Locke v. Davey overview

Thursday, December 4, 2003

In August 1999, high school graduate Joshua Davey received a state-funded Promise Scholarship, only to have it revoked two months later because he planned to study theology. The state claimed it was adhering to the Washington Constitution and had no choice. Davey sued, and after losing in federal district court in Davey v. Locke, appealed to the 9th U.S. Circuit Court of Appeals. The 9th Circuit found that the denial of funds did violate Davey’s rights under the First Amendment to the U.S. Constitution. The state appealed to the U.S. Supreme Court, where cert. was granted in 2003. The case became Locke v. Davey.

The Supreme Court’s decision in this case will have important implications for the debate over vouchers and other funding programs involving religious institutions, especially in those 37 states with strict “no establishment of religion” clauses in their state constitutions.

In the spring of 1999, the Washington Legislature passed a bill funding Promise Scholarships to encourage high-achieving students from low- and middle-income families to continue their education in the state. The selection criteria include graduating in the top 10% of the class and meeting family income requirements. Scholarship recipients receive partial funding — $1,000 to $1,500 per year — for their first two years at any accredited college in the state of Washington. The funds are administered by Washington’s Higher Education Coordinating Board, or HECB. The sole exclusion to participation in this program: “pursuing a degree in theology.”

After receiving notification of the award in August, Davey enrolled at the Assembly of God-affiliated Northwest College, where he declared a dual major in pastoral ministries and business management and administration. In October, the HECB sent a memo to financial aid offices throughout the state informing schools that students pursuing degrees in theology could not receive the scholarship. Northwest College notified Davey that he must either change his major or give up his scholarship. He declined the scholarship, pursued his theological degree — and filed suit in federal district court. Davey named the governor, Gary Locke, and other state officials as defendants.

HECB had based its decision on the state constitution that strictly prohibits funding any religious “worship, exercise or instruction.” Thirty-seven states have constitutional provisions that have often been interpreted to require a stricter separation of church and state than the First Amendment.

In some of these states, these no-establishment clause provisions are often referred to as “Blaine amendments.” The original Blaine Amendment was a proposed change to the U.S. Constitution submitted by Sen. James G. Blaine in 1875. It read:

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, not any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Congress failed to amend the U.S. Constitution with Blaine’s amendment, but a majority of Congress did integrate many of the no-funding provisions into various “enabling acts.” These enabling acts mandated that certain principles be present in a state constitution before it was allowed into the Union. For this reason, all Western state constitutions contain some type of strict no-establishment clause.

Considerable debate continues over the historical context of this original legislation. Late 19th-century America was rife with anti-Catholic and anti-immigrant sentiment. Some claim this amendment and its progeny grew out of Protestant concern over the influence of Catholicism. Others argue that strict separation of church and state is a long-held American principle that predates the rise of anti-Catholicism, and therefore state constitutions with strict no-establishment provisions should not automatically be suspect. Still others find that the provisions’ historical baggage poisons the well, making such state constitutional provisions as discriminatory as the legislators who promoted them. Whether or not these state constitutional provisions represent a principled church-state position or legislated bigotry is not likely to be resolved soon.

The heart of Davey’s complaint is that the Washington Constitution’s restriction on funding religious activities violates the federal First Amendment by discriminating against religion.

Davey v. Locke (U.S. district court)
Davey’s suit claimed that the provision of the Promise Scholarship denying funding solely because of his religious studies violated his rights under the First and 14th Amendments to the U.S. Constitution, as well as under Article I, Sections 5 and 11 of the Washington Constitution. Both Davey and the defendants (state officials) moved for summary judgment.

In October 2000, District Court Judge Barbara J. Rothstein ruled in favor of the defendants. Davey had argued that by not allowing him to use the Promise Scholarship to pursue religious instruction, the state had violated the liberty-of-conscience provision found in the state constitution. HECB, the state’s coordinating agency, countered the denial was based on the same constitutional section, which later states, “No public money shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Judge Rothstein explained that in the U.S. Supreme Court’s decision in Witters v. State Commission for the Blind (1984), “the Supreme Court intimated that Washington’s constitution may be a more stringent barrier to state funding of religious education.” Since the Supreme Court refused to review this question after the Witters case was sent back to the state courts, Rothstein found for HECB as a matter of law.

Davey’s second argument — that his constitutional right to free exercise of religion was violated — also failed. Rothstein found that the state’s failure to fund Davey’s theological education did not infringe upon his religious freedom. “[W]hile a citizen may not be unduly prohibited from practicing his religion, he may not demand that the government pay for those religious pursuits.” 1

Finally, Davey’s argument that his denial of funding infringed on his federally protected right to freedom of expression also was rejected. Rothstein wrote, “Again, Davey chose to ignore the distinction between his constitutionally protected right to freedom of speech and association, and a non-existent right to compel the state to subsidize these rights.” 2

Davey appealed the summary judgment to the 9th U.S. Circuit Court of Appeals.

Davey v. Locke (9th Circuit)
The 9th Circuit focused its analysis on how the U.S. Constitution’s free-exercise and free-speech clauses limit the state’s constitutional ban on funding religious activities. Writing for the majority, Judge Pamela Ann Rymer found that “HECB’s policy lacks neutrality on its face,” and that “Washington’s interest in avoiding conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology.” 3

Judge Rymer analyzed the conflict using both religious-liberty and free-speech tests. She looked first to whether the government action specifically targeted religious beliefs. “A law targeting religious beliefs as such is never permissible.” If the government’s actions are not found to target religious beliefs, then the court must determine if the action in question is neutral and generally applicable. “[A] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny,” 4 whereas a neutral and generally applicable law that incidentally burdens religion must only have some rational relation to the purpose of the law.

In this case, Rymer found the Promise Scholarship rules did not prohibit religious conduct or activity, and therefore did not target religion. She focused instead on the neutrality and general applicability of the rules. Here, Rymer found free-exercise interests were implicated because the law restricts those engaging in religious endeavors from receiving government benefits.

Rymer also examined the situation as a possible free-speech violation. She examined the free-speech issues using forum analysis — the analytical framework used to determine what level of protection expression receives in certain venues. Rymer ruled that Davey’s case did not involve the open public forum commonly understood to exist in parks and on street corners, where a speaker has few government constraints on what he may express; nor did his situation constitute a non-public forum, where the government has nearly complete control over what is said. Instead, the judge determined that the scholarship program constituted a limited public forum. Agreeing with the lower court that the government is not required to “subsidize the exercise of fundamental rights,” Rymer pointed out that once the government creates a program based on neutral criteria, it cannot discriminate against a speaker with a religious viewpoint. She stated, “The bottom line is that the government may limit the scope of a program that it will fund, but once it opens a neutral ‘forum’ (fiscal or physical), with secular criteria, the benefits cannot be denied on account of religion.” 5

Finally, Rymer put both sets of analyses into context by returning to the case of Widmar v. Vincent. 6 HECB stated that, even if it were required to show a compelling interest to override Davey’s free-exercise and free-speech interests, adhering to the state constitution’s heightened separation of church and state was such a compelling interest. Quoting Widmar, Rymer found:

“The state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State’s interest as sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.” 7

Rymer concluded by pointing out that the money was not given directly to any sectarian school, but was awarded to the student. The student’s decision about what to study determined where the money would go. This rationale mirrored the Supreme Court’s 2002 plurality opinion in Zelman v. Simmons-Harris, which found that properly structured education voucher programs did not run afoul of the establishment clause of the First Amendment, even if government money eventually ends up at religious schools. 8

Judge M. Margaret McKeown dissented from the panel’s ruling, disagreeing with several elements of the majority’s analysis. Though she countered each of the majority’s arguments with straightforward disagreement over application of the law and how to define certain circumstances, the most interesting portion of her dissent involved her comparison of Promise Scholarships with abortion funding by the government. According to Judge McKeown, the similarity in fact patterns between both funding schemes were so close that if one involved viewpoint discrimination, then so must the other. Thus, if the state was required to give Promise Scholarships to students pursuing religious degrees, then the government could no longer exclude abortion from the range of medical procedures it funded.

A decision this term by the Court in Locke v. Davey has implications for several areas of federal constitutional concern.

The Locke decision will have its greatest impact on the continuing debate over school vouchers. Providing education vouchers to private schools as a form of educational reform is currently fought in two arenas — legislative and judicial. While the public policy issues are debated in state and federal legislatures, both sides realize that the state and federal constitutional questions must be addressed first. The current legal battles focus on the fact that most voucher plans include religiously affiliated schools. Including such schools raises questions of possible violations of the First Amendment’s establishment clause and is the basis of the U.S. Supreme Court’s 2002 decision in Zelman v. Simmons-Harris.

Although the Zelman decision is only a year old, it comes as little surprise that the Court would revisit vouchers. While the Court ruled government vouchers may go to religious institutions, it did not address the question of whether the government must include religious institutions in programs that generally are available to nonreligious institutions. The core of this legal argument is whether a program that does not violate the establishment clause necessarily violates the free-exercise or free-speech clauses if religious entities are singled out for exclusion from a government benefit.

The biggest question left after Zelman involves possible conflict between the religious-liberty provisions in state constitutions and various federal constitutional provisions. Thirty-seven states have strict no-establishment provisions, the so-called “Blaine amendments,” built into their constitutions expressly forbidding the use of government money for religious purposes. After Zelman, advocates of education vouchers perceive these strongly separationist state constitutions as the next greatest hurdle to voucher initiatives.

Florida courts confirmed advocates’ fears when, just six weeks after the Supreme Court’s Zelman decision, a state court struck down voucher efforts as unconstitutional under the state constitution. 9 In Locke v. Davey the Supreme Court may well determine if voucher initiatives must be analyzed state by state, or whether the question may be answered in one fell swoop by determining whether “Blaine amendments” in state constitutions violate the First Amendment’s free-exercise clause. Voucher opponents and proponents across the nation will closely watch this decision.

Free exercise of religion/free speech
Even more broadly than vouchers, this case has the potential to modify free-exercise clause and free-speech clause jurisprudence. For decades, free-exercise jurisprudence provided protection for religious exercise not only when the government specifically discriminated against religious actions, but even if government interference was accidental and incidental to the purpose of the law. This practice dramatically changed with the Supreme Court’s 1990 decision in Employment Division v. Smith (II) and free-exercise doctrine has been in flux since. Based on Smith and the 1997 case of Church of Lukumi Babalu Aye v. Hialeah, the Court’s current interpretation of the free exercise clause offers additional protection only if the government targets religion with restrictions. Religious and civil rights activists will closely follow Locke to see if the Court uses this opportunity to strengthen the free-exercise clause.

The connection between the First Amendment’s free-exercise and free-speech clauses could also receive some attention from the Supreme Court. After it held in Employment Division v. Smith that free-exercise claims receive no special protection against laws of general applicability, litigants increasingly have cast their arguments as free-exercise and free-speech violations. In several recent decisions where both free-speech and free-exercise claims were raised, the Court has decided cases based on free-speech arguments instead of free exercise. This preference for free-speech analysis allows the Court to circumvent the analytically problematic issues surrounding free-exercise claims (How to define a religion? How important is this practice to a religion? etc.). Instead, the Court is left examining constitutional criteria that exclude the idiosyncrasies of the parties and focus instead on the type of forum, content vs. viewpoint discrimination, other opportunities to express oneself, etc. This preference results in parties’ increasingly presenting religious liberty as another type of free-speech claim, thus reducing the unique constitutional position that religion previously held.

A decision in this case could result in free-exercise claims once again gaining relevance on their own. Or it could further the trend toward presentation of religious liberty as another type of expression.

Most Court watchers expect Locke to pick up where Zelman left off on the issue of vouchers, yet the claims raised in Locke are framed in terms of state vs. federal constitutions. While the Court may not specifically address the federalism questions, the ruling will affect the balance of power between the state and federal governments.

Several Court members, notably Justice Antonin Scalia, have expressed in their opinions and voting patterns a preference for strengthening states’ rights. Recent decisions have struck down federal legislation requiring states to allow disabled state employees to sue the state in federal court; a portion of the Violence Against Women Act that made violence against women a federal offense; and legislation allowing citizens to sue state agencies over violations of federal age-discrimination laws. 10

At the same time, the very justices who are most interested in questions of federalism also are advocates for greater accommodation of religion in the public sphere. Justices Scalia, Thomas and Rehnquist will be left with the conundrum of deciding between strengthening states’ rights by siding with the state or finding for Davey and limiting what they see is a trend toward hindering religion in the public sphere.

The U.S. Supreme Court on Feb. 25, 2004, reversed the 9th Circuit ruling that the Promise Scholarship program violated Joshua Davey's free-exercise rights. In a 7-2 decision, the majority found that Washington state's constitutional prohibition against providing money for religion did not interfere with the federal free-exercise rights of individuals. Chief Justice Rehnquist's majority opinion used the concept of “play in the joints” between state and federal constitutional protections as a rationale. In response, Justice Scalia's dissent lambasted the majority for being unprincipled and ignoring precedent against targeted discrimination (a la Lukumi).


1 Justice Rothstein quoted Lyng v. Northwest Indian Cemetery Prot. Assoc., 485 U.S. 439 (1988): “The crucial word in the constitutional text is 'prohibit:' 'for the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.'”
2 Davey v. Locke, 2000 U.S. Dist. Lexis 22273, 19 (W. Dist. Wash.) (2000)
3 Davey v. Locke, 299 F.3d 748, 751 (2002)
4 Id. at 754
5 Id. at 757
6 Widmar v. Vincent, 454 U.S. 263 (1981)
7 Davey, 299 at 760
8 Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
9 Zelman, 536 U.S. (2002)
10 Yet the Court is not always consistent in this area, having made several anti-states’ rights decisions, most notably the case of Bush v. Gore in 2000.