Green on Locke v. Davey

Bruce Green (Dean of the new Liberty Law School) had the following thoughts on Locke v. Davey this morning:

A Supreme Mistake

This week’s United States Supreme Court decision in Locke v. Davey held that states may discriminate against religious programs in distributing generally available benefits. The Court held that the State of Washington may deny scholarship funds to otherwise eligible college students if the students declare a major in devotional theology. “Devotional theology” is a technical way of saying that a person takes his faith seriously.

Although not determinative in the case, the whole idea of devotional theology as the Court casually used the designation puzzles me. Presumably, if one studies religion as an academic interest—but not intending to act on it—that is one thing. But, if a student studies theology to actually prepare him for something—like a career—then, it is entirely impermissible to receive scholarship assistance. As Notre Dame law professor Rick Garnett concluded, the Supreme Court has now authorized a state (any state) to discriminate against people who take their religion seriously.

This is a deeply disappointing decision both for its conclusion and its analysis. The vote was a surprising 7-2 and the majority opinion was authored by Chief Justice Rehnquist. Justice Scalia wrote a persuasive dissent in which he indicates that medical benefits to clergy may next be in danger as a result of the majority’s decision. He wrote:

“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 benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. 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.”

Clear thinking by lawyers, judges, and legislators has never been more vital than it is at this time in history.