Establishment Clause Under Locke v. Davey

In Locke v. Davey, 540 U.S. 712 (2004), the U.S. Supreme Court held that a State of Washington’s scholarship aid program, which excluded students pursuing a “degree in devotional theology,” did not run afoul of the First Amendment to the U.S. Constitution.

Facts of the Case

Washington State established its Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use such a scholarship to pursue a devotional theology degree.

Joshua Davey was awarded a Promise Scholarship and chose to attend Northwest College, a private, church-affiliated institution that is eligible under the program. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration. It is undisputed that the pastoral ministries degree is devotional. After learning that he could not use his scholarship to pursue that degree, Davey filed suit under 42 U. S. C. §1983 for an injunction and damages, arguing that the denial of his scholarship violated the First Amendment’s Free Exercise and Establishment Clauses.

The District Court rejected Davey’s constitutional claims and granted the State summary judgment. The Ninth Circuit reversed, concluding that, because the State had singled out religion for unfavorable treatment, its exclusion of theology majors had to be narrowly tailored to achieve a compelling state interest underChurch of Lukumi Babalu Aye, Inc.v.Hialeah,508 U. S. 520 (1993). Finding that the State’s antiestablishment concerns were not compelling, the court declared the program unconstitutional.

Supreme Court’s Decision

By a vote of 7-2, the Court ruled that the scholarship program did not violate the Establishment Clause. “[W]e 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,” Chief Justice William Rehnquist wrote on behalf of the Court. “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.”

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” As described by the Court, the case involved the “play in the joints” between the Establishment and Free Exercise Clauses. In other words, it “concerns state action that is permitted by the former but not required by the latter.”

In reaching its decision, the Court rejected Davey’s argument that the program is presumptively unconstitutional because it is not facially neutral with respect to religion.As highlighted by the Court, the programdoes not require students to choose between their religious beliefs and receiving a government benefit. “The State has merely chosen not to fund a distinct category of instruction,” the Chief Justice wrote.

The Court further found that the State’s interest in not funding the pursuit of devotional degrees is substantial. In support, the Court cited states’ “historic and substantial interest” in excluding religious activity from public funding. “That early state constitutions saw no problem in explicitly excludingonlythe ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk,” Chief Justice Rehnquist wrote.

The Court also found that the exclusion of such funding places a relatively minor burden on Promise Scholars. As Chief Justice further explained:

[W]believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited…And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses. Davey notes all students at Northwest are required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine,” and some students may have additional religious requirements as part of their majors.