This article is a contribution to a symposium on Locke v. Davey (2004), in which the Supreme Court first confronted the question whether singling out religious education for exclusion from generally available education benefits violates the Free Exercise Clause by discriminating against the religious choice. The Court rejected the free exercise challenge and on a set of facts seemingly sympathetic to the challenger. Washington provides high-achieving students of modest family incomes with scholarships usable at any of the dozens of colleges in the state, for any of hundreds of majors, but denies scholarships to those few students who choose to major in theology taught from a devotional perspective. By upholding the Washington exclusion, the Court may have signaled that states will have broad discretion in all their funding programs to discriminate against religious educational choices. The free exercise claim for equal funding may have been strangled in its infancy.

In our view, it would be unfortunate if Davey ended the entire debate. We think that the majority opinion does not go nearly so far, and that even its narrower holding rests on a series of mistakes, large and small, about the nature and purposes of the Religion Clauses. Most importantly, the Washington exclusion violates the clauses' central goal by permitting government to distort the individual choice of scholarship recipients about whether to major in a religious subject. After detailing this and other problems in the opinion, we turn to the issues that remain after Davey, especially the prime issue of vouchers to fund education from kindergarten through 12th-grade (K-12). Parts of Davey suggest that states now have carte blanche to exclude religious choices from K-12 vouchers and other funding programs. But much of the opinion focuses on the special case of funding the training of clergy; and we sketch the argument for limiting Davey to its reasoning, thus forbidding states from singling out religious providers for exclusion from certain other funding programs.

Thomas C. Berg & Douglas Laycock, The Mistakes in <em>Locke v. Davey</em> and the Future of State Payments for Services Provided by Religious Institutions, 40 Tulsa Law Review, 227–254 (2004).
UVA Law Faculty Affiliations