Locke v. Davey, No. 02-1315.

CourtUnited States Supreme Court
Writing for the CourtRehnquist
Citation540 U.S. 712
PartiesLOCKE, GOVERNOR OF WASHINGTON, ET AL. <I>v.</I> DAVEY.
Decision Date25 February 2004
Docket NumberNo. 02-1315.
540 U.S. 712
LOCKE, GOVERNOR OF WASHINGTON, ET AL.
v.
DAVEY.
No. 02-1315.
Supreme Court of United States.
Argued December 2, 2003.
Decided February 25, 2004.

Washington State established its Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use such a scholarship to pursue a devotional theology degree. Respondent Davey was awarded a Promise Scholarship and chose to attend Northwest College, a private, church-affiliated institution that is eligible under the program. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration. It is undisputed that the pastoral ministries degree is devotional. After learning that he could not use his scholarship to pursue that degree, Davey brought this action under 42 U. S. C. § 1983 for an injunction and damages, arguing that the denial of his scholarship violated, inter alia, the First Amendment's Free Exercise and Establishment Clauses. The District Court rejected Davey's constitutional claims and granted the State summary judgment. The Ninth Circuit reversed, concluding that, because the State had singled out religion for unfavorable treatment, its exclusion of theology majors had to be narrowly tailored to achieve a compelling state interest under Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Finding that the State's antiestablishment concerns were not compelling, the court declared the program unconstitutional.

Held: Washington's exclusion of the pursuit of a devotional theology degree from its otherwise-inclusive scholarship aid program does not violate the Free Exercise Clause. This case involves the "play in the joints" between the Establishment and Free Exercise Clauses. Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669. That is, it concerns state action that is permitted by the former but not required by the latter. The Court rejects Davey's contention that, under Lukumi, supra, the program is presumptively unconstitutional because it is not facially neutral with respect to religion. To accept this claim would extend the Lukumi line of cases well beyond not only their facts but their reasoning. Here, the State's disfavor of religion (if it can be called that) is of a far milder kind than in Lukumi, where the ordinance criminalized the ritualistic animal sacrifices of the Santeria religion. Washington's program imposes neither criminal nor civil sanctions on

[540 U.S. 713]

any type of religious service or rite. It neither denies to ministers the right to participate in community political affairs, see McDaniel v. Paty, 435 U. S. 618, nor requires students to choose between their religious beliefs and receiving a government benefit, see, e. g., Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136. The State has merely chosen not to fund a distinct category of instruction. Even though the differently worded Washington Constitution draws a more stringent line than does the Federal Constitution, the interest it seeks to further is scarcely novel. In fact, there are few areas in which a State's antiestablishment interests come more into play. Since this country's founding, 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 such an establishment 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 the conclusion that religious instruction is of a different ilk from other professions. Moreover, the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits, since it permits students to attend pervasively religious schools so long as they are accredited, and students are still eligible to take devotional theology courses under the program's current guidelines. Nothing in the Washington Constitution's history or text or in the program's operation suggests animus toward religion. Given the historic and substantial state interest at issue, it cannot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey's claim must fail. The State's interest in not funding the pursuit of devotional degrees is substantial, and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. Pp. 718-725.

299 F. 3d 748, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 726. THOMAS, J., filed a dissenting opinion, post, p. 734.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Narda Pierce, Solicitor General of Washington, argued the cause for petitioners. With her on the briefs were Christine O. Gregoire, Attorney General, William Berggren Collins,

[540 U.S. 714]

Senior Assistant Attorney General, and Michael J. Shinn, Assistant Attorney General.

Jay Alan Sekulow argued the cause for respondent. With him on the brief were Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, David A. Cortman, Alan E. Sears, and Benjamin W. Bull.

Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Acosta, Deputy Solicitor General Clement, Gregory G. Garre, David K. Flynn, and Eric W. Treene.*

[540 U.S. 715]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.


The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.

The Washington State Legislature found that "[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient." Wash. Rev. Code Ann. § 28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the

540 U.S. 716

Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecondary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State's general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code § 250-80-050(2) (2003). The scholarship was worth $1,125 for academic year 1999-2000 and $1,542 for 2000-2001.

To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. §§ 250-80-020(12)(a) to (d). The student's family income must be less than 135% of the State's median. § 250-80-020(12)(e). Finally, the student must enroll "at least half time in an eligible postsecondary institution in the state of Washington," and may not pursue a degree in theology at that institution while receiving the scholarship. §§ 250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. § 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). Private institutions, including those religiously affiliated, qualify as "`[e]ligible postsecondary institution[s]'" if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code § 250-80-020(13). A "degree in theology" is not defined in the statute, but, as both parties concede, 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." Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, § 11.

540 U.S. 717

A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E. g., App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student's major is devotional. Id., at 126, 131. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code § 250-80-060.

Respondent, 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...

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162 practice notes
  • Carson v. Makin, No. 19-1746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 29, 2020
    ...Eulitt explained, however, that Strout was no longer controlling because of two subsequently decided Supreme Court cases: Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), and Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). In Locke, the Sup......
  • American Atheists, Inc. v. Detroit Downtown Development Authority, No. 07-2398.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2009
    ...that the First Amendment did not compel Detroit to include religious groups in this downtown-revitalization project, cf. Locke v. Davey, 540 U.S. 712, 719-21, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), but neither did it prohibit Detroit from including these groups in the project—either to enhan......
  • Skoros v. City of New York, Docket No. 04-1229-CV.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 2, 2006
    ...religion," the First Amendment allows some "room for play in the joints productive of a benevolent neutrality"); see also Locke v. Davey, 540 U.S. 712, 718, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (reiterating Walz's recognition of "room for play in the joints"). In this case, the Chancellor's......
  • ASS'N OF CHRISTIAN SCHOOLS INTERN. v. Stearns, No. CV 05-6242 SJO (MANx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 28, 2008
    ...Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and Locke v. 679 F. Supp.2d 1103 Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 In Lukumi, the plaintiffs challenged a city ordinance that targeted the Santeria religion under the guise of ......
  • Request a trial to view additional results
161 cases
  • Carson v. Makin, No. 19-1746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 29, 2020
    ...Eulitt explained, however, that Strout was no longer controlling because of two subsequently decided Supreme Court cases: Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), and Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). In Locke, the Sup......
  • American Atheists, Inc. v. Detroit Downtown Development Authority, No. 07-2398.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2009
    ...that the First Amendment did not compel Detroit to include religious groups in this downtown-revitalization project, cf. Locke v. Davey, 540 U.S. 712, 719-21, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), but neither did it prohibit Detroit from including these groups in the project—either to enhan......
  • Skoros v. City of New York, Docket No. 04-1229-CV.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 2, 2006
    ...religion," the First Amendment allows some "room for play in the joints productive of a benevolent neutrality"); see also Locke v. Davey, 540 U.S. 712, 718, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (reiterating Walz's recognition of "room for play in the joints"). In this case, the Chancellor's......
  • ASS'N OF CHRISTIAN SCHOOLS INTERN. v. Stearns, No. CV 05-6242 SJO (MANx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 28, 2008
    ...Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and Locke v. 679 F. Supp.2d 1103 Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 In Lukumi, the plaintiffs challenged a city ordinance that targeted the Santeria religion under the guise of ......
  • Request a trial to view additional results
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