locke governor washington et al davey argued december decided february washington state established promise scholarship program assist academically gifted students postsecondary education expenses accordance state constitution students may use scholarship pursue devotional theology degree respondent davey awarded promise scholarship chose attend northwest college private institution eligible program enrolled davey chose double major pastoral ministries business undisputed pastoral ministries degree devotional learning use scholarship pursue degree davey brought action injunction damages arguing denial scholarship violated inter alia first amendment free exercise establishment clauses district rejected davey constitutional claims granted state summary judgment ninth circuit reversed concluding state singled religion unfavorable treatment exclusion theology majors narrowly tailored achieve compelling state interest church lukumi babalu aye hialeah finding state antiestablishment concerns compelling declared program unconstitutional held washington exclusion pursuit devotional theology degree scholarship aid program violate free exercise clause case involves play joints establishment free exercise clauses walz tax city new york concerns state action permitted former required latter rejects davey contention lukumi supra program presumptively unconstitutional facially neutral respect religion accept claim extend lukumi line cases well beyond facts reasoning state disfavor religion called far milder kind lukumi ordinance criminalized ritualistic animal sacrifices santeria religion washington program imposes neither criminal civil sanctions type religious service rite neither denies ministers right participate community political affairs see mcdaniel paty requires students choose religious beliefs receiving government benefit see hobbie unemployment appeals state merely chosen fund distinct category instruction even though differently worded washington constitution draws stringent line federal constitution interest seeks scarcely novel fact areas state antiestablishment interests come play since country founding popular uprisings procuring taxpayer funds support church leaders one hallmarks established religion sought avoid establishment around time founding placed constitutions formal prohibitions using tax funds support ministry early state constitutions saw problem explicitly excluding ministry receiving state dollars reinforces conclusion religious instruction different ilk professions moreover entirety promise scholarship program goes long way toward including religion benefits since permits students attend pervasively religious schools long accredited students still eligible take devotional theology courses program current guidelines nothing washington constitution history text program operation suggests animus towards religion given historic substantial state interest issue concluded denial funding vocational religious instruction alone inherently constitutionally suspect without presumption unconstitutionality davey claim must fail state interest funding pursuit devotional degrees substantial exclusion funding places relatively minor burden promise scholars room exists two religion clauses must pp reversed rehnquist delivered opinion stevens kennedy souter ginsburg breyer joined scalia filed dissenting opinion thomas joined thomas filed dissenting opinion gary locke governor washington et petitioners joshua davey writ certiorari appeals ninth circuit february chief justice rehnquist delivered opinion state washington established promise scholarship program assist academically gifted students postsecondary education expenses accordance state constitution students may use scholarship institution pursuing degree devotional theology hold exclusion otherwise inclusive aid program violate free exercise clause first amendment washington state legislature found tudents work hard successfully complete high school high academic marks may financial ability attend college obtain financial aid financial aid insufficient rev code supp assist students legislature created promise scholarship program provides scholarship renewable one year eligible students postsecondary education expenses students may spend funds expense including room board scholarships funded state general fund amount varies year depending annual appropriation evenly prorated among eligible students admin code scholarship worth academic year eligible scholarship student must meet academic income enrollment requirements student must graduate washington public private high school either graduate top graduating class attain first attempt cumulative score better scholastic assessment test score better american college test student family income must less state median finally student must enroll least half time eligible postsecondary institution state washington may pursue degree theology institution receiving scholarship see also rev code aid shall awarded student pursuing degree theology private institutions including religiously affiliated qualify eligible postsecondary institution accredited nationally recognized accrediting body see admin code degree theology defined statute parties concede statute simply codifies state constitutional prohibition providing funds students pursue degrees devotional nature designed induce religious faith brief petitioners brief respondent see also wash art student applies scholarship meets academic income requirements notified eligible scholarship meets enrollment requirements app student enrolls eligible institution institution must certify student enrolled least half time student pursuing degree devotional theology institution rather state determines whether student major devotional student meets enrollment requirements scholarship funds sent institution distribution student pay tuition educational expenses see admin code respondent joshua davey awarded promise scholarship chose attend northwest college northwest private christian college affiliated assemblies god denomination eligible institution promise scholarship program davey planned many years attend bible college prepare college training lifetime ministry specifically church pastor app end enrolled northwest college decided pursue double major pastoral ministries business dispute pastoral ministries degree devotional therefore excluded promise scholarship program beginning academic year davey met northwest director financial aid learned first time meeting use scholarship pursue devotional theology degree informed receive funds appropriated use must certify writing pursuing degree refused sign form receive scholarship funds davey brought action various state officials hereinafter state district western district washington enjoin state refusing award scholarship solely student pursuing devotional theology degree damages argued denial scholarship based decision pursue theology degree violated inter alia free exercise establishment free speech clauses first amendment incorporated fourteenth amendment equal protection clause fourteenth amendment district denied davey request preliminary injunction parties filed summary judgment district rejected davey constitutional claims granted summary judgment favor state divided panel appeals ninth circuit reversed concluded state singled religion unfavorable treatment thus decision church lukumi babalu aye hialeah state exclusion theology majors must narrowly tailored achieve compelling state interest finding state antiestablishment concerns compelling declared washington promise scholarship program unconstitutional granted certiorari reverse religion clauses first amendment provide congress shall make law respecting establishment religion prohibiting free exercise thereof two clauses establishment clause free exercise clause frequently tension see norwood harrison citing tilton richardson yet long said room play joints walz tax city new york words state actions permitted establishment clause required free exercise clause case involves play joints described establishment clause precedent link government funds religious training broken independent private choice recipients see zelman zobrest catalina foothills school witters washington dept servs blind mueller allen doubt state consistent federal constitution permit promise scholars pursue degree devotional theology see witters supra state contend otherwise question us however whether washington pursuant authoritatively interpreted prohibiting even indirectly funding religious instruction prepare students ministry see witters state blind cf witters state blind role state pay religious education future ministers rev supra deny funding without violating free exercise clause davey urges us answer question negative contends rule enunciated church lukumi babalu aye hialeah supra program presumptively unconstitutional facially neutral respect reject claim presumptive unconstitutionality however otherwise extend lukumi line cases well beyond facts reasoning lukumi city hialeah made crime engage certain kinds animal slaughter found law sought suppress ritualistic animal sacrifices santeria religion require students choose religious beliefs receiving government see ibid hobbie unemployment appeals thomas review bd indiana employment security sherbert verner state merely chosen fund distinct category instruction justice scalia argues however generally available benefits part baseline burdens religion measured post dissenting opinion promise scholarship program funds training secular professions justice scalia contends state must also fund training religious professions see ibid training religious professions training secular professions fungible training someone lead congregation essentially religious endeavor indeed majoring devotional theology akin religious calling well academic pursuit see calvary bible presbyterian church board regents holding public funds may expended category instruction resembles worship manifests devotion religion religious principles thought feeling belief conduct app davey stating religious beliefs reason seek college degree subject religion one state constitutions embody distinct views favor free exercise opposed establishment find counterpart respect callings professions state deal differently religious education ministry education callings product views evidence hostility toward religion even though differently worded washington constitution draws stringent line drawn constitution interest seeks scarcely novel fact think areas state antiestablishment interests come since founding country popular uprisings procuring taxpayer funds support church leaders one hallmarks established see butts american tradition religion education lambert founding fathers place religion america defending religious liberty overreaching clergy americans regions found radical whig ideas best framed argument clergy undermined liberty conscience opposed see also madison memorial remonstrance religious assessments reprinted everson board ed ewing appendix dissent rutledge noting dangers civil liberties supporting clergy public funds sought avoid establishment religion around time founding placed constitutions formal prohibitions using tax funds support ministry ga art iv reprinted federal state constitutions colonial charters organic laws thorpe ed reprinted persons shall free exercise religion without obliged contribute support religious profession pa art ii man right compelled attend religious worship erect support place worship maintain ministry contrary free consent art xviii similar del art similar ky art xii similar vt ch art similar tenn art xi similar ohio art viii similar plain text constitutional provisions prohibited tax dollars supporting clergy found nothing indicate justice scalia contends post provisions applied long state equally supported professions amount stake de minimis early state constitutions saw problem explicitly excluding ministry receiving state dollars reinforces conclusion religious instruction different ilk far evincing hostility toward religion manifest lukumi believe entirety promise scholarship program goes long way toward including