Friday, February 28, 2020

Locke v. Davey: What is Permitted under the EC vs. What is required under the FEC

Notice that the Court unanimously now believes that "there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology."

So the issue in Davey was not whether the EC permits states to include religious colleges and religious majors in a general scholarship program involving true private choice. There is "no doubt" about this--the states may do so!

Rather, Davey concerns whether the Free Exercise Clause requires states to include devotional theology majors in generally available scholarship programs such as Washington's Promise Scholarship Program. Does discriminatory exclusion of devotional theology majors such as Joshua Davey impose a substantial burden on free exercise triggering strict scrutiny under Lukumi? The Court says no, the burden is slight not substantial.

Question: Suppose a state does not provide any scholarships for college students. If such a state imposes a $1000 per annum tax on students pursuing a degree in devotional theology, does it violate the Constitution?

Or, suppose the state offered a $1000 per annum payment to college students who agreed not to major in devotional theology? Or a $1000 payment to students who agree not to attend religious services during the year?

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