Davey v. Locke revisited ... Protecting or Punishing?

May/June 2004
A $1,125 scholarship hardly seems worth the attention of constitutional scholars, high-priced appellate attorneys, and the Court of last resort. But that is exactly what happened when Washington Sate student Joshua Davey applied for the Washington Promise Scholarship program and then declared his double major in pastoral ministries and business management.
On May 19, 2003, the U.S. Supreme Court granted certificate in the case of Davy v. Locke. The issues raised in this case require the Court to wade through a muddled morass of constitutional doctrines. May the state of Washington erect a higher barrier between church and state than the federal government? May such a barrier allow the state to deny benefits to theology majors that similarly situated nontheology majors can acquire? Is it a case of protecting separation or of discriminating against religion? Is it a free-speech case or a freedom of religion case—or both?
The controversy began in 1999 when state officials pulled Joshua Davey's scholarship from Northwest College after he declared a major in pastoral ministries because of a state statute and a state constitutional provision prohibiting public funding for religious studies. A Washington
law provides that "no aid shall be awarded to any student who is pursuing a degree in theology."¹ Likewise, the Washington constitution provides in pertinent part: "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."² (These constitutional provisions are often referred to as Blaine amendments, after the failed federal amendment that restricted public funds from religious institutions and schools. These provisions are found in the constitutions of most Western states and are at the heart of the current debate on use of government vouchers at private religious schools and the president's faith-based initiatives campaign.)
Davey sued state officials, alleging that they violated his free-exercise, free-speech, and freedom-of-association rights. A federal district court rejected his claims in October 2000, writing that "while a citizen may not be unduly prohibited from practicing his religion, he may not demand that the government pay for those religious pursuits."³ However, a divided panel of the Ninth U.S. Circuit Court of Appeals reversed and sided with Davey in July 2002. The majority wrote that the Washington statute and constitution "on their face discriminate based on religious pursuit."⁴
Now the dispute has come before the United States Supreme Court. An examination of the two lower court decisions shows the intricate interplay between competing strands of First Amendment law.
District court judge Barbara Jacobs Rothstein emphasized that the Washington constitution provides "a more stringent barrier to state funding of religious education" than the U.S. Constitution. She cited the Washington Supreme Court's decision in Witters v. State Commission for the Blind for the proposition that the state can deny funding for religious higher education based on its state constitution.⁵ While the U.S. Supreme Court had ruled that aid to a blind student who sought funds under a state vocational rehabilitation program did not violate the establishment clause, the state supreme court reached a different decision on remand. Davey's lawyers urged Judge Rothstein to view the case as a free-speech case under the doctrine of viewpoint discrimination. They argued that the state of Washington discriminated against religion by denying aid to Joshua Davey solely because he declared a religious, rather than secular, field of study. Judge Rothstein rejected the argument, writing that Davey "simply cannot identify any restriction on his freedom to speak and has no basis for requiring the state to fund the exercise of his First Amendment rights."⁶
With respect to the analogy to the Rosenberger case, which involved the denial of funding to a student religious magazine, the judge would not budge: "Davey's viewpoint is not singled out for disfavored treatment."⁷

Appeals Court Panel Decision
The Ninth Circuit majority saw things much differently. They viewed the prohibition against scholarships for religious purposes as violating the general precept of neutrality. They compared the situation to the relatively little-cited 25-year-old McDaniel v. Paty.⁸ In McDaniel the U.S. Supreme Court invalidated a Tennessee law prohibiting a member of the clergy from serving in a state constitutional convention. The Court determined that such a law violated the free-exercise rights of Paul McDaniel, a Baptist minister.
The Ninth Circuit majority found a clear parallel between the plight of Paul McDaniel and that of Joshua Davey. "A minister could not be both a minister and a delegate in Tennessee any more than Davey can be both a student pursuing a degree in theology and a Promise Scholar in Washington," the majority wrote.⁹
The panel majority determined that the state's program discriminated against religion under Rosenberger and violated the free exercise clause.
Judge Margaret McKeown dissented in an opinion that realized the judges were "struggling with where to place Davey's case on the spectrum of Supreme Court jurisprudence."¹⁰ She viewed the case as one of funding, rather than free exercise or freedom of speech. She distinguished free-exercise cases such as McDaniel and the seminal 1963 Sherbert v. Verner decision, finding that Davey, unlike Adele Sherbert and Paul McDaniel, did not face a substantial burden on his free exercise of religion rights.
She also rejected Davey's reliance on what she termed "the seemingly safe harbors" of Rosenberger.¹¹ "As attractive as Rosenberger may be in an educational setting, Davey's is not a free-speech case, or at least has not been treated . . . as such by the majority," she wrote. "More explicitly, the decision not to fund Davey's pursuit of a pastoral ministry does not implicate the free speech viewpoint concerns that drove the Court's decision in Rosenberger."¹²
Possibly the most interesting element of Judge McKeown's dissent comes in her analogy to abortion-funding cases. She argues that if funding is provided for Davey in this case, then the federal government cannot prohibit family planning services that receive federal funds from also providing information about abortions.

