Finding a Ceiling in a Circular Room: Locke v. Davey, Federalism, and Religious Neutrality


The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, Congress may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem settling that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not explicated in the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, the Court has tread the line between the Clauses carefully, holding that if the government opposes the establishment of religion too vigorously it will burden religious exercise, and if the government seeks to accommodate religious exercise too liberally it will establish religion. However, while these propositions—that religