| Locke
v. Davey 124
S. Ct. 1307 (2004) Commentary
by L. Martin Nussbaum Rothgerber
Johnson & Lyons Religious Institutions Group Copyright,
August 2004 For
23 years, from 1980 through 2003, the U.S. Supreme Court found no constitutional
impediment in one government program after another that provided substantial economic
benefit to religious institutions. It approved of government reimbursement to
religious schools for mandated testing expenses (Regan 1980); state tuition
tax credits for parochial school tuition, textbook, and transportation expenses
(Mueller 1983); scholarships for the disabled even when they attended Bible
school to become a minister (Witters 1986); funds for abstinence-based
family planning programs offered by religious institutions (Bowen 1988);
tax deductions for charitable contributions to religious groups (Hernandez
1989); public school rental of facilities for religious uses (Lamb's Chapel
1993); a government-paid sign-language interpreter for a deaf student attending
Catholic high school (Zobrest 1993); a government grant for an evangelical
student paper at a public college even when its purpose was to proselytize (Rosenberger
1993); public school remedial education teachers assisting at religious and other
private schools (Agostini 1997); government loans of educational materials
including computer hardware and software to religious and other private schools
(Mitchell 2000); and school vouchers redeemable at religious and other
private schools (Zelman 2002). In the 1997 Zobrest decision, the high court
even reversed two earlier decisions and thereby approved of loans to remedial
education teachers at private schools and the "shared time" provision of remedial
and enrichment clauses on parochial school premises. In earlier years, the high
court also had approved of tax-exempt bond financing for religious colleges (Hunt
1973), construction grants and loans benefitting a religious college (Tilton
1971), and religious purposes property tax exemptions (Walz 1970). In
its latest decision on this subject, Locke v. Davey (2003), the U.S. Supreme
Court rediscovered that there is some "play in the joints" in what is permitted
of legislatures under the Establishment Clause but not required of them by the
Free Exercise Clause. It held in a 7-2 decision, authored by Chief Justice Rehnquist,
that a state legislature may, as it chooses, either provide or deny a scholarship
to a student majoring in "devotional theology" even when the scholarship is generally
available for other academic majors. It defined "devotional theology" as a degree
that is "devotional in nature or designed to induce religious faith." Of note
in Locke v. Davey is that a unanimous Court seemed to indicate that if
a legislature decided to offer scholarships to all students, including those majoring
in "devotional theology," it would not matter that the educational institution
was pervasively sectarian. |