religion program permits students attend pervasively religious schools long accredited northwest advertises concept education distinctly christian evangelical sense app prepares students instruction modeling classes use bible guide truth matter chosen profession promise scholarship program current guidelines students still eligible take devotional theology davey notes students northwest required take least four devotional courses exploring bible principles spiritual development evangelism christian life christian doctrine brief respondent see also app students may additional religious requirements part majors brief respondent see also app short find neither history text article washington constitution operation promise scholarship program anything suggests animus towards given historic substantial state interest issue therefore conclude denial funding vocational religious instruction alone inherently constitutionally suspect without presumption unconstitutionality davey claim must fail state interest funding pursuit devotional degrees substantial exclusion funding places relatively minor burden promise scholars room exists two religion clauses must need venture difficult area order uphold promise scholarship program currently operated state washington judgment appeals therefore reversed gary locke governor washington et petitioners joshua davey writ certiorari appeals ninth circuit february justice scalia justice thomas joins dissenting church lukumi babalu aye hialeah majority opinion held law burdening religious practice neutral must undergo rigorous scrutiny minimum requirement neutrality law discriminate face concurrence two justices stated hen law discriminates religion automatically fail strict scrutiny blackmun joined concurring judgment concurrence third justice endorsed noncontroversial principle formal neutrality necessary conditio constitutionality souter concurring part concurring judgment opinions irreconcilable today decision sustains public benefits program facially discriminates religion articulated principle governs case years ago everson board ed ewing new jersey hamper citizens free exercise religion consequently exclude individual catholics lutherans mohammedans baptists jews methodists presbyterians members faith faith lack receiving benefits public welfare legislation emphasis deleted state makes public benefit generally available benefit becomes part baseline burdens religion measured state withholds benefit individuals solely basis religion violates free exercise clause less imposed special tax precisely state washington done created generally available public benefit whose receipt conditioned academic performance income attendance accredited school carved solitary course study exclusion theology rev code supp admin code field study religion singled disfavor fashion davey asking special benefit others entitled cf lyng northwest indian cemetery protective seeks equal treatment right direct scholarship chosen course study right every promise scholar enjoys reference historical popular uprisings procuring taxpayer funds support church leaders ante therefore quite misplaced history involved inclusion religious ministers public benefits programs like one issue laws singled financial aid example virginia bill madison remonstrance directed provided support christian teachers sum payable tax property within commonwealth hereby assessed bill establishing provision teachers christian religion reprinted everson supra laws supporting clergy operated similar fashion see cobb rise religious liberty america one concede framers hostility funding clergy specifically says nothing whether clergy excluded benefits state made available one seriously contend example framers barred ministers using public roads way dispute free exercise clause places constraints public benefits programs finds none based principle joints ante use term principle loosely much legal principle refusal apply principle faced competing constitutional directives nothing anomalous constitutional commands abut municipality hiring public contractors may discriminate blacks favor discriminate little bit way plead play joints haled religion clauses demand neutrality must enforce hard cases well easy ones even play joints valid legal principle surely apply close call whether complying one religion clauses violate case state consistent federal constitution permit promise scholars pursue degree devotional theology ante establishment question even close evident fact decision witters washington dept servs blind unanimous perhaps formally neutral public benefits programs gerrymandered devoid plausible secular purpose might raise specters state aid religion evenhanded promise scholarship program among case state already play joints needs number ways respect unusually sensitive concern conscience taxpayers federal free exercise clause make scholarships redeemable public universities sets curriculum select courses study either option replace program facially discriminates religion one happens subsidize state also simply abandon scholarship program altogether seems dear price pay freedom conscience state defined freedom broadly offended program incidental indirect religious effect nature state asserted interest protecting pocketbooks citizens given tiny fraction promise scholars pursue theology degrees amount citizen tax bill stake de minimis preventing mistaken appearance endorsement state merely declines penalize students selecting religious major reasonable observer likely draw inference state endorsing religious practice belief concurring part concurring judgment washington exclusion defended means assuring state neither favor disfavor davey religious calling davey throughout life contribute public fisc sales taxes personal purchases property taxes home nothing opinion turns whether davey winds net winner loser state scheme interest defers fear conceivable establishment clause violation budget constraints avoidance endorsement substantive neutrality none pure philosophical preference state opinion violate taxpayers freedom