OPINION OF THE COURT LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al.,
PETITIONERS v. JOSHUA DAVEY

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[February 25, 2004]

															   Chief Justice Rehnquist delivered
the opinion of the Court.

															   The State of Washington
established the Promise Scholarship Program to assist academically
gifted students with postsecondary education expenses. In
accordance with the State Constitution, students may not use the
scholarship at an institution where they are pursuing a degree in
devotional theology. We hold that such an exclusion from an
otherwise inclusive aid program does not violate the Free Exercise
Clause of the First Amendment.

															   The Washington State Legislature found that
“[s]tudents who work hard … and successfully complete high school
with high academic marks may not have the financial ability to
attend college because they cannot obtain financial aid or the
financial aid is insufficient.” Wash. Rev. Code §28B.119.005 (Supp.
2004). In 1999, to assist these high-achieving students, the
legislature created the Promise Scholarship Program, which provides
a scholarship, renewable for one year, to eligible students for
postsecondary education expenses. Students may spend their funds on
any education-related expense, including room and board. The
scholarships are funded through the State’s general fund, and their
amount varies each year depending on the annual appropriation,
which is evenly prorated among the eligible students. Wash. Admin.
Code §250–80–050(2) (2003). The scholarship was worth $1,125 for
academic year 1999–2000 and $1,542 for 2000–2001.

															   To be eligible for the scholarship, a student
must meet academic, income, and enrollment requirements. A student
must graduate from a Washington public or private high school and
either graduate in the top 15% of his graduating class, or attain
on the first attempt a cumulative score of 1,200 or better on the
Scholastic Assessment Test I or a score of 27 or better on the
American College Test. §§250–80–020(12)(a)—(d). The student’s
family income must be less than 135% of the State’s median.
§250–80–020(12)(e). Finally, the student must enroll “at least half
time in an eligible postsecondary institution in the state of
Washington,” and may not pursue a degree in theology at that
institution while receiving the scholarship.
§§250–80–020(12)(f)—(g); see also Wash. Rev. Code §28B.10.814
(1997) (“No aid shall be awarded to any student who is pursuing a
degree in theology”). Private institutions, including those
religiously affiliated, qualify as “eligible postsecondary
institution[s]” if they are accredited by a nationally recognized
accrediting body. See Wash. Admin. Code §250–80–020(13). A “degree
in theology” is not defined in the statute, but, as both parties
concede, the statute simply codifies the State’s constitutional
prohibition on providing funds to students to pursue degrees that
are “devotional in nature or designed to induce religious faith.”
Brief for Petitioners 6; Brief for Respondent 8; see also Wash.
Const., Art. I, §11.

															   A student who applies for the scholarship and
meets the academic and income requirements is notified that he is
eligible for the scholarship if he meets the enrollment
requirements. E.g. , App. 95. Once the student enrolls at
an eligible institution, the institution must certify that the
student is enrolled at least half time and that the student is not
pursuing a degree in devotional theology. The institution, rather
than the State, determines whether the student’s major is
devotional. Id ., at 126, 131. If the student meets the
enrollment requirements, the scholarship funds are sent to the
institution for distribution to the student to pay for tuition or
other educational expenses. See Wash. Admin. Code §250–80–060.

															   Respondent, Joshua Davey, was awarded a
Promise Scholarship, and chose to attend Northwest College.
Northwest is a private, Christian college affiliated with the
Assemblies of God denomination, and is an eligible institution
under the Promise Scholarship Program. Davey had “planned for many
years to attend a Bible college and to prepare [himself] through
that college training for a lifetime of ministry, specifically as a
church pastor.” App. 40. To that end, when he enrolled in Northwest
College, he decided to pursue a double major in pastoral ministries
and business management/administration. Id. , at 43. There
is no dispute that the pastoral ministries degree is devotional and
therefore excluded under the Promise Scholarship Program.

															   At the beginning of the 1999–2000 academic
year, Davey met with Northwest’s director of financial aid. He
learned for the first time at this meeting that he could not use
his scholarship to pursue a devotional theology degree. He was
informed that to receive the funds appropriated for his use, he
must certify in writing that he was not pursuing such a degree at
Northwest.[ Footnote 1 ] He
refused to sign the form and did not receive any scholarship
funds.

