LOCKE, GOVERNOR OF WASHINGTON, et al. v. DAVEY

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712 OCTOBER TERM, 2003
Syllabus
LOCKE, GOVERNOR OF WASHINGTON, et al. v.
DAVEY
certiorari to the united states court of appeals for
the ninth circuit
No. 02–1315. Argued December 2, 2003—Decided February 25, 2004
Washington State established its Promise Scholarship Program to assist
academically gifted students with postsecondary education expenses.
In accordance with the State Constitution, students may not use such a
scholarship to pursue a devotional theology degree. Respondent Davey
was awarded a Promise Scholarship and chose to attend Northwest Col-
lege, a private, church-affiliated institution that is eligible under the
program. When he enrolled, Davey chose a double major in pastoral
ministries and business management/administration. It is undisputed
that the pastoral ministries degree is devotional. After learning that
he could not use his scholarship to pursue that degree, Davey brought
this action under 42 U. S. C. § 1983 for an injunction and damages, ar-
guing that the denial of his scholarship violated, inter alia, the First
Amendment’s Free Exercise and Establishment Clauses. The District
Court rejected Davey’s constitutional claims and granted the State sum-
mary judgment. The Ninth Circuit reversed, concluding that, because
the State had singled out religion for unfavorable treatment, its exclu-
sion of theology majors had to be narrowly tailored to achieve a compel-
ling state interest under Church of Lukumi Babalu Aye, Inc. v. Hia-
leah, 508 U. S. 520. Finding that the State’s antiestablishment concerns
were not compelling, the court declared the program unconstitutional.
Held: Washington’s exclusion of the pursuit of a devotional theology
degree from its otherwise-inclusive scholarship aid program does not
violate the Free Exercise Clause. This case involves the “play in
the joints” between the Establishment and Free Exercise Clauses.
Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669. That is, it
concerns state action that is permitted by the former but not required
by the latter. The Court rejects Davey’s contention that, under Lu-
kumi, supra, the program is presumptively unconstitutional because it
is not facially neutral with respect to religion. To accept this claim
would extend the Lukumi line of cases well beyond not only their facts
but their reasoning. Here, the State’s disfavor of religion (if it can be
called that) is of a far milder kind than in Lukumi, where the ordinance
criminalized the ritualistic animal sacrifices of the Santeria religion.
Washington’s program imposes neither criminal nor civil sanctions on

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713 Cite as: 540 U. S. 712 (2004)
Syllabus
any type of religious service or rite. It neither denies to ministers the
right to participate in community political affairs, see McDaniel v. Paty,
435 U. S. 618, nor requires students to choose between their religious
beliefs and receiving a government benefit, see, e. g., Hobbie v. Unem-
ployment Appeals Comm’n of Fla., 480 U. S. 136. The State has
merely chosen not to fund a distinct category of instruction. Even
though the differently worded Washington Constitution draws a more
stringent line than does the Federal Constitution, the interest it seeks
to further is scarcely novel. In fact, there are few areas in which a
State’s antiestablishment interests come more into play. Since this
country’s founding, there have been popular uprisings against procuring
taxpayer funds to support church leaders, which was one of the hall-
marks of an “established” religion. Most States that sought to avoid
such an establishment around the time of the founding placed in their
constitutions formal prohibitions against using tax funds to support the
ministry. That early state constitutions saw no problem in explicitly
excluding only the ministry from receiving state dollars reinforces the
conclusion that religious instruction is of a different ilk from other pro-
fessions. Moreover, the entirety of the Promise Scholarship Program
goes a long way toward including religion in its benefits, since it permits
students to attend pervasively religious schools so long as they are ac-
credited, and students are still eligible to take devotional theology
courses under the program’s current guidelines. Nothing in the Wash-
ington Constitution’s history or text or in the program’s operation sug-
gests animus toward religion. Given the historic and substantial state
interest at issue, it cannot be concluded that the denial of funding for
vocational religious instruction alone is inherently constitutionally sus-
pect. Without a presumption of unconstitutionality, Davey’s claim must
fail. The State’s interest in not funding the pursuit of devotional de-
grees 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. Pp. 718–725.
299 F. 3d 748, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which Ste-
vens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ.,
joined. Scalia, J., filed a dissenting opinion, in which Thomas, J.,
joined, post, p. 726. Thomas, J., filed a dissenting opinion, post, p. 734.
Narda Pierce, Solicitor General of Washington, argued the
cause for petitioners. With her on the briefs were Christine
O. Gregoire, Attorney General, William Berggren Collins,

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714 LOCKE v. DAVEY
Counsel
Senior Assistant Attorney General, and Michael J. Shinn,
Assistant Attorney General.
Jay Alan Sekulow argued the cause for respondent.
With him on the brief were Stuart J. Roth, Colby M. May,
James M. Henderson, Sr., Walter M. Weber, David A. Cort-
man, Alan E. Sears, and Benjamin W. Bull.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging affirmance. With him on
the brief were Assistant Attorney General Acosta, Deputy
Solicitor General Clement, Gregory G. Garre, David K.
Flynn, and Eric W. Treene.*
*Briefs of amici curiae urging reversal were filed for the State of Ver-
mont et al. by William H. Sorrell, Attorney General of Vermont, and
Timothy B. Tomasi, Chief Assistant Attorney General, by Anabelle Ro-
drı´guez, Secretary of Justice of Puerto Rico, and by the Attorneys Gen-
eral for their respective jurisdictions as follows: Thomas F. Reilly of Mas-
sachusetts, Jeremiah W. (Jay) Nixon of Missouri, Hardy Myers of Oregon,
Lawrence E. Long of South Dakota, and Clyde Lemons, Jr., of the North-
ern Mariana Islands; for the American Civil Liberties Union et al. by
Aaron H. Caplan, Steven R. Shapiro, Julie E. Sternberg, Ayesha N. Khan,
Elliot M. Mincberg, and Susan L. Sommer; for the American Jewish Con-
gress et al. by Marc D. Stern, K. Hollyn Hollman, Jeffrey Sinensky, Kara
Stein, and David Strom; for the Anti-Defamation League et al. by David
Lash, Steven M. Freeman, Steven C. Sheinberg, Martin E. Karlinsky,
Erwin Chemerinsky, and Frederick M. Lawrence; for the National Educa-
tion Association by Robert H. Chanin, Andrew D. Roth, and Laurence
Gold; and for the National School Boards Association et al. by David H.
Remes and Julie Underwood.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama by William H. Pryor, Jr., Attorney General of Alabama, Nathan
A. Forrester, Solicitor General, and Margaret L. Fleming, Assistant Attor-
ney General; for the State of Florida et al. by Charles J. Crist, Jr., Attor-
ney General of Florida, Christopher M. Kise, Solicitor General, Raquel A.
Rodriguez, and Daniel Woodring; for the State of Texas et al. by Greg
Abbott, Attorney General of Texas, Barry R. McBee, First Assistant At-
torney General, Edward D. Burbach, Deputy Attorney General, Rafael
Edward Cruz, Solicitor General, Joseph D. Hughes and Cassandra Robert-
son, Assistant Solicitors General, Mike Moore, Attorney General of Mis-
sissippi, and Mark L. Shurtleff, Attorney General of Utah; for the Associa-

