Lock v. Davey: Sanctioning Religious Discrimination, an analysis of the Supreme Court decision from Jay Sekulow

June 16, 2011

8 min read

Religious Liberty



The Supreme Court of the United States overturned an appeals court decision that found the state of Washington discriminated against a college student when it denied the student state scholarship funds because he majored in Pastoral Ministries. The ACLJ said the decision clearly sanctions religious discrimination and is irreconcilable with more than half a century of Supreme Court precedent regarding the free exercise of religion.

The ACLJ represented Joshua Davey, who attended Northwest College in Kirkland, Washington and who was awarded the state's Promise Scholarship because of academic excellence and financial need only to have it withdrawn after he declared a double major that included Pastoral Ministries and Business Management. The state said scholarship funds could not go to a student who pursued a degree in religious studies when taught from a religious perspective. In July 2002, the U.S. Court of Appeals for the Ninth Circuit overturned a district court ruling and declared the Washington policy unconstitutional and concluded that the state "impermissibly deprived Davey of his scholarship."

The Supreme Court decision was 7-2 to overturn the appeals court ruling with Justices Scalia and Thomas dissenting.

The following is an analysis of the Supreme Court decision from Jay Sekulow, Chief Counsel of the American Center for Law and Justice


As Justice Antonin Scalia said in his dissent, "Let there be no doubt: this case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects-those whose belief in their religion is so strong that they dedicate their study and lives to its ministry-are a far narrower set."
The 7-2 opinion in Locke v. Davey is a continuation of the Court's narrowing of the viability of the Free Exercise Clause of the United States Constitution for ongoing litigation. Chief Justice Rehnquist, in his opinion, correctly noted that, "Students may spend their funds on any education-related expense, including room and board." He also noted that the funds are given directly to the student who decides how to appropriate the funds.

Justice Rehnquist notes that the Establishment Clause and the Free Exercise Clause are frequently in tension. "Yet we have long said that there is room for play in the joints between them. In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." In this statement, Chief Justice Rehnquist, in essence, acknowledged that states are free through their own constitutional provisions to allow, at least in the context of training for religious ministry, to discriminate based on a religious viewpoint. In fact, while acknowledging that "under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients," he then goes on to state that the "play in the joints" allows for the state Establishment Clause to trump, in this context, the free exercise rights protected under the federal constitution.
A positive aspect of the Court's opinion is its reiteration of the fact that there "is no doubt that the State could, consistent with the federal constitution, permit Promise Scholars to pursue a degree in devotional theology". The opinion then frames the issue as "whether Washington, pursuant to its own constitution, which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry," can deny them such funding without violating the Free Exercise Clause.

The Court rejected our assertion that the program is presumptively unconstitutional because it is not facially neutral. While acknowledging that the decision of the Court in Church of Lukumi v. Hialeah is a valid precedent, the Court refused to apply the Lukumi line of cases. The Court noted that, "In Lukumi, the City of Hialeah made it a crime to engage in certain kinds of animal slaughter. We 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." In essence, the Court approved "milder kinds" of discrimination targeted at religion. The fact that the statute "imposes neither criminal nor civil sanctions on any type of religious service or right" meant that the decision in McDaniel v. Paty would not apply because "it does not deny ministers the right to participate in the political affairs of the community".

The Court rejected Justice Scalia's argument that the baseline against which burdens of religion are measured are the applicability of generally available benefits. The Court went on to hold that "training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit." The Court seems to imply here that one who pursues a religious vocation can be discriminated against more directly. The Court points out that Davey's religious beliefs were the "only reason for him to seek a college degree," as if that made a difference to Davey's constitutional rights!

One of the most troubling aspects of the Court's opinion was the decision to include the phrase that "since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an established religion." This quotation may be historically accurate, but it misses the point. Here the State provided a generally available benefit to any student who qualified for the Promise Scholarship, and only one degree was deemed to be worthy of exclusion-that being theology. This is far different from a tax being levied against individual citizens to fund ministers' salaries. In fact, Davey's case presented the mirror opposite of the founders' concerns: special disfavor, not special favoritism.

While the Court noted that "most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry," Justice Scalia correctly notes that that is not what is at issue in this case. As Justice Scalia observed, that history "says nothing about whether the clergy had to be excluded from benefits the State made available to all."