															   Davey then brought an action under 42 U.
S. C. §1983 against various state officials (hereinafter
State) in the District Court for the Western District of Washington
to enjoin the State from refusing to award the scholarship solely
because a student is pursuing a devotional theology degree, and for
damages. He argued the denial of his scholarship based on his
decision to pursue a theology degree violated, inter alia ,
the Free Exercise, Establishment, and Free Speech Clauses of the
First Amendment, as incorporated by the Fourteenth Amendment, and
the Equal Protection Clause of the Fourteenth Amendment. After the
District Court denied Davey’s request for a preliminary injunction,
the parties filed cross-motions for summary judgment. The District
Court rejected Davey’s constitutional claims and granted summary
judgment in favor of the State.

															   A divided panel of the United States Court of
Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002).
The court concluded that the State had singled out religion for
unfavorable treatment and thus under our decision in Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State’s
exclusion of theology majors must be narrowly tailored to achieve a
compelling state interest. 299 F. 3d, at 757–758. Finding that
the State’s own antiestablishment concerns were not compelling, the
court declared Washington’s Promise Scholarship Program
unconstitutional. Id. , at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse.

															   The Religion Clauses of the First Amendment
provide: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” These two
Clauses, the Establishment Clause and the Free Exercise Clause, are
frequently in tension. See Norwood v. Harrison, 413 U. S. 455 , 469
(1973) (citing Tilton v. Richardson, 403
U. S. 672 , 677 (1971)). Yet we have long said that “there is
room for play in the joints” between them. Walz v. Tax
Comm’n of City of New York, 397 U. S. 664 , 669
(1970). In other words, there are some state actions permitted by
the Establishment Clause but not required by the Free Exercise
Clause.

															   This case involves that “play in the joints”
described above. Under our Establishment Clause precedent, the link
between government funds and religious training is broken by the
independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639 , 652
(2002); Zobrest v. Catalina Foothills School
Dist., 509
U. S. 1 , 13–14 (1993); Witters v. Washington Dept.
of Servs. for Blind, 474 U. S. 481 , 487 (1986); Mueller v. Allen, 463 U. S. 388 , 399–400
(1983). As such, there is no doubt that the State could, consistent
with the Federal Constitution, permit Promise Scholars to pursue a
degree in devotional theology, see Witters , supra , at 489, and the State does not contend otherwise.
The question before us, however, is whether Washington, pursuant to
its own constitution,[ Footnote
2 ] which has been authoritatively interpreted as prohibiting
even indirectly funding religious instruction that will prepare
students for the ministry, see Witters v. State Comm’n
for the Blind , 112 Wash. 2d 363, 369–370, 771 P. 2d
1119, 1122 (1989); cf. Witters v. State Comm’n for the
Blind , 102 Wash. 2d 624, 629, 689 P. 2d 53, 56
(1984) (“It is not the role of the State to pay for the religious
education of future ministers”), rev’d, 474 U. S. 481 , supra , can
deny them such funding without violating the Free Exercise
Clause.

															   Davey urges us to answer that question in the
negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, the program is presumptively unconstitutional
because it is not facially neutral with respect to
religion.[ Footnote 3 ] We reject
his claim of presumptive unconstitutionality, however; to do
otherwise would extend the Lukumi line of cases well
beyond not only their facts but their reasoning. In Lukumi , the city of Hialeah made it a crime to engage in
certain kinds of animal slaughter. We found that the law sought to
suppress ritualistic animal sacrifices of the Santeria religion.
508 U. S., at 535. In the present case, the State’s disfavor of
religion (if it can be called that) is of a far milder kind. It
imposes neither criminal nor civil sanctions on any type of
religious service or rite. It does not deny to ministers the right
to participate in the political affairs of the community. See McDaniel v. Paty , 435 U. S. 618 (1978). And it does not
require students to choose between their religious beliefs and
receiving a government benefit.[ Footnote 4 ] See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security
Div., 450
U. S. 707 (1981); Sherbert v. Verner , 374 U. S. 398 (1963). The State has merely chosen not to fund a distinct category
of instruction.

															   Justice Scalia argues, however, that generally
available benefits are part of the “baseline against which burdens
on religion are measured.” Post , at 2 (dissenting
opinion). Because the Promise Scholarship Program funds training
for all secular professions, Justice Scalia contends the State must
also fund training for religious professions. See ibid .
But training for religious professions and training for secular
professions are not fungible. Training someone to lead a
congregation is an essentially religious endeavor. Indeed, majoring
in devotional theology is akin to a religious calling as well as an
academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents , 72 Wash. 2d 912, 919, 436
P. 2d 189, 193 (1967) (holding public funds may not be
expended for “that category of instruction that resembles worship
and manifests a devotion to religion and religious principles in
thought, feeling, belief, and conduct”); App. 40 (Davey stating his
“religious beliefs [were] the only reason for [him] to seek a
college degree”). And the subject of religion is one in which both
the United States and state constitutions embody distinct views—in
favor of free exercise, but opposed to establishment—that find no
counterpart with respect to other callings or professions. That a
State would deal differently with religious education for the
ministry than with education for other callings is a product of
these views, not evidence of hostility toward religion.