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715 Cite as: 540 U. S. 712 (2004)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
The State of Washington established the Promise Scholar-
ship 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 abil-
ity to attend college because they cannot obtain financial
aid or the financial aid is insufficient.” Wash. Rev. Code
Ann. § 28B.119.005 (West Supp. 2004). In 1999, to assist
these high-achieving students, the legislature created the
tion of Southern Baptist Colleges and Schools et al. by Carter G. Phillips,
Gene C. Schaerr, and Nicholas P. Miller; for the Becket Fund for Reli-
gious Liberty et al. by Kevin J. Hasson, Roman P. Storzer, and Anthony
R. Picarello, Jr.; for the Black Alliance for Educational Options by Samuel
Estreicher and Brett M. Schuman; for the Council for Christian Col-
leges & Universities et al. by Gregory S. Baylor and Thomas C. Berg; for
the Fairness Foundation by Kenneth W. Starr, Robert R. Gasaway, and
Ashley C. Parrish; for the Institute for Justice et al. by Richard D. Komer,
Clint Bolick, and William H. Mellor; for the Landmark Legal Foundation
by Richard P. Hutchison and Michael J. O’Neill; for Liberty Counsel by
Mathew D. Staver and Rena M. Lindevaldsen; for the National Jewish
Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps,
David Zwiebel, Richard B. Stone, and Nathan J. Diament; for the Na-
tional Legal Foundation by Barry C. Hodge; for the Solidarity Center for
Law and Justice, P. C., by James P. Kelly III; and for Teresa M. Becker
by Richard Thompson.
Briefs of amici curiae were filed for the Common Good Legal Defense
Fund et al. by John G. Stepanovich and Keith A. Fournier; for the United
States Conference of Catholic Bishops et al. by Mark E. Chopko and Jef-
frey Hunter Moon; and for Robert S. Alley et al. by Steven K. Green.

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716 LOCKE v. DAVEY
Opinion of the Court
Promise Scholarship Program, which provides a scholarship,
renewable for one year, to eligible students for postsecond-
ary 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) to (d). The student’s family income must be less
than 135% of the State’s median. § 250–80–020(12)(e). Fi-
nally, 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) to (g); see
also Wash. Rev. Code Ann. § 28B.10.814 (West 1997) (“No aid
shall be awarded to any student who is pursuing a degree in
theology”). Private institutions, including those religiously
affiliated, qualify as “ ‘[e]ligible postsecondary institution[s]’ ”
if they are accredited by a nationally recognized accrediting
body. See Wash. Admin. Code § 250–80–020(13). A “de-
gree in theology” is not defined in the statute, but, as both
parties concede, the statute simply codifies the State’s consti-
tutional 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 Respond-
ent 8; see also Wash. Const., Art. I, § 11.

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Opinion of the Court
A student who applies for the scholarship and meets the
academic and income requirements is notified that he is eligi-
ble for the scholarship if he meets the enrollment require-
ments. E. g., App. 95. Once the student enrolls at an eligi-
ble 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 Schol-
arship, 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, spe-
cifically 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 manage-
ment/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.1 He refused to sign the form and did
not receive any scholarship funds.
1 The State does not require students to certify anything or sign any
forms. App. 86, 89.

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718 LOCKE v. DAVEY
Opinion of the Court
Davey then brought an action under Rev. Stat. § 1979, 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, Establish-
ment, 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 in-
junction, the parties filed cross-motions for summary judg-
ment. 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 Washing-
ton’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 Exer-
cise Clause, are frequently in tension. See Norwood v. Har-
rison, 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

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other words, there are some state actions permitted by the
Establishment Clause but not required by the Free Exer-
cise 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, con-
sistent with the Federal Constitution, permit Promise Schol-
ars 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,2 which has been authorita-
tively interpreted as prohibiting even indirectly funding reli-
gious 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) (en banc); cf. Witters v.
State Comm’n for the Blind, 102 Wash. 2d 624, 629, 689 P. 2d
53, 56 (1984) (en banc) (“It is not the role of the State to pay
for the religious education of future ministers”), rev’d, 474
U. S. 481 (1986), can deny them such funding without violat-
ing the Free Exercise Clause.
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 indi-
vidual, 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.”

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720 LOCKE v. DAVEY
Opinion of the Court
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.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 Hia-
leah made it a crime to engage in certain kinds of animal
slaughter. We found that the law sought to suppress ritual-
istic 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 re-
quire students to choose between their religious beliefs and
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 Schol-
arship 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 725,
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.

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Opinion of the Court
receiving a government benefit.4 See ibid.; Hobbie v. Un-
employment 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 726 (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 post,
at 726–727. But training for religious professions and train-
ing for secular professions are not fungible. Training some-
one to lead a congregation is an essentially religious en-
deavor. Indeed, majoring in devotional theology is akin to
a religious calling as well as an academic pursuit. See Cal-
vary Bible Presbyterian Church v. Board of Regents, 72
Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (en banc) (holding
public funds may not be expended for “that category of in-
struction 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 profes-
sions. That a State would deal differently with religious ed-
ucation for the ministry than with education for other call-
ings is a product of these views, not evidence of hostility
toward religion.
4 Promise Scholars may still use their scholarship to pursue a secular
degree at a different institution from where they are studying devotional
theology.

