Thinking about Locke v. Davey

After reading the case, finally, and two FindLaw opinion columns offering the for and against, we can put some reflections on this page. Very quickly, I think the opinion (read it here), written by Chief Justice Rehnquist, is correct; and it was good to see 7/9 Justices agree on this. The ruling holds that Washington State is not required, under the Free Exercise Clause, to fund pastoral training. The court ruled solely on the Free Exercise Clause--not making mention whether the Establishment Clause prohibits such funding (as I think it should). So, here first is a post with a summary of the ruling- much of it pasted directly from Rehquist.

The Case

The facts are as follows (much of this is directly from the opinion- the facts are quite important to the case):
In 1999, Washington State created the Promise Scholarship Program, which provides a scholarship for post-secondary students.
To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements--and the student may not pursue a degree in theology at that institution while receiving the scholarship. Private institutions, including those religiously affiliated, qualify as "eligible postsecondary institution[s]" if they are accredited by a nationally recognized accrediting body. A "degree in theology" is not defined in the statute, but both parties conceded that the statute simply codifies the State's constitutional prohibition on providing funds to students to pursue degrees that are "devotional in nature or designed to induce religious faith." Once the student gets a scholarship, the school certifies that that he's duly enrolled and determines whether the student is seeking a devotional degree.

Joshua Davey was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had "planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor." He pursued a double major in pastoral ministries and business management/administration. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program.
When Davey learned that his theology degree would make him ineligible for the scholarship, he brought an action to court, arguing the denial of his scholarship based on his decision to pursue a theology degree violated, amongst other things, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected his claims, but the Ninth Circuit (yes, the 9th Cir) found that the State had singled out religion for unfavorable treatment. Citing the Supreme Court's decision in Lukumi, 508 U. S. 520 (1993), the 9th Circuit applied strict scrutiny (the exclusion of theology majors must be narrowly tailored to achieve a compelling state interest). The Appeals Court found Washington's antiestablishment interest (rooted in the state's contitution) not compelling; thus the 9th Cir ruled the exclusion unconstitutional.

The Supreme Court's Analysis
The question before the Court, as Rehnquist puts it is: 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?

Davey wanted the Court to view this as a Lukumi-like case. In that case, the Court struck down a city ordinance that banned certain kinds of animal slaughter, finding that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. The court applied strict scrutiny to the ordinance because it found the ordinance to be hostile to religion.

Here, though, Rehnquist does not find the Washington law hostile toward religion--neither in the text of the anti-establishment clause in the WA Constitution, nor in the Scholarship exclusion.
1) The state's contitution is in line with a solid history of cautions agaist establishments: "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. ... 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. ... That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk."
2) ..."we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its "concept of education is distinctly Christian in the evangelical sense." It prepares all of its students, "through instruction, through modeling, [and] through [its] classes, to use ... the Bible as their guide, as the truth," no matter their chosen profession. And under the Promise Scholarship Program's current guidelines, students are still eligible to take devotional theology courses. Davey notes all students at Northwest are required to take at least four devotional courses, "Exploring the Bible," "Principles of Spiritual Development," "Evangelism in the Christian Life," and "Christian Doctrine."
Thus the Court rejects the use of strict scrutiny and finds that Washington had substantial interest in excluding devotional degrees.