Locke v. Davey: A Few Take-away Points

1.P. 1804: The unanimous opinion of the Court is that there is "no doubt" that the State could have allowed Promise Scholars "to pursue a degree in devotional theology." This is the EC question and it is now an easy one (no doubt).

2. Since the law targets devotional theology majors for a denial of scholarship benefits, why no Free Exercise violation. In other words, why doesn't the Free Exercise Clause require the state to include devotional theology majors in a program open to every other major?

--no substantial burden (p. 1805: the state's disfavor of religion is "mild" not substantial; "relatively minor burden"). Do you agree?

--room for "play in the joints" between what the Establishment Clause permits and the Free Exercise requires. The Court sees this as an area in which states are free to go either way--they may include devotional theology majors without violating the EC, and they may exclude them without violating the FEC

--but again, this exclusion singles out a small class of students, based upon their religious choice of major, for a financial penalty that no other Promise Scholar must suffer. As Scalia puts it in his dissent, "Let there be no doubt: This case is about discrimination against a religious minority."