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Published in Print: December 10, 2003, as Locke v. Davey: Oral Arguments

Locke v. Davey: Oral Arguments

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Following are excerpts from the transcript of the oral arguments presented on Dec. 2 before the U.S. Supreme Court in Locke v. Davey (Case No. 02-1315), as recorded by Alderson Reporting Inc. Education Week has supplied the identity of the justices who asked questions, because that information is not part of the official transcript.

From the oral argument of Narda Pierce, the solicitor general of Washington state, who appeared on behalf of the state of Washington, Gov. Gary Locke, et. al.

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in No. 02-1315, Gary Locke v. Joshua Davey.

MS. PIERCE: Mr. Chief Justice, and may it please the Court: To preserve freedom of conscience for all its citizens in matters of religious faith and belief, Washington's constitution limits the involvement of government. It limits both the ability to regulate religious activities and to fund religious activities.

CHIEF JUSTICE REHNQUIST: Do you think the fact that that provision is in Washington's constitution makes it different than, say, if it were in a-simply in a statute?

MS. PIERCE: Mr. Chief Justice, the recognition that this Court has given to a state constitution, as opposed to a statute, is that it is adopted by all of the voters of the state. However, both the constitution and the state laws are subject to federal constitutional provisions. At issue today is our-

JUSTICE SANDRA DAY O'CONNOR: Is it a program at issue here that provides basically money to the student to be spent as the student wishes? Is it like a voucher program in that sense?

MS. PIERCE: Justice O'Connor, the Promise Scholarship is to be provided to the student for purposes of educational expenses and they're required to use it for certain educational expenses. The purpose of the Promise Scholarship established by the legislature is to strengthen the length between-the link between K-12 education and higher education, and in a recognition-

JUSTICE O'CONNOR: Well, I'm just trying to find out how it works, whether it's like a voucher program, you give the money to the student and the student decides how to use it.

MS. PIERCE: It works like a voucher program to the extent that it's for educational expenses. I'm not familiar with the specifics of voucher programs, but the student is required to use it for those educational expenses. It is not, for example, like a paycheck, where a person has those funds as their private funds and can dedicate those to any uses that they choose. And that's a key point under the Washington constitution, because article I, section 11 says that public funds shall not be applied to religious worship, exercise, or instruction-

JUSTICE O'CONNOR: How many states have similar provisions in their constitutions or laws?

MS. PIERCE: It varies, Justice O'Connor, according to the particular provisions. This provision refers to not using public funds for religious instruction. We also have a provision that no public funds shall be spent at schools under sectarian influence. I believe it's something in the neighborhood of 36 states who have some provisions relating to use of public funds for religious instruction, but those vary.

JUSTICE ANTONIN SCALIA: They were all adopted at about the same time, weren't these so-called Blaine Amendments?

MS. PIERCE: Your Honor, this is not the Blaine Amendment. The so-called Blaine Amendment are those that refer to use of public funds in schools under sectarian control. That's a different provision of the Washington constitution. That's article IX, section 4, and that was required by the enabling act that provided for our statehood, but this is a different provision. It's a provision that was separate and apart, that was debated, that was added to Washington's constitution as a separate provision.

… CHIEF JUSTICE REHNQUIST: ... [T]his was added after Washington was admitted in 1889?

MS. PIERCE: No, Your-Mr. Chief Justice, I'm sorry-it was at the same time of adoption, but it was not the provision that was required by the … enabling act. It was not in the original proposed constitution set before the framers. And during the course of that constitutional convention, that's where this language was added.

And I know, referring to the Blaine Amendments, there' been much made in the briefs of whether or not those amendments stemmed from anti-Catholic motivation. There's certainly no evidence in Washington that there was any discussion, any evidence of anti-Catholic motive. In Washington, both article I, section 11 and article IX, section 4, which is-more directly stems from the Blaine Amendment, Federal level, they've always been implemented in a nondiscriminatory manner, prohibiting both the practice of any religion of any sort in our public schools, as well as any funding for private sectarian schools.

JUSTICE O'CONNOR: But what if-what if a state prohibited only the study of theology from a Catholic perspective? Would that survive?

MS. PIERCE: No, Your Honor, we don't believe it would. But what the state has done here is prohibited public funds for religious instruction wherever it occurs, including in a college-

JUSTICE SCALIA: Wait. How-how do you reconcile that? That's what I don't understand. It seems to me that if you say it does not violate the religion clauses to prohibit the use for any religious instruction whatever, you would also have to say that it does not violate the religion clauses to say no public funds shall be spent for Jewish theology studies.

Why--why-I mean, the state is not permitted to discriminate between religious sects, but it's just as much not permitted to discriminate between religion in general and nonreligion. So how can you possibly-I mean, if we say that-that you can do this, it seems to me, we have to say you-you can also prohibit Jewish studies.

