Yesterday's Supreme Court ruling in Locke v. Davey exposed at least one important difficulty in the theory of religious "neutrality" that the Court has attempted to use in the Free Exercise context: its inability to serve as the sole relevant criterium for judging such cases, even when some kinds of religious practice are singled out for disfavored state treatment.
Joshua Davey received a Washington state Promise Scholarship that allowed him to attend an evangelical christian school, the avowed mission of which is to prepare students for life from a distinctly evangelical Christian perspective. Because of state constitutional restrictions passed in the late nineteenth century (which seem to have been arisen out of a wave of anticatholic activism), Washington's taxpayer-funded scholarship allowed him to attend this school but not pursue a degree in devotional theology. Davey sued, and in the meantime he graduated from the school and is now attending Harvard Law School. See CNN here, NYT here, and for the Washington state constitutional provision in question, see Article I, section 11, here.
The case boils down to a relatively simple question, which I would phrase as: does the U.S. constitution allow a state to attempt to respect its own state constitutional ban on taxpayer funding of ministerial and devotional activities by carving out an exception in an otherwise generally applicable educational scholarship program? Chief Justice Rehnquist wrote for a decisive 7 to 2 majority and answered "yes" (opinion here). Justices Scalia and Thomas dissented (opinion here).
This case might seem like a straightforward application of a principle of neutrality, which the Court most recently discussed in Church of Lukumi Babalu Aye, Inc. v. Hialeah (see here), a case in which the Court unanimously rejected the City of Hialeah's attempt to force adherents of the religion of santeria out of town by enacting criminal bans on animal sacrifice. In that case, the court said that laws that are non-neutral and burden religion must be justified by a compelling state interest and must be narrowly drawn to meet that interest. In other words, when the courts think that a law is aimed at religion, courts should to look very closely at the reasons for the law and the means used to accomplish the law's stated purposes. It's not easy to tell what kind of interests will be called "compelling" by the courts -- or what methods will be acceptably narrow -- when it engages in this kind of analysis; the safest bet, probably, is that most reasons won't count and most means will be found to be inappropriate.
Justice Scalia argues that the program is not neutral (it singles out for disfavor educational goals that are defined according to ministerial activity), which would seem to sound the death knell for it (if you're a betting man or woman, that is). Indeed, Scalia writes:
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
[Scalia cites Romer v. Evans, a case dealing with discrimination against gays and lesbians] , its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.
And much of the public discussion has focused on the "non-neutrality" of the program. Eugene Volokh titles his blog post on the subject "Discrimination Against Religion." The ACLJ, which represented Joshua Davey, titles its press release: "Supreme Court Decision in Scholarship Case Sanctions Religious Discrimination." And Steve at Southern Appeal laments that Chief Justice Rehnquist "continues to ruin his once distinguished legacy" with his opinion in this case.
The Court under Rehnquist refused to accept neutrality (or discrimination, if you will) as the sole relevant consideration for the case, however. As Jack Balkin notes, the Court's opinion doesn't say much about the ultimate boundaries of neutrality; it just says "that excluding ministers from a general vocational training subsidy is different."
There is one critical problem with Rehnquist's argument that I think should be addressed. Rehnquist seems to argue that while it may be true that exclusion of devotional exercise from a general aid program is not neutral, this particular non-neutrality has resulted not from "hostility" toward religion. And in one sense he is correct: the program in question allows individuals to attend pervasively religious schools as long as they don't officially pursue a degree geared toward the ministry. But historically, as far as I understand it, bans on the funding of the ministry were part of a kind of hostility toward religion, either in the enlightenment sense of priests as being enemies of progress and corrupters of their flocks, or in the sense of the particular hostility toward catholicism evident in the Blaine amendments (although I'll admit that I don't know the relevant historical literature here).
Bans on state funding of ministerial professions are certainly justified, even if the policy can be described as "non-neutral." Even though we are living in the midst of an apparent resurgence of religious belief in the U.S., it's worth recalling that the goals of religion and the goals of the state can be in conflict. A sense of this conflict led, in part, to the Establishment Clause as well as the "separationist" views that have developed as a way of understanding that clause's demands. The state requires a kind of unity based on grounds of secular citizenship, whereas many religions require or help create disunity based on grounds of religious citizenship. The Court does not face this argument squarely, but it does take up the narrower issue of the right of taxpayers not to have their money go toward religious training. (And Thomas Nephew is happy with the result in this case for precisely this reason; see, in chronological order, here and here). But we should respect this right not simply because people disagree on religion, although surely that is a good reason to do so; we should respect this right because it mirrors a larger tension between religion and the state.
