As I read Dahlia Lithwick’s coverage of the Davis v Locke oral argument, I wondered what approach the court and press would have taken had the case originated in Utah. Dahlia writes:
[Justice Kennedy was] bothered by the fact that Davey had his scholarship revoked simply because he’d declared a double major in pastoral ministries and business administration. According to Kennedy, Davey could have just declared the business major, taken theology courses, and kept his funding. Kennedy asks, over and over, “What is the state interest in denying him funding simply because he declared a double major?” Finally Ruth Bader Ginsburg has to answer him: “I thought the interest was the state doesn’t want to fund the training of clergymen.”
Lithwick clearly thought Ginsburg’s comment responsive to Kennedy’s concern.
The Utah Wrinkle
About 95% of Utah’s state legislature are members of the Church of Jesus Christ of Latter-day Saints (Mormons).
The Mormon church has a lay priesthood, and many of the state representatives and senators are clergy in the Mormon church. Senator Leonard Blackham, for whom I interned in 1997, was in a Stake Presidency (a stake is a group of 5 to 10 congregations; three men comprise the presidency), for example. I wouldn’t be surprised to learn that 40% of Utah’s legislature are or have been clergy in the Mormon church.
Because the Mormon church has a lay clergy, Mormons don’t go to theology or divinity school. Mormon clergy have every conceivable college degree save one: theology.
If the Utah legislature were to make theology the sole college major that’s excluded from a general scholarship, like Washington has, people might wonder if they were motivated by religious discrimination. Someone studying theology is likely to be a Catholic, or some other non-Mormon denomination. Refusing scholarships for theology majors would funnel the subsidies to students studying biology, sociology or accounting; i.e., future Mormon
clergy. That way Mormons could avoid paying to educate other church’s clergy, while getting other church’s to subsidize the educations of Mormon clergy. The rule would be especially egregious if Utah, again like Washington, allowed students to take as many theology courses as they wished, but refused to let them list Theology on their diploma.
When challenged by churches with a professional clergy, Utah could borrow Dahlia’s argument that “Of course chasing religion from the public square is hostile. The point is that it’s the only means of avoiding a theocracy.”
What would Dahlia, ACLU and PFAW think about that?
(En Banc has a good entry on the issues raised by the case. The NYT coverage is here.)
NOTE: Published simultaneously at The Buck Stops Here
The short answer is that I don’t know what the court would rule.
But can you imagine a Utah legislature that sly and ruthless? Wooh! As far as I can tell, the motto of the state government is “Don’t make waves!” so the only people who ever come up with radical ideas are the ones so on the margins that they don’t know how to communicate and situate them.
I read the Lithwick article and I thought that she missed the point. The silliness of this case is exhibit one in why the turn to anti-discrimination norms in Smith was such a dumb move. I have also blogged a bit on this in the more juristic “A Good Oman”:
One law professor posted this today on Eugene Volokh’s law and religion list. An interesting angle:
Doesn’t Locke v. Davey involve an unconstitutional condition, in that the scholarship money (roughly $1500 a year) is not made available to a theology major even for his nonreligious courses and expenses? (Davey in fact had declared a double major, in business as well as pastoral ministries.) Or, to put the matter differently, a theology major cannot use his own resources to pay for his religious training without forfeiting the scholarship money that is available to other students. If so, doesn’t this distinguish the abortion funding cases, in the which the government declines to fund a particular activity as such? And doesn’t it further suggest that the Court should rule in Davey’s favor without having to reach the broader issue of whether a state can refuse to extend a general program of funding to religious instruction as such?