By K. Hollyn Hollman / SCOTUSblog guest columnist
This is an abbreviated version of the story. For the full story, click here.
Religious liberty in the American legal tradition is protected in a specific way. The principles of “no establishment” and free exercise stem from the experience of the Founding Era as reflected in the U.S. Constitution and state constitutions. Religious dissenters led the fight to separate the institutions of church and state and break free from tax support for churches. While free exercise keeps the state from interfering in religious practice, “no establishment” ensures independence of religion from the state.
Just twelve years ago, in Locke v. Davey, the Supreme Court rejected, by a vote of seven to two, a claim that a state program designed consistent with the state constitution’s “no aid to religion” provision amounted to unconstitutional discrimination against religion. In an opinion by Chief Justice William Rehnquist, the Court (1) affirmed a model of federalism that supports deference to states in matters of religious liberty; (2) recounted the historical and “hardly novel” arguments that undergird the state interest in not funding religious instruction; and (3) distinguished state avoidance of funding, which was found to have a minimal impact on religion, from state actions that would interfere with religious exercise.
Trinity Lutheran of Columbia v. Pauley fits squarely within the rule of Locke, and – if anything – is an easier case. In Locke, the Court rejected a challenge to the state of Washington’s college scholarship program that excluded from eligibility students who majored in devotional theology. The exclusion was based on Washington’s constitution, which prohibits public money from being applied to “religious worship, exercise or instruction.” The Court upheld the exclusion as a matter of state policy even though it stated that the exclusion was not necessary to avoid a violation of the federal Establishment Clause. …
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