The Court also rejected the utilization of the public forum doctrine, noting that the Promise Scholarship was not set up to encourage free speech. The Court also sidestepped the argument that Washington's exclusion continued the bigoted legacy of the Blaine Amendment. Instead, the Court opined that the pertinent Washington State provision really did not constitute a Blaine Amendment.

Justice Scalia issued a vigorous and direct dissent, joined by Justice Thomas. Justice Scalia noted that "a law burdening religious practice that is not neutral must undergo the most rigorous of scrutiny" and that "the minimum requirement of neutrality is that a law not discriminate on its face." In fact, Justice Scalia points out that Justice O'Connor and Justice Blackmun have held that "when a law discriminates against religion as such, it automatically will fail strict scrutiny." These opinions, according to Justice Scalia, "are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion."

"When the State makes a public benefit generally available, that benefit becomes part of the baseline against which the burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax." Justice Scalia goes on to note that that is "precisely what the State of Washington has done here." "No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled." Applying equal treatment principles, Justice Scalia noted that Davey "seeks only equal treatment-the right to direct the scholarship to his chosen course of study, a right every other Promise Scholar enjoys."
Justice Scalia also correctly attacks the historical argument raised in the Chief Justice's opinion. "The Court's reference to historical popular uprisings against procuring taxpayer funds to support church leaders . . . is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefit programs like the one at issue here, but laws that singled them out for financial aid. For example the Virginia bill at which Madison's Remonstrance was directed provided: '[F]or the support of Christian teachers . . . [a] sum payable for tax on the property within this Commonwealth, is hereby assessed.' . . . Laws supporting the clergy in other states operated in a similar fashion."

While one can "concede the framers' hostility to funding the clergy specifically, . . . that says nothing about whether clergy had to be excluded from benefits the State made available to all." In sum, Justice Scalia noted that "the Court offers no historical support for the proposition that (these state constitutional clauses) were meant to exclude clergymen from general benefits available to all citizens." As examples of the irrational nature of the Court's opinion, Justice Scalia points to the following examples: "A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead 'playing the joints' when hailed into court." If the religion clauses demand neutrality, we must "enforce them, in hard cases as well as easy ones." Justice Scalia then noted that if the "play the joints" concept were a valid legal principle, "surely it would apply only when it was a close call whether complying with one of the religion clauses would violate the other." He goes on to note that "that is not the case here." It is not just that the State could, "consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology. The establishment question would not even be close, as is evident from the fact that this Court's decision in Witters . . . was unanimous."

Regarding further to the "play the joints" argument, Justice Scalia notes that there is "play in the joints" available. The State could allow Promise Scholarships only for specific majors and could also make the scholarships "redeemable only at public universities (where it sets the curriculum) or only for select courses of study."

Justice Scalia questions the nature of the government's interest asserted. "Nor can Washington's exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on personal purchases, property taxes on his home, and so on; and nothing in the Court's opinion turns on whether Davey winds up a net winner or loser in the State's tax-and-spend scheme."
Concerning the actual nature of the discrimination, Justice Scalia said he might be more sympathetic if the Court were still "in the business of reviewing facially neutral laws that merely happen to burden some individual's religious exercise, but we are not. . . . Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one's religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial." Justice Scalia asserts that the Court phrased the question in this case incorrectly: "The question is not whether theology majors are different, but whether the differences are substantial enough to justify a discriminatory financial penalty that the State inflicts on no other major. Plainly they are not."

In summary, Justice Scalia makes an impassioned plea concerning the discriminatory nature of the State of Washington's constitutional provision. "Let there be no doubt: this case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects-those whose belief in their religion is so strong that they dedicate their study and lives to its ministry-are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for popular religious conviction." Noting the irony of the Supreme Court decision in Romer v. Evans concerning equal protection rights based on homosexuality, Justice Scalia notes, "In an era when the Court is so quick to come to the aid of other disfavored groups, . . . its indifference in this case, which involves a form of discrimination to which the constitution actually speaks, is exceptional."

Justice Scalia also concluded by noting the recent trend in France for a completely secular educational system. While noting that "[t]oday's holding is limited to training the clergy," Justice Scalia asks: "What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. . . . When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression."

In our view, Justice Scalia and Justice Thomas correctly framed the issues of the case and understood the nature and scope of the discrimination that was at play in Locke v. Davey. This again underscores the importance of having Judges and Justices on the Courts of Appeals and the Supreme Court who have a worldview compatible with an understanding of the intent of the founders and the protections afforded by the religion clauses.