MS. PIERCE: No, Justice Scalia-


MS. PIERCE: I don't believe that follows. The line between funds for secular purposes and for religious purposes is a line that's been recognized by this Court in various funding cases and in reviewing government activities. It's a line that recognizes both the values of the Establishment Clause and the values of the Free Exercise Clause.

Here, simply because the state of Washington is extending those values of the Establishment Clause beyond direct funding into indirect funding does not convert those values into hostility.


JUSTICE KENNEDY: … As I understand, this student could have done exactly what he in fact did if only he did not declare a double major. He could have taken all of these religious perspective courses, if only he'd called his major business administration, which in fact it was because he had the credits for that, too. That would have been permissible. Is that correct, or am I incorrect?

MS. PIERCE: Well, the statute focuses on whether a student is pursuing a degree in theology …

JUSTICE KENNEDY: If-suppose that he pursued a degree in business administration and yet, ancillary to that or as options, took all of these other courses. Could he have had the aid that he seeks?

MS. PIERCE: Yes, Your Honor, we think that could have happened, but it's an unlikely-

JUSTICE KENNEDY: All right. What is the state's interest in denying him aid simply because he declares a double major?

MS. PIERCE: I believe the reason the legislature has focused on the nature of the degree program is because it's an inherently religious program, and if they were to-

JUSTICE KENNEDY: What is the state's interest in denying him funds simply because of the way he labels the major he chooses, if all the other instructions, all the other elements of the case are the same? He takes all the same courses, he has all the same commitment as a Christian, and yet he's denied the relief in one case and given it-the subsidy in one case, and given it in the other. What is the state's interest in doing that?

MS. PIERCE: Justice Kennedy, I think the state's interest is not in that particular student, but in how you administer it overall. And the way the state administers it overall, in order to avoid a class-by-class, student-by-student determination, is to look at the degree programs that are inherently religious that have, or ask the universities actually to do that-

… JUSTICE KENNEDY: Well, what is the state's interest in-in denying aid for programs that are inherently religious? What is that interest? Is it a compelling interest?

MS. PIERCE: Yes, Your Honor, we believe it is. The interest is-

JUSTICE RUTH BADER GINSBURG: May I ask you just to clarify what I thought was the purpose of this, was that the state has decided it does not want to fund the training of clergymen, and it cites a long history of that. And it's tried to be as accommodating as it can with that limitation.

I mean, certainly if what you're doing is vulnerable, it would be no less vulnerable if the state said, well, we won't fund that school at all because it's an evangelical school.

MS. PIERCE: Justice Ginsburg-excuse me-the focus is on the religious nature of the instruction. If someone had a career goal to enter the clergy and yet took a secular course of education, they would not be denied funding. Certainly one of the underlying values of our Freedom of Religion Clauses at the federal and state level is not to require people to support the promotion of a doctrine or religious belief with which they may not agree, and that, returning to Justice Kennedy's question, is-is the interest.


JUSTICE DAVID H. SOUTER: Ms. Pierce, may I ask you a question there on how you draw the line? Because I want to get clear on one thing, and it was raised in effect by the questions earlier about the Blaine Amendment, I guess, but is my understanding correct that the state of-that this clause that we are dealing with here, and nothing else for that matter in the Washington law, forbids the state from paying-we'll call it a tuition voucher here-that is going to a sectarian school like this one, so long as it's not being used for theological education?

MS. PIERCE: Justice Souter, there's a distinction in our state constitution-

JUSTICE SOUTER: No, but isn't the answer, there is nothing that forbids that? In other words, going back to Justice Kennedy's question, if this same student said, I want to study business and I want to study it at this sectarian school, there would be no impediment in Washington law to paying him the-or giving him the voucher or whatever you call it and letting him spend it at this sectarian school? Is that correct?

MS. PIERCE: That's true at the higher education level.



JUSTICE GINSBURG: Is it essentially your position that not everything that is compatible with the Establishment Clause, not everything that the state could do under the Establishment Clause, it must do under the Free Exercise? And if that's your position, how do you define the space in between those two where the state has a choice?

MS. PIERCE: That is our position. We don't think states should be in constitutional pincers where whatever they're allowed to do under the Establishment Clause or required to do, particularly given the history that states have come to their own path to religious freedom. And I think applying the various principles on when you burden the exercise of religious freedom leads you to the latitude in this area. Here, not providing funding does not infringe or burden a fundamental right, and that's all that the state has done. Mr. Chief Justice, I'd-


From the oral argument of Jay A. Sekulow of the American Center for Law & Justice, who appeared on behalf of Joshua Davey.

MR. SEKULOW: In the free exercise context, this Court has held that the minimum requirement of neutrality is that a law not discriminate on its face. That's clearly what is taking place here, and I'd like to put in context exactly how the implementation of the statutory program works. Washington, when they adopted the Promise Scholarship program and how it's applied, works this way.