conscience discriminate candidates ministry sort protection freedom conscience logical limit justify singling religion exclusion public programs virtually context never says whether deems interest compelling opinion devoid mention standard review ii makes serious attempt defend program neutrality instead identifies two features thought render discrimination less offensive first lightness davey burden offers authority approving facial discrimination religion simply material consequences severe might understand test still business reviewing facially neutral laws merely happen burden individual religious exercise see employment dept human resources smith discrimination face statute something else indignity singled special burdens basis one religious calling profound concrete harm produced never dismissed insubstantial required proof substantial concrete harm forms discrimination see brown board education cf craig boren even threshold requirement surely davey satisfied first amendment guarantees free exercise religion state exacts financial penalty almost religious exercise whether tax forfeiture otherwise available benefit religious practice anything free response promise scholars may still use scholarship pursue secular degree different institution studying devotional theology ante part makes promise scholarship attractive recipient apply preferred course study preferred accredited institution part benefit state confers distinguishes precedents swapping benefit davey actually entitled scholarship chosen course study another less valuable one scholarship course study chosen one reasoning facially discriminatory benefits program redeemed simply redefining guarantees reason thinks particular facial discrimination less offensive scholarship program motivated animus toward religion explain legislature motive matters fail see state deprives citizen trial jury passes ex post facto law pause investigate whether actually trying accomplish evil constitution prohibits sufficient citizen rights infringed matter legislature consists entirely purehearted law enacts fact singles religious practice special burdens lukumi scalia concurring part concurring judgment approached forms discrimination way declared racial segregation unconstitutional ask whether state originally adopted regime animus blacks misguided belief races better apart sufficient note current effect segregation racial minorities see brown supra similarly excuse statutes facially discriminate women vestigial product view women appropriate social role see virginia adkins children hospital sometimes look legislative intent smoke subtle instances discrimination supplement core guarantee facially equal treatment replacement see hunt cromartie need rely analogies however rejected methodology context mcdaniel paty considered tennessee statute disqualified clergy participation state constitutional convention statute like one based upon state constitutional provision clause tennessee constitution disqualified clergy sitting legislature plurality opinion state defended statute attempt faithful constitutional separation church state accepted claimed benevolent purpose bona fide see nonetheless justify facial discrimination religion invalidated restriction may washington original purpose excluding clergy public benefits benign might true purpose maintaining exclusion today singled disfavor forgiven suspecting invidious forces work let doubt case discrimination religious minority citizens country identify professing religious belief state policy poses obstacle practitioners tepid civic version faith statutory exclusion actually affects whose belief religion strong dedicate study lives ministry far narrower set one need delve far modern popular culture perceive trendy disdain deep religious conviction era quick come aid disfavored groups see romer evans indifference case involves form discrimination constitution actually speaks exceptional today holding limited training clergy logic readily extendible plenty directions go next deny priests nuns benefits ground taxpayers freedom conscience forbids medicating clergy public expense may seem fanciful recall france proposed banning religious attire schools invoking interests secularism less benign embraces today see sciolino chirac backs law keep signs faith school times public freedom conscience invoked justify denial equal treatment benevolent motives shade indifference ultimately repression accepted justification case less well equipped fend future respectfully dissent gary locke governor washington et petitioners joshua davey writ certiorari appeals ninth circuit february justice thomas dissenting parties agree degree theology means degree devotional nature designed induce religious faith brief petitioners brief respondent assume purposes deciding case understanding join justice scalia dissenting opinion write separately note view study theology necessarily implicate religious devotion faith contested statute denies promise scholarships students pursue degree theology see admin code defining student part one pursuing degree theology rev code ann west aid shall awarded student pursuing degree theology statute define theology usual definition term theology limited devotional studies theology defined study nature god religious truth rational inquiry religious questions american heritage dictionary ed see also webster ninth new collegiate dictionary study religious faith practice experience study god relation world definitions include study theology secular perspective well religious one assuming state denies promise scholarships students pursue degree devotional theology believe justice scalia application precedents correct neither party contests validity precedents join justice scalia dissent footnotes state require students certify anything sign forms app relevant provision washington constitution art religious freedom absolute freedom conscience matters religious sentiment belief worship shall guaranteed every individual one shall molested disturbed person property account religion liberty conscience hereby secured