															   Even though the differently worded Washington
Constitution draws a more stringent line than that drawn by the
United States Constitution, the interest it seeks to further is
scarcely novel. In fact, we can think of few areas in which a
State’s antiestablishment interests come more into play.[ Footnote 5 ] Since the founding of our
country, there have been popular uprisings against procuring
taxpayer funds to support church leaders, which was one of the
hallmarks of an “established” religion.[ Footnote 6 ] See R. Butts, The American Tradition in
Religion and Education 15–17, 19–20, 26–37 (1950); F. Lambert, The
Founding Fathers and the Place of Religion in America 188 (2003)
(“In defending their religious liberty against overreaching clergy,
Americans in all regions found that Radical Whig ideas best framed
their argument that state-supported clergy undermined liberty of
conscience and should be opposed”); see also J. Madison, Memorial
and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 65, 68 (1947) (appendix to
dissent of Rutledge, J.) (noting the dangers to civil liberties
from supporting clergy with public funds).

															   Most States that sought to avoid an
establishment of religion around the time of the founding placed in
their constitutions formal prohibitions against using tax funds to
support the ministry. E.g. , Ga. Const., Art. IV, §5
(1789), reprinted in 2 Federal and State Constitutions, Colonial
Charters and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted
1993) (“All persons shall have the free exercise of religion,
without being obliged to contribute to the support of any religious
profession but their own”); Pa. Const., Art. II (1776) in 5 id., at 3082 (“[N]o man ought or of right can be compelled
to attend any religious worship, or erect or support any place of
worship, or maintain any ministry, contrary to, or against, his own
free will and consent”); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, §1 (1792), in
1 id., at 568 (similar); Ky. Const., Art. XII, §3 (1792),
in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3
(1793), in 6 id., at 3762 (similar); Tenn. Const., Art.
XI, §3 (1796), in id., at 3422 (similar); Ohio Const.,
Art. VIII, §3 (1802), in 5 id., at 2910 (similar). The
plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found
nothing to indicate, as Justice Scalia contends, post , at
3, that these provisions would not have applied so long as the
State equally supported other professions or if the amount at stake
was de minimis . That early state constitutions saw no
problem in explicitly excluding only the ministry from
receiving state dollars reinforces our conclusion that religious
instruction is of a different ilk. [ Footnote 7 ]

															   Far from evincing the hostility toward
religion which was manifest in Lukumi , we believe that the
entirety of the Promise Scholarship Program goes a long way toward
including religion in its benefits.[ Footnote 8 ] The program permits students to attend
pervasively religious schools, so long as they are accredited. As
Northwest advertises, its “concept of education is distinctly
Christian in the evangelical sense.” App. 168. It prepares all of its students, “through instruction, through
modeling, [and] through [its] classes, to use … the Bible as their
guide, as the truth,” no matter their chosen profession. Id. , at 169. And under the Promise Scholarship Program’s
current guidelines, students are still eligible to take devotional
theology courses.[ Footnote 9 ]
Davey notes all students at Northwest are required to take at least
four devotional courses, “Exploring the Bible,” “Principles of
Spiritual Development,” “Evangelism in the Christian Life,” and
“Christian Doctrine,” Brief for Respondent 11, n. 5; see also
App. 151, and some students may have additional religious
requirements as part of their majors. Brief for Respondent 11,
n. 5; see also App. 150–151.

															   In short, we find neither in the history or
text of Article I, §11 of the Washington Constitution, nor in the
operation of the Promise Scholarship Program, anything that
suggests animus towards religion.[ Footnote 10 ] Given the historic and substantial state
interest at issue, we therefore cannot conclude that the denial of
funding for vocational religious instruction alone is inherently
constitutionally suspect.

															   Without a presumption of unconstitutionality,
Davey’s claim must fail. The State’s interest in not funding the
pursuit of devotional degrees is substantial and the exclusion of
such funding places a relatively minor burden on Promise Scholars.
If any room exists between the two Religion Clauses, it must be
here. We need not venture further into this difficult area in order
to uphold the Promise Scholarship Program as currently operated by
the State of Washington.

