712
OCTOBER TERM, 2003
Syllabus
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 College, 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, arguing 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 summary judgment. The Ninth Circuit reversed, concluding that, because the State had singled out religion for unfavorable treatment, its exclusion of theology majors had to be narrowly tailored to achieve a compelling state interest under Church of Lukumi Babalu Aye, Inc. v. Hialeah, 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 Lukumi, 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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