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?

Cheese Factories vs. Idea Laboratories

Here is a post from a past year's class about our discussion of Locke v. Davey as a free speech case:

I really enjoyed our discussion about Locke and free speech today and I particularly enjoyed how several of you were struggling with the argument that a scholarship program is a metaphysical forum for educative speech as opposed to just a product or service supplied by government.

Here is one way I think about this. I ask myself: "Are universities more like cheese factories, or more like idea laboratories?" If the former, then Rehnquist is right and a scholarship program is not a forum for speech. But if the latter....

By the way, could government provide a $5000 per annum stipend to all college professors on condition that the professors not teach socialist theory or feminist theory or theory critical of the War in Iraq in class during the period of the grant?

Forum Analysis in FN 3 Locke v. Davey

 Is Washington's exclusion of "devotional theology" majors from an otherwise generally available scholarship program unconstitutional viewpoint discrimination under Rosenberger?

Consider three different scholarship programs, each with its own unique exclusion:

Program One

Program One is the Promise Scholarship Program from Davey, a

generally applicable scholarship that can be used to fund any course

of study except "devotional theology."

Program Two

Program Two is also a generally applicable scholarship, but the restriction

is different--this scholarship can be used to fund any course

of study except "gender studies from a feminist perspective."

Program Three

Program Three is like the others except it can be used to fund any

course of study except "political science from a socialist perspective."

Does Rosenberger's metaphysical forum for speech apply in any of these cases?

If the dictum in Footnote Three of Davey controls, the Free

Speech Clause does not apply in any of these cases, because a scholarship

program is merely the delivery of a product or service, and is not

designed to create a forum or to encourage a diversity of views from

private speakers. Moreover, since the Free Speech Clause provides

the same protection to private religious speech and private secular

speech, there is no reason to think the forum rule should mean one

thing when applied to Program One and something else when applied

to Programs Two and Three.

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."

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?

Davey and Speech

Is Washington's exclusion of "devotional theology" majors from an otherwise generally available scholarship program unconstitutional viewpoint discrimination under Rosenberger?

The Court (edited: note 3) says that a  scholarship program is "not a forum for speech." In other words, it is just a program funding a product, not one designed "to encourage a diversity of views from private speakers." Do you agree?

 Suppose the scholarship program could be used to pursue any major except a major in "feminist gender studies" or "Keynesian economics" or "political science from a socialist perspective?"

Next Big Free Exersise Case?

Here is a link to SCOTUSblog's coverage of Fulton v. City of Philadelphia, Pennsylvania

Religion and the Welfare State

Almost every Establishment Clause case uses the word “neutrality” in describing the proper attitude of government toward religion.

What does neutrality mean in the context of benefits in the Welfare State? Religious citizens pay their share of taxes to fund the Welfare State, and so the question is whether they should also be eligible for an equal share of benefits.

Suppose Nebraska passes a law providing a $3,000 tax credit to any full-time k-12 teacher in any accredited school (including private schools) earning less than, say, $35,000. Is this a direct benefit to religious educators that advances religion under the EC?

What about a state income tax that applies to all teachers in both public and nonpublic schools. Is this a direct burden on religious educators that inhibits religion?

Suppose the State of Nebraska adopted a program that would pay $2,000 per year to anyone who would agree to eat only non-Kosher meats? Would this program violate the Establishment Clause? The Free exercise Clause?

Let’s apply law and economics here – at least at the margins, would you expect more, or less, or the same degree of compliance with Kosher dietary restrictions among Jewish citizens with this program in effect.

Suppose instead of a cash grant the government simply increased our taxes in exchange for a free weekly allotment of meat at Government Meat Shops. Although Jews were required to pay the tax along with everyone else, they receive little or no benefits from the program (because the government butcher shops do not carry Kosher products).

Is this law “neutral” concerning its impact on religion?

Does it violate the EC for the Food Stamp program to include Kosher foods as eligible for purchase with food stamps?

Would it violate the EC to exclude Kosher food from the Food Stamp program? What about the Free Exercise Clause?

Imagine a very large Welfare State, one with very high tax rates (say 80-90%) but also very generous benefit programs:


High demand religions in the Welfare State (Super Strict Amish denomination)
– strict dietary requirements (certain food)
– strict clothing requirements (certain clothing)
– strict educational requirements (must attend church schools k-12)
– strict requirements about books and recreational activities etc.

90% tax, but the taxes are returned in the form of social benefits
– meat allowance in Govt. Grocery stores (but "religious food" not stocked)
– clothing allowance in govt. dept. store (but no "religious clothing")
– free tuition in Govt. Schools (but no funding of religious K-12 schools)
– book allowance in govt. book stores (but no Bibles or religious books)
-free electric heat (but no firewood or coal)

How hard will it be for members of this Religious Denomination to live out their religious lifeways in this kind of State?