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722 LOCKE v. DAVEY
Opinion of the Court
Even though the differently worded Washington Constitu-
tion 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.5
Since the founding of our country, there have been popu-
lar uprisings against procuring taxpayer funds to support
church leaders, which was one of the hallmarks of an “es-
tablished” religion.6 See R. Butts, The American Tradi-
tion 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)
5 Justice Scalia notes that the State’s “philosophical preference” to
protect individual conscience is potentially without limit, see post, at 730;
however, the only interest at issue here is the State’s interest in not fund-
ing the religious training of clergy. Nothing in our opinion suggests that
the State may justify any interest that its “philosophical preference”
commands.
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,
72, 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 “Vir-
ginia Bill for Religious Liberty,” which was originally written by Thomas
Jefferson, was enacted. This bill guaranteed “that no man shall be com-
pelled 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).

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(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 reli-
gion around the time of the founding placed in their constitu-
tions 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 sup-
port 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 728, n. 1, 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 re-
ceiving state dollars reinforces our conclusion that religious
instruction is of a different ilk.7
7 The amici contend that Washington’s Constitution was born of reli-
gious 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,

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724 LOCKE v. DAVEY
Opinion of the Court
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 includ-
ing religion in its benefits.8 The program permits students
to attend pervasively religious schools, so long as they are
accredited. As Northwest advertises, its “concept of educa-
tion 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
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 establish-
ment 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 Washing-
ton Constitution (“All schools maintained or supported wholly or in part
by the public funds shall be forever free from sectarian control or influ-
ence”), and is not at issue in this case. Neither Davey nor amici have
established a credible connection between the Blaine Amendment and Ar-
ticle I, § 11, the relevant constitutional provision. Accordingly, the Blaine
Amendment’s history is simply not before us.
8 Washington has also been solicitous in ensuring that its constitution is
not hostile toward religion, see State ex rel. Gallwey v. Grimm, 146
Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) (en banc) (“[I]t was never the
intention that our constitution should be construed in any manner indicat-
ing any hostility toward religion” (internal quotation marks 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) (en banc) (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) (en banc) (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 calling,” as Justice Scalia contends, post, at 731.

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725 Cite as: 540 U. S. 712 (2004)
Opinion of the Court
profession. Id., at 169. And under the Promise Scholar-
ship Program’s current guidelines, students are still eligible
to take devotional theology courses.9 Davey notes all stu-
dents at Northwest are required to take at least four devo-
tional courses, “Exploring the Bible,” “Principles of Spirit-
ual 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 toward religion.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 pur-
suit 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.
9 The State notes that it is an open question whether the Washington
Constitution prohibits nontheology majors from taking devotional theol-
ogy 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).
10 Although we have sometimes characterized the Establishment Clause
as prohibiting the State from “disapprov[ing] of a particular religion or of
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.

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726 LOCKE v. DAVEY
Scalia, J., dissenting
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 bur-
dening religious practice that is not neutral . . . must undergo
the most rigorous of scrutiny,” id., at 546, and that “the mini-
mum 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 fa-
cially 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 exer-
cise of their own religion. Consequently, it cannot ex-
clude individual Catholics, Lutherans, Mohammedans,
Baptists, Jews, Methodists, Non-believers, Presbyteri-
ans, 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 bur-
dens on religion are measured; and when the State withholds

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727 Cite as: 540 U. S. 712 (2004)
Scalia, J., dissenting
that benefit from some individuals solely on the basis of reli-
gion, 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 Ann. § 28B.119.010(8) (West 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 Pro-
tective 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 722, is therefore quite misplaced. That history in-
volved not the inclusion of religious ministers in public bene-
fits 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 Lib-
erty in America 131, 169, 270, 295, 304, 386 (1902). One can
concede the Framers’ hostility to funding the clergy specifi-
cally, 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 Fram-

