Room for "Play in the Joints."-Locke v. Davey

Journal of Law and Education, Oct 2004 by McCarthy, Martha

"The Supreme Court . . . unexpectedly reminded us that, under the Constitution, religion is still distinctive"1

MARTHA MCCARTHY*

On February 25, 2004, the United States Supreme Court rendered its widely anticipated decision, Locke v. Davey, upholding states' discretion to adopt more stringent antiestablishment provisions than demanded by the First Amendment.2 The Locke case attracted considerable attention because it addressed the tension among First Amendment guarantees and the relationship between federal and state constitutional provisions.

Although ramifications of this decision are not as dramatic as they would have been if the Supreme Court had ruled the other way, its implications are still significant. This commentary describes the controversy in Locke and then analyzes the Supreme Court decision and its relationship to other church/state rulings.

I. THE CONTROVERSY AND DECISION

At issue in Locke was the Promise Scholarship Program established by the state of Washington to assist academically gifted students with their college expenses.3 The scholarships can be renewed for one year, and the funds can be applied to any education-related expenses, including room and board.4 Students must meet academic, income, and enrollment requirements to be eligible for the scholarships, which can be used in public or private (including religiously affiliated) accredited institutions of higher education. However, the scholarships cannot be used for students to pursue "a degree in devotional theology."5 This prohibition is grounded in the state constitutional provision stipulating that public money or property cannot be "appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment."6

Joshua Davey was awarded a Promise Scholarship and enrolled in Northwest College, which is affiliated with the Assemblies of God. Northwest College is accredited, so its students are eligible to participate in the scholarship program. After Davey declared his double major in pastoral ministries and business management/administration, he learned that he could not use his scholarship for a pastoral degree. Davey could have retained the scholarship if he was taking religious courses, as long as he was not seeking a devotional theology degree. He challenged the state's action in rescinding the aid on various federal constitutional grounds.

A. Davey's Arguments

Since the Supreme Court had already ruled in 1986 that the Establishment Clause of the First Amendment does not preclude the use of public funds to prepare for the ministry,7 the central issue in Locke focused on the next logical question: Does a more stringent state anti-establishment provision impair protected rights? Specifically, in this instance, if the state makes scholarship funds available for students to pursue other majors, can those pursuing pastoral studies be denied the benefit?8 In building his case that religious and secular majors should be treated the same in distributing the scholarship funds, Davey alleged that the state restriction applied only to pastoral degrees and violated the Free Exercise Clause's prohibition on practices impairing religious beliefs in the absence of a compelling governmental interest.9 He further claimed that the state action represented hostility toward religion in violation of the Establishment Clause10 and impaired the Free Speech Clause, which protects individuals against viewpoint discrimination." And finally, he contended that the denial of the scholarship violated the Equal Protection Clause of the Fourteenth Amendment because pastoral majors were treated differently from other majors.12

B. Lower Court Rulings in Locke

Davey sued various state officials under 42 U.S.C. § 1983, seeking use of the scholarship money as well as damages for the alleged injury he had suffered in being denied the state aid.13 The federal district court rejected Davey's claims and granted summary judgment for the state. However, the divided Ninth Circuit panel reversed the district court's ruling.14 The appeals court reasoned that the state had discriminated against religious majors in the scholarship program, and that such discrimination can be constitutional only if narrowly tailored to achieve a compelling state interest.15 The court did not find the state's antiestablishment concerns to be sufficiently compelling to justify the differential treatment of students pursuing pastoral degrees.16

C. Supreme Court Majority Opinion

Reversing the Ninth Circuit, the Supreme Court, by a surprising seven-to-two margin, held that although the use of the Promise Scholarships to pursue a pastoral degree would be allowed under the Establishment Clause, it is not required by the Free Exercise Clause.17 The majority reasoned that this case involves the "play in the joints" between the two religion clauses that the Supreme Court had recognized more than thirty years earlier.18 In Walz v. Tax Commission of the City of New York, the Court observed in 1970 that if carried to their logical extreme, the religion clauses tend to conflict with each other.19 Subsequently, the Court has often noted the tension between the religion clauses.20