A student applies for this general grant. In this particular case, Josh Davey applied for the grant when he was aware of it in the summer, was notified by the state that he was qualified and accepted in the program in August. At that point he enrolled at Northwest College, which is an accredited and eligible institution. It was not until-and he declared his major, the dual major, at that point in business administration and the pastoral ministries degree.

Two months later, it was two months until he was notified by the financial aid office through a memorandum that the state circulated that after reviewing the Promise Scholarship program, the state then decided that in fact there would be a prohibition put in place on pursuing a degree in theology and that state has interpreted that to mean pursuing a degree in theology from a religious perspective.

The check, Justice O'Connor, is sent directly to the student. The school is the-in the sense the school gets the check and hands it to the student. It's not written to the school. The school cannot use it for-to-a private institution cannot use it at all for any expenditure. They can't credit, they can't debit the account. The school merely verifies that the student's enrolled. The check then goes to the student. It can be used for any-

JUSTICE O'CONNOR: So it wouldn't violate the Establishment Clause, but I guess what we're addressing is whether there's a free exercise violation.


JUSTICE O'CONNOR: How does this violate the student's right to free exercise of religion? Maybe it's more expensive to go to school, but why does that violate his free exercise of religion right?

MR. SEKULOW: Joshua Davey, and the state has acknowledged this, of course, has the free exercise right to pursue a degree in theology. The question here is the burden that's placed on it. Of course, two responses. With regard to the actual burden, here a general benefit was available to a student and a religious classification was utilized to deny the student access to those funds. He met the criteria.

JUSTICE O'CONNOR: Well, let me ask you this.

MR. SEKULOW: Sure. JUSTICE O'CONNOR: Suppose a state has a school voucher program such as the Court indicated could be upheld in the Zelman case. Now, if the state decides not to give school vouchers for use in religious or parochial schools, do you take the position it must, that it has to do one or the other? It can have a voucher program, but if it does, it has to fund all private and religious schools with a voucher program?

MR. SEKULOW: No, I think-

JUSTICE O'CONNOR: Is that your position?

MR. SEKULOW: No. The state-

JUSTICE O'CONNOR: Well, why not? I mean, why wouldn't it follow from what you are saying today?

MR. SEKULOW: For this reason. The state can set neutral and eligible criteria for admission as an eligible institution. Here it was accreditation. Now, if the religious school, the school that was affiliated with the religious denomination met the general neutral eligibility requirement, and there was no countervailing Establishment Clause problems, yes, then it should-

JUSTICE O'CONNOR: I-I don't know what you mean. The state says all schools were going to have a program to give vouchers for use in all schools of a certain grade level, assuming the teachers are qualified to be teachers.


JUSTICE O'CONNOR: Can they refrain from making that program available for use in religious schools?

MR. SEKULOW: I-I would think not. I think once it would go towards the private schools, as long as the eligibility-

JUSTICE O'CONNOR: So what you're urging here would have a major impact, then, would it not, on-on voucher programs? MR. SEKULOW: Well, it would. …

CHIEF JUSTICE REHNQUIST: Sure-surely, the state can decide to fund only public schools.

MR. SEKULOW: Absolutely.

CHIEF JUSTICE REHNQUIST: And it's only when it starts funding some private schools that you get into the religious question.

MR. SEKULOW: That's correct.


JUSTICE KENNEDY: As I-as I understand your answer to Justice O'Connor, if we decide in your favor, we necessarily commit ourselves to the proposition that an elementary and secondary school voucher program must include religious schools if it includes any other private schools. It-it seems to me that your case can be resolved on a much narrower issue than that. Here we have a-a college student who is being required to surrender his-his conscientious beliefs by declaring a major which otherwise would have been completely funded by the school, and I-I just don't see any interest in doing that. It seems to me a-a very severe violation of-of religious conscience. I think that's quite different from an overall neutrality principle, which would foreclose this Court on the voucher issue.

MR. SEKULOW: Well, I don't think-I agree, Justice Kennedy. I don't think the Court has to go that far here. … JUSTICE O'CONNOR: But certainly that's what you're arguing. I mean, your-your brief and your presentation certainly urges us to go that route.


JUSTICE SOUTER: It seems to me, following Justice O'Connor's question, that the argument that would be made in any case in which a state says we will-we will allow a voucher to be spent in a private school, but not a private religious school is the same argument that Justice Kennedy was suggesting a moment ago, and that is that the religious student must somehow surrender a conscientious belief and go from a religious school and seek to be enrolled in a nonreligious private school or a public one to get the voucher. And I don't see why that argument would not be just as applicable there as the argument that you are making here.

MR. SEKULOW: Justice Souter, in this particular-using that example, here the school is a qualified school. The Northwest College, which admittedly has a religious affiliation, it isn't- JUSTICE SOUTER: Sure. That's a wash. Everybody agrees.

