February 27, 2004, 9:20 a.m.
Open Door to Religious Discrimination
The Supreme’s Locke ruling.

By Susanna Dokupil

Pop Quiz: Which of the following is constitutional?
(a) A city council passes ordinances designed to prohibit religious animal sacrifices.
(b) A state creates a college scholarship program designed to exclude students who plan to study theology.

According to the Supreme Court opinion in Locke v. Davey, the answer is (b). In a 7 to 2 opinion, it upheld Washington State's Promise Scholarship program, which awards scholarships to graduating high-school seniors based on class rank, standardized-test scores, and family income. These students must enroll in an accredited college within Washington State. But, although a scholarship recipient may use the money to attend a religious college, he may not use it to pursue a religious degree. Joshua Davey, for instance, earned such a Promise Scholarship, but he could not use it because he intended to train for the ministry.

In recent years, the Court has repeatedly held that where the government extends a benefit on neutral criteria, that benefit may go to religion as a result of independent private choices without violating the Establishment Clause. Indeed, it held in [Witters v. Washington Department of Services for the Blind (1986) that the State may allow aid awarded on neutral criteria to sponsor theological study. But in Locke v. Davey, the Court refused to hold that the Free Exercise Clause required such sponsorship. Instead, it held that Washington State could refuse scholarships to students pursuing religious degrees in the interest of protecting its citizens against an establishment of religion.

Washington State's program wrongfully discriminates against religion. Everyone meeting the neutral criteria receives a scholarship except for those pursuing a degree in theology. A previous Supreme Court opinion, Church of Lukumi Babalu Aye v. Hialeah (1993), held that the city of Hialeah, Florida, wrongfully prohibited ritualistic animal slaughter because it singled out religion for disfavor.

But Chief Justice Rehnquist, writing for the court, found that Washington State's scholarship program is acceptable because disfavors religion less than the statute in Hialeah. It imposes no criminal or civil penalties on religious exercise, nor does it require students to choose between their religious beliefs and a government benefit. (One questions how this is possible, given that a calling to the ministry is essentially a personal religious belief.) Justice Scalia, in dissent, rightly explains that because the state funds training for all professions, it may not carve out a special exception for religious professions.

The majority opinion found it significant that many states around the time of the Founding prohibited the use of tax dollars to support the ministry. Certainly, it should be unconstitutional for states to pay pastors' salaries. But here, Washington State is excluding a certain group of students from money they would otherwise receive — solely because they want to study theology.

Education is distinct from worship. Washington State has a broad funding program for education, not only through the Promise Scholarships, but through its public-school system. To the extent that the State's education dollars here would support religion is only owing to the individual choices of the students, not the state's.

Moreover, to distinguish between a religious college and a religious major exalts form over function. At Joshua Davey's alma mater, Northwest College, which is affiliated with the Assembly of God Church, every student must profess "a personal commitment to Jesus Christ as Lord and Savior." In many religious colleges, every class is taught from a religious perspective, so it makes little sense to say Washington State may exclude just that small fraction of students who wish to pursue a ministerial calling.

The Supreme Court has blessed Washington State's exclusion of a small slice of religion from a public benefit. Still more disconcerting is the principle that some discrimination against religion may be acceptable in order to guard against a violation of the Establishment Clause. Could Washington State also exclude pastors from having library cards to ensure that public money does not sponsor sermon preparation? Or, could it redraw bus routes specifically to avoid churches?

Locke v. Davey erodes the principle of neutrality toward religion. The government should not be able to sponsor professional training of everyone except ministers any more than it may allow all animal slaughters except religious sacrifices. But, the Court has merely allowed states a freer hand in enacting measures that may discriminate against religion — it has not mandated it. To the extent the Locke ruling may have pernicious effects, the best protection against them is the vigilance of each state's citizens.

— Susanna Dokupil is an attorney in Houston.

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