Excluding Students Pursuing Religious Studies by State Scholarship Fund Found Constitutional by U.S. Supreme Court

I. "Promise Scholarship" Program Challenged

The U.S. Supreme Court's decision in Locke v. Davey (decided February 23, 2004) addresses the application of the First Amendment's Free Exercise of Religion and Establishment of religion clauses in the context of Washington State's Promise Scholarship program. The program offered scholarships to all students graduating from high school in Washington State (public, private or parochial) who met certain financial need and grade point average requirements. The scholarships could be used at any college or university (private, public or church-affiliated) and was available for students pursuing any course of study except "devotional theology." Davey enrolled at a church-affiliated college to pursue a dual degree in business administration and pastoral ministries and was denied the scholarship he was otherwise qualified for because of his pursuit of the pastoral ministries degree.

II. The Majority Holds Excluding Only Religious Studies Does Not Violate the Free Exercise Clause

The Court's 7-2 majority opinion upheld the denial of the scholarship, reversing the Court of Appeals for the Ninth Circuit which had found the program's discrimination against religious studies (the only category of study excluded from the program) to be a violation of the First Amendment's Free Exercise Clause. The majority, through Chief Justice Rehnquist, ruled that the singling out of students pursuing devotional studies from eligibility for the benefits of the program did not violate the Free Exercise Clause. The majority opinion states that "the State's disfavor of religion (if it can be called that) is of a far milder kind" than other laws found unconstitutional by the Court in other cases, since the program does not "impose civil or criminal sanctions on any type of religious service or rite" or "deny to ministers the right to participate in the political affairs of the community."

The Court also concluded the program did not require students "to choose between their religious beliefs and receiving a governmental benefit" since the student could have obtained the scholarship funds to pursue a secular degree at a different institution from the one at which the student is pursuing the devotional degree. Rather, the Court concludes based on the State's historic and substantial interest in not using state funds to fund any religious activities, the State merely (and constitutionally) chose not to fund a distinct category of instruction under the scholarship program.

III. Justice Scalia's Dissent Would Require A "Compelling State Interest" to Deny The Benefit Solely to Theology Students

Justices Scalia and Thomas dissented. Justice Scalia challenged the majority's failure to require the State to demonstrate a "compelling" state interest to justify clear discrimination against religious exercise on the face of the statute.

Justice Scalia emphasized the fact that the scholarship program was "a generally available public benefit whose receipt is conditioned only on academic performance, income and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology." Justice Scalia concludes that "when the State makes a public benefit generally available, that benefit becomes part of the baseline against which 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's dissent focuses the legal and constitutional issue differently from the majority. The majority finds the State's substantial interest in not providing funding for religious education sufficient to justify what it characterizes as a modest burden on those students who choose to pursue devotional studies and are therefore ineligible to receive the state benefit. At the same time the majority concedes that the State could have made the benefit available to students pursuing theology degrees without such funding constituting state sponsorship of religion so as to run afoul of the Establishment Clause.

Justice Scalia instead describes the State's policy as being to protect its taxpayers' "freedom of conscience" by discriminating against candidates for the ministry, which Justice Scalia concludes "can justify the singling out of religion from public programs in virtually any context. Justice Scalia suggests the holding of the majority may be readily extendable to other benefits and circumstances.

IV. Implications of the Decision

A. Voucher Programs

Legal commentators and scholars are questioning the implications of the decision on proposed school vouchers programs. On one hand, statements in the majority opinion suggest that a voucher program that permits students to apply the state funding to enroll in any school, public, private or religious, would not violate the Establishment Clause. On the other hand, the decision also suggests a voucher program that discriminates against parochial schools by making the funding unavailable for those schools may pass constitutional muster.

How the Court would apply the constitutional principals of the First Amendment in the voucher context based on this decision is not clear given the factual differences likely to be found if a voucher program is brought to the Court for evaluation. It is unlikely that the benefits of a voucher program could be considered "de minimus" or modest as the Court characterized the value of the Promise Scholarship (which ranged from $1,500 to $3,000). Also, the extent of the impact of denying voucher benefits to school age students whose parents elect to send them to parochial school is far more substantial than what the Court seemed to characterize as a relatively small number of persons burdened by the exclusion under the Promise Scholarship program.

B. Social Policy Implications

Justice Scalia's dissent raises philosophical and social policy considerations prompted by the decision that extend far beyond the facts of the case. Indeed, noting France's recent support for a ban on religious attire in schools, Justice Scalia suggests the decision raises the issue of secularization and how far the State can go in discriminating against religion in the interest of promoting "freedom of conscience" and the freedom to not believe. In the Justice's words:

"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 obstacles to practitioners of only a tepid, civil version of faith. Though the statutory exclusion actually affects -- those whose belief in their religion is so strong that they dedicate their study and their 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 deep religious conviction."

The interplay between the Free Exercise and Establishment Clauses is not an easy one. Some contend that accepting state funding to support religious education or activities directly or indirectly or in any manner whatsoever is in fact a threat to religion and its free and unfettered exercise without the risk of governmental review or involvement. Others contend denying generally available public benefits to those who choose to pursue or practice their religious beliefs beyond a "tepid, civic version of faith" is discrimination against religious persons and de facto or by design creates a public disincentive to the full exercise of religion.

What do you think?

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