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JUNE 2004

High Court Finds Religion Constitutionally Distinctive
by Martha McCarthy, Ph.D.

In February 2004 the United States Supreme Court rendered a significant decision, Locke v. Davey, upholding state constitutional mandates requiring greater separation of church and state than demanded by the Establishment Clause of the First Amendment. At issue in Locke was the Promise Scholarship Program established by the state of Washington to provide college aid for students who meet academic and income requirements. The scholarships can be used in public or private accredited institutions of higher education, but the scholarships cannot be used to pursue devotional theology degrees. This prohibition is grounded in the state constitutional stipulation that public money or property cannot be used for religious worship, exercise, or instruction.

Joshua Davey was awarded a scholarship and enrolled in Northwest College, which is affiliated with the Assemblies of God. After declaring his double major in pastoral ministries and business management/administration, Davey learned that he could not use his scholarship for a pastoral degree. He challenged the state action in rescinding his scholarship as abridging First and Fourteenth Amendment rights.

Since the Supreme Court had already ruled in 1986 that the Establishment Clause does not preclude the use of public funds to prepare for the ministry, the question raised in Locke was whether a more stringent state antiestablishment provision impairs federal constitutional rights. Davey contended that religious and secular majors should be treated the same in the scholarship program, but the Supreme Court disagreed. Reversing the Ninth Circuit’s decision, the Supreme Court held that although the use of the Promise Scholarships to pursue a pastoral degree would be allowed under the Establishment Clause, the Free Exercise or Free Speech Clauses does not require it. The Court found minimal burden on religion and no Equal Protection Clause violation in singling out pastoral degrees for differential treatment. The Court reasoned that the Washington constitutional provision was intended to keep schools free from sectarian control and rejected the contention that it represented hostility toward religion.

Implications of the Locke decision are not as dramatic as they would have been if the Ninth Circuit’s decision had been affirmed, because under such a precedent, antiestablishment provisions in thirty six state constitutions would have become impotent. Nonetheless, the Supreme Court ruling has noteworthy implications for state aid to nonpublic schools and the relationship between federal and state constitutional mandates. The Locke decision will likely stimulate litigation testing the limits of state constitutional provisions barring the use of public funds for religious purposes.  Indeed, one of the most significant implications of Locke might be an increase in state church/state cases.#

Martha McCarthy, Ph.D. is Chancellor Professor, School of Education, Indiana University.

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