shall construed excuse acts licentiousness justify practices inconsistent peace safety state public money property shall appropriated applied religious worship exercise instruction support religious establishment davey relying rosenberger rector visitors univ contends promise scholarship program unconstitutional viewpoint restriction speech promise scholarship program forum speech purpose promise scholarship program assist students families cost postsecondary education diversity views private speakers american library plurality opinion quoting rosenberger supra cases dealing speech forums simply inapplicable see american library supra cornelius naacp legal defense ed fund davey also argues equal protection clause protects discrimination basis religion hold infra program violation free exercise clause however apply scrutiny equal protection claims johnson robison see also mcdaniel paty reviewing religious discrimination claim free exercise clause reasons stated herein program passes review promise scholars may still use scholarship pursue secular degree different institution studying devotional theology justice scalia notes state philosophical preference protect individual conscience potentially without limit see post however interest issue state interest funding religious training clergy nothing opinion suggests state may justify interest philosophical preference commands perhaps famous example public backlash defeat bill establishing provision teachers christian religion virginia legislature bill sought assess tax christian teachers reprinted everson board ed ewing supplemental appendix dissent rutledge see also rosenberger supra thomas concurring purpose bill support clergy performance function teaching religion rejected public outcry stead virginia bill religious liberty originally written thomas jefferson enacted bill guaranteed man shall compelled frequent support religious worship place ministry whatsoever bill establishing religious freedom reprinted papers thomas jefferson boyd ed amici contend washington constitution born religious bigotry contains blaine amendment linked see brief amicus curiae brief becket fund religious liberty et al amici curiae see also mitchell helms plurality opinion state notes davey dispute however provision question blaine amendment tr oral arg see reply brief petitioners enabling act authorized drafting washington constitution required state constitution include provision establishment maintenance systems public schools shall free sectarian control act ch fourth stat provision included article ix washington constitution schools maintained supported wholly part public funds shall forever free sectarian control influence issue case neither davey amici established credible connection blaine amendment article relevant constitutional provision accordingly blaine amendment history simply us washington also solicitous ensuring constitution hostile towards religion see state ex rel gallwey grimm never intention constitution construed manner indicating hostility toward religion citation omitted least respects constitution provides greater protection religious liberties free exercise clause see first covenant church seattle seattle rejecting standard employment dept human resources smith favor protective rule munns martin holding city ordinance imposed controls demolition historic structures inapplicable catholic church plan demolish old school building build new pastoral center facilities intimately associated church religious mission found nothing washington overall approach indicates single anyone special burdens basis religious callings justice scalia contends post state notes open question whether washington constitution prohibits nontheology majors taking devotional theology courses point however program guidelines exclude students pursuing theology degree admin code although sometimes characterized establishment clause prohibiting state disproving particular religion religion general church lukumi babalu aye hialeah citing cases reasons noted supra state impermissibly done footnotes equally misplaced reliance state constitutional provisions prohibited use tax funds support ministry ante doubt provisions directed measures sort discussed earlier text singling clergy public support see supra offers historical support proposition meant exclude clergymen general benefits available citizens choosing interpret fashion needlessly gives meaning contrary religion clause jurisprudence logical short absurd state constitutional provision far know ever prohibited hiring public employees use salary conduct ministries excluded ministers generally available disability unemployment benefits since identify instance provisions applied discriminatory fashion appeal plain text ante adds nothing whatever plain text washington constitution argues pursuing theology majors comparable promise scholars training religious professions training secular professions fungible ante may well proves state rational basis treating religion differently requires holding contrary precedent see supra common sense religious discrimination required rational basis free exercise clause impose constraints constitution already imposes government action question whether theology majors different whether differences substantial enough justify discriminatory financial penalty state inflicts major plainly equally unpersuasive argument state may discriminate theology majors distributing public benefits establishment clause state counterparts discriminatory see ante premise true level abstraction establishment clause discriminates religion singling one thing state may establish proves state compelling interest committing actual establishment clause violations cf widmar vincent never inferred principle state constitutionally sufficient interest discriminating religion whatever context pleases long claims connection however attenuated establishment concerns mcdaniel opinion nothing separate opinions suggests disagreement issues relevant cf brennan concurring judgment noting dispute statute purpose deeming irrelevant