More than two decades after Justice Clarence Thomas dissented from a U.S. Supreme Court ruling allowing states to deny scholarship funding to students pursuing ministry degrees, he may soon have an opportunity to help overturn it.
A petition filed this month by Virginia college student Bethany Hall asks the court to overrule Locke v. Davey, a 2004 ruling that said a state may exclude students pursuing devotional theology degrees from a public scholarship program without violating the First Amendment’s Free Exercise Clause. The filing argues that the high court’s more recent religious-liberty decisions have undermined the reasoning behind Locke and that the precedent should now be discarded.
The case arrives before a Supreme Court that has in recent years expanded protections for religious schools, religious organizations and people claiming violations of their free exercise rights. If the justices agree to hear Hall’s appeal, they would be asked to decide whether states can continue to deny public financial aid to students because they pursue religious ministry and theology degrees. The answer could affect scholarship programs not only in Virginia but in multiple states that maintain similar restrictions.
“If the Supreme Court grants cert, they are most likely to do it to reverse the Fourth Circuit and kill off Locke,” Seth Chandler, Law Foundation Professor of Law at the University of Houston Law Center, told Newsweek.
Who Is Bethany Hall?
Hall is a Virginia resident and student at Liberty University, a private Christian university in Lynchburg. According to court filings, she initially qualified for Virginia’s Tuition Assistance Grant Program, known as VTAG, which provides financial aid to residents attending eligible private colleges in the state. Students can receive thousands of dollars annually through the program.
Hall originally enrolled as a music education major and was awarded a VTAG grant. But after arriving at Liberty, she changed her major to Youth Ministries after what court documents describe as hearing “God’s call.” She later switched to Christian Leadership and Church Ministries and then Music & Worship. All of those majors fell within a category Virginia considers ineligible for VTAG funding because they provide religious training or theological education.
As a result, Virginia revoked Hall’s grant before she received any funds. She has continued pursuing her chosen field of study and has not received VTAG assistance. According to the lawsuit, Hall remains eligible for the grant in every respect except for the religious nature of her major.
Hall sued Virginia officials, arguing that excluding her from a generally available public benefit solely because she is pursuing a ministry-related degree violates the First Amendment’s Free Exercise Clause. Both a federal district court and the U.S. Court of Appeals for the Fourth Circuit ruled against her, finding themselves bound by Locke v. Davey.
The appeals court described Hall’s situation as “directly analogous” to the student involved in Locke, noting that both students lost scholarship eligibility after pursuing religious vocational degrees.
What Was the Decision in Locke v. Davey?
The court decided Locke v. Davey in 2004 by a 7-2 vote.
The case involved Joshua Davey, a Washington state scholarship recipient who decided to pursue a double major in pastoral ministries and business management. The state provided scholarships to academically successful students but prohibited recipients from using the funds to pursue a degree in devotional theology. After Davey chose a ministry program, he was told he could not use the scholarship. He challenged the restriction as unconstitutional religious discrimination.
Writing for the majority, Chief Justice William Rehnquist concluded that Washington’s policy did not violate the Constitution. The court emphasized that Davey remained free to attend a religious college and take theology courses. The state, the majority said, had simply chosen not to fund a “distinct category of instruction” related to training clergy.
The majority also pointed to what it described as a “historic and substantial state interest” in avoiding the use of taxpayer money to support the training of ministers and church leaders. According to the opinion, that concern placed the restriction within the constitutional space between what the Establishment Clause permits and what the Free Exercise Clause requires.
Since then, Locke has stood as a narrow but significant exception allowing states to deny public funding for vocational religious degrees, even while funding other forms of education. Hall’s petition argues that later Supreme Court precedents have steadily narrowed the decision and left it isolated from the court’s broader religious-liberty jurisprudence.
What Did Clarence Thomas Say in Locke v. Davey?
Thomas joined Justice Antonin Scalia’s dissent and has remained one of the court’s strongest critics of Locke.
In the original case, Scalia argued the state created a broadly available scholarship benefit and then singled out theology for exclusion. He contended that denying the scholarship because of a student’s religious choices amounted to unconstitutional discrimination. Thomas joined that opinion in full.
Thomas also offered a short dissent of his own, where he said that a person who studies theology “does not necessarily implicate religious devotion or faith.” He noted that the usual definition of “theology” isn’t limited to devotional studies and includes the study of theology from a secular perspective in addition to a religious one.
The Hall petition points repeatedly to later writings by Thomas that questioned Locke‘s reasoning. In Trinity Lutheran Church v. Comer in 2017, Thomas described Locke‘s “endorsement” of discrimination against religion as troubling. In Espinoza v. Montana Department of Revenue in 2020, he argued that Locke had incorrectly interpreted the Establishment Clause and suggested the court should return that constitutional provision to its proper scope.
The petition contends that Thomas’ position has increasingly been reflected in the court’s broader approach to religious liberty. It argues that a trio of major cases, Trinity Lutheran, Espinoza and Carson v. Makin, rejected or undermined many of the premises underlying Locke.
The Fourth Circuit reached a similar conclusion, though it said lower courts lacked authority to discard Supreme Court precedent. Judge Julius Richardson, writing separately, said Locke “was wrongly decided,” rested on “bad history and bad reasoning,” and has become a “stain on our Free Exercise jurisprudence.” He concluded that the court should formally overrule it.
Richardson also wrote that the court’s recent decisions have “rejected or ignored every premise of Locke” except its historical analysis.
Will the Supreme Court Take Hall’s Case?
Chandler said that the likelihood of the Supreme Court taking the case is “better than average, but not a lock.” He noted that the lower courts “all but begged” the Supreme Court to take up the case, but circuits aren’t split on the Hall case, which Chandler said usually makes the court’s decision to take a case easy. If lower courts are in disagreement about a legal precedent, it behooves the Supreme Court to take up a case to settle the dispute.
If the court takes the case, Chandler said Thomas and Justice Neil Gorsuch are locks for voting in favor of overturning Locke. While Justices Samuel Alito and Brett Kavanaugh have joined majority opinions weakening Locke, they haven’t put arguments as strong as Thomas’ in writing, but Chandler would bet they’d side with overturning Locke.
“Roberts is the wild card hiding in plain sight—he’s written the majority in all three cases that gutted Locke‘s reasoning (Trinity Lutheran, Espinoza, Carson), yet each time he stopped short of finishing it off. That could mean he’s circling for the kill, or that he’s happy leaving a hollowed-out precedent on the books,” Chandler said.
It’s possible Justice Amy Coney Barrett could side with the conservative majority, but Chandler said it’s unlikely there are enough votes to keep Locke from being overturned if the court takes the case.
Supporters of Supreme Court review are likely to argue that Hall’s case provides an ideal vehicle because even the lower courts agreed it is effectively identical to Locke. The Fourth Circuit said the facts were “on all fours” with the earlier case, meaning the justices could confront the precedent directly if they choose to take the appeal.
The petition also notes that several states maintain laws restricting scholarship funding for theology and ministry programs, including Alabama, Florida, Illinois, Michigan, Minnesota, New Jersey, New Mexico, Ohio, Oregon and South Carolina. The filing argues that leaving Locke in place continues to affect students who pursue religious vocations.
If the court does overturn Locke, Chandler said states would have to either fund every major equally or kill the aid program to keep seminary students from getting it, however, he was skeptical politicians would take away scholarships.
Contact Newsweek editor for this story: Anthony Murray.