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The Supreme Court Issues a Monumental Decision:
Equal State Scholarship Access for Theology Students Is Not Required by the Free Exercise Clause

Friday, Feb. 27, 2004

On Wednesday, February 25, the Supreme Court handed down its decision in Locke v. Davey -- a monumentally important ruling.

The question presented was narrow: Is the State of Washington's scholarship program, which specifically excludes theology students, constitutional?

The student in question sought "college training for a lifetime of ministry, specifically as a church pastor." And the exclusion was mandated by the state's Constitution, which holds that "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction. . . ."

But while the question was specific, the principle implicated is profound: Does the right to the free exercise of one's religion mean that the state must fund secular and religious study equally?

Chief Justice Rehnquist's opinion for a 7-2 majority of the Court was characteristically brief and pithy -- and, also characteristically, it simultaneously decided a number of important issues. Only Justices Scalia and Thomas dissented.

As the size of this majority would suggest, the Court reached the right result, through the right reasoning.

The Court's First Inquiry: Does "Strict Scrutiny" Apply?

The first important question the Court had to resolve was the level of scrutiny it would accord Washington's exclusion of theology students.

The student, Davey, argued that strict scrutiny was called for. Strict scrutiny requires the state to show that the challenged law furthers a compelling interest and is narrowly tailored to serve that interest, and that there are no alternative options for regulation that would be less restrictive of constitutional rights. (The lesser degrees of scrutiny the Court implies are "intermediate scrutiny," and "rational basis review.")

In support of his argument for strict scrutiny, Davey relied on the Court's decision in Church of Lukumi Babalu Aye v. City of Hialeah. There, the City of Hialeah, Florida had criminalized animal "sacrifice," a practice central to Santerian worship. Evidence suggested that the law was passed specifically to drive the Santerians out of Hialeah. The Court applied strict scrutiny and struck down Hialeah's ordinance on the ground that it was hostile to a particular religious group.

The Court, however, saw Locke as very different from Lukumi. It pointed out that, "[i]n Lukumi, . . . [w]e found that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. In the present case, the State's disfavor of religion (if it can be called that) is of a far milder kind."

The State of Washington's program, the Court held, did not show "hostility toward religion" or "animus towards religion," as Hialeah's anti-Santeria law had. To the contrary, it was inspired by the state Constitution's attempt to separate government and religion, by ensuring that state funds did not go to fund the training of clergy.

To permit the state to avoid establishing religion, the Court suggested, is not to discriminate against religion, but rather to acknowledge that "religious instruction is of a different ilk" than other instruction. Therefore, strict scrutiny was not required.

The Court could not have been clearer: There are few instances where strict scrutiny is justified under the Free Exercise Clause. In Free Exercise challenges, hostility to religion must be shown for strict scrutiny to apply.

The Court explains that such disfavor can be shown as it was in Lukumi--by laws that provide criminal or civil sanctions on religious services or rites--or by the placement of political disabilities on ministers, or through unconstitutional conditions on government benefits. But in the end, the Court made clear, strict scrutiny is not justified in the absence of hostility.

The Road Not Taken: Why the Court Was Correct Not To Apply Strict Scrutiny

This clarification is not only correct, it is long overdue. Most Court watchers -- including myself -- have taken this view. But a minority of observers, and litigants, have pushed for a much more aggressive position.

Here is their position: They read Lukumi to mean that any time a statute even mentions religion, or uses religion or houses of worship as a separate category within its framework. strict scrutiny must automatically be applied.

This position was always wrong, and the Court was right to repudiate it in Locke. There are two main reasons it's wrong. One has to do with the Constitution; the other, with precedent.

The Constitution sets up a balance between the Free Exercise Clause (which prohibits hostility to religion) and the Establishment Clause (which prevents the state from establishing religion). If all government measures ever touching on religion were to receive strict scrutiny, many would be struck down. The government thus would have no means of making the distinctions necessary to carry out the Establishment Clause's vision of church/state separation.

What about precedent? Lukumi, of course, is not the only precedent that is relevant. Also deeply relevant is Employment Division v. Smith, which made very clear that the rule of law applies to religious believers, just as it does to anyone else. There, for example, the Court held that drug laws can prohibit the use of the narcotic peyote in a religious ceremony.

Reading Lukumi to give strict scrutiny to all religious categorizations, regardless of motivation, would have effectively overruled Smith. Smith says religious believers are subject to general, neutral laws; whereas the broad reading of Lukumi says that religious believers are to be treated specially, with all laws that impact them subject to a special, higher degree of scrutiny. Smith treated believers as citizens equal to all other citizens; the wrong, broad reading of Lukumi turned religious individuals into a special, privileged class.

