Locke v. Davey

Originally captioned Davey v. Locke, this case involves a college student named Joshua Davey, who applied in 1999 for one of Washington state's "Promise Scholarships." The program is designed to facilitate college attendance by low to middle income students in the state who ranked in the top 10% of their high school classes.

Davey qualified, and in October of 1999 he received an award certificate for a a $1,125 grant and a letter from Governor Gary Locke congratulating him. But Davey, who had enrolled at Northwest College, a "Christian community of faith and learning" in Kirkland, Washington, declared a double major in Pastoral Ministries and Business Management. Within weeks, the state's Higher Education Coordinating Board ("HECB") sent a memorandum to Northwest announcing that the scholarship was being withdrawn because state law provides that "students who are pursuing degrees in theology are not eligible to receive any state-funded student financial aid, including the new Washington Promise Scholarship."

Several provisions of Washington state law apply:

Wash. Rev. Code § 28B.10.814, which provides that:

"No aid shall be awarded to any student who is pursuing a degree in theology," and

The Washington Constitution's Blaine Amendment, which provides in part:

"No public money or property shall be appropriated or applied to any religious worship, exercise or instruction, or the support of any religious establishment."

Davey filed suit on January 13, 2000, challenging the policy on grounds that it violates the Free Exercise and Free Speech clauses of the First Amendment of the U.S. Constitution, and federal and state constitutional rights to equal protection under the law.

On October 5, 2000, U.S. District Court Judge Barbara Rothstein issued an order(PDF format, 538K) granting the state's motion for summary judgment, finding that "as a matter of law, HECB is entitled to complete dismissal of Davey's complaint." She turned aside his First Amendment Free Exercise claim, interpreting Supreme Court precedent as holding 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." Moreover, she wrote, "religion-based conduct is not entitled to a Free Exercise exception to generally applicable regulations." Judge Rothstein made clear that the Washington Blaine Amendment language was dispositive: "Because the Washington Constitution prohibits the funding of religious instruction, both by its express terms and as interpreted by the state's highest court, HECB is entitled to judgment as a matter of law."

Davey appealed to the Ninth U.S. Court of Appeals, which heard arguments in the case on May 6, 2002, and reversed the District Court. In an opinion (PDF format) written by Circuit Judge Pamela Ann Rymer and issued on July 18, 2002, a two-judge majority held that "HECB's policy lacks neutrality on its face," and that "HECB impermissibly deprived Davey of his scholarship." The court applied strict scrutiny, and found that the Washington Blaine Amendment did not supply a compelling government interest. "Washington's interest in avoiding conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology."

"We hold that HECB's policy . . . infringes his right to the free exercise of his religion. . . Therefore, the criterion that conditions receipt of the Promise Scholarship on the recipient's not pursuing a degree in theology taught from a religious perspective must be stricken. HECB may not repy on Wash. Rev. Code § 28B.10.814 because its classification based on religion is unconstitutional as applied through HECB's policy to Davey." The appeals court declined, however, to consider Davey's other claims. "Given this disposition, it is not necessary to reach Davey's claims that HECB's policy abridges other constitutional rights as well. We express no view with respect to any of them." In other words, the court struck down the HECB policy, but not the Blaine Amendment and state statute giving it force.

Governor Locke then appealed, filing a petition for a writ of certiorari on February 24, 2003. The Supreme Court granted certiorari on on May 19, 2003. Becket Fund President Kevin J. Hasson issued a statement (see news release below) urging that the justices take the opportunity to strike down Washington's Blaine Amendment, and "for all practical purposes, similar provisions in 36 other state constitutions."

On September 8, 2003, The Becket Fund filed an amicus curiae brief (PDF format, 419K) with the Supreme Court, on behalf of itself, the Catholic League for Religious and Civil Rights, and various historians and legal scholars."

The Becket Fund brief notes that the Supreme Court can affirm the Ninth Circuit decision simply because it correctly identified the "core constitutional offense" in the case, disqualificiation of "a student from an otherwise available government benefit, only because the student would use the benefit for a religious purpose."

But the Supreme Court has the opportunity to do much more, the brief continues. "Laws that single out the religious generally — or those of a particular religion — for exclusion from government educational benefits are widespread in this country and share a common and pernicious heritage. . . This tradition of religious discrimination . . . emerged . . . as part of a broader cultural movement reacting against a growing religious minority, whose controversial beliefs directly threatened the dominant religious ideology of the day. American nativism succeeded not only in backing its hostility to Catholic immigrants (and especially their schools) with the force of law, but in cloaking that hostility with the rhetoric of religious freedom and the authority of the founders. This perversion of the great American tradition of religious freedom must end now. This case presents the Court with the opportunity to expose it and condemn it, once and for all — to tear out, root and branch, the state constitutional provisions that have enforced religious discrimination in the funding of education for well over a century."

The brief notes that "seven Justices now sitting on this Court have already acknowledged that nativism was the driving force behind both the federal Blaine Amendment and its state progeny." In Mitchell v. Helms, "the four Justice plurality opinion both acknowledged and condemned the nativism that led to the federal and state Blaine Amendments." And two years later, in Zelman v. Simmons-Harris, "three Justices provided a detailed account of the relevant history in dissent. Specifically, they recognized that the Blaine Amendment movement was a form of backlash against 'political efforts to right the wrong of discrimination against religious minorities in public education.'"

"To be sure," the Becket Fund brief continues, "the plurality in Mitchell and the dissent in Zelman disagree sharply on the legal consequences of this history." But "disagreement on the legal consequences of the underlying history does not alter the fact that a solid majority has agreed on the underlying history. Notwithstanding other differences, it remains that seven Justices agree that by excluding 'sectarian' schools from government funding, the federal and state Blaine Amendments were designed to exclude Catholic and other religious minority schools, and that this targeting came in hostile reaction to their growing numbers and resistance to Protestant hegemony."

When the proposed U.S. Constitutional amendment proposed by then-Speaker of the House of Representatives James G. Blaine failed to pass the Senate by a narrow margin (it had passed the House overwhelmingly) in 1876, the measure's supporters changed tactics and began (with great success) to propose similar constitutional amendments at the state level. For decades, Congress routinely included a requirement that state Blaine Amendments be adopted by new states as a condition for admission to the union. Washington was one of those states, and "The Washington Constitution is no exception to the broader pattern of state constitutions containing provisions designed specially to disadvantage Catholics in the area of education," the brief points out.

The Supreme Court heard oral arguments in the case on December 2, 2003.

On February 25, 2004, the U.S. Supreme Court issued a decision (PDF format, 397K) that reversed the Ninth Circuit decision, ruling that "we find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect."

The decision, written by Chief Justice William Rehnquist, noted that "the Establishment Clause and the Free Exercise Clause are frequently in tension," and that "we have long said that 'there is room for play in the joints' between them." Washington's decision not to fund "the pursuit of devotional degrees . . . places a relatively minor burden on Promise Scholars," and "far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits."

The Court made clear that it was not passing judgment on Washington's Blaine Amendment (Article IX, §4). In footnote 7, it noted that the Becket Fund's amicus brief offered a detailed historical description of the religious bigotry that underlies the Blaine Amendment, but concluded that it "is not at issue in this case." The Promise Scholarship provision excluding theological study was based on a different provision of the state constitution (Article I, §11) which prohibits funding for degrees that are "devotional in nature or designed to induce religious faith."

In a statement, Becket Fund President Kevin J. Hasson said that "We're disappointed about this particular battle, but more optimistic than ever about the war." Even as it made clear that "Washington's Blaine Amendment was "not at issue in this case," the Court "reaffirmed its long-standing principle that a law enacted as a result of hostility toward religion violates the constitution. And as we noted in our amicus brief in this case, seven of the nine sitting members of the Court have already acknowledged (in Mitchell v. Helms and Zelman v. Simmons-Harris) that Blaine Amendments were enacted out of nativist hostility to European immigrants and their religions. Thus, impending court challenges to state Blaine Amendments are, if anything, even stronger after today's decision."

(Locke v. Davey, U.S. Supreme Court, Case No. 02-1315; Davey v. Locke, U.S. Court of Appeals for the Ninth Circuit, Case No. 00-35962; Davey v. Locke, U.S. District Court for the Western District of Washington, Case No. C00-61R)

Media Coverage:

Taxes, Church Collision Splits Court (Los Angeles Times, by David G. Savage, December 3, 2003) [Links to latimes.com archive]

Case tests state ban on aid to study religion (Atlanta Journal-Constitution, by Steve Lash, December 3, 2003)

The Blaine Game (Wall Street Journal, newspaper editorial, December 2, 2003) [requires subscription]

A Case of Church and State and the States (Washington Post, by Charles Lane, December 1, 2003) [Links to washingtonpost.com archive]

Articles & News Items

• "Supreme Court has opportunity to end anti-religious bigotry in many states," May 19, 2003
• "Supreme Court decision in Locke v. Davey is good news in battle against Blaine Amendments," February 25, 2004