Abstract

http://ssrn.com/abstract=647707
 
 

Citations (3)



 
 

Footnotes (156)



 


 



The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions


Thomas C. Berg


University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Douglas Laycock


University of Virginia School of Law


Tulsa Law Review, Vol. 40, No. 2, 2005
U of St. Thomas Legal Studies Research Paper No. 05-09

Abstract:     
This article is a contribution to a symposium on Locke v. Davey (2004), in which the Supreme Court first confronted the question whether singling out religious education for exclusion from generally available education benefits violates the Free Exercise Clause by discriminating against the religious choice. The Court rejected the free exercise challenge and on a set of facts seemingly sympathetic to the challenger. Washington provides high-achieving students of modest family incomes with scholarships usable at any of the dozens of colleges in the state, for any of hundreds of majors, but denies scholarships to those few students who choose to major in theology taught from a devotional perspective. By upholding the Washington exclusion, the Court may have signaled that states will have broad discretion in all their funding programs to discriminate against religious educational choices. The free exercise claim for equal funding may have been strangled in its infancy.

In our view, it would be unfortunate if Davey ended the entire debate. We think that the majority opinion does not go nearly so far, and that even its narrower holding rests on a series of mistakes, large and small, about the nature and purposes of the Religion Clauses. Most importantly, the Washington exclusion violates the clauses' central goal by permitting government to distort the individual choice of scholarship recipients about whether to major in a religious subject. After detailing this and other problems in the opinion, we turn to the issues that remain after Davey, especially the prime issue of vouchers to fund education from kindergarten through 12th-grade (K-12). Parts of Davey suggest that states now have carte blanche to exclude religious choices from K-12 vouchers and other funding programs. But much of the opinion focuses on the special case of funding the training of clergy; and we sketch the argument for limiting Davey to its reasoning, thus forbidding states from singling out religious providers for exclusion from certain other funding programs.

Number of Pages in PDF File: 28

Keywords: Religion Clauses, free exercise, vouchers, funding of religious education

JEL Classification: Z00

Accepted Paper Series





Download This Paper

Date posted: January 12, 2005  

Suggested Citation

Berg, Thomas C. and Laycock, Douglas, The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions. Tulsa Law Review, Vol. 40, No. 2, 2005; U of St. Thomas Legal Studies Research Paper No. 05-09. Available at SSRN: http://ssrn.com/abstract=647707

Contact Information

Thomas Charles Berg (Contact Author)
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )
1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

Douglas Laycock
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
Feedback to SSRN


Paper statistics
Abstract Views: 7,387
Downloads: 142
Download Rank: 121,995
Citations:  3
Footnotes:  156

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.360 seconds