Virginia Tells Christian Students Their Faith Disqualifies Them – ACLJ Urges Supreme Court To Review

“You qualify for this state tuition scholarship. But I’m sorry, you can’t use it because you want to major in a religious field.”

Yes, that’s correct. A state government – in this case, Virginia – has a college scholarship program, the Virginia Tuition Assistance Grant (VTAG) program, which will help fund college students . . . but not if they pursue certain religious degrees.

You might think that rule is open-and-shut unconstitutional as a violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution. The problem is, the U.S. Supreme Court upheld a similar program 22 years ago in Locke v. Davey. We are asking the Supreme Court to review Virginia’s discriminatory exclusion of certain religious majors and to overrule the Locke decision.

This issue is near and dear to the ACLJ’s heart – Locke v. Davey was an ACLJ case. We represented Joshua Davey, who in the federal appeals court successfully challenged Washington state’s discriminatory disqualification of religious majors from a state scholarship to which Davey was otherwise entitled. The state had disqualified Davey for the scholarship when he declared his intent to major in Pastoral Ministries, so we sued in federal court, representing Davey. The appeals court held that excluding only religious majors “facially discriminates on the basis of religion” and failed constitutional review. The U.S. Supreme Court, however, saw things differently. The Court granted review and reversed, holding the exclusion of religious majors to be a mere continuation of the colonial American tradition of not funding the training of clergy.

That ruling was wrong. The colonial tradition barred special funding of clergy. The Washington law was the exact opposite, imposing special disqualifications on an otherwise generally available program.

Nevertheless, lower courts ever since then have cited Locke v. Davey to justify discrimination against students and families making religious choices. And fortunately, ever since, the Supreme Court has held that Locke is not a free pass for anti-religious discrimination.

Every step of the way, the ACLJ has filed friend-of-the-court briefs explaining why Locke should not justify such discrimination. Our amicus briefs in Trinity Lutheran Church,Espinoza, and Carson cases hammered this point again and again, each time followed by a Supreme Court ruling in favor of religious liberty.

But while the Supreme Court has not let Locke prevent it from upholding religious freedoms in the context of education, the Court has not yet formally overruled Locke. And lower courts keep finding Locke controlling – as they did in Trinity Lutheran, Espinoza, and Carson until corrected, each time, by the Supreme Court. And in two Virginia cases, the federal courts are once again invoking Locke as a justification for discrimination against religion.

It is time to end Locke’s malign influence. And the two cases from Virginia may supply the occasion for the Supreme Court finally to end Locke’s baleful reign.

In Hall v. Fleming and Johnson v. Fleming, Virginia students are challenging the anti-religious disqualifiers in the VTAG program as well as a similar program (VANGSTAP) for National Guard members. In both cases, the students lost in the federal trial court because of Locke, and then appealed. In Hall, the U.S. Court of Appeals for the Fourth Circuit agreed that Locke doomed the students’ challenge. The Hall students have now petitioned the Supreme Court to hear the case and overturn Locke.

In Johnson – where we filed an amicus briefat the Fourth Circuit – the appeals court was expected to do the same thing. So the Johnson students have asked the Supreme Court to hear their challenge as well, bypassing the court of appeals.

On Monday, we filed an amicus brief in both cases, urging the Supreme Court to hear one or both cases and to discard the Locke v. Davey precedent. Our argument is twofold.

First, this is blatant and unconstitutional discrimination, end of story:

Virginia’s selective bans on tuition assistance apply expressly to a student’s choice of religious or theological studies. “A law that targets religious conduct for distinctive treatment . . . will survive strict scrutiny only in rare cases.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993). . . . And here, Virginia’s desire to achieve greater separation of church and state does not satisfy strict scrutiny. . . .

A contrary rule would authorize gratuitous hostility against otherwise eligible applicants who make choices guided by their religious beliefs. A state or federal government could expressly disallow charitable contributions deduction for religious organizations. Use of public parks could be free except for religious events. Tours of museums and state capitols could be at discounted rates for all student groups except those attending religious schools. A government transportation agency could allow free (and thus subsidized) use of express lanes by HOV vehicles except for buses carrying children to or from religious schools or churches. Such discrimination, in a land settled by believers seeking religious freedom, would be ahistorical, ironic, and “odious,” Trinity Lutheran, 582 U.S. at 467.

The lower courts’ rulings in these cases allowed precisely what the Constitution forbids.

Second, we argue that Locke should not be an obstacle to reaching the correct result. That case “did not purport to overturn any of this Court’s prior precedents.” Moreover, the Locke “decision represents an especially ill-suited candidate for the construction of a religion-antagonistic body of law,” for reasons we explain at length in our brief. For example, the scholarship in Locke only applied to the first two years of college, when students did not even have to declare a major. How does it make sense to strip a scholarship from a student as a penalty for announcing an intended major, when the same student could keep the grant by staying silent? Furthermore, students can and do change their majors. Joshua Davey, for example, ultimately decided not to be a minister and instead went to law school.

We conclude:

What is needed to restore coherence and integrity to the law is this Court’s recognition that Locke was a mistake, ill-conceived on both its facts and its reasoning, a decision that merits explicit renunciation. The sooner this Court takes that step, the better.

The Supreme Court may announce in the next few months whether it agrees to hear the Hall and Johnson cases. If it does, the ACLJ will be back with another brief, urging the Court, in the name of religious freedom, to overrule the Locke v. Davey case and its legacy of anti-religious discrimination.

Take action with the ACLJ to defeat the Left’s war against Christians. Sign our petition.