The Real Losers of Locke v. Davey
Joshua Davey


On February 25, I lost a case before the Supreme Court of the United States. It was the final word in a lawsuit I filed over four years earlier, and the end to my legal challenge of a Washington state law that prohibits state college scholarship funds from going to students majoring in theology. I was not just any plaintiff, however; I may be the first person in the history of Harvard Law School to have been party to a Supreme Court case while a student. As Harvard Law Professor Charles Ogletree noted, it is difficult to be the first of anything at the law school, and my participation in the case has made for an interesting and unique first-year law school experience.

But as disappointing as the loss was to me personally, and as much as I had hoped to win and believed in my cause, I am convinced that I am not the real loser of Locke v. Davey. Certainly, I was the losing party, and at seven justices to two, the vote was one-sided. And there is no doubt that the personal cost was substantial. I gave up nearly $3000 in scholarship money on principle; the court’s decision in February means I will never see any of that money. Despite this, however, one could fairly argue that things did not turn out so bad for me. I still graduated college with honors. Indeed, I am now studying at Harvard Law School, and will likely have countless opportunities available to me upon graduation. So the loss of the Washington Promise Scholarship hardly seems to have ruined my future; indeed, inasmuch as this case helped me decide to pursue a legal education in the first place, one might say that despite the outcome I have come out ahead. But this is not true of everyone who had a stake in the outcome of my case. When the Supreme Court failed to take a stand against religious discrimination by requiring Washington State to treat all its citizens— even its religious ones— equally, many people lost much more than I did.

The story of my case began in 1999, when as a senior in high school I was awarded a Washington Promise Scholarship, available to all Washington students who qualified on the basis of academic merit and financial need. The scholarship was to last two years, could be used at any accredited school in Washington, and was worth the cost of an average community college tuition in the state of Washington. I had long intended to pursue a career in the ministry, and with this in mind, I enrolled at Northwest College in Kirkland, Washington, declaring a major in theology. I would use the funds from the scholarship to help me achieve my educational and career goal.

In October of my freshman year, I encountered a major obstacle to my plan; the financial aid director of my college informed me that I was not eligible to receive the Promise Scholarship funds because I had chosen to major in theology. Washington’s constitution, like those of over thirty other states, prohibits the appropriation of any public funds for religious instruction. This left me with a choice: change my major and keep the scholarship, or forego the scholarship in order to keep my major. I chose the latter. I had come to college to prepare for a career in the ministry, and to change my major simply to receive the scholarship would have been wrong. Instead, I sued the governor and a number of state education officials for violation of my constitutional rights of free speech, free exercise of religion, and equal protection under the laws. While I lost in federal district court, I won on appeal to the Ninth Circuit, whose judgment was reversed by the Supreme Court in their recent decision.

The Supreme Court’s decision was not merely a loss for me, but also for anyone who cares about the religious freedom our Constitution was designed to protect, which has now been seriously eroded by Davey. Indeed, the protection of individual religious liberty was a major motivating factor behind the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses are two sides of the same coin; the establishment clause prohibits the government from impinging upon free exercise, while the free exercise clause demands there be no government-sponsored religious establishment. The result of the interplay of these two clauses should be a government which acts neutrally toward religion, favoring no one religious group over another, nor non-religion over religion.

Under this interpretation, states like Washington would be free to establish public benefits programs like the Promise Scholarship and determine the criteria for participation. States could require that the scholarship only be used at public schools, or they could limit the scholarship to specific majors (e.g., nursing, education, engineering) that it has an interest in encouraging people to study. But if states choose to make the scholarship generally available, qualified persons should not be rejected on religious grounds. States should not be permitted to discriminate between religion and non-religion, among various religions, or among various sects of one religion. This sort of religious discrimination exhibits not neutrality, but hostility toward religion. It is to single out religious individuals and institutions for disfavorable treatment.

After the Supreme Court’s decision two years ago in Zelman v. Simmons-Harris, it is clear that it is constitutionally permissible for states to establish these sorts of religion-neutral benefit programs. In Zelman, the constitutionality of a Cleveland school voucher program was challenged by several groups claiming that the inclusion of religious and parochial schools in the program was unconstitutional. Clearly, taxpayer funds were routed to religious schools as part of the program; the vast majority of the private schools that participated were religious. Despite this, the Supreme Court ruled the program constitutional in what has been rightly called the most important education decision since Brown v. Board of Education (1). Crucial to the constitutionality of the program is the private choice involved. The tax money that ultimately finds it way to religious and parochial schools as part of this kind of voucher program does not travel directly from the state to the religious institution—which would be unconstitutional—but rather passes through the hands of the parents first. It is the parents, after receiving a voucher, who make the decision as to whether it will go to a secular or religious school. Thus, Zelman is a perfect example of indirect government funding of religious organizations and institutions, a type of funding that is perfectly constitutional.