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728 LOCKE v. DAVEY
Scalia, J., dissenting
ers would have barred ministers from using public roads on
their way to church.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 719. I use the term “principle” loosely, for that is
not so much a legal principle as a refusal to apply any prin-
ciple 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
1 Equally misplaced is the Court’s reliance on founding-era state consti-
tutional provisions that prohibited the use of tax funds to support the
ministry. Ante, at 723. 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 727. 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 constitu-
tional provision has, so far as I know, ever prohibited the hiring of public
employees who use their salary to conduct ministries, or excluded minis-
ters 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 723, adds nothing whatever to the “plain text” of Washington’s
own Constitution.

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729 Cite as: 540 U. S. 712 (2004)
Scalia, J., dissenting
theology.” Ibid. 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 for-
mally neutral public benefits programs are so gerryman-
dered and devoid of plausible secular purpose that they
might raise specters of state aid to religion, but an even-
handed 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 the-
ology 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 ob-
server 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 judg-
ment). Nor can Washington’s exclusion be defended as a
means of assuring that the State will neither favor nor disfa-
vor Davey in his religious calling. Davey will throughout
his life contribute to the public fisc through sales taxes on

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730 LOCKE v. DAVEY
Scalia, J., dissenting
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 con-
straints, avoidance of endorsement, or substantive neutral-
ity—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 compel-
ling (the opinion is devoid of any mention of standard of re-
view) but, self-evidently, it is not.2
2 The Court argues that those pursuing theology majors are not compa-
rable to other Promise Scholars because “training for religious professions
and training for secular professions are not fungible.” Ante, at 721.
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 hold-
ing is contrary not only to precedent, see supra, at 726, but to common
sense. If religious discrimination required only a rational basis, the Free
Exercise Clause would impose no constraints other than those the Consti-
tution 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 dis-
criminate against theology majors in distributing public benefits because
the Establishment Clause and its state counterparts are themselves dis-
criminatory. See ante, at 721, 723. The Court’s premise is true at some
level of abstraction—the Establishment Clause discriminates against reli-
gion 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.

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731 Cite as: 540 U. S. 712 (2004)
Scalia, J., dissenting
II
The Court makes no serious attempt to defend the pro-
gram’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 sin-
gled 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 re-
quired 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 re-
quirement, surely Davey has satisfied it. The First Amend-
ment, after all, guarantees free exercise of religion, and when
the State exacts a financial penalty of almost $3,000 for reli-
gious exercise—whether by tax or by forfeiture of an other-
wise 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 721, 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 scholar-
ship for his chosen course of study) with another, less valu-
able one (a scholarship for any course of study but his chosen

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732 LOCKE v. DAVEY
Scalia, J., dissenting
one). On such reasoning, any facially discriminatory bene-
fits 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 discrimina-
tion this way. When we declared racial segregation uncon-
stitutional, 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 cur-
rent 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 be-
cause 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 supple-
ment 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 con-

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733 Cite as: 540 U. S. 712 (2004)
Scalia, J., dissenting
text. In McDaniel v. Paty, 435 U. S. 618 (1978), we consid-
ered a Tennessee statute that disqualified clergy from partic-
ipation in the state constitutional convention. That statute,
like the one here, was based upon a state constitutional pro-
vision—a clause in the 1796 Tennessee Constitution that dis-
qualified 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. 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 reli-
gious minority. Most citizens of this country identify them-
selves as professing some religious belief, but the State’s pol-
icy poses no obstacle to practitioners of only a tepid, civic
version of faith. Those the statutory exclusion actually af-
fects—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 reli-
gious 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.
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).

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734 LOCKE v. DAVEY
Thomas, J., dissenting
* * *
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 in-
terests 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, col. 1. When the public’s freedom of conscience is
invoked to justify denial of equal treatment, benevolent mo-
tives 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 respect-
fully dissent.
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 Re-
spondent 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 “ ‘[e]ligible 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

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735 Cite as: 540 U. S. 712 (2004)
Thomas, J., dissenting
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.