Locke v. Davey
Locke v. Davey: A State is not required to include study toward a religious, devotional degree in a State postsecondary school scholarship program
In Locke v. Davey, the Supreme Court, in a 7-2 decision, upheld a Washington State scholarship program that denies funds to students who pursue degrees that are “devotional in nature or designed to induce religious faith.” Chief Justice Rehnquist, writing for the majority, rejected the argument that because the program lacks facial neutrality, it violates First Amendment guarantees. Justice Scalia, joined by Justice Thomas, dissented.
The Promise Scholarship Program was established by the State of Washington to assist academically gifted students with post-secondary education expenses. To be eligible, a student must enroll at least half time in an eligible post-secondary institution. This includes private, religiously affiliated institutions. However, while receiving the scholarship, the student may not pursue a degree in devotional theology – a requirement that codifies the State’s constitutional prohibition on the expenditure of State funds for the pursuit of degrees that are “devotional in nature or designed to induce religious faith.”
Joshua Davey was awarded a Promise Scholarship, and chose to attend a private, religiously affiliated college. He subsequently decided to pursue a degree in pastoral ministries. Upon communicating this decision to college officials, he was told that the scholarship funds could not be used for the pursuit of that degree. He then brought suit against the State, contending that its rule violates the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment, of the United States Constitution.
Although Locke v. Davey dealt with what might appear – at first blush – to be a narrow question, the Court’s decision in this case assumes great significance because of other recent action by the Court. In particular, the Court had previously held, in Zelman v. Simmons-Harris (2002), that the federal Establishment Clause presents no bar to voucher funding of religious schools. This decision was anticipated to clear the way for aggressive adoption of school voucher programs by state and local governments. However, voucher proponents have found themselves stymied by more stringent state constitutional provisions that prohibit taxpayer funding (including voucher funding) of religious education. Whether states can persist in these denials has become the most important question in the post-Zelman voucher landscape. In particular, voucher proponents have argued that state laws that lack facial neutrality – that is, those that single out religion for particular, disadvantageous treatment – violate free exercise and equal protection guarantees. Since the Locke case involved a state law of this type, it promised to shed light on the general question of the ability of states to deny equal funding for religious activities or institutions on the basis of the states’ own (more stringent) anti-establishment guarantees.
Chief Justice Rehnquist’s majority opinion presents the case as one of no great difficulty. He began by observing that the Free Exercise and Establishment Clauses of the First Amendment are frequently in tension, and that there must be “room for play in the joints” between them. In other words, it is possible for some state actions to be “permitted by the Establishment Clause, but not required by the Free Exercise Clause” (emphasis added).
This, he continued, is such a case. Citing Zelman and other cases, he observed that there is no Establishment Clause barrier if a state wishes to fund religious training of the kind involved here. However, the question now before the Court concerned not whether the State of Washington could afford such funding, but whether it is required (by the federal Constitution) to do so. The question is “whether Washington, pursuant to its own constitution, which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, . . . can deny them such funding without violating the Free Exercise Clause.”
Davey argued that, because the statute was not facially neutral, it was presumptively unconstitutional. The Court’s majority disagreed. If a state law is intended to suppress religious exercise, it will be unconstitutional on that ground. However, this is not such a case. If there is disfavor of religion in this case, Rehnquist wrote, it “is of a far milder kind.” The Washington rule applies neither criminal nor civil sanctions to any type of religious service or rite. It does not deny ministers the right to participate in political affairs. It does not require students to choose between their religious beliefs and the receipt of a government benefit. “The State has merely chosen not to fund a distinct category of instruction” – an action that vindicates the State’s “antiestablishment interests,” and has deep historic roots. The use of taxpayer funds to support church leaders has been the subject of vehement objection by dissenting citizens since the time of the Nation’s founding. “That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.”
In addition, hostility to religion – which the Constitution forbids – is not apparent in Washington’s program. The scholarship program permits students to attend pervasively religious schools, as long as those schools are accredited. And under the program’s guidelines, students may take devotional theology courses as a part of other majors. In short, there is nothing in the history or text of the Washington law that suggests animus toward religion. “Given the historic and substantial state interest at issue, we ... cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.”
Davey’s other arguments were similarly, and summarily, rejected. First, relying on Rosenberger v. Rector and Visitors of Univ. of Va., Davey argued that the program’s prohibition was an unconstitutional viewpoint restriction on speech. In Rosenberger and other cases, the Court held that where a forum for public speech is created or maintained by government, equal access to that forum must be given, if requested, to the religious viewpoint. Chief Justice Rehnquist responded that the program “is not a forum for speech,” and thus, “[o]ur cases dealing with speech forums are simply inapplicable.”
Next, Davey and amici argued that Washington’s Constitution “was born of religious bigotry because it contains a so-called ‘Blaine Amendment’, which has been linked with anti-Catholicism.” However, the Chief Justice wrote, “[a]s the State notes and Davey does not dispute, ... the provision in question is not a Blaine Amendment.” “The enabling Act of 1889, which authorized the drafting of the Washington Constitution, required the [S]tate constitution to include a provision ‘for the establishment and maintenance of systems of public schools, which shall be ... free from sectarian control.’” Since no credible evidence of a connection between the Blaine Amendment and the Washington Constitutional provision was presented, “the Blaine Amendment’s history is simply not before us.”
Finally, Davey argued that the Equal Protection Clause protects against the kind of discrimination against religion present in this case. This contention was also rejected. “Because we hold ... that the program is not a violation of the Free Exercise Clause”, the Chief Justice wrote, “we apply rational-basis scrutiny to [these] ... equal protection claims.” “For the reasons stated herein, the program passes such review.”
The majority opinion in Locke is narrowly crafted in many ways. For instance, the Court’s majority stressed the long history of popular opposition to the use of taxpayer funds to support church leaders, and the particularly strong nature of a state’s antiestablishment interests in this area. The majority also noted the Washington program’s general accommodation of religion, in permitting (for instance) the general use of scholarship funds for education in accredited, pervasively religious institutions. These potential limitations on the scope of the Court’s holding will undoubtedly be stressed by voucher advocates and other opponents of state antiestablishment limitations as these issues are litigated further.
There are, however, certain fundamental questions that the Court’s opinion answers that will make challenges to state antiestablishment laws an uphill climb. First, the question of whether the simple lack of facial neutrality (between religion and nonreligion) in a state program will render it unconstitutional appears to have been definitively answered. In the absence of overt hostility to religion, the criminal or civil penalizing of religious services or rites, or other special circumstances, the simple fact that religion is treated differently from nonreligion (for antiestablishment reasons) will not render a state law suspect. In other words, the outer limit of the “equality paradigm”– the idea that religion and nonreligion must be treated equally – has been marked.
Furthermore, to demonstrate overt hostility to religion, more than simple antiestablishment sentiment and the implementation of bias by others must be shown. Whatever evidence of bias may exist regarding the so-called “Blaine Amendment,” it is relevant only if a credible connection between the Blaine Amendment and the particular state law in question is shown.
Finally, the reach of the First Amendment “forum” cases, in which the Court required the inclusion of religious individuals and groups, has been identified. The “fora” that Rosenberger and other such cases subject to equal participation rules are those that have, as their purpose, the “encourage[ment] [of] a diversity of views from private speakers.” This does not include the Promise Scholarship Program, whose purpose “is to assist students from low- and middle-income families with the cost of postsecondary education,” and presumably most other state programs as well.
The author, Laura S. Underkuffler, is Professor of Law at Duke Law School. She has written and spoken on issues involving religion and education in the United States and abroad.
Certiorari Grant
Edited Case