															   The judgment of the Court of Appeals is
therefore

															Reversed. Footnote 1 The State does not require students to
certify anything or sign any forms. App. 86, 89. Footnote 2 The relevant provision of the Washington
Constitution, Art. I, §11, states:

															   “Religious Freedom. Absolute freedom of
conscience in all matters of religious sentiment, belief and
worship, shall be guaranteed to every individual, and no one shall
be molested or disturbed in person or property on account of
religion; but the liberty of conscience hereby secured shall not be
so construed as to excuse acts of licentiousness or justify
practices inconsistent with the peace and safety of the state. No
public money or property shall be appropriated for or applied to
any religious worship, exercise or instruction, or the support of
any religious establishment.” Footnote 3 Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1995),
contends that the Promise Scholarship Program is an
unconstitutional viewpoint restriction on speech. But the Promise
Scholarship Program is not a forum for speech. The purpose of the
Promise Scholarship Program is to assist students from low- and
middle-income families with the cost of postsecondary education,
not to “ ‘encourage a diversity of views from private
speakers.’ ” United States v. American Library
Assn., Inc., 539 U. S. 194 , 206
(2003) (plurality opinion) (quoting Rosenberger , supra , at 834). Our cases dealing with speech forums are
simply inapplicable. See American Library Assn. , supra; Cornelius v. NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788 , 805
(1985).

															   Davey also argues that the Equal Protection
Clause protects against discrimination on the basis of religion.
Because we hold, infra , at ___, that the program is not a
violation of the Free Exercise Clause, however, we apply
rational-basis scrutiny to his equal protection claims. Johnson v. Robison, 415 U. S. 361 , 375,
n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618 (1978) (reviewing
religious discrimination claim under the Free Exercise Clause). For
the reasons stated herein, the program passes such review. Footnote 4 Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution
from where they are studying devotional theology. Footnote 5 Justice Scalia notes that the State’s
“philosophical preference” to protect individual conscience is
potentially without limit, see post , at 5; however, the
only interest at issue here is the State’s interest in not funding
the religious training of clergy. Nothing in our opinion suggests
that the State may justify any interest that its “philosophical
preference” commands. Footnote 6 Perhaps the most famous example of public
backlash is the defeat of “A Bill Establishing A Provision for
Teachers of the Christian Religion” in the Virginia Legislature.
The bill sought to assess a tax for “Christian teachers,” reprinted
in Everson v. Board of Ed. of
Ewing, 330
U. S. 1 , 74 (1947) (supplemental appendix to dissent of
Rutledge, J.); see also Rosenberger, supra, at 853
(Thomas, J., concurring) (purpose of the bill was to support
“clergy in the performance of their function of teaching
religion”), and was rejected after a public outcry. In its stead,
the “Virginia Bill for Religious Liberty,” which was originally
written by Thomas Jefferson, was enacted. This bill guaranteed
“that no man shall be compelled to frequent or support any
religious worship, place, or ministry whatsoever.” A Bill for
Establishing Religious Freedom, reprinted in 2 Papers of Thomas
Jefferson 546 (J. Boyd ed. 1950). Footnote 7 The amici contend that Washington’s
Constitution was born of religious bigotry because it contains a
so-called “Blaine Amendment,” which has been linked with
anti-Catholicism. See Brief for United States as Amicus
Curiae 23, n. 5; Brief for Becket Fund for Religious
Liberty et al. as Amici Curiae ; see also Mitchell v. Helms, 530 U. S. 793 , 828
(2000) (plurality opinion). As the State notes and Davey does not
dispute, however, the provision in question is not a Blaine
Amendment. Tr. of Oral Arg. 5; see Reply Brief for Petitioners 6–7.
The enabling Act of 1889, which authorized the drafting of the
Washington Constitution, required the state constitution to include
a provision “for the establishment and maintenance of systems of
public schools, which shall be … free from sectarian control.” Act
of Feb. 22, 1889, ch. 180, §4, ¶ ;Fourth, 25 Stat. 676. This
provision was included in Article IX, §4, of the Washington
Constitution (“All schools maintained and supported wholly or in
part by the public funds shall be forever free from sectarian
control or influence”), and is not at issue in this case. Neither
Davey nor amici have established a credible connection
between the Blaine Amendment and Article I, §11, the relevant
constitutional provision. Accordingly, the Blaine Amendment’s
history is simply not before us. Footnote 8 Washington has also been solicitous in
ensuring that its constitution is not hostile towards religion, see State ex rel. Gallwey v. Grimm , 146 Wash. 2d
445, 470, 48 P. 3d 274, 286 (2002) (“[I]t was never the
intention that our constitution should be construed in any manner
indicating any hostility toward religion.” (citation omitted)), and
at least in some respects, its constitution provides greater
protection of religious liberties than the Free Exercise Clause,
see First Covenant Church of Seattle v. Seattle ,
120 Wash. 2d 203, 223–229, 840 P. 2d 174, 186–188 (1992)
(rejecting standard in Employment Div., Dept. of Human
Resources of Ore. v Smith, 494 U. S. 872 (1990), in
favor of more protective rule); Munns v. Martin ,
131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (holding
a city ordinance that imposed controls on demolition of historic
structures inapplicable to the Catholic Church’s plan to demolish
an old school building and build a new pastoral center because the
facilities are intimately associated with the church’s religious
mission). We have found nothing in Washington’s overall approach
that indicates it “single[s] out” anyone “for special burdens on
the basis of … religious callings” as Justice Scalia contends, post , at 6. Footnote 9 The State notes that it is an open question
as to whether the Washington Constitution prohibits nontheology
majors from taking devotional theology courses. At this point,
however, the Program guidelines only exclude students who are
pursuing a theology degree. Wash. Admin. Code §250–80–020(12)(g)
(2003). Footnote 10 Although we have sometimes characterized the
Establishment Clause as prohibiting the State from “disproving of a
particular religion or religion in general,” Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 532 (1993) (citing
cases), for the reasons noted supra , the State has not
impermissibly done so here. SCALIA, J., DISSENTING LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al.,
PETITIONERS v. JOSHUA DAVEY

