The Federalism Project

American Enterprise Institute


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."

Locke v Davey

9th Circuit opinion

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