 of the state constitution.¹²

Issue Two.

Conclusion. Neither the applicant's freedom to believe nor his freedom to act in a manner consistent with his beliefs is being encroached by the article 1, section 11 ban on expenditure of state funds for religious instruction. The applicant's right to free exercise of religion has not been violated.

This court has already held that denial of aid to the applicant herein did not violate the applicant's right to the free exercise of religion.¹³ The fact that we now base denial of the funds on article 1, section 11 of our state constitution instead of the establishment clause of the first amendment to the United States Constitution does not affect this court's earlier analysis and conclusions on the free exercise of religion issue.

A state action is constitutional under the free exercise clause if the action results in no infringement of a citizen's constitutional right of free exercise or if any burden on free exercise of religion is justified by a compelling state interest.¹⁴ To prevail in a free exercise case, the complaining party must show "the coercive effect of the enactment as it operates against him in the practice of his religion."¹⁵ As this court held, "[t]he challenged state action must somehow compel or pressure the individual to violate a tenet of his religious belief.''¹⁶

Here, the applicant is not being asked to violate any tenet of his religious beliefs, nor is he being denied benefits "because of conduct mandated by religious belief".¹⁷ This case is dissimilar to those in which persons have been pressured by state policies to choose between benefits or rights and practicing their religion.¹⁸

As this court already held when this case was before it earlier,

In the present case, the Commission's denial of vocational aid to the [applicant] did not compel or pressure him to violate his religious beliefs. [Applicant] chose to become a minister, and the Commission's only action was to refuse to pay for his theological education. The Commission's decision may make it financially difficult, or even impossible, for [applicant] to become a minister, but this is beyond the scope of the free exercise clause. We hold that the Commission's refusal to provide financial assistance did not violate the free exercise clause of the federal constitution.

Witters, 102 Wn.2d at 631. As Justice Douglas also aptly expressed it in Sherbert v. Verner, 374 U.S. 398, 412, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963):

The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.^[19]

For the foregoing reasons, the Commission's denial of funds to the applicant does not violate the free exercise clause of the United States Constitution.

Issue Three.

Conclusion. Denial of vocational assistance funds to the applicant herein is not a violation of the equal protection clause of the Fourteenth Amendment.

The classification here at issue is the Commission's policy of denying vocational funding of any student's religious studies. This classification is directly related to the state's interest in ensuring the separation of church and state, as required by the Constitution of the State of Washington. The state has a compelling interest in maintaining the strict separation of church and state set forth in Const. art. 1, § 11.²⁰ The applicant's individual interest in receiving a religious education must therefore give way to the state's greater need to uphold its constitution.

We again uphold the Commission's decision, and that of the Superior Court, to deny applicant's request for vocational assistance in funding his religious instruction. To provide the specific aid requested would violate article 1, section 11 of the Constitution of the State of Washington. Denial of such aid, therefore, does not violate the equal protection clause of the Fourteenth Amendment.²¹

In any event, the denial of tuition for religious instruction is but a refusal of state funds to advance religion in a constitutionally impermissible way; the Commission has not discriminated against the applicant because he is religious, but has refused to use state moneys to pay for his religious activities.

Affirmed.

Callow, C.J., and Brachtenbach, Pearson, and Smith, JJ., concur.

1 The Washington State Commission for the Blind is now the Department of Services for the Blind. See RCW 74.18 which in 1983 replaced former RCW 74.16 and 74.17. Laws of 1983, ch. 194, § 3, p. 1050.

2 Repealed, Laws of 1983, ch. 194, § 30, p. 1057.

3 RCW 34.04; see also former RCW 74.16.530(1).

4 Witters v. Commission for the Blind, 102 Wn.2d 624, 629, 689 P.2d 53 (1984), rev'd sub nom. Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, 106 S. Ct. 748, reh'g denied, 475 U.S. 1091 (1986).

5 Witters, 102 Wn.2d at 630.

6 Witters, 102 Wn.2d at 631-32.

7 Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 485, 88 L. Ed. 2d 846, 106 S. Ct. 748, reh'g denied, 475 U.S. 1091 (1986).

8 Witters, 474 U.S. at 489.

9 State ex rel. Dearie v. Frazier, 102 Wash. 369, 373, 173 P. 35 (1918).

10 Calvary Bible Presbyterian Church v. Board of Regents, 72 Wn.2d 912, 919, 436 P.2d 189 (1967), cert. denied, 393 U.S. 960 (1968).

11 Dearie, at 375. See also Garnett v. Renton Sch. Dist. 403, 675 F. Supp. 1268, 1275 (W.D. Wash. 1987); Perry v. School Dist. 81, 54 Wn.2d 886, 344 P.2d 1036 (1959).

12 "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence." Const. art. 9, § 4.

13 Witters, 102 Wn.2d at 631.

14 Sherbert v. Verner, 374 U.S. 398, 403, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963).

15 School Dist. v. Schempp, 374 U.S. 203, 223, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963).

16 Witters, 102 Wn.2d at 631.

17 Thomas v. Review Bd., 450 U.S. 707, 718, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981).

18 See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 94 L. Ed. 2d 190,107 S. Ct. 1046 (1987); Thomas v. Review Bd., supra; Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981); McDaniel v. Paty, 435 U.S. 618, 55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978); Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); see also Employment Div., Or. Dep't of Human Resources v. Smith,_U.S__, 99 L. Ed. 2d 753, 108 S. Ct. 28 (1988).

[19] 19Quoted in part in Lyng v. Northwest Indian Cemetery Protective Ass'n,_ U.S. _, 99 L. Ed. 2d 534,108 S. Ct. 1319 (1988).

20 Garnett, 675 F. Supp. at 1276-77.

21 See Garnett, 675 F. Supp. at 1277.