LOCKE, GOVERNOR OF WASHINGTON, ET AL. v. DAVEY
No. 02-1315
Supreme Court of the United States
Argued December 2, 2003—Decided February 25, 2004
540 U.S. 712
Narda Pierce, Solicitor General of Washington, argued the cause for petitioners. With her on the briefs were Christine O. Gregoire, Attorney General, William Berggren Collins,
Jay Alan Sekulow argued the cause for respondent. With him on the brief were Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, David A. Cortman, Alan E. Sears, and Benjamin W. Bull.
Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Acosta, Deputy Solicitor General Clement, Gregory G. Garre, David K. Flynn, and Eric W. Treene.*
*Briefs of amici curiae urging reversal were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Timothy B. Tomasi, Chief Assistant Attorney General, by Anabelle Rodríguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, and Clyde Lemons, Jr., of the Northern Mariana Islands; for the American Civil Liberties Union et al. by Aaron H. Caplan, Steven R. Shapiro, Julie E. Sternberg, Ayesha N. Khan, Elliot M. Mincberg, and Susan L. Sommer; for the American Jewish Congress et al. by Marc D. Stern, K. Hollyn Hollman, Jeffrey Sinensky, Kara Stein, and David Strom; for the Anti-Defamation League et al. by David Lash, Steven M. Freeman, Steven C. Sheinberg, Martin E. Karlinsky, Erwin Chemerinsky, and Frederick M. Lawrence; for the National Education Association by Robert H. Chanin, Andrew D. Roth, and Laurence Gold; and for the National School Boards Association et al. by David H. Remes and Julie Underwood.
Briefs of amici curiae urging affirmance were filed for the State of Alabama by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Margaret L. Fleming, Assistant Attorney General; for the State of Florida et al. by Charles J. Crist, Jr., Attorney General of Florida, Christopher M. Kise, Solicitor General, Raquel A. Rodriguez, and Daniel Woodring; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Rafael Edward Cruz, Solicitor General, Joseph D. Hughes and Cassandra Robertson, Assistant Solicitors General, Mike Moore, Attorney General of Mississippi, and Mark L. Shurtleff, Attorney General of Utah; for the Associa-
Briefs of amici curiae were filed for the Common Good Legal Defense Fund et al. by John G. Stepanovich and Keith A. Fournier; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for Robert S. Alley et al. by Steven K. Green.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.
The Washington State Legislature found that “[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient.”
To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. §§ 250–80–020(12)(a) to (d). The student‘s family income must be less than 135% of the State‘s median. § 250–80–020(12)(e). Finally, the student must enroll “at least half time in an eligible postsecondary institution in the state of Washington,” and may not pursue a degree in theology at that institution while receiving the scholarship. §§ 250–80–020(12)(f) to (g); see also
Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had “planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor.” App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id., at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program.
At the beginning of the 1999–2000 academic year, Davey met with Northwest‘s director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest.1 He refused to sign the form and did not receive any scholarship funds.
A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State‘s exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F. 3d, at 757–758. Finding that the State‘s own antiestablishment concerns were not compelling, the court declared Washington‘s Promise Scholarship Program unconstitutional. Id., at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse.
The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U. S. 455, 469 (1973) (citing Tilton v. Richardson, 403 U. S. 672, 677 (1971)). Yet we have long said that “there is room for play in the joints” between them. Walz v. Tax Comm‘n of City of New York, 397 U. S. 664, 669 (1970). In
This case involves that “play in the joints” described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 13–14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S. 388, 399–400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters, supra, at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution,2 which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see Witters v. State Comm‘n for the Blind, 112 Wash. 2d 363, 369–370, 771 P. 2d 1119, 1122 (1989) (en banc); cf. Witters v. State Comm‘n for the Blind, 102 Wash. 2d 624, 629, 689 P. 2d 53, 56 (1984) (en banc) (“It is not the role of the State to pay for the religious education of future ministers“), rev‘d, 474 U. S. 481 (1986), can deny them such funding without violating the Free Exercise Clause.
JUSTICE SCALIA argues, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for all secular professions, JUSTICE SCALIA contends the State must also fund training for religious professions. See post, at 726–727. But training for religious professions and training for secular professions are not fungible. 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) (en banc) (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“). And the subject of religion is one in which both the United States and state constitutions embody distinct views—in favor of free exercise, but opposed to establishment—that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.
Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g.,
however, the provision in question is not a Blaine Amendment. Tr. of Oral Arg. 5; see Reply Brief for Petitioners 6–7. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, required the state constitution to include a provision “for the establishment and maintenance of systems of public schools, which shall be . . . free from sectarian control.” Act of Feb. 22, 1889, ch. 180, § 4, Fourth, 25 Stat. 676. This provision was included in Article IX, § 4, of the Washington Constitution (“All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence“), and is not at issue in this case. Neither Davey nor amici have established a credible connection between the Blaine Amendment and Article I, § 11, the relevant constitutional provision. Accordingly, the Blaine Amendment‘s history is simply not before us.
In short, we find neither in the history or text of Article I, § 11, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward religion.10 Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.
Without a presumption of unconstitutionality, Davey‘s claim must fail. The State‘s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington.
The judgment of the Court of Appeals is therefore
Reversed.
In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the majority opinion held that “[a] law burdening religious practice that is not neutral . . . must undergo the most rigorous of scrutiny,” id., at 546, and that “the minimum requirement of neutrality is that a law not discriminate on its face,” id., at 533. The concurrence of two Justices stated that “[w]hen a law discriminates against religion as such, . . . it automatically will fail strict scrutiny.” Id., at 579 (Blackmun, J., joined by O‘CONNOR, J., concurring in judgment). And the concurrence of a third Justice endorsed the “noncontroversial principle” that “formal neutrality” is a “necessary conditio[n] for free-exercise constitutionality.” Id., at 563 (SOUTER, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today‘s decision, which sustains a public benefits program that facially discriminates against religion.
I
We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947):
“New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id., at 16 (emphasis deleted).
When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds
That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology.
The Court‘s reference to historical “popular uprisings against procuring taxpayer funds to support church leaders,” ante, at 722, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison‘s Remonstrance was directed provided: “[F]or the support of Christian teachers . . . [a] sum payable for tax on the property within this Commonwealth, is hereby assessed . . . .” A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson, supra, at 72. Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers’ hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Fram-
The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “‘play in the joints.‘” Ante, at 719. I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.
Even if “play in the joints” were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that “the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional
Notes
In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect.
What is the nature of the State‘s asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen‘s tax bill at stake is de minimis. It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, “[n]o reasonable observer is likely to draw . . . an inference that the State itself is endorsing a religious practice or belief.” Id., at 493 (O‘CONNOR, J., concurring in part and concurring in judgment). Nor can Washington‘s exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fise through sales taxes on
No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality—none of these. It is a pure philosophical preference: the State‘s opinion that it would violate taxpayers’ freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of “freedom of conscience” has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.2
The Court makes no serious attempt to defend the program‘s neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey‘s burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual‘s religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 885 (1990). Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one‘s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of “substantial” concrete harm with other forms of discrimination, see, e. g., Brown v. Board of Education, 347 U. S. 483, 493–495 (1954); cf. Craig v. Boren, 429 U. S. 190 (1976), and it should not do so here.
Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise—whether by tax or by forfeiture of an otherwise available benefit—religious practice is anything but free. The Court‘s only response is that “Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.” Ante, at 721, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the “benefit” the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen
The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature‘s motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen‘s rights have been infringed. “[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens.” Lukumi, 508 U. S., at 559 (SCALIA, J., concurring in part and concurring in judgment).
The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of “animus” against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See Brown, supra, at 493–495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women‘s appropriate social role. See, e. g., United States v. Virginia, 518 U. S. 515, 549–551 (1996); Adkins v. Children‘s Hospital of D. C., 261 U. S. 525, 552–553 (1923). We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U. S. 541, 546 (1999).
There is no need to rely on analogies, however, because we have rejected the Court‘s methodology in this very con-
It may be that Washington‘s original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State‘s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects—those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry—are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e. g., Romer v. Evans, 517 U. S. 620, 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.
JUSTICE THOMAS, dissenting.
Because the parties agree that a “degree in theology” means a degree that is “devotional in nature or designed to induce religious faith,” Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join JUSTICE SCALIA‘S dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue “a degree in theology.” See Wash. Admin. Code § 250–80–020(12)(g) (2003) (defining an “‘eligible student,‘” in part, as one who “[i]s not pursuing a degree in theology“);
Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that JUSTICE SCALIA‘s application of our precedents is correct. Because neither party contests the validity of these precedents, I join JUSTICE SCALIA‘s dissent.