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[February 25, 2004]

															   Justice Scalia, with whom Justice
Thomas joins, dissenting.

															   In Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520 (1993),
the majority opinion held that “[a] law burdening religious
practice that is not neutral … must undergo the most rigorous of
scrutiny,” id. , at 546, and that “the minimum requirement
of neutrality is that a law not discriminate on its face,” id. , at 533. The concurrence of two Justices stated that
“[w]hen a law discriminates against religion as such, … it
automatically will fail strict scrutiny.” Id. , at 579
(Blackmun, J., joined by O’Connor, J., concurring in judgment). And
the concurrence of a third Justice endorsed the “noncontroversial
principle” that “formal neutrality” is a “necessary conditio[n] for
free-exercise constitutionality.” Id. , at 563 (Souter, J.,
concurring in part and concurring in judgment). These opinions are
irreconcilable with today’s decision, which sustains a public
benefits program that facially discriminates against religion.

															I

															   We articulated the principle that
governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947):

															“New Jersey cannot hamper its citizens in the free
exercise of their own religion. Consequently, it cannot exclude
individual Catholics, Lutherans, Mohammedans, Baptists, Jews,
Methodists, Non-believers, Presbyterians, or the members of any
other faith, because of their faith, or lack of it, from receiving
the benefits of public welfare legislation.” Id. , at 16
(emphasis deleted).

															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. Wash. Rev. Code
§28B.119.010(8) (Supp. 2004); Wash. Admin. Code §250–80–020(12)(g)
(2003). No field of study but religion is singled out for disfavor
in this fashion. Davey is not asking for a special benefit to which
others are not entitled. Cf. Lyng v. Northwest Indian
Cemetery Protective Assn., 485 U. S. 439 , 453
(1988). He seeks only equal treatment—the right to direct
his scholarship to his chosen course of study, a right every other
Promise Scholar enjoys.

															   The Court’s reference to historical “popular
uprisings against procuring taxpayer funds to support church
leaders,” ante , at 8, is therefore quite misplaced. That
history involved not the inclusion of religious ministers in public
benefits programs like the one at issue here, but laws that singled
them out for financial aid. For example, the Virginia bill at which
Madison’s Remonstrance was directed provided: “[F]or the support of
Christian teachers … [a] sum payable for tax on the property within
this Commonwealth, is hereby assessed … .” A Bill Establishing
a Provision for Teachers of the Christian Religion (1784),
reprinted in Everson , supra , at 72. Laws
supporting the clergy in other States operated in a similar
fashion. See S. Cobb, The Rise of Religious Liberty in America 131,
169, 270, 295, 304, 386 (1902). One can concede the Framers’
hostility to funding the clergy specifically , but that
says nothing about whether the clergy had to be excluded from
benefits the State made available to all. No one would seriously
contend, for example, that the Framers would have barred ministers
from using public roads on their way to church.[ Footnote 1 ]

															   The Court does not dispute that the Free
Exercise Clause places some constraints on public benefits
programs, but finds none here, based on a principle of “ ‘play
in the joints.’ ” Ante , at 4. I use the term
“principle” loosely, for that is not so much a legal principle as a
refusal to apply any principle when faced with competing
constitutional directives. There is nothing anomalous about
constitutional commands that abut. A municipality hiring public
contractors may not discriminate against blacks or in
favor of them; it cannot discriminate a little bit each way
and then plead “play in the joints” when haled into court. If the
Religion Clauses demand neutrality, we must enforce them, in hard
cases as well as easy ones.

