Supreme Court Hears Free Exercise Case

Published February 1, 2004

On December 2, the U.S. Supreme Court heard oral arguments in the matter of Locke v. Davey, a case whose outcome has significant implications for the future of publicly funded school vouchers.

The case involves a lawsuit brought by Joshua Davey, who as an undergraduate at Washington’s Northwest College was denied a Promise Scholarship from the state because he chose to pursue a degree in theology.

Promise Scholarships are awarded to Washington state students based on criteria of academic merit, financial need, and attendance at an accredited college. Although Davey met all the criteria and was told he qualified for the scholarship, his choice of theology as a major caused the state to deny him access to any scholarship funds.

Washington’s denial of scholarship funds was specific to the choice of a theology degree. Had Davey taken the same theology classes without declaring theology as a major–a possibility since he declared two majors–he would have received the funds. Had he delayed the declaration of his major, he could have received the funds until he declared.

Washington state law is unequivocal on the issue: “No aid shall be awarded to any student who is pursuing a degree in theology.” That law draws its inspiration from the state constitution, which states: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment[.]”

The United States Constitution is unequivocal on the issue also, with the First Amendment’s Free Exercise Clause providing: “Congress shall make no law … prohibiting the free exercise [of religion.]” So-called Blaine amendments to restrict funding of religious schools–named after James G. Blaine, a nineteenth-century anti-Catholic politician–were placed in state constitutions specifically to deny what the First Amendment permitted.

The question presented to the Court in the Davey case was: “Does the Free Exercise Clause of the First Amendment of the United States Constitution require the state to fund religious instruction, if it provides college scholarships for secular instruction?”

“Freedom of Conscience”

Washington Solicitor General Narda Pierce described the state constitution as limiting the involvement of government in religion “[t]o preserve freedom of conscience for all its citizens in matters of religious faith and belief.” In the case of the Promise Scholarships, she argued, “all the state has done has been to decline to fund religious instruction wherever it occurs, including in a theology degree program.”

However, Pierce acknowledged her statement was untrue when Justice Antonin Scalia pointed out that the state in fact will fund religious instruction as long as a student does not major in theology. When Pierce tried to claim such funding was “a rare circumstance,” Scalia scoffed.

“Everybody who takes a theology course has to major in theology?” he asked incredulously. “I don’t think it’s rare at all. Probably most of the students at Northwest College take theology courses. It’s … a religious institution, and that’s perfectly okay, and the state is willing to fund that.”

Scalia also pressed Pierce to explain why, if the state was not permitted to discriminate among religious sects, it should be able to discriminate between religion and non-religion.

“You can study anything you like and get it subsidized except religion,” he said. “Why is that not violating the principle of neutrality?”

Pierce, at the prompting of Justice David Souter, argued the distinction is between training to be religious and studying religion in general.

If the state starts making that distinction, “the entanglement problem is going to be enormous,” Solicitor General Theodore B. Olson said later, arguing for the Bush administration as a “friend of the court” on Davey’s behalf. The line should be drawn by individuals, he argued, “individuals making genuinely free, independent choices to make that dispensation.”

“Religious Discrimination”

In his opening remarks, Olson wasted no time in making clear his strong disagreement with the state’s benign interpretation of the law at issue.

“The Promise Scholarship program practices the plainest form of religious discrimination,” he said. “It disqualifies the one course of study that is taught from a religious perspective. The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged.”

Justice Sandra Day O’Connor interrupted Olson with an almost sarcastic reminder that “not funding religious instruction by tax money” had been the practice in the U.S. for two centuries. She added, “I mean, that’s … as old as the country itself, isn’t it?”

Olson agreed, but immediately reminded her: “But there is the other tradition that is as old as the country itself, is (sic) the free exercise component of the religion clauses, which this Court has said repeatedly mandates neutrality.”

Justice John Paul Stevens then shot the question of “burden” at Olson. That issue was raised several times during the oral arguments and appears likely to play a part in the Court’s ruling, which is expected by this summer. Instead of weighing the constitutional burden of the law, several justices appeared to be weighing the practical burden to Davey of the loss of a $1,125 scholarship.

“But how is his free exercise chilled at all? Can’t he practice his religion just as he always would and become a minister?” asked Stevens.

Olson explained Davey would practice his religion “without the same subsidy that is made available to every other citizen except someone who wants to study to be a minister.” He reminded the Court of its previous rulings, where it had said, “religious tests for governmental benefits violate the Free Exercise Clause.”

“This is a religious test,” said Olson. “If the person wants to take a program in theology, he’s disqualified.”

School Vouchers

The Court clearly was interested in hearing how this case applied to school vouchers. Pierce had barely opened her mouth before O’Connor demanded to know: “Is it like a voucher program …?”

“[I]t works like a voucher program to the extent that it’s for educational expenses,” responded Pierce, who added it wasn’t like a paycheck where the recipient had the funds to spend on whatever he wanted.

Arguing on behalf of Davey, Jay A. Sekulow, chief counsel of the American Center for Law and Justice, responded to O’Connor’s question during his opening remarks. The check is not written to the school, Sekulow pointed out, but is written to the student.

O’Connor asked Sekulow whether the state could bar the use of vouchers at religious schools if vouchers were made available for use in all schools of a certain grade level.

“I would think not,” responded Sekulow.

“So what you are urging here would have a major impact then, would it not, on voucher programs?” O’Connor asked.

“Well, it would,” responded Sekulow.

George A. Clowes is managing editor of School Reform News. His email address is [email protected].

For more information …

A Resource Page on the Locke v. Davey case–including a transcript of the December 2, 2003 oral argument and copies of the amicus briefs–is available on the Web page of the Pew Forum on Religion & Public Life at