In Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court ruled that a scholarship program in Washington state that did not allow a student to use his publicly funded scholarship to major in theology did not violate his First Amendment rights of free exercise of religion or free speech.

In 1999 Washington implemented a new scholarship program. Designed to provide post-secondary educational opportunities in the state, the Promise Scholarships provided $1,000 to $1,500 to high-performing students who pursue their higher education in the state of Washington. The program otherwise excluded only students pursuing a “degree in theology” because, much like the constitutions in thirty-seven other states, the Washington state constitution prohibits any public funding for religious “worship, exercise or instruction.”

After receiving notification of award of this scholarship, Joshua Davey, a freshman at Northwest College, was told that he must either change his major (pastoral ministries) or lose his $1,500 scholarship. Mr. Davey elected to forego his scholarship and remain a theology major, but he also filed a lawsuit claiming several violations of his religious liberties. After the state won in the district court and Davey won at the Ninth Circuit Court of Appeals, the Supreme Court ultimately upheld the statute.

Writing for the seven-member majority, Chief Justice William H. Rehnquist wrote that the exclusions found in Washington’s scholarship program were acceptable because they fell into the “play in the joints” between state and federal constitutional overlap. Rehnquist further explained that although Washington could have allowed theology students to receive the scholarship without running afoul of the U.S. Constitution’s establishment clause, nothing in the free exercise clause required the exception’s removal. This moved the analysis back to the state constitutional requirements, which state courts had repeatedly interpreted as requiring such restrictions of public funding of religious instruction.

Justices Antonin Scalia and Clarence Thomas dissented, arguing that the Promise Scholarship exclusions amounted to a targeted discrimination against religious conduct and therefore violated the free exercise clause of the First Amendment. Scalia argued that the “play in the joints” argu- ment ignored decades of jurisprudence that disallowed such looseness when confronting fundamental rights.

Taken together with the Court’s 2002 decision in Zelman v. Simmons-Harris (2002), which upheld the use of public money for school vouchers even for students attending religious schools, the legal framework for the voucher controversy becomes clearer. Although states may create carefully crafted voucher programs that allow public moneys eventually to end up at religious schools, the federal religious liberty clauses do not require states to implement such voucher programs, nor are states necessarily required to allow religious schools to participate even if voucher programs are in place.

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