															   Even if “play in the joints” were a valid
legal principle, surely it would apply only when it was a close
call whether complying with one of the Religion Clauses would
violate the other. But that is not the case here. It is not just
that “the State could, consistent with the Federal Constitution,
permit Promise Scholars to pursue a degree in devotional theology.” Ante , at 5. The establishment question would not even
be close , as is evident from the fact that this Court’s
decision in Witters v. Washington Dept. of Servs. for
Blind, 474
U. S. 481 (1986), was unanimous. Perhaps some formally neutral
public benefits programs are so gerrymandered and devoid of
plausible secular purpose that they might raise specters of state
aid to religion, but an evenhanded Promise Scholarship Program is
not among them.

															   In any case, the State already has all the
play in the joints it needs. There are any number of ways it could
respect both its unusually sensitive concern for the conscience of
its taxpayers and the Federal Free Exercise Clause. It
could make the scholarships redeemable only at public universities
(where it sets the curriculum), or only for select courses of
study. Either option would replace a program that facially
discriminates against religion with one that just happens not to
subsidize it. The State could also simply abandon the scholarship
program altogether. If that seems a dear price to pay for freedom
of conscience, it is only because the State has defined that
freedom so broadly that it would be offended by a program with such
an incidental, indirect religious effect.

															   What is the nature of the State’s asserted
interest here? It cannot be protecting the pocketbooks of its
citizens; given the tiny fraction of Promise Scholars who would
pursue theology degrees, the amount of any citizen’s tax bill at
stake is de minimis . It cannot be preventing mistaken
appearance of endorsement; where a State merely declines to
penalize students for selecting a religious major, “[n]o reasonable
observer is likely to draw … an inference that the State itself is
endorsing a religious practice or belief.” Id. , at 493
(O’Connor, J., concurring in part and concurring in judgment). Nor
can Washington’s exclusion be defended as a means of assuring that
the State will neither favor nor disfavor Davey in his religious
calling. Davey will throughout his life contribute to the public
fisc through sales taxes on personal purchases, property taxes on
his home, and so on; and nothing in the Court’s opinion turns on
whether Davey winds up a net winner or loser in the State’s
tax-and-spend scheme.

															   No, the interest to which the Court defers is
not fear of a conceivable Establishment Clause violation, budget
constraints, avoidance of endorsement, or substantive
neutrality—none of these. It is a pure philosophical preference:
the State’s opinion that it would violate taxpayers’ freedom of
conscience not to discriminate against candidates for the
ministry. This sort of protection of “freedom of conscience” has no
logical limit and can justify the singling out of religion for
exclusion from public programs in virtually any context. The Court
never says whether it deems this interest compelling (the opinion
is devoid of any mention of standard of review) but,
self-evidently, it is not.[ Footnote
2 ]

															II

															   The Court makes no serious
attempt to defend the program’s neutrality, and instead identifies
two features thought to render its discrimination less offensive.
The first is the lightness of Davey’s burden. The Court offers no
authority for approving facial discrimination against religion
simply because its material consequences are not severe. I might
understand such a test if we were still in the business of
reviewing facially neutral laws that merely happen to burden some
individual’s religious exercise, but we are not. See Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 885
(1990). Discrimination on the face of a statute is
something else. The indignity of being singled out for special
burdens on the basis of one’s religious calling is so profound that
the concrete harm produced can never be dismissed as insubstantial.
The Court has not required proof of “substantial” concrete harm
with other forms of discrimination, see, e.g. , Brown v. Board of Education, 347 U. S. 483 , 493–495
(1954); cf. Craig v. Boren, 429 U. S. 190 (1976),
and it should not do so here.

															   Even if there were some threshold
quantum-of-harm requirement, surely Davey has satisfied it. The
First Amendment, after all, guarantees free exercise of
religion, and when the State exacts a financial penalty of almost
$3,000 for religious exercise—whether by tax or by forfeiture of an
otherwise available benefit—religious practice is anything but free. The Court’s only response is that “Promise
Scholars may still use their scholarship to pursue a secular degree
at a different institution from where they are studying devotional
theology.” Ante , at 7, n. 4. But part of what makes a
Promise Scholarship attractive is that the recipient can apply it
to his preferred course of study at his preferred accredited institution. That is part of the “benefit” the State
confers. The Court distinguishes our precedents only by swapping
the benefit to which Davey was actually entitled (a scholarship for
his chosen course of study) with another, less valuable one (a
scholarship for any course of study but his chosen one).
On such reasoning, any facially discriminatory benefits program can
be redeemed simply by redefining what it guarantees.

