Locke v. Davey: Questions and Notes

Check out the Duke Law video on Locke v. Davey

1. Suppose a city enacted a zoning ordinance permitting colleges and universities to be located in commercial zoning districts "except for any college or university that offers a major in devotional theology." Apply the Establishment Clause to the exception. Suppose the exclusion read "except for any pervasively sectarian college or university."

2. Now apply the same analysis to Davey. Is it permissible for a state to fund a scholarship for students who are training for a religious ministry by pursuing degrees in non-devotional theology (at, say, a school like Yale or Harvard) while explicitly excluding students training for ministry by pursuing a degree in devotional theology? Does the EC permit the state to pay for the training of clergy for some denominations (e.g. Unitarians and Episcopalians) but not others (Baptists and Evangelicals)?

3. How would you have decided Locke v. Davey?

4. Suppose the next case involves a 4-year state "Promise Scholarship" that students can use to fund their education at any university or college except a "pervasively sectarian" college or university. John Doe has been awarded a Promise Scholarship ($2500 a year for 4 years) and wishes to major in pre-med at Liberty University a religious college that is classified as pervasively sectarian because of a required weekly chapel and a doctrinal statement for faculty. Mary Roe is also a Promise Scholar who wishes to major in religious studies at a non pervasively-sectarian religious college, such as Notre Dame or Creighton. Do you see how this case is very different from the facts of Davey? Apply the Free Exercise Clause and the Establishment Clause to this situation.

5. Now suppose the Federal Govt passes a law permitting all workers to participate in a government health insurance program providing health care to workers and their families at heavily subsidized rates ($100 per month for family coverage). If the govt excludes workers employed by religious ministries from participation in the program, does it violate the Fr Ex Cl? Does Davey control?