The Court found the correct balance between Lukumi and Smith. Here is its sensible framework: General, neutral laws will be applied equally to all, including religious believers, as Smith said, and typically will be upheld. Laws that deal with religion and express animosity to it, will be subject to strict scrutiny, and typically will be struck down, as Lukumi indicated. But -- and here is where Locke comes in -- laws that deal with religion or have some effect on religion, and do not express animosity to religion, will be subject to a lower level of review.

Why the State of Washington's Exemption Survived a Lesser Degree of Scrutiny

Once the Court decided not to apply strict scrutiny, the result was clear: The State of Washington's program, including its exemption for the study of theology, would survive.

The Court found that the state's interest in barring tax funds for the education of ministry adequately justified the prohibition. The largest problem for Davey and those arguing in support of his position, including the Becket Fund and the Bush Administration, was that the principle of prohibiting the payment of government funds for ministerial education has been with the United States since its founding.

As I discussed in an earlier column immediately following the oral argument in this case, James Madison's important Memorial and Remonstrance rested on this very principle. And in its opinion in Locke, the Court points out that most states have -- and have had, from the beginning -- similar prohibitions to Washington's in their constitutions.

The Establishment Clause Does Not Prohibit Including Religious Training in a State Scholarship Program

One would have thought that the long history in the United States of forbidding government funding of religious training, discussed above, might have led the Court to find that not only was the funding of religious education not required by the Free Exercise Clause, but it was also prohibited by the Establishment Clause. The Court did not take that route.

While Locke holds that the Free Exercise Clause does not require inclusion of religious training in a general scholarship program, it also states that inclusion would have been equally constitutional. The reason was that Washington's scholarship scheme was a "portable" voucher scheme, where the individuals receiving the state funding chose where to spend the scholarship. Thus, there was no direct payment by government into religious coffers.

In Zelman v. Simmons-Harris, the Court earlier held that a government-funded voucher system can be used by students to attend religious schools where there was a "true choice" of schools by students. Once again, in Locke, the Court stated that the government is free to include religious training in a general voucher scheme.

After Locke, Charitable Choice Laws Are Rightly In Jeopardy


may well have a ripple effect that is felt across the nation. For one thing, the case does not bode well for the "charitable choice" laws first pushed by the Clinton Administration and now the Bush Administration. These laws, of course, allow government money to go directly to religious, as well as secular, institutions.

Charitable choice supporters argued that it would have been discriminatory, and unconstitutional, to continue to exclude religious charities from funding to which secular charities had access. But Locke decimates that argument.

After all, the pre-Clinton programs that were limited to secular charities were much more like the State of Washington's scholarship program, than like Hialeah's anti-Santeria law. They were limited in order to avoid church/state entanglement -- not to enact hostility toward religion.

After Locke, "charitable choice" advocates cannot continue to argue that their policy preference is also a Free Exercise Clause requirement. Charitable choice is not a voucher program in which the student, as an intermediary, picks the school or course of study, whether secular or religious. It is a program that directly connects government agencies to houses of worship, with no intermediaries at all. The funds are flowing directly from government to church coffers.

The dangers of church/state entanglement, endorsement, and coercion presented are thus very serious ones -- not just in theory, but in reality. It's one thing if all students in a school district get a voucher in the mail from the government, and some choose to attend religious schools. It's quite another if a church (or synagogue, or mosque) is constantly on the phone with a government agency -- which is directly funding it, and of which it has effectively become a local branch.

The Larger Significance of Locke: A Reminder of Constitutional Basics

In the end, Locke's greatest importance may be that it is a reminder that under the Constitution, religion is different. The Free Exercise Clause prohibits religious persecution, and guarantees that no citizen will suffer religious discrimination at the government's hands. In this sense, it has affinities with the Fourteenth Amendment's Equal Protection Clause.

But equality principles are insufficient to explain the proper relationship between church and state. The Establishment Clause is always there. Preventing the establishment of a state religion is quite clearly a permissible goal under Locke. That was a principle in danger of slipping away in the midst of this era's equality talk, but it is obviously not a principle the Supreme Court has forgotten.

And if sometimes that goal is in tension with Free Exercise notions, it cannot always be resolved in favor of free exercise. Sometimes, anti-Establishment ideals of separation of church and state must prevail.

In Locke, seven members of the Court put aside their differences to agree on this much: The fundamental structure of the Religion Clauses still persists. And as a result, there are times when the state can choose not to fund religion, in order to avoid establishing it.

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

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