It is my position that such indirect funding of religious individuals or institutions in public benefit programs is not only constitutionally permissible, but constitutionally required where the benefit program is generally available based upon religion-neutral criteria. This was my contention in Davey, though it was not upheld by the court’s decision. This is the view, however, that comports with most people’s sense of fairness; it just does not seem right that individuals should be excluded from government benefit programs because of their religious affiliation (2). It is also a view that comports well with case law, which has repeatedly rejected religion as an appropriate basis for government discrimination in a wide variety of contexts (3).

Many individuals, however, do not it see it this way; rather, they believe that the establishment clause requires the government to engage in active discrimination against religion, and that failing to do so amounts to establishment (4). Under this analysis, the guiding principle behind church-state relations is not neutrality or fairness, but rather active disfavoring of religion by the government. One popular argument in favor of this view is that it is unjust to require taxpayers to fund any religious activity with which they might disagree, even if that funding is indirect. Indeed, this was the primary justification given by the State of Washington in my case for its law preventing any state scholarship funds from going to students majoring in theology. The problem with this argument is that if we are to embrace it as a starting point in deciding what sorts of activities ought to be funded by the state, we are left with very little to guide us. If I am Roman Catholic, I might object to the inclusion of contraceptives in the health plans of state employees, which are of course paid for by taxpayer funds. If I am Muslim, I might object to state-run liquor stores. If I am an observant Jew, I might object to the state conducting any business on Saturdays. If I am an evangelical Christian, I might object to the secularism that is embodied in public education in the United States. And if I am a libertarian, I might object to there being much of a government at all. The point of each of these examples, of course, is that the state engages in all kinds of activities with which some taxpayers disagree, despite the sincerely held objections of those taxpayers. There is simply no way for the state to be sensitive to the consciences of its taxpayers such that none of them is forced to pay for a program with which he or she does not agree. Indeed, any efforts to enact a system of taxation in which taxpayers could allocate their tax funds based on conscience would doubtlessly end in disaster. In order for the state to function, taxpayers surely cannot be exempted from paying taxes simply because they disapprove of some of the ways those funds are spent.

Logically, then, one would expect that those who advocate active governmental disfavoring of religious individuals and organizations would likewise be opposed to federal financial aid programs, including Stafford Loans, the GI Bill, and Pell Grants (5). To be consistent, they would have to demand that government employees not devote their salaries to any religious purposes, as these salaries are paid by taxpayers (6). It is impossible for me to see how there is any meaningful difference between a scholarship going to a student wishing to study theology or a voucher going to a parent who wants to send their child to a parochial school and a government employee who faithfully contributes to his or her church, synagogue, mosque, or other religious organization. In each of these cases, taxpayer funds go to religious individuals or organizations indirectly, channeled through individuals who have discretion over how those funds are used.
Thus, it would seem that unless one is willing to commit to the idea that the state must curtail the liberty of its employees such that they cannot commit any of their taxpayer-funded salary to religious purposes, one must reject the notion that the state ought to engage in active disfavoring of religion in order to comply with the Establishment Clause. Quite the contrary, it would seem that in order to ensure equality and prevent the state from intruding on the liberties of its citizens in the name of preventing establishment, a policy of equal treatment ought to be adopted. Zelman has already told us that such an equality regime is constitutional; Davey tells us that it remains optional. So who loses, then, under Davey? Religious individuals and religious organizations. Because states are permitted to engage in active disfavoring of such persons and institutions in the name of protecting taxpayer conscience, religion is a basis upon which states may engage in discrimination sanctioned by the law.

Perhaps the biggest losers after this decision are America’s schoolchildren, and insofar as these individuals represent the future of this country, the nation itself. Public education in the United States is in a serious state of decline. Especially among minority groups, dropout rates remain high and graduation rates unsatisfactorily low. Students in the United States consistently perform worse then their counterparts in other industrialized countries in math and science (7). This is despite the fact that, in the past twenty years, annual per-student expenditures have increased some forty percent, and total educational expenditures some sixty percent (8). That the public schools of this nation are failing ought to be obvious to anyone who has attended one; I myself was educated entirely in public schools, and recognize many deficiencies in my own education. Competition introduced through parental choice and school voucher programs will almost certainly improve this situation. By giving parents a choice in deciding which schools their children will attend, failing public schools will be forced to improve or suffer a decline in enrollment and consequently funding.

Who would benefit from this kind of state-sponsored, religion-neutral public benefits program? Religious families, certainly. While many religious parents already elect to send their children to private schools for reasons of faith or conscience, parental choice programs would incentivize such choices. Rather than allocating religious parents’ educational tax dollars for public education from which their children receive no benefit, such programs would permit the taxes that parents already pay in support of education to go toward the education of their own children. Middle class families would certainly benefit from such a parental choice program as well. Many such families already engage in “school choice” by choosing to live in neighborhoods with good public schools (9). A parental choice or voucher program would lessen the need to move and thus the competition for housing in those few neighborhoods lucky enough to have a good public school. It would make choosing a private school an economically viable choice for many of these families. And the competition such programs create would serve to increase the quality of all the schools involved, making relocation on the basis of school quality alone unnecessary.

