540 U.S. 712 (2004), argued 2 Dec. 2003, decided 25 Feb. 2004 by vote of 7 to 2; Rehnquist for the Court, Scalia and Thomas in dissent. The state of Washington established a gifted student postsecondary scholarship program. Consistent with a constitutional mandate that public monies not support religious instruction, the scholarship was unavailable to candidates pursuing theology degrees. Davey, awarded such a scholarship, enrolled at a private, church‐affiliated college. When he declined to certify that he was not pursuing a degree in devotional theology, the scholarship was withdrawn. In a carefully worded opinion, the Court held that the exclusion of degrees in devotional theology from the otherwise inclusive aid program did not violate the Free Exercise Clause.
Justice Oliver Wendell Holmes believed that judicial review of legislation should allow some play “for the joints of the machine.” In Locke v. Davey, that metaphor was oft invoked in the Court's analysis of the “play in the joints” between the
In Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), the Court applied a “strict scrutiny” standard to invalidate a facially neutral ordinance whose effect was to outlaw certain religious animal sacrifices. The Court rebuffed Davey's attempt to create a Lukumi‐based theory of “presumptive unconstitutionality.” The Washington statute did not impose any criminal or civil sanction on religious practice. Also, because speech forum issues were not presented, the Court rejected Davey's claim that the scholarship exclusion infringed on a right of free speech recognized in Rosenberger v. University of Virginia (1995).
In dissent, Justices Antonin Scalia and Clarence Thomas looked through the same lens but from the opposite direction. When public benefits are generally available, the Free Exercise Clause is violated when a benefit is withheld on the basis of religion. Davey sought only equal treatment, the right to apply his scholarship to his chosen course of study. As for the majority's historical analysis, it was flawed. The early state prohibitions had been directed only against preferential financial support. Lastly, no state interest in sustaining the exclusion had been demonstrated. The cost to taxpayers to grant scholarships to a few theology students was de minimis; no state‐endorsed religion was created by allowing the financial aid; and the exclusion was not necessary to maintain governmental neutrality. Locke v. Davey makes clear that the Court's Establishment Clause analysis may turn on the facts of each case and situation.
— George T. Anagnost
