The legislature of Washington State created the Promise Scholarship in 1999 for students who met academic, enrollment, and income qualifications. The scholarship, funded by the State's general fund, was sent directly to the academic institution to be distributed to the student who could use the funds to pay for their educational expenses.
Students could use the funds to attend any accredited institution, including religious private institutions, as long as they were not enrolled in a degree program that was "devotional in nature or designed to induce religious faith".[1] Joshua Davey received a Promise Scholarship and enrolled at a private Christian college. When he found out he would not be able to receive his scholarship money if he enrolled as a theology major he filed a lawsuit in the District Court arguing violations of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. He lost on all counts. The Court of Appeals for the Ninth Circuit applied Church of Lukumi Babalu Aye v. City of Hialeah to uphold the Free Exercise claim saying it was express discrimination that the "State had singled out religion for unfavorable treatment".[2]
The Washington State Constitution did not allow public funds to be used to aid religion: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction". Zelman v. Simmons-Harris had decided that the independent choice of the recipient saved vouchers from an Establishment Clause challenge. The Court now had to decide if public aid for religious education could be banned by state constitutions without violating the Free Exercise Clause.[3]
Writing for the majority Justice Rehnquist interpreted the Free Exercise Clause as limiting government regulation of the clergy. The Court said that "there is room for play in the joints" between the Religion Clauses: "there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause".[4]
The Court distinguished the case from McDaniel v. Paty by deciding that an exception for the training of clergy was "not evidence of hostility toward religion".[5][6] The Court held that there was nothing "inherently constitutionally suspect" in the denial of funding for vocational religious instruction. Even if there were, Washington had a "substantial state interest" in not funding "devotional degrees".
The 7-2 decision upheld the statute. States could make public funds available for students pursuing religious studies without violating the Establishment Clause, but not making the scholarship available was not a Free Exercise violation. The Court decided that in this case, the state had simply declined to provide such financial aid.[7]
InTrinity Lutheran the clergy training exception allowed Chief Justice John Roberts to distinguish Locke v. Davey. The Court noted that public funding for improving a playground does not raise the same establishment concerns as training of clergy, and applies McDaniel v. Paty because "Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry."[8]
Chemerinsky, Erwin; Gillman, Howard (2020). The Religion Clauses: The Case for Separating Church and State. Oxford University Press. ISBN978-0-19-069974-1.
Hall, Kermit L. (2005). The Oxford Companion to the Supreme Court of the United States. Oxford University Press. ISBN978-0-19-972535-9.
Green, Steven K. (2004). "Locke v. Davey and the Limits to Neutrality Theory". Temple Law Review. 77 (4): 913–956.
Kaplin, William A.; Lee, Barbara A. (2011). The Law of Higher Education. John Wiley & Sons. ISBN978-1-118-04659-3.