The class of families who would most benefit from school choice programs, however, are those with low incomes, many of which belong to minority racial or ethnic groups. These families often lack the financial resources necessary to relocate to more expensive neighborhoods with better schools, as well as the time, education, and finances necessary to home-school their children (10). The result of this dilemma is that these parents have no choice but to send their children to the local public school, which, in low-income areas, is often a failing one. Thus, these children will not have the educational opportunities afforded those lucky enough to attend better schools. This educational disadvantage translates into lower paying careers, higher rates of incarceration, and higher rates of familial dissolution among the children of these parents, thereby perpetuating the problem. The solution to this cycle, in which the children of low-income families are educationally disadvantaged and often become low-income parents themselves, is parental choice in education supported by some sort of voucher program. Such a program would have tremendous potential to eliminate the lingering ill effects of the many historical injustices perpetrated against minority racial and ethnic groups.

Again, under Zelman, such a program is clearly constitutional. If I had won in Davey, these programs would have been far easier to establish in many states, because those states would not have been permitted to exclude religious schools from participating in school choice programs. Unfortunately, no school choice program is likely to succeed if religious schools are denied participation; the fact is that there are few non-religious private schools. Any voucher program which excludes religious schools is far too limited to achieve its purpose, and limiting such a program to public schools would fail to introduce the competition that is necessary to improve the quality of education in all our schools. The big losers of Davey, then, are those who stand to benefit from parental choice and school vouchers in states which currently prohibit and taxpayer funds from going—even indirectly—toward religious education.

If parental choice and school voucher programs are poised to revitalize primary education in the United States, why do so many states retain a rule prohibiting the appropriation of any tax funds for religious education, when under Zelman such a rule is clearly not required by the Federal Constitution? One important reason is that teacher’s unions, which have a strong incentive to preserve the status quo, are well funded, well organized, and politically influential (11). These unions, and the politicians and school boards they control, are essentially the “education establishment,” and enjoy what amounts to a virtual monopoly over education in the United States (12).

Furthermore, this establishment enjoys statutory or constitutional backing in many states in the form of Blaine Amendments. These laws, adopted in the late 19th and early 20th centuries as anti-Catholic and anti-immigrant measures, expressly prohibit any state funding of religious education, whether direct or indirect (13). It was Washington’s Blaine Amendment that prevented me from receiving the Promise Scholarship; forty-seven states in total have Blaine Amendments or similar provisions in their constitutions or statutes (14). In many of these states, parental choice and school voucher programs face tremendous legal obstacles because of the these anti-religious laws.

While Davey had the potential to seriously weaken or even eliminate the Blaine Amendments, the Court’s opinion unfortunately leaves them intact. Legal challenges to these discriminatory laws will now have to continue state-by-state, both through litigation and constitutional amendment. These legal challenges have great promise of success, but will not have the benefit of a national precedent clearly rejecting religious discrimination in public benefits programs. Accordingly, it is clear to me that even though I lost before the Supreme Court of the United States in Locke v. Davey, I am not the biggest loser in this case. Those who really lost are those whose religious freedoms have been eroded, and those whose educational opportunities will suffer because of the Court’s sanctioning of ongoing religious discrimination.



1. Clint Bolick, Voucher Wars 189 (Cato Institute 2003).
2. See Eugene Volokh, Equal Treatment is Not Establishment, 13 Notre Dame J.L. Ethics & Pub. Políy 341, 346 (1999).
3. See Id. at 367-71 (discussing the Supreme Courtís repeated rejection of religion as a basis for excluding individuals and institutions from generally available government programs under Free Speech, Free Exercise, Establishment, and Equal Protection clauses).
4.
See Id. at 342.
5. Id.
6. See Id. at 342-43.
7. See David Salisbury and Myron Lieberman, Keeping the Nation at Risk, at http://www.cato.org/research/articles/ salisbury-030425.html (Mar. 14, 2004).
8. Adjusted for inflation. See Id.
9. Marie Gryphon and Emily A. Meyer, Our History of Educational Freedom: What It Should Mean for Families Today, Cato Policy Analysis No. 492, 14 (2003), at http://www.cato.org/pubs/pas/pa492.pdf (Mar. 14, 2004).
10. Id.
11. See Bolick, supra note 1, at xiii-xiv.
12. Id. at xiv.
13. Gryphon and Meyer, supra note 9, at 15.
14. Bolick, supra note 1, at 204 n.5.

Joshua Davey is a first-year student at Harvard Law School.