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Can the State Refrain from Funding Education of the Clergy, When It Funds Secular Education?
The Supreme Court Will Decide This Term

Thursday, Dec. 04, 2003

On December 2, the Supreme Court heard oral argument in Locke v. Davey. The question the Court will resolve is whether the Free Exercise Clause of the First Amendment requires a state that provides college scholarships for secular instruction, to fund religious instruction as well.

To resolve this question, the Court will have to reconcile two lines of prior Supreme Court church/state cases that are in tension with each other. Thus, the Court's ultimate decision in the case is likely to have monumental importance for drawing the proper boundaries between church and state. As Justice Stephen Breyer noted, the "implications of this case are breathtaking."

The Facts of the Locke Case

The case began when Joshua Davey, a student in Washington State, qualified for a state-funded college scholarship program -- and then decided that he would use the funds to pursue a degree in pastoral ministry.

The Washington State Constitution, however, forbids the use of public funds for education of the clergy. As a result, Davey's scholarship was withdrawn.

Davey sued, arguing that his Constitutional Free Exercise right to practice his religion had been violated.

This case builds on the Court's previous decision in Zelman v. Simmons-Harris. There, the Court held that, consistent with the Establishment Clause, a state could offer a voucher scheme for primary and secondary education that included religious schools as an option.

There, the Court found no violation of the Establishment Clause because the individual who received the funding was engaging in a "true private choice" among various schools -- that is, a choice that transformed the money from the government's money to private money.

The Locke case the Court heard on December 2, in contrast, is a case about a claim to entitlement to state funds. It asks whether--in the context of a voucher-like scheme--a government may refuse to fund some religious uses of the government's money.

So while Zelman addressed whether the Establishment Clause permitted money to flow from the government through a private individual into religious educational coffers, Locke asks whether the government must funnel money intended to educational purposes to all possible religious uses. The answer must be "No."

Two Diverging Lines of Church/State Cases

As noted above, this is a case that invokes two strands of church/state precedent.

On one hand, the Establishment Clause has, throughout American history, been read to preclude state financial support for religious inculcation. Therefore, Washington State's prohibition on such support does not violate the Free Exercise Clause, but rather recognizes the restrictions of the Establishment Clause. To take one early example, James Madison, in his justly famous Memorial and Remonstrance, decried state support for Christian education on many grounds.

In particular, Madison distinguished between the U.S.'s "generous policy" of "offering an Asylum to the persecuted and oppressed," who suffered because of their religion, and a policy -- which he opposed -- of going so far as to actually fund Christian education.

Madison wrote, "What a melancholy mark is the Bill [to fund Christian education]? Instead of holding forth on Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree."

In effect, Madison identified the nonpersecution principle at the heart of the Free Exercise Clause, found absolutely no free exercise burden in being denied government funding for religious education, and slid over into disestablishment principles to argue why such funding harmed liberty.

Justice O'Connor reflected this position when she wondered at oral argument whether there was in fact a burden on Davey. No state regulation was keeping him from pursuing a religious education; he was simply being denied state funds to pursue such a choice.

Her position reflected the Supreme Court's earlier free speech case, Rust v. Sullivan. There, the Court held that when the government subsidizes speech, the government's limitation on the topics that can be covered by the subsidized speaker did not violate the First Amendment.

Justice O'Connor's position also reflected the Court's earlier free exercise case, Lyng v. Northwest Indian Cemetery Prot. Ass'n. In Lyng, the Court held that the Free Exercise Clause was not violated when the federal government refused to permit Native American believers to dictate how federally owned real property was used.

On the other hand, at least one Supreme Court case has held that religious groups cannot be excluded from some general funding schemes.

In Rosenberger v. University of Virginia, the Court held that, under the First Amendment's Free Speech Clause, the University of Virginia's student activities fund for publications could not exclude a Christian group. To do so, the Court held, would be an example of "viewpoint discrimination," which is specifically disfavored under the Free Speech Clause.


actually, is the wrongly-decided and problematic case in the mix. The Christian group at issue in that case was publishing a frankly proselytizing magazine, and the government should not as part of a general funding scheme be forced to fund proselytization. Why should any citizen, as Madison noted, be forced to pay taxes that are then used to improve the distribution of others' religious ideas?

Why Davey Should Lose the Case

Davey's counsel has tried to spin the case as being similar to Rosenberger -- a case about stopping viewpoint discrimination -- or similar to Zelman -- a case about whether the government can include both religious and public schools in a funding scheme. But in fact, I will argue, this is a more straightforward Free Exercise case that Davey plainly should lose.

In support of the discrimination/equality view of the case, Davey's counsel has pointed out that, as a theology student, Davey might have been funded but as a minister-in-training, he could not be.

Joining the chorus, on behalf of the Bush Administration, Solicitor General Theodore Olson has argued, in support of this view, that such line-drawing is too dangerous: "When the state starts trying to distinguish between discussion of religion and proselytizing, I think that invites a real entanglement." (Under church/state precedent, church/state excessive entanglement with religion can be an Establishment Clause violation.)

What these arguments ignore, however, is that the Constitution's Free Exercise Clause does not mandate any government financial support for religion--"free exercise" does not mean cost-free. Moreover, the Establishment Clause singles out religion and calls for its selective treatment.

The goal of the two Religion Clauses, taken together, is ordered liberty, not liberty without bounds. The latter plainly condemns the state establishment of religion in particular -- as opposed to, say, a theory of physics or medicine or education. It thus makes clear that the state cannot fund religion on the same terms as it might fund any other pursuit. It also implies that if the result of this is the appearance that the state is discriminating against religious, as opposed to secular, viewpoints, then so be it. That is why Madison trotted out so many different arguments to defeat the Christian education subsidy in Virginia--the surface appearance of discrimination needs to be undermined, to reveal the deeper structure of the Constitution's calculus.

In essence, those backing Davey are hoping against hope that somehow the Establishment Clause does not mean what it says and places no prohibitions on religious entities, as they employ the Free Exercise Clause to expand a bogus entitlement to government largesse. It is a power and money grab that should be--and is--beneath many organized religions. Anti-discrimination claims have special claim to Americans' attention given our civil rights history, but the so-called discrimination being criticized here is wholly distinguishable from the best of our civil rights laws.

The Establishment Clause came from a darker and more realistic vision of organized religion than current culture seems capable of acknowledging. The reason is that the framing generation were fresh from the tyrannies of established religions in Europe. Not knowing those insults to liberty, we are too likely to assume that all religion operates in the public good.

Madison wrote -- again in Memorial and Remonstrance -- that "experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution?" And again, Memorial and Remonstrance was an argument against funding religious education -- the very subject of the Locke case.

Views like Madison's -- a special distrust of religious institutions because they were the instruments of oppression in Europe -- animated the inclusion of the Establishment Clause in the Bill of Rights, a clause later incorporated by the Fourteenth Amendment against the states. This special distrust led to the long-held belief that the state cannot and should not fund religious education. That is to be left to the religions themselves, and according to Madison, both religion and the state will flourish better when they are not joined through a shared fisc.

It is incredible, to say the least, that Davey is challenging this principle. Justice O'Connor rightly asked at oral argument how the Court could possibly hold that denying the funding was unconstitutional when the principle behind the denial had been in place since the beginning of the country. The answer is that it cannot -- and should not. Even after Locke, the basic Establishment Clause principle that the government cannot fund religious inculcation and education should remain untouched.

Marci Hamilton is the Paul R.Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state and other issues is available on this website. Her email address is

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