Locke v. Davey
Opinion of the Court
delivered the opinion of the Court.
The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In. accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.
The Washington State Legislature found that “[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient.” Wash. Rev. Code Ann. §28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the
To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score, of 27 or better on the American College Test. §§250-80-020(12)(a) to (d). The student’s family income must be less than 135% of the State’s median. §250-80-020(12)(e). Finally, the student must enroll “at least half time in an eligible postsecondary institution in the state of Washington,” and may not pursue a degree in theology at that institution while receiving the scholarship. §§250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. §28B. 10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). Private institutions, including those religiously affiliated, qualify as “ ‘[eligible postsecondary institution[s]’ ” if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code §250-80-020(13). A “degree in theology” is not defined in the statute, but, as both parties concede, the statute simply codifies the State’s constitutional prohibition on providing funds to students to pursue degrees that are “devotional in nature or designed to induce religious faith.” Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, § 11.
Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had “planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor.” App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id., at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program.
At the beginning of the 1999-2000 academic year, Davey met with Northwest’s director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest.
A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State’s exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F. 3d, at 757-758. Finding that the State’s own antiestablishment concerns were not compelling, the court declared Washington's Promise Scholarship Program unconstitutional. Id., at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse.
The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U. S. 455, 469 (1973) (citing Tilton v. Richardson, 403 U. S. 672, 677 (1971)). Yet we have long said that “there is room for play in the joints” between them. Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669 (1970). In
This case involves that “play in the joints” described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 13-14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S. 388, 399-400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters, supra, at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution,
Justice Scalia argues, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for .all secular professions, Justice Scalia contends the State must also fund training for religious professions. See post, at 726-727. But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (en banc) (holding public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”); App. 40 (Davey stating his “religious beliefs [were] the only reason for [him] to seek a college degree”). And the subject of religion is one in which both the United States and state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.
Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g., Ga. Const., Art. IV, §5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) (“All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own”); Pa. Const., Art. II (1776), in 5 id., at 3082 (“[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent”); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, § 1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, § 3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, §3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, § 3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as Justice Scalia contends, post, at 728, n. 1, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.
In short, 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 toward religion.
Without a presumption of unconstitutionality, Davey’s claim must fail. The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington.
The judgment of the Court of Appeals is therefore
Reversed.
The State does not require students to certify anything or sign any forms. App. 86, 89.
The relevant provision of the Washington Constitution, Art. I, §11, states:
“Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. 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.”
Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), contends that the Promise Scholarship Program is an unconstitutional viewpoint restriction on speech. But the Promise Scholarship Program is not a forum for speech. The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to “‘encourage a diversity of views from private speakers.’” United States v. American Library Assn., Inc., 539 U. S. 194, 206 (2003) (plurality opinion) (quoting Rosenberger, swpra, at 834). Our cases dealing with speech forums are simply inapplicable. See American Library Assn., supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 805 (1985).
Davey also argues that the Equal discrimination on the basis of religion. Because we hold, infra, at 725, that the program is not a violation of the Free Exercise Clause, however, we apply rational-basis scrutiny to his equal protection claims. Johnson v. Robison, 415 U. S. 361, 375, n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618 (1978) (reviewing religious discrimination claim under the Free Exercise Clause). For the reasons stated herein, the program passes such review.
Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.
Justice Scalia notes that the State’s “philosophical preference” to protect individual conscience is potentially without limit, see post, at 730; however, the only interest at issue here is the State’s interest in not funding the religious training of clergy. Nothing in our opinion suggests that the State may justify any interest that its “philosophical preference” commands.
Perhaps the most famous example of public backlash is the defeat of “A Bill Establishing A Provision for Teachers of the Christian Religion” in the Virginia Legislature. The bill sought to assess a tax for “Christian teachers,” reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 72, 74 (1947) (supplemental appendix to dissent of Rutledge, J.); see also Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was to support “clergy in the performance of their function of teaching religion”), and was rejected after a public outcry. In its stead, the “Virginia Bill for Religious Liberty,” which was originally written by Thomas Jefferson, was enacted. This bill guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950).
