Locke v. Davey: the Fine Line Between Free Exercise and Establishment - Brett Thompson

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 3

Casenote

Locke v. Davey: The Fine Line Between Free Exercise and Establishment

In Locke v. Davey,¹ the United States Supreme Court held that a state-sponsored scholarship program that excluded students who were majoring in devotional theology did not violate the Free Exercise Clause of the United States Constitution.' The Court's holding left a great deal of uncertainty on when states may withhold benefits on the basis of religion.

I. Factual Background

In 1999 Washington State began offering the "Promise Scholarship" to low and middle income students with superior academic records. The scholarship was not available to students seeking theology degrees. Joshua Davey was awarded a Promise Scholarship in the summer of 1999. He chose to attend a private Christian college. Davey decided to pursue a double major in Pastoral Ministries and Business Management. Davey, a Christian, planned to seek a career in the "ministry."³ At the beginning of Davey's first academic term, a university official informed him that he could not use the scholarship to pursue a theology degree. Davey learned that he would have to declare that he was not pursuing a theology degree at the university in order to keep the scholarship. Davey refused to make such a declaration, and therefore, did not receive the scholarship money.⁴

Davey sued the State of Washington to stop the state from withholding scholarship funds from students pursuing theology degrees. Davey argued that the state's policy violated the Free Exercise Clause of the First Amendment.⁵ The District Court for the Western District of Washington granted summary judgment for the state. The united States Court of Appeals for the Ninth Circuit reversed, determining that because the state had singled out religion for negative treatment, the state's scholarship program would have to meet strict scrutiny. The court of appeals also held the state's anti-establishment interests were not compelling, and the scholarship program was unconstitutional. The United States Supreme Court granted certiorari.⁶

11. Legal Background

The First Amendment of the United States Constitution provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."⁷ The First Amendment was made applicable to state governments through the Fourteenth Amendment.' Colonists' concerns over restrictions on religious liberty and persecution towards dissenters caused by government-sponsored churches provided the basis for the First Amendment.⁹ Colonists hated taxes imposed to pay for ministers' salaries and for the benefit of churches." Even before the Fourteenth Amendment applied the First Amendment to the states, many states included protection of religious liberty in their constitutions."

Washington State's constitution provides, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment . . . ,"¹² The Washington statute regarding qualifications for student financial aid codified Washington's constitutional prohibition on public funding of religious instruction.¹³ That provision states, "No aid shall be awarded to any student who is pursuing a degree in theology."¹⁴

A. Cases Involving the Restriction of Activities on the Basis of Religion

The Supreme Court has struggled to balance the Free Exercise Clause with the Establishment Clause." The Court in McDaniel v. Paty¹⁶ held that a Tennessee statute that barred ministers from being delegates to the state's limited constitutional convention violated the Free Exercise Clause.¹⁷ The Court noted that ministers had a right to the free exercise of religion and had a right to seek and hold elected offices and delegate posts in Tennessee." Therefore, the clergy disqualification provision kept McDaniel from being able to exercise his free exercise right and his right to seek elected office simultaneously.¹⁹

The Court has not limited its protection of the free exercise of religion to situations where individuals must choose between exercising different rights. In Widmar v. Vincent, " the Court held that a state university could not exclude student groups wishing to use its facilitiesfor religious activities when the facilities were otherwise generally available to student groups.²¹ The Court applied strict scrutiny because it determined the state was regulating speech on the basis of content." The Court determined that the state's interest in providing a greater separation of church and state than provided for in the united States Constitution was not "sufficiently'compelling'to justify content-based discrimination against respondents' religious speech."²³

The Court has also protected religious groups from laws that prohibit specific religious activities. In Church of the Lukumi Babalu Aye, Inc. v. City at Hialeah,²⁴ the Court held that a series of city ordinances that forbade religious animal sacrifices was unconstitutional.²⁵ The Church of the Lukumi ("Lukumi") was devoted to the Santeria religion and planned to open a church in Hialeah. Animal sacrifice was a part of the Santeria rituals. City leaders became concerned and enacted ordinances that made the type of sacrifices the church performed The Court concluded that the laws were not neutral and "had as their object the suppression of religion."²⁷ The Court reached this decision because the laws: (1)evidenced animosity toward the practitioners of Santeria; (2) were crafted to forbid the sacrifices while allowing most secular killings of animals; and (3)prohibited more conductthan was necessary to meet their asserted ends.²⁸ The Court also determined that the laws were not of general applicability because the state pursued its alleged ends by strictly going against religious conduct.²⁹ Thus, because the law was neither neutral nor of general applicability, the Court deter- mined that strict scrutiny applied.³⁰ The Court held that the city's interests were not compelling and that the laws were not narrowly tailored to meet those interests.³¹

B. Cases Involving Government Benefits

In Everson v. Board of Education:' the Court held that there was no First Amendment violation when a township provided reimbursements for transportation expenses incurred by students, including students attending Catholic schools.³³ The Court noted that while New Jersey could not directly give money to religious institutions without violating the Establishment Clause, it could not interfere with the free exercise of religion either.³⁴ The Court asserted that the state is to be neutral with regard to religious groups, and "[s]tate power is no more to be used so as to handicap religions, than it is to favor them."³⁵ The Court acknowledged that some parents might have been unable to send their children to parochial schools without reimbursement for transportation,³⁶ However, the Court noted the possibility of a similar effect, of parents not sending their children to parochial schools, if state paid police did not protect parochial school students from traffic hazards, or if the state did not provide services such as fire protection, sewage disposal, and public services to those schools.³⁷ The Court held that there was no breach of the First Amendment, reasoning that the state neither gave money to nor supported parochial schools.³⁸ Rather, the program merely aided parents in getting their children to and from accredited schools, regardless of the religion involved.³⁹

The Court has also considered programs that have the effect of benefiting religious organizations. In Walz v. Tax Commission of New York,⁴⁰ the Court determined that New York's policy of providing tax exemptions to religious organizations did not violate the First Amend-ment.⁴¹ In reaching its decision, the Court noted that the purpose of the First Amendment's religion clauses was to "insure that no religion be sponsored or favored, none commanded, and none inhibited."⁴² The Court stated that its general principle in dealing with the First Amendment had been to forbid the government from establishing or interfering with religion.⁴³ The Court added that, "[s]hort of those expressly proscribed governmental acts there is room for play in the j oints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."⁴⁴

In considering tax exemptions, the Court noted that historically those individuals writing constitutions and statutes had been wary of the dangers involved in imposing property taxes, and that exemption was a way of preventing those dangers.⁴⁶ The Court concluded that New York did not establish religion by providing the exemption; rather, New York spared religious institutions from the tax burden faced by for-profit organizations.⁴⁶ The Court said that, without exemption, the state would become more involved with the religious institutions through, for example, tax valuations.⁴⁷ The Court noted that the potential dangers of churches supporting government were no less than the dangers of the government supporting churches and that "each relationship carries some involvement rather than the desired insulation and separation."⁴⁸

While the Court has allowed some programs that have the effect of benefiting religious groups and their followers, the Court has not required states to make such benefits available in all situations. In Johnson v. Robison,⁴⁹ the Court held that a federal policy that disqualified conscientious objectors who performed alternative service from receiving veterans' educational benefits was constitutional.⁵⁰ Robison completed two years of alternative service because he was a conscientious objector for religious reasons. He later filed for educational benefits and those benefits were denied. He then sued, claiming that the decision violated his First Amendment rights.⁵¹ The Court applied the rational basis...