JB

Yesterday the Supreme Court handed down an important Free Exercise opinion in Locke v. Davey, holding that Washington state could give Promise Scholarships for individuals seeking college education except for those seeking degrees in theology. The Court held, 7-2, in an opinion by Chief Justice Rehnquist, that this did not violate the Free Exercise Clause. Justices Scalia and Thomas dissented.

The majority opinion is a characteristically Rehnquist opinion; it is like a garden snake-- short and slippery. Rehnquist emphasizes that Washington has not imposed civil or criminal penalties on people studying for the ministry but simply refused to subsidize training for one particular profession or calling because of the state of Washington's policy, written into the state's constitution, of not subsidizing the ministry.

What is important about Locke v. Davey is less what the Court decided than what it did not decide. The opinion is written very narrowly to avoid a series of important constitutional questions. For example, by focusing on professional or vocational training for religious positions, Rehnquist dodged the more difficult question of the constitutionality of school voucher programs that include only secular private schools. The latter policy does not make a distinction based on professional training, but rather on the nature of the school that provides elementary and secondary education. Although Locke v. Davey suggests that there might be no Free Exercise problem with such a policy, I think it is still an open question whether secular-school-only voucher programs are constitutional under the Free Exercise Clause.

There was also a free speech issue implicit in the case. You could argue that the Promise Scholarship program violated Davey's free speech rights because scholarships were available for people majoring in every subject but not in theology. In a footnote, Rehnquist distinguishes the Washington statute from cases where the state creates a public forum for all viewpoints by funding or providing access to government, and then unconstitutionally excludes one particular viewpoint. The Promise Scholarship, Rehnquist asserts, is not a forum for speech, but financial assistance for postsecondary education; it is not a policy designed to promote a diversity of views from private speakers. That holding is quite important because it suggests that a free speech attack on secular-school-only voucher programs would fail.

I don't think that Locke stands for the general proposition that whenever the government offers a general benefit but refuses to extend it to religious organizations, this poses no Free Exercise problems as long as there is no criminal or civil penalty against religious observance or religions activity. That is Justice Scalia's take on the meaning of the case. Scalia exaggerates, as he so often does, in order to make a point. Some exclusions of religious organizations from welfare state programs will still violate the Free Exercise Clause. The problem is that Rehnquist does not tell us which ones they are. Surely the government may not deny police and fire protection to churches or to the houses of ministers; and it may not exclude ministers from prescription drug benefit programs generally available for employees. All Rehnquist has done is to say that excluding ministers from a general vocational training subsidy is different. But he has not yet explained how. That may have been necessary to put together a broad majority of the Justices. But it leaves many questions unanswered.