On February 25, 2004, the U.S. Supreme Court issued a 7 – 2 decision in favor of the State of Washington's decision not to fund theological training. The case presented the Supreme Court with a thorny question: Does the constitution's guarantee of the free exercise of religion require the state to fund religious activities in some circumstances? Or, to put it another way, does the state unlawfully discriminate against religion when it funds a whole host of activities, but excludes religious activities? Writing for the seven justice majority, Chief Justice Rehnquist notes that "there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." He further states that funding theology training through indirect means is permitted by the Establishment Clause, but it is not required by the Free Exercise Clause, even when all other academic majors are funded. Concluding the opinion, he states: "If any room exists between the two Religion Clauses, it must be here." In coming to a decision, Justice Rehnquist notes that although the "Washington Constitution draws a more stringent line [on state funding of religion] than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State' s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion." Justices Scalia and Thomas dissented from the majority. —Editors

What Will the Supreme Court Do?
While constitutional scholars will seek indicators to the Court's direction on federalism, equal protection, and association rights, the most immediate effect will be felt in the debate over the constitutionality of using vouchers as a means of education reform. After the Court's 2002 decision in Zelman v. Simmons-Harris,¹³ which found that appropriately structured voucher plans do not necessarily violate the establishment clause, the culture war over vouchers moved to the states. Since 37 states have either Blainelike constitutional amendments or state jurisprudence interpreting their state constitutions as more strictly separationist than the First Amendment's establishment clause, the question of vouchers in many states depends more on state constitutions than on the U.S. Constitution. The Court's decision will color religious liberty and possibly free-speech jurisprudence, with the end result likely based more on how they frame the issues than on the eventual analysis.
The conundrum is how state funding for religious institutions should be viewed. Some believe the Court should treat religious interests of people and institutions differently than other interests. This position has support from historical figures such as Thomas Jefferson and James Madison. The idea is that religious liberty is protected by preventing any taxpayer's money from going to a religious pursuit that would be contrary to the conscience of the taxpayer. It also avoids governmental involvement in religious matters, something several members of the Court are adamant in doing.¹⁴
Others argue that times have changed and the federal government's minor role in Jefferson and Madison's time has been overshadowed by modern government institutions that greatly impact all areas of people's lives. For this group, treating religion interests differently than other interests seems discriminatory, especially in light of the depleted protections provided by modern free exercise jurisprudence. If the Court opts for the former position, they will likely have little problem with a state that wishes to protect religious freedom more stringently by erecting a high wall of separation. If they frame the situation in light of the latter, the Court will likely find such state schemes discriminatory against religion and religious points of view.
The effects of either position are obvious for the voucher debate. If the Court treats religious interests as different, then the state can use its constitution and laws to deny vouchers for religious schools, which would result in a state-by-state battle over interpretations of state constitutions. If the second view is taken, the battle over state constitutions would be fought once in the Supreme Court, and the voucher battle would move from the judicial to the legislative sphere in most states.

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John E. Ferguson, Jr., is the education coordinator and David L. Hudson, Jr., is research attorney for the First Amendment Center on the Vanderbilt University campus, Nashville, Tennessee.
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1 Washington Revised Code, d 28B-10-814.
2 Washington Constitution, Article I, g 11.
3 Davey v. Locke, 2000 U.S. Dist. LEXIS 22273, *13 (W.D. Wash.) (Oct. 5, 2000).
4 Davey v. Locke, 299 F.3d 748, 757 (9th Cir. 2002).
5 Davey v. Locke, 2000 U.S. Dist. LEXIS 22273, *8, 9, citing Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash. 1989).
6 Ibid., *18.
7 Ibid., *20, 21.
8 435 U.S. 618 (1978).
9 Davey v. Locke, 299 F.3d at 754.
10 Ibid., p. 761 (J. McKeown dissenting).
11 Ibid., p. 766 (J. McKeown dissenting).
12 Ibid.
13 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
14 See, generally, dissents in Zelman.

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