Locke v. Davey
The Supreme Court upheld Washington State's decision to exclude devotional theology degrees from its Promise Scholarship program, ruling that the exclusion did not violate the First Amendment's Free Exercise Clause.
The Court found that states have some room to decline funding for the training of clergy even though the Constitution would not require them to exclude it, recognizing a zone of flexibility between the Constitution's two religion clauses.
“there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause”
Explaining the 'play in the joints' idea that lets states decline to fund religious training.
How it got here: A federal district court ruled for the State; a divided Ninth Circuit panel reversed, finding the exclusion religiously discriminatory; the State sought and won Supreme Court review.
The Case in Depth
What happened
Washington created a scholarship for high-achieving, lower-income students to use at accredited colleges, but state law barred using the funds for a "degree in theology." Joshua Davey won the scholarship and enrolled at a Christian college to pursue a pastoral ministries degree, planning to become a church pastor. When told he could not use the scholarship for that major, he refused to certify otherwise and received no funds, then sued.
The question before the Court
Could Washington State refuse to let a college scholarship be used for a degree preparing students to become ministers, even though the scholarship covered almost every other major?
The Court's answer
No — the Court ruled that Washington could exclude devotional theology majors from its Promise Scholarship program without violating the Free Exercise Clause. Although the Constitution would have allowed the State to fund such degrees, it did not require the State to do so, leaving room for Washington's own stronger tradition against using tax money to support the ministry.
The Court reasoned that training clergy is different enough from training for secular careers that treating it differently reflects the State's historic antiestablishment concerns rather than hostility toward religion. Because the burden on scholarship recipients was relatively minor and the State's interest was substantial, the exclusion survived constitutional challenge.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
States that offer general college scholarships or financial aid can continue to exclude devotional ministry training from those programs without running afoul of the Free Exercise Clause, giving states leeway to enforce stricter church-state separation rules than the federal Constitution requires, while students seeking to become pastors or ministers may still find themselves ineligible for otherwise-available government aid.
What changes now
This is a final merits decision, not a temporary order. The Ninth Circuit's ruling in Davey's favor is undone, and the State's original summary judgment win is effectively restored, meaning the scholarship exclusion for devotional theology majors remains in effect. The decision does not require other states to adopt similar exclusions but confirms they may do so without violating the Free Exercise Clause.
What this does not decide
The Court stressed its holding was limited to funding for training the clergy specifically, and it did not decide whether a state could deny other kinds of generally available benefits — like public employment salaries or disability benefits — to people because of their religious activities.
Concurrences and dissents
Dissent — Justice Scalia
Justice Scalia argued the program facially discriminates against religion by singling out theology as the one course of study excluded from an otherwise generally available scholarship, which should trigger strict scrutiny under the Court's own precedent. He rejected the 'play in the joints' reasoning as an excuse to avoid applying any principle, found the State's asserted interest merely a 'philosophical preference' with no logical limit, and would have struck down the exclusion.
Dissent — Justice Thomas
Justice Thomas joined Scalia's dissent but wrote separately to note that 'theology' need not mean devotional study — dictionaries define it more broadly to include secular, rational inquiry into religious questions. He accepted the parties' shared assumption that the statute reached only devotional theology degrees for purposes of deciding the case, but flagged the definitional issue as worth noting.
How the Court got there
The legal reasoning, step by step
- The Court explained that the Establishment Clause and Free Exercise Clause sometimes create 'play in the joints' — situations where a state may choose not to fund something even though the Constitution would not require it to refuse funding.
- Because Washington's own antiestablishment tradition let the State decline to fund religious instruction that trains ministers, the Court asked whether the Free Exercise Clause nonetheless forced the State to fund it anyway.
- The Court declined to apply the strict, presumptively-unconstitutional standard from a prior case involving a law that criminally targeted a specific religion's ritual practices, reasoning that Washington's mild funding exclusion was nothing like that kind of targeted punishment.
- The Court found that training clergy is meaningfully different from training for secular careers, so declining to fund only the former did not show hostility toward religion, especially given the long American tradition of not using tax money to support the ministry.
- Weighing the State's substantial historic interest in not funding clergy training against the comparatively minor burden placed on scholarship recipients who wanted to pursue that major, the Court concluded the exclusion was constitutionally permissible.
Doctrinal impact
Cases affected by this decision
Distinguishes Church of Lukumi Babalu Aye, Inc. v. Hialeah (508 U.S. 520)
The Court said this case is nothing like Lukumi's criminal targeting of a specific religion's rituals, so that case's strict test doesn't apply.