															   The other reason the Court thinks this
particular facial discrimination less offensive is that the
scholarship program was not motivated by animus toward religion.
The Court does not explain why the legislature’s motive matters,
and I fail to see why it should. If a State deprives a citizen of
trial by jury or passes an ex post facto law, we do
not pause to investigate whether it was actually trying to
accomplish the evil the Constitution prohibits. It is sufficient
that the citizen’s rights have been infringed. “[It does not]
matter that a legislature consists entirely of the purehearted, if
the law it enacts in fact singles out a religious practice for
special burdens.” Lukumi , 508 U. S., at 559 (Scalia, J.,
concurring in part and concurring in judgment).

															   The Court has not approached other forms of
discrimination this way. When we declared racial segregation
unconstitutional, we did not ask whether the State had originally
adopted the regime, not out of “animus” against blacks, but because
of a well-meaning but misguided belief that the races would be
better off apart. It was sufficient to note the current effect of
segregation on racial minorities. See Brown , supra , at 493–495. Similarly, the Court does not excuse
statutes that facially discriminate against women just because they
are the vestigial product of a well-intentioned view of women’s
appropriate social role. See, e.g. , United States v. Virginia, 518 U. S. 515 , 549–551
(1996); Adkins v. Children’s Hospital of D.
C., 261 U.
S. 525 , 552–553 (1923). We do sometimes look to legislative
intent to smoke out more subtle instances of discrimination, but we
do so as a supplement to the core guarantee of facially
equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U. S. 541 , 546
(1999).

															   There is no need to rely on analogies,
however, because we have rejected the Court’s methodology in this
very context. In McDaniel v. Paty, 435 U. S. 618 (1978), we
considered a Tennessee statute that disqualified clergy from
participation in the state constitutional convention. That statute,
like the one here, was based upon a state constitutional
provision—a clause in the 1796 Tennessee Constitution that
disqualified clergy from sitting in the legislature. Id. ,
at 621, and n. 1 (plurality opinion). The State defended the
statute as an attempt to be faithful to its constitutional
separation of church and state, and we accepted that claimed
benevolent purpose as bona fide. See id. , at 628.
Nonetheless, because it did not justify facial discrimination
against religion, we invalidated the restriction. Id. , at
629.[ Footnote 3 ]

															   It may be that Washington’s original purpose
in excluding the clergy from public benefits was benign, and the
same might be true of its purpose in maintaining the exclusion
today. But those singled out for disfavor can be forgiven for
suspecting more invidious forces at work. Let there be no doubt:
This case is about discrimination against a religious minority.
Most citizens of this country identify themselves as professing
some religious belief, but the State’s policy poses no obstacle to
practitioners of only a tepid, civic version of faith. Those the
statutory exclusion actually affects—those whose belief in their
religion is so strong that they dedicate their study and their
lives to its ministry—are a far narrower set. One need not delve
too far into modern popular culture to perceive a trendy disdain
for deep religious conviction. In an era when the Court is so quick
to come to the aid of other disfavored groups, see, e.g. , Romer v. Evans, 517 U. S. 620 , 635
(1996), its indifference in this case, which involves a form of
discrimination to which the Constitution actually speaks, is
exceptional.

