Locke v. Davey
Does the First Amendment
trump a state scholarship qualification?
Decided February 25
The Supremes upheld a Washington law
discriminating against religious majors in a state scholarship program.
"Promise Scholarships" may be legally denied to students pursuing
theology degrees. Josh Davey was granted a scholarship by the
state of Washington because of his academic achievement and financial need. He used
the funds to enroll at Northwest College, which describes itself as the "most
exciting Christian college on the east side of Seattle."
Mr. Davey decided to major in theology, the state authorities were
alerted, and his funding was taken away.
Doesn't facial discrimination against religion
run afoul of the Free Exercise clause? Not necessarily. According to a 7-2
Court, the Washington prohibition is acceptable because it is moderate in
nature: "mild" discrimination (like withholding benefits) is more
tolerable than civil sanctions or political disenfranchisement. The Washington
law has no perceivable animus to religious belief. The state has a
substantial interest in denying funds to religious majors (i.e., a long standing
aversion to religious establishment)--plus a long history of putting no-aid laws
into practice. In sum, according to the Court: some "play in the joints" of First Amendment
law is not a terrible thing. States should have the right to enact more
stringent establishment rules than the federal Constitution's, as long as no one
suffers too greatly.
While the Federalism Project appreciates the
state deference in the majority opinion--and the reluctance to reflexively
identify "animus" in state motives--Justice Scalia's dissent raises a
serious objection. Why, in an age of ubiquitous strict scrutiny in regards to
discrimination claims, should more "play in the joints" be called for
in the context of religious discrimination? "In an era where the Court is
so quick to come to the aid of other disfavored groups (see Romer v Evans),
its indifference in this case, which involves a form of discrimination to which
the Constitution actually speaks, is exceptional."
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