Locke v. Davey

By Mark Brnovich
web posted September 15, 2003

Imagine a controversial legal case involving the free exercise of religion. A case with far-reaching implications throughout the United States, involving prominent political figures and emotional rhetoric.

You might think I'm referring to the case involving Alabama Supreme Court Judge Roy Moore and the Ten Commandments. But I'm actually referring to Locke v. Davey, a case that will likely eclipse the events in the Alabama courthouse. The Locke case, pending before the United States Supreme Court, will not only impact the issue of church and state, but will have profound implications for public education throughout the nation.

At the center of Locke v. Davey is Joshua Davey, a student who was awarded a college scholarship in the state of Washington based upon neutral and objective criteria. After he enrolled in school, Mr. Davey was notified that he was no longer eligible to receive his scholarship because he had chosen to major in theology.

Davey at his commencement ceremony earlier this year

Mr. Davey sued Washington Governor Gary Locke, alleging that his federal constitutional rights had been violated. Washington's state constitution and statutes prohibit any money from being used for "religious" purposes. According to the state of Washington, that prohibition includes scholarships to otherwise worthy recipients who decide to pursue theology degrees.

The Ninth Circuit Court of Appeals, although it is often regarded among legal scholars as the most "liberal" of all the federal circuit courts, recognized the blatant discrimination of the Washington scholarship program. In a 2-1 decision, the Appellate Court held that the constitutional provision and state statutes prohibiting Mr. Davey from receiving scholarship money violated his right to free exercise of religion under the First Amendment of the United States Constitution.

The Court explained that by denying Mr. Davey a benefit he would otherwise receive, solely because of the exercise of his religious beliefs, the state of Washington interfered with his free exercise of religion. Such actions by the state dissuade individuals from exercising an otherwise protected constitutional right and are therefore unconstitutional.

Washington's constitutional provision and statutes are not unique. Thirty-six states have similar provisions. While seemingly neutral on their face, such provisions were enacted over the last 125 years because of a proposal by anti-Catholic Congressman James G. Blaine. In 1875, he first proposed a constitutional amendment designed to prevent any public funding for religious schools. The amendment was narrowly defeated, but Congress passed legislation requiring new applicants for statehood to include such a provision in their state constitutions. Thus, several state constitutions still contain the provision, which the Arizona Supreme Court recently described as a "clear manifestation of religious bigotry."

Unfortunately, "Blaine Amendments" are once again being used as a weapon against the free exercise of faith. And it's not just Catholics who are being subjected to discrimination, but all parents and students who wish to pursue religiously based educational opportunities. Opponents of educational vouchers have seized upon the amendments as weapons in their assaults on school choice. "Blaine Amendments" have been used successfully in Maine, Vermont and Puerto Rico to block voucher programs in primary and secondary education. Joshua Davey is only the latest victim.

Accordingly, the plight of Joshua Davey has attracted the interest of organizations promoting school choice. For this reason, the Institute for Justice and the Goldwater Institute have filed an amici curaie brief in the case of Locke v. Davey, urging the United States Supreme Court to uphold the decision of the Ninth Circuit Court of Appeals. The brief argues that government must continue to remain "neutral" in matters concerning religion and not punish persons or remove their benefits because of their religious beliefs.

So, as the cameras click away in the Alabama courthouse, a far more important case is quietly making its way to the United States Supreme Court. At stake is the educational fate of millions of schoolchildren and the freedom of parents to choose where they may send their children to school.

Mark Brnovich is director of the Goldwater Institute's Center for Constitutional Government.

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