															* * *

															   Today’s holding is limited to
training the clergy, but its logic is readily extendible, and there
are plenty of directions to go. What next? Will we deny priests and
nuns their prescription-drug benefits on the ground that taxpayers’
freedom of conscience forbids medicating the clergy at public
expense? This may seem fanciful, but recall that France has
proposed banning religious attire from schools, invoking interests
in secularism no less benign than those the Court embraces today.
See Sciolino, Chirac Backs Law To Keep Signs of Faith Out of
School, N. Y. Times, Dec. 18, 2003, p. A17. When the public’s
freedom of conscience is invoked to justify denial of equal
treatment, benevolent motives shade into indifference and
ultimately into repression. Having accepted the justification in
this case, the Court is less well equipped to fend it off in the
future. I respectfully dissent. Footnote 1 Equally misplaced is the Court’s reliance on
founding-era state constitutional provisions that prohibited the
use of tax funds to support the ministry. Ante , at 9–10.
There is no doubt what these provisions were directed against:
measures of the sort discussed earlier in text, singling out the
clergy for public support. See supra , at 2–3. The Court
offers no historical support for the proposition that they were
meant to exclude clergymen from general benefits available to all
citizens. In choosing to interpret them in that fashion, the Court
needlessly gives them a meaning that not only is contrary to our
Religion Clause jurisprudence, but has no logical stopping-point
short of the absurd. No State with such a constitutional provision
has, so far as I know, ever prohibited the hiring of public
employees who use their salary to conduct ministries, or excluded
ministers from generally available disability or unemployment
benefits. Since the Court cannot identify any instance in which
these provisions were applied in such a discriminatory fashion, its
appeal to their “plain text,” ante , at 9, adds nothing
whatever to the “plain text” of Washington’s own Constitution. Footnote 2 The Court argues that those pursuing theology
majors are not comparable to other Promise Scholars because
“training for religious professions and training for secular
professions are not fungible.” Ante , at 7. That may well
be, but all it proves is that the State has a rational
basis for treating religion differently. If that is all the
Court requires, its holding is contrary not only to precedent, see supra , at 1, but to common sense. If religious
discrimination required only a rational basis, the Free Exercise
Clause would impose no constraints other than those the
Constitution already imposes on all government action. The question
is not whether theology majors are different, but whether the
differences are substantial enough to justify a discriminatory
financial penalty that the State inflicts on no other major.
Plainly they are not.

															   Equally unpersuasive is the Court’s argument
that the State may discriminate against theology majors in
distributing public benefits because the Establishment Clause and
its state counterparts are themselves discriminatory. See ante , at 7–8, 9–10. The Court’s premise is true at some
level of abstraction—the Establishment Clause discriminates against
religion by singling it out as the one thing a State may not
establish. All this proves is that a State has a compelling
interest in not committing actual Establishment Clause
violations. Cf. Widmar v. Vincent, 454 U. S. 263 , 271
(1981). We have never inferred from this principle that a State has
a constitutionally sufficient interest in discriminating against
religion in whatever other context it pleases, so long as it claims
some connection, however attenuated, to establishment concerns. Footnote 3 McDaniel had no opinion for the
Court, but nothing in the separate opinions suggests disagreement
over the issues relevant here. Cf. 435 U. S., at 636, n. 9
(Brennan, J., concurring in judgment) (noting dispute over
statute’s purpose but deeming it irrelevant). 540 U. S. ____ (2004) LOCKE V. DAVEY 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1315 GARY LOCKE, GOVERNOR OF WASHINGTON, et al.,
PETITIONERS v. JOSHUA DAVEY

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[February 25, 2004]

															   Justice Thomas, dissenting.

															   Because the parties agree that a
“degree in theology” means a degree that is “devotional in nature
or designed to induce religious faith,” Brief for Petitioners 6;
Brief for Respondent 8, I assume that this is so for purposes of
deciding this case. With this understanding, I join Justice
Scalia’s dissenting opinion. I write separately to note that, in my
view, the study of theology does not necessarily implicate
religious devotion or faith. The contested statute denies Promise
Scholarships to students who pursue “a degree in theology.” See
Wash. Admin. Code §250–80–020(12)(g) (2003) (defining an
“ ‘eligible student,’ ” in part, as one who “[i]s not
pursuing a degree in theology”); Wash. Rev. Code Ann. §28B.10.814
(West 1997) (“No aid shall be awarded to any student who is
pursuing a degree in theology”). But the statute itself does not
define “theology.” And the usual definition of the term “theology”
is not limited to devotional studies. “Theology” is defined as
“[t]he study of the nature of God and religious truth” and the
“rational inquiry into religious questions.” American Heritage
Dictionary 1794 (4th ed. 2000). See also Webster’s Ninth New
Collegiate Dictionary 1223 (1991) (“the study of religious faith,
practice, and experience” and “the study of God and his relation to
the world”). These definitions include the study of theology from a
secular perspective as well as from a religious one.

															   Assuming that the State denies Promise
Scholarships only to students who pursue a degree in devotional
theology, I believe that Justice Scalia’s application of our
precedents is correct. Because neither party contests the validity
of these precedents, I join Justice Scalia’s dissent.

Summary: The Supreme Court held that Washington state's exclusion of students pursuing a degree in devotional theology from its Promise Scholarship Program does not violate the Free Exercise Clause of the First Amendment. The Court found that the state has a compelling interest in not funding religious instruction and that the exclusion was narrowly tailored to achieve that interest.