Washington Law Review


Derek D. Green


In Davey v. Locke, a panel of the United States Court of Appeals for the Ninth Circuit ruled that Washington violated the Free Exercise Clause by refusing to allow a scholarship recipient to use state funds to pursue a theology degree. The court held that the state's scholarship requirements facially discriminated against religion, and that the state's interest in not violating its constitution did not serve as a compelling reason for the discrimination. In so holding, the Davey court ignored Ninth Circuit precedent and embraced a theory of the Religion Clauses at odds with United States Supreme Court jurisprudence. Furthermore, as explained in the dissent, the scholarship requirements are analogous to permissible limitations placed on other government funding programs. Based on U.S. Supreme Court precedent in other conditional funding cases, Davey should be overturned.

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