MR. SEKULOW: It's their major.

JUSTICE SOUTER: Everybody-the only criterion is, will we fund religious training in how to be religion-religious-or will we not? And in fact, a-a similar argument would be made as between the- the religious school that teaches religion, and the private school that doesn't teach religion.

MR. SEKULOW: In this context, the way the program is implemented within that hypothetical and within the facts here, here students can take these very same courses in religion that Josh Davey-

JUSTICE SOUTER: Well, that may show that the state draws a kind of a funny line. Maybe it was a bad job of line drawing, and I-I have to admit, I'm not quite sure why they draw it the way they do, but on-on the-on the basic proposition that the state raises as-as its position here, that it will not fund ministerial education or education in how to be religious versus funding other kinds of training, the argument, it seems to me, from the Free Exercise Clause would be the same in the voucher case as the argument that you are making here.


JUSTICE STEPHEN G. BREYER: … I don't know if we can escape the broader ground, the state's saying, look, we understand that, you know, applying our standard there'll be all kinds of anomalies that you can get. Maybe this case is one.

But what we're doing by and large is to say, we don't want to spend too much of our state money in this program, we'll do it subsidiary, you know, the odd example doesn't matter, but people who major in philosophy are likely to become priests or at least spend a lot of time studying theology. If they major in theology, or they spend a lot of time studying theology, that's going too far. So this is, like many administrative lines, a very crude effort to identify those people who are taking too much of their time in totally religiously-oriented matters.

Now, of course that's unconstitutional if we accept your argument that the state must treat the religious study the same way as any other. That's your broad ground. But if we reject the broad ground, I don't quite see at the moment how we can accept the narrow one, which turns on these details of the administrability of the line.

MR. SEKULOW: Well, the reason that I want-let me address the latter, if I might, Justice Breyer. The reason those details matter because the line drawing albeit may be crude on the State of Washington, here is within the context of the Free Exercise Clause, because here the school is an eligible institution, so that's not even at issue. There is no countervailing Establishment Clause issue here. Witters foreclosed that. So all we are dealing with is a statute which on its face states that a student who qualifies based on academic excellence and economic need makes the decision for him or herself where they're going to go to school and what they're going to major in, and they can major in literally the universe of courses. There is only one exclusion. It's not even, Justice Ginsburg, a situation with a number of majors.

JUSTICE GINSBURG: Mr. Sekulow, I think that Justice Breyer is getting at the same point I tried to get at, and it's in part the other flip side of what Justice Kennedy asked you. Certainly, you are not standing here to tell us that, oh, if they were more restrictive, if they said we're simply not going to fund scholarships to students who go to sectarian schools, that that might be all right. I mean, you don't want to win on the ground of the school was too generous in what it did fund.

MR. SEKULOW: Well, two responses. First, the-on the issue of the state and their obligation, to recast this as a-the state is being required to fund Joshua Davey's education, I think is-is a miscast of the issue. The state has decided to employ, to develop a scholarship program that's very broad-based and in that program they have given the student the ultimate choice of where they could go to school as long as it's within Washington state and accredited and literally they can major in any major except for one, and that is a theology exclusion.

JUSTICE GINSBURG: Wouldn't be any better if they said, you can go to any school except a-a church school. MR. SEKULOW: No. I think it would raise, if it's accredited I think it would raise the same problem.

From the oral argument of U.S. Solicitor General Theodore B. Olson, who appeared as a friend of the court supporting Joshua Davey.

MR. OLSON: Mr. Chief Justice, and may it please the Court: The Promise Scholarship program practices the plainest form of religious discrimination. It disqualifies the one course of study that is taught from a religious perspective. The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged.

JUSTICE O'CONNOR: Well, but of course, there's been a couple of centuries of practice in this country of not funding religious instruction by tax money. I mean, that's- that's as old as the country itself, isn't it? MR. OLSON: Well, yes, it is. But there is the other tradition that is as old as the country itself, is the free exercise component of the religion clauses, which this Court has said repeatedly mandates neutrality.


JUSTICE KENNEDY: So do you agree, do you take the position that if we affirm the court of appeals and accept your position, that the Court is committed on the school voucher issue if, say, a school voucher program excludes parochial schools?

MR. OLSON: It would depend, I suppose, on how the program was structured, what the inquiry involving a compelling government-strict scrutiny would entail. There may be a difference, for example, with respect to funding that's associated with institutions, as opposed to individual conscience. This is the plainest form of religious discrimination because the person who wants to believe in God or wants to have a position of religious leadership is the one that's singled out for discriminatory treatment.

The Court has said before that distinction, religious tests for governmental benefits violate the Free Exercise Clause. This is a religious test. If the person wants to take a program in theology, he's disqualified. . . .

Vol. 23, Issue 15, Page web-only

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