States Can Withhold Scholarships for Ministerial Training
July 29, 2004
Charles S. Johnson- Atlanta
In February of this year, the Supreme Court of the United States upheld the state of Washington’s right to deny a tax-funded scholarship to a college student studying to be a minister (Locke v. Davey, 124 S. Ct 1307 (2004)). In reaching its decision, the court in Locke v. Davey was forced to reconcile two distinct clauses of the First Amendment to the federal Constitution, and it was also required to reconcile the federal constitution with the constitution of the state of Washington.
Background
The religion clauses of the First Amendment provide that “[C]ongress shall make no law respecting an establishment of religion [the establishment clause], or prohibiting the free exercise thereof [the free exercise clause].” The establishment clause prohibits government sponsorship of religion. The free exercise clause presumes that statutes which burden religion in a non-neutral manner are unconstitutional.
These two clauses are frequently in tension. Each clause, when taken to its logical extreme, would tend to clash with the other. The courts have sought to address this internal inconsistency by struggling to find a neutral course between the two clauses. They will not tolerate either governmentally established religion or government interference with religion. Short of these two extremes, the courts have found room for “play in the joints” that will permit religious exercise to exist without sponsorship and without interference. The U.S. Supreme Court’s religion decisions over the last several years represent an effort to address this “play in the joints.”
Decisions under the federal free exercise clause include a 1978 ruling that a law disqualifying members of the clergy from being delegates to a state constitutional convention violated the free exercise clause because it conditioned the right of free exercise of religion on a surrender of the right to seek office (McDaniel v. Paty); and a 1993 ruling that a non-neutral ordinance that targeted religious activity for criminal sanction constituted a violation of the free exercise clause include (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
Decisions under the federal establishment clause include a 1970 ruling that the grant of a tax exemption to churches did not constitute sponsorship of religion since it was a minimal and remote involvement, which restricted the fiscal relationship between church and state, and since it did not involve a transfer of government revenue to churches (Walz v. Tax Commission of the City of New York).
In 1986, the state of Washington sought to use the federal establishment clause to justify the exclusion from its Promise Scholarship Program of students who were majoring in theology as preparation for the ministry. The U.S. Supreme Court, in Witter v. Washington Department Services for the Blind, 106 S. Ct. 748 (1986), noted that the Promise Scholarship Program did not implicate the federal establishment clause because the aid went to individuals and the decision to support religious education was made by the individual, not by the state. In so ruling, however, the Court expressed no view as to whether the exclusion of theology majors might be justified on the basis of the “far stricter” dictates of the Washington state constitution.
Locke v. Davey
In Locke, the U.S. Supreme Court was again called upon to review Washington’s Promise Scholarship Program. On remand from the decision of the U.S. Supreme Court, the Washington Supreme Court in Witters held that the Washington state Constitution prohibited even indirect funding of religious instruction that prepared students for the ministry. The Washington Constitution provided that “no public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment,” and that “[a]ll schools maintained or supported wholly or in part by public funds shall be forever free from sectarian control or influence.” Joshua Davey, a student majoring in theology in preparation for the ministry, brought suit contending that – notwithstanding the provisions of the state constitution – the exclusion of theology majors under the Promise program constituted a violation of the federal free exercise clause. More precisely, Davey contended that the statutory exclusion for theology majors was not neutral, but instead that it targeted religion and was, therefore, presumed to be unconstitutional.
Chief Justice Renquist, writing for a majority of the Supreme Court, rejected Davey’s contention – largely because the Promise program places a burden on religion that is less severe than the criminal sanctions in Lukumi and the loss of political freedom in McDaniel. The Court also noted that, because Promise Scholars are permitted to take theology courses as long as they do not major in theology, the program does not require students to choose between their religious beliefs and receiving a governmental benefit. Moreover, the Court found that, because training someone to lead a congregation is essentially a religious endeavor, training for religious professions and training for secular professions are not fungible. The court found that the nation’s anti-establishment tradition – under which many state constitutions exclude the ministry from receiving state dollars – reinforced the conclusion that religious instruction is different from other kinds of instruction and can, therefore, be treated differently. The Court accordingly concluded that “[t]he 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.”
Implications
The Court’s ruling in Locke is seen by many as a departure from recent high court rulings on church-state issues. The decision is also seen as part of a trend toward giving greater deference to decisions made at the state and local level. Its implications extend not only to government aid programs for students who attend religious colleges and universities, but also to government voucher programs for elementary and secondary education, and faith-based initiatives in which government funding flows to religious social service providers.
While the federal establishment clause will not prevent local jurisdictions from providing aid to students attending sectarian institutions, Locke v. Davey makes it clear that the federal free exercise clause will not prevent local jurisdictions from denying aid to students seeking religious instruction. However, the Court’s reasoning leaves open the question of just how much deference will be accorded to state and local decision-making. Whether the Court will also defer to local legislation denying aid to students attending a religious school, or legislation denying aid to clients seeking the services of a faith-based counseling program, remains a matter of speculation after Locke v. Davey.
For more information, e-mail Charles Johnson at
charles.johnson@hklaw.com or call toll free, 1-888-688-8500.