Public Funding for Theological Training Under the Free Exercise Clause: Pragmatic Implications and Theoretical Questions Posed to the Supreme Court in Locke v. Davey

JurisdictionUnited States,Federal
CitationVol. 27 No. 01
Publication year2003



Public Funding for Theological Training Under the Free Exercise Clause: Pragmatic Implications and Theoretical Questions Posed to the Supreme Court in Locke v. Davey

Katie Axtell(fn*)

I. Introduction

An indigent woman goes into a clinic to have an abortion. A young man goes to college to become a Christian minister. Would you be willing to pay for either pursuit? Regardless of your politics, it is likely that you would react strongly to your tax dollars funding one of the above activities, but not the other. While both the indigent woman and the young man have a constitutional right to engage in each activity,(fn1) whether a state has an obligation to fund either or both activities is debatable.(fn2)

States have limited and dwindling resources to allocate to promote their interests. Whether a state's choice to fund one interest while refusing to fund another rises to the level of interference with protected rights, and therefore violates the state or federal constitution, is the central question. However, the line between promotion of an interest and interference with protected rights is delicate and easily distorted. An inaccurate characterization of a state's choice may force that state to fund an activity that its legislature explicitly forbade.

The religion clauses of the First Amendment provide an interesting framework in which to explore these questions. The Constitution requires that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. . . ."(fn3) The operation of the Establishment Clause, which forbids the government from either aiding or formally sponsoring religion, and the operation of the Free Exercise Clause, which prohibits the government from inhibiting religious observers' beliefs or most practices, results in a seemingly inherent enmity.(fn4) Courts are charged with the burdensome duty of protecting an individual's religious liberty in a religiously diverse and changing nation while balancing other societal interests;(fn5) the ultimate objective is to maintain government neutrality towards religion.

In 2002, in Davey v. Locke,(fn6) a Ninth Circuit panel held that Washington State could not refuse to fund the educational expenses of a student pursing a theology degree, in accordance with the Washington Constitution's Establishment Clause,(fn7) because that refusal violated the student's right to free exercise of religion.(fn8) On May 19, 2003, the U.S. Supreme Court granted Washington State's petition for review. The Court's impending decision in Davey will not only affect the scope and application of the federal Free Exercise Clause, it will also implicate overarching questions of federalism and the role of states in fashioning their own constitutional jurisprudence.

The Supreme Court should reverse the Ninth Circuit's decision in Davey v. Locke. In Davey, the Ninth Circuit equated Washington's refusal to allow its Promise Scholarship funds to be used to support Joshua Davey's theology degree with an affirmative prohibition of his right to free exercise of religion.(fn9) In so doing, the Ninth Circuit wrongly construed the State's restraint of Davey's free exercise.(fn10) First, the court sidestepped a true "prohibition" analysis by incorrectly relying on Joshua Davey's status as a theology student. Second, by importing free speech criteria into a free exercise examination based on an establishment neutrality paradigm, the court wrongly held that the Washington law restricting state funds from theology students was not neutral. If, applying strict scrutiny, the Supreme Court affirms the Ninth Circuit's holding that Washington's Establishment Clause does not provide a compelling justification for the state to deny funding, the decision could call into question every state's right to enforce its own more protective establishment provisions in the space provided them by the federal religion clauses.

Following this Introduction, Part II of this Note presents the factual background and procedural history of Davey v. Locke. The analysis that follows is divided into three components. Each component first presents the legal framework, and then applies that framework to Davey.

Part III discusses the Free Exercise Clause of the First Amendment. Section A provides a basic background on the Supreme Court's free exercise jurisprudence. Section B applies the Court's precedent to Davey, and concludes that the Ninth Circuit sidestepped a true "prohibition" analysis.

Sections A, B, and C of Part IV discuss the differing neutrality examinations within free exercise, free speech, and establishment jurisprudence, respectively. Section D discusses the overlapping application of neutrality criteria in establishment and free speech funding cases. Section E concludes that in Davey the Ninth Circuit improperly grafted free speech criteria under an establishment neutrality paradigm onto its free exercise neutrality examination in Davey.

Part V discusses the federalism implications of the impending Supreme Court decision. Section A explains Washington's asserted interest in the separation of church and state. Section B proposes that states' more protective establishment provisions should provide a compelling justification for an incidental burden of a religious observer's free exercise sufficient to survive strict scrutiny. Section C argues that Washington State's Establishment Clause is a sufficiently compelling justification for Washington not to fund Davey's theological education. Part VI concludes the Note.

II. Davey v.Locke

A. Factual Background

In 1999, the Washington Legislature and Governor Gary Locke created the Promise Scholarship.(fn11) Eligibility for the Promise Scholarship (Scholarship) was based on the following criteria: (1) the student must graduate in the top ten percent of his or her high school class; (2) the student's family income must be equal to or less than 135 percent of the state's median income; and (3) the student must be attending an accredited public or private university, college, or accredited post-secondary institution in Washington State.(fn12) The purpose of the Scholarship was to "recogniz[e] and encourag[e] the aspiration for superior academic achievement of high school students who attend and graduate from Washington high schools."(fn13)

In May 1999, Joshua Davey graduated from University High School in Spokane, Washington.(fn14) He applied for the Promise Scholarship and was notified in August 1999 of his eligibility to receive $1,125 for the 1999-2000 school year.(fn15) Davey enrolled at Northwest College in Kirkland, Washington, and declared a double major in Business Management/ Administration and Pastoral Studies.(fn16) He believed that this combination of majors would "best prepare [him] for the complex management and spiritual tasks that comprise contemporary Christian ministry."(fn17) At Northwest College, Pastoral Studies majors take general classes in the humanities, sciences, and social science; however, the bulk of required courses for that major consist of biblical and pastoral studies,(fn18) including classes in evangelism,(fn19) apologetics,(fn20) and Pentecostal doctrines.(fn21)

In October 1999, the college's financial aid administrator received a letter from the Washington State Higher Education Coordinating Board (HECB), stating that "[s]tudents who are pursuing a degree in theology are not eligible to receive any state-funded financial aid, including the new Washington Promise Scholarship."(fn22) The HECB's decision to send the letter was prompted by a Washington statute that states, "No aid shall be awarded to any student who is pursuing a degree in theology."(fn23) The statute was enacted in 1969 in accordance with the Establishment Clause of the Washington Constitution.(fn24) Northwest College's financial aid office notified Davey that students majoring in "theology-related fields" were not eligible for the Promise Scholarship.(fn25)

B. Procedural History

In January 2000, Davey filed an action in federal district court against Governor Locke and the officials of HECB to enjoin HECB from withdrawing the scholarship funds.(fn26) Davey claimed that the prohibition of state funds being applied toward a degree in theology violated his federal and state constitutional rights of freedom of speech, equal protection, and free exercise. In his declaration, Davey stated: "It seemed to me like the state [by withdrawing the scholarship money] was simply imposing a back-door tax on religious believers, and I knew that was wrong."(fn27) As a result of the withdrawal of the scholarship money, Davey claimed that an imposed burden would be placed on him because he would be forced to work an additional eighty hours in the academic year,(fn28) which is less than three hours per week during the school year. He stated that during this time he would not be able to "study, attend class, or associate with [his] fellow believers for worship."(fn29)

The HECB argued that its withdrawal of the Promise Scholarship did not violate any of Davey's constitutional rights.(fn30) The HECB further argued that allowing Davey to use state funds toward a degree in pastoral ministries would violate Washington law and the Establishment Clause of the Washington Constitution.(fn31) The Washington...

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