Locke vs. Davey a key win for church-state separation

Hollman Report
By K. Hollyn Hollman

March 2004

The Supreme Court's recent decision in Locke vs. Davey is an important victory for the separation of church and state and for the continued validity of state constitutions that provide stronger religious liberty protections than the federal Constitution. That the case was decided by a 7-2 margin, in an opinion by Chief Justice Rehnquist, makes it even more noteworthy.

Many will simply describe the decision as a win for "states' rights." The case makes clear that the State of Washington and other states with similar constitutions are allowed to prohibit the funding of scholarships for clergy training. The federal Free Exercise Clause does not give Mr. Davey a right to equal funding that trumps that state interest. Some in Davey's camp will read the case very narrowly, arguing that the state's right to avoid the funding of religion is limited to the realm of clergy training. In fact, it will take quite a while to sort out the precise reach of the Court's decision. That said, however, there are reasons for optimism.

The Court's analysis began with the text of the First Amendment and recognition that the two religion clauses (free exercise and no establishment) are frequently in tension. Yet, the Court has long recognized "play in the joints" between them. This is the idea that there are things that the Establishment Clause allows (like certain indirect funding programs) that are not required by the Free Exercise Clause (legislatures can decide not to fund religion even if it would not violate the Establishment Clause to do so). The question in this case was whether it violates the Free Exercise Clause not to fund Mr. Davey's theology studies, which was forbidden by the Washington state constitution (its version of the Establishment Clause that prohibits aid to religious institutions). On this point the Court said, no.

Importantly, the Court rejected the argument that the scholarship program is necessarily unconstitutional because theology majors were treated different from other majors. This case, the Court held, is not like the 1993 Lukumi case where the Court found hostility toward those who practice the Santeria religion in a city ordinance that outlawed ritual sacrifice but not other killing of animals. Here, the Court recognized that Washington was not discriminating against theology majors based upon their beliefs. There was no criminal or civil sanction, no denial of participation in political affairs or choosing between religious beliefs and receiving a benefit. "The State has merely chosen not to fund a distinct category of instruction."

Noting that religion is categorically different from other things (and answering Justice Scalia's argument made in dissent), the Court said, "[T]raining for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

The court emphasized what the BJC has always emphasized. "The subject of religion is one in which both the United States and state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion."

Far from evincing hostility toward religion, as attorneys for Mr. Davey and the United States argued, the entirety of the Promise Scholarship was found to go a long way toward including religion in its benefits because it allows recipients to go to any accredited school, including denominational schools and take religion courses.

In conclusion the Court stated: "In short, we find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect." Thus, Davey's claim fails.

The court found the State's interest in not funding devotional degrees substantial and the exclusion of such funding placed a relatively minor burden on Promise Scholars. "If any room exists between the two Religion Clauses, it must be here."