The amici contend that Washington’s Constitution was born of religious bigotry because it contains a so-called “Blaine Amendment,” which has been linked with anti-Catholicism. See Brief for United States as Amicus Curiae 23, n. 5; Brief for Becket Fund for Religious Liberty et al. as Amici Curiae; see also Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). As the State notes and Davey does not dispute,
Washington has also been solicitous in ensuring not hostile toward religion, see State ex rel. Gallwey v. Grimm, 146 Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) (en banc) (“[I]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion” (internal quotation marks omitted)), and at least in some respects, its constitution provides greater protection of religious liberties than the Free Exercise Clause, see First Covenant Church of Seattle v. Seattle, 120 Wash. 2d 203, 223-229, 840 P. 2d 174, 186-188 (1992) (en banc) (rejecting standard in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), in favor of more protective rule); Munns v. Martin, 131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (en banc) (holding a city ordinance that imposed controls on demolition of historic structures inapplicable to the Catholic Church’s plan to demolish an old school building and build a new pastoral center because the facilities are intimately associated with the church’s religious mission). We have found nothing in Washington’s overall approach that indicates it “single[s] out” anyone “for special burdens on the basis of. . . religious calling,” as Justice Scalia contends, post, at 731.
The State notes that it is an open question whether the Washington Constitution prohibits nontheology majors from taking devotional theology courses. At this point, however, the Program guidelines only exclude students who are pursuing a theology degree. Wash. Admin. Code § 250— 80-020(12)(g) (2003).
Although we have sometimes characterized the Establishment Clause as prohibiting the State from “disapproving] of a particular religion or of religion in general,” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (citing cases), for the reasons noted supra, the State has not impermissibly done so here.
Dissenting Opinion
with whom Justice Thomas joins, dissenting.
In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the majority opinion held that “[a] law burdening religious practice that is not neutral... must undergo the most rigorous of scrutiny,” id., at 546, and that “the minimum requirement of neutrality is that a law not discriminate on its face,” id., at 533. The concurrence of two Justices stated that “[w]hen a law discriminates against religion as such, ... it automatically will fail strict scrutiny.” Id., at 579 (Blackmun, J., joined by O’Connor, J., concurring in judgment). And the concurrence of a third Justice endorsed the “noncontroversial principle” that “formal neutrality” is a “necessary conditio[n] for free-exercise constitutionality.” Id., at 563 (Souter, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion.
HH
We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947):
“New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id., at 16 (emphasis deleted).
When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds
That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code Ann. §28B.l 19.010(8) (West Supp. 2004); Wash. Admin. Code §250-80-020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439,453 (1988). He seeks only equal treatment — the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys.
The Court’s reference to historical “popular uprisings against procuring taxpayer funds to support church leaders,” ante, at 722, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison’s Remonstrance was directed provided: “[F]or the support of Christian teachers ... [a] sum payable for tax on the property within this Commonwealth, is hereby assessed ....” A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson, supra, at 72. Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers’ hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Fram
The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” Ante, at 719. I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.
Even if “play in the joints” were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that “the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional
In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect.
What is the nature of the State’s asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen^ tax bill at stake is de minimis. It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, “[n]o reasonable observer is likely to draw ... an inference that the State itself is endorsing a religious practice or belief.” Id., at 493 (O’Connor, J., concurring in part and concurring in judgment). Nor can Washington’s exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on
No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality — none of these. It is a pure philosophical preference: the State’s opinion that it would violate taxpayers’ freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of “freedom of conscience” has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.
The Court makes no serious attempt to defend the program’s neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey’s burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual’s religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 885 (1990). Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of “substantial” concrete harm with other forms of discrimination, see, e. g., Brown v. Board of Education, 347 U. S. 483, 493-495 (1954); cf. Craig v. Boren, 429 U. S. 190 (1976), and it should not do so here.
Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise — whether by tax or by forfeiture of an otherwise available benefit — religious practice is anything but free. The Court’s only response is that “Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.” Ante, at 721, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the “benefit” the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen
The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature’s motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen’s rights have been infringed. “[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens.” Lukumi, 508 U. S., at 559 (Scalia, J., concurring in part and concurring in judgment).
The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of “animus” against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See Brown, supra, at 493-495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women’s appropriate social role. See, e. g., United States v. Virginia, 518 U. S. 515, 549-551 (1996); Adkins v. Children’s Hospital of D. C, 261 U. S. 525, 552-553 (1923). We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U. S. 541, 546 (1999).
There is no need to rely on analogies, however, because we have rejected the Court’s methodology in this very con
It may be that Washington’s original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects — those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry — are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e. g., Romer v. Evans, 517 U. S. 620, 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.
Equally misplaced is the Court’s reliance on founding-era state constitutional provisions that prohibited the use of tax funds to support the ministry. Ante, at 723. There is no doubt what these provisions were directed against: measures of the sort discussed earlier in text, singling out the clergy for public support. See supra, at 727. The Court offers no historical support for the proposition that they were meant to exclude clergymen from general benefits available to all citizens. In choosing to interpret them in that fashion, the Court needlessly gives them a meaning that not only is contrary to our Religion Clause jurisprudence, but has no logical stopping point short of the absurd. No State with such a constitutional provision has, so far as I know, ever prohibited the hiring of public employees who use their salary to conduct ministries, or excluded ministers from generally available disability or unemployment benefits. Since the Court cannot identify any instance in which these provisions were applied in such a discriminatory fashion, its appeal to their “plain text,” ante, at 723, adds nothing whatever to the “plain text” of Washington’s own Constitution.
The Court argues that those pursuing theology majors are not comparable to other Promise Scholars because “training for religious professions and training for secular professions are not fungible.” Ante, at 721. That may well be, but all it proves is that the State has a rational basis for treating religion differently. If that is all the Court requires, its holding is contrary not only to precedent, see supra, at 726, but to common sense. If religious discrimination required only a rational basis, the Free Exercise Clause would impose no constraints other than those the Constitution already imposes on all government action. The question is not whether theology majors are different, but whether the differences are substantial enough to justify a discriminatory financial penalty that the State inflicts on no other major. Plainly they are not.
Equally unpersuasive is the Court’s argument that the State may discriminate against theology majors in distributing public benefits because the Establishment Clause and its state counterparts are themselves discriminatory. See ante, at 721, 723. The Court’s premise is true at some level of abstraction — the Establishment Clause discriminates against religion by singling it out as the one thing a State may not establish. All this proves is that a State has a compelling interest in not committing actual Establishment Clause violations. Cf. Widmar v. Vincent, 454 U. S. 263, 271 (1981). We have never inferred from this principle that a State has a constitutionally sufficient interest in discriminating against religion in whatever other context it pleases, so long as it claims some connection, however attenuated, to establishment concerns.
McDaniel had no opinion for the Court, but nothing in the separate opinions suggests disagreement over the issues relevant here. Cf. 435 U. S., at 636, n. 9 (Brennan, J., concurring in judgment) (noting dispute over statute’s purpose but deeming it irrelevant).
Dissenting Opinion
dissenting.
Because the parties agree that a “degree in theology” means a degree that is “devotional in nature or designed to induce religious faith,” Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join Justice Scalia’s dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue “a degree in theology.” See Wash. Admin. Code §250-80-020(12)(g) (2003) (defining an “‘[eligible student,’” in part, as one who “[i]s not pursuing a degree in theology”); Wash. Rev. Code Ann. §28B.10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). But the statute itself does not define “theology.” And the usual definition of the term “theology” is not limited to devotional studies. “Theology” is defined as “[t]he study of the nature
Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that Justice Scalia’s application of our precedents is correct. Because neither party contests the validity of these precedents, I join Justice Scalia’s dissent.
Reference
- Full Case Name
- LOCKE, GOVERNOR OF WASHINGTON, Et Al. v. DAVEY
- Cited By
- 228 cases
- Status
- Published