Locke v. Davey

As you probably know by now, the Supreme Court issued an opinion yesterday in Locke v. Davey, which was about whether the state of Washington could run a scholarship program that was available to all college students for any course of study -- except for those students who majored in "devotional theology." The Supreme Court upheld the exclusion.

Two observations:

1. Imagine two possible worlds. In world one, the state of Washington taxes all its citizens, and then gives everyone a $1500 scholarship, as long as they don't major in theology. In world two, the state of Washington doesn't tax anyone and doesn't provide any scholarships, but it levies a fine of $1500 on any student who majors in theology. In world two, I'd bet that just about everyone would admit that Washington was penalizing the free exercise of religion by actually fining theology students. But how is world one (which happens to be the actual world) any different? In either world, the government has decided that theology majors should be $1500 worse off than all other students.

2. The central portion of the majority opinion is also the weakest:

We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. 508 U.S., at 535. In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not require students to choose between their religious beliefs and receiving a government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction.

The program does not require students to "choose between their religious beliefs and receiving a government benefit"? Huh? What if someone thinks that his religious beliefs require him to study theology? It's not so far-fetched a possibility, after all, that someone's religious beliefs might have something to do with theology. But if he follows that particular religious belief, he is suddenly ineligible for the scholarship program that is available to everyone else for every other course of study.

In fact, the very next paragraph of the opinion immediately reverses course, hinting that it would be problematic to fund theology study precisely because such a course of study arises from religious belief:

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) (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”).

I don't see how those two paragraphs can be squared with each other. If a theological course of study is "akin to a religious calling" for purposes of whether the state can give a nod to Establishment Clause concerns, then it is also "akin to a religious calling" for purposes of whether the state can deny a generally-available benefit.