Locke v. Davey, 540 U.S. 712 (2004)

2012-07-25 14:00:32

Locke v. Davey is a significant U.S. Supreme Court holding that represents the juxtaposition of three strains of First Amendment religion clause jurisprudence: the history of state constitutional provisions barring public financial assistance to sectarian institutions; the Court’s more recent holdings approving funding of religious institutions through vouchers and other private choice mechanisms; and the Court’s free exercise rulings prohibiting the targeting of religious conduct for disparate treatment. In the end, the Locke decision affirmed that these competing jurisprudential strains were not so irreconcilable as to deny states the ability to interpret their state constitutional provisions independently of federal standards.

Locke involved the Washington state ‘‘Promise Scholarship Program’’ that provides financial grants to academically gifted students attending public and private colleges in the state, including religiously affiliated colleges. To be consistent with the Washington Constitution, the authorizing statute allows the scholarship monies to be spent in any academic program except for a ‘‘degree in theology.’’ Article I, section 11 of the Washington Constitution provides that ‘‘[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.’’ Joshua Davey was awarded a Promise Scholarship and chose to enroll in a Bible college and pursue a degree in pastoral ministries. After he was declared ineligible, Davey sued in federal court alleging his exclusion violated his rights under the free exercise, free speech, and equal protection clauses. The state acknowledged that pursuant to the U.S. Supreme Court decision in Zelman v. Simmons-Harris (2002) permitting state vouchers for religious education, the federal Establishment Clause would not bar Davey’s use of the scholarship in a ministerial program. The state argued, however, that it was entitled to interpret its own constitutional provisions more strictly than required under the federal constitution and find that Davey’s proposed use of the scholarship would violate Article I, section 11. A lower federal appeals court disagreed, holding that the state had singled out religion for unfavorable treatment in violation of the free exercise clause.

Despite having upheld the constitutionality of vouchers only two years earlier, the Supreme Court by a seven-to-two vote affirmed the state’s denial of the scholarship. Writing for the majority, Chief Justice William Rehnquist noted that although the free exercise and Establishment Clauses are frequently in tension, ‘‘there are some state actions permitted by the Establishment Clause but not required by the free exercise clause.’’ This was such a case of ‘‘play in the joints’’ between the two constitutional principles. The majority held that the mere singling out of religion for differential treatment, without more, was not equivalent to discriminate against religion. In contrast to laws that penalized religious practice, ‘‘the State’s disfavor of religion (if it can be called that) is of a far milder kind.’’ Rather than seeking to punish religion, the state had ‘‘merely chosen not to fund a distinct category of instruction’’ on the basis of adherence to its constitutional requirements.

The Court also held that even though the Washington Constitution ‘‘draws a more stringent line than that drawn by the United States Constitution,’’ its interest in not funding the training of ministers was part of a long-established tradition reaching back to the earliest state constitutions. As the Court concluded:

The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two religion clauses, it must be here.

The Court majority side-stepped the third issue about the underlying legitimacy of the Washington constitutional provision. Davey and his amici had argued that the Washington Constitution had been enacted in 1889 in the wake of the failed Blaine Amendment, of 1876. Davey argued that the Blaine Amendment, which would have prohibited public funding of sectarian schools nationwide, had been motivated by anti-Catholic animus as had the Enabling Act of 1889, which had required Washington to include a nonfunding provision in its constitution as condition for admission as a state. Interestingly, in the 2000 case of Mitchell v. Helms, a Court plurality that included Chief Justice Rehnquist had characterized the Blaine Amendment as ‘‘born in bigotry.’’ In the Locke majority opinion, however, Rehnquist wrote that Davey had failed to establish a ‘‘credible connection between the Blaine Amendment and Article I, } 11,’’ and that there was nothing in the history or text of the state constitution or the scholarship program that suggested animus toward religion.

This last part of the Locke decision is particularly significant, because a majority of state constitutions contain provisions like those in the Washington Constitution that are more explicit and potentially more stringent in their application of the no-funding principle. These state constitutional provisions may serve as a bar to possible funding of religious schools and institutions, even though such funding might be permissible under the federal Establishment Clause. The Locke majority refused to presume any improper motive behind such provisions as Davey had urged. The Locke decision therefore renders pyrrhic much of the victory for religious school voucher programs that was gained under the Zelman decision, because voucher opponents can continue to rely on more restrictive state constitutional provisions to block voucher and other aid programs. The Locke decision also indicates that the Supreme Court will not presume that programs that differentiate along religious lines necessarily violate the free exercise clause. In some instances this may benefit religious institutions by authorizing legislative accommodations of religious practice. In other instances, however, it may mean that religious institutions will be ineligible to participate in government programs.

STEVEN K. GREEN

References and Further Reading

Green, Steven K., ‘Blaming Blaine:’ Understanding the Blaine Amendment and the No-Funding Principle, First Amendment Law Review 2 (2003): 107–151.
———, Locke v. Davey and the Limits to Neutrality Theory, Temple Law Review 77 (Winter 2004): 913–955.
Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.
Jeffries, John C., and James E. Ryan, A Political History of the Establishment Clause, Michigan Law Review 100 (2001): 279–370.
Laycock, Douglas, Theology Scholarships, The Pledge of Allegiance, and Religious Liberty, Harvard Law Review 118 (2004) 155–218.
Lupu, Ira C., and Robert W. Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, Notre Dame Law Review 78 (2003): 917–994.
Ravitch, Frank S., Locke v. Davey and the Lose-Lose Scenario: What Davey Could Have Said, But Didn’t, Tulsa Law Review 40 (2004): 55.
Tushnet, Mark, Vouchers After Zelman, Supreme Court Review 2000 (2000) 1–39.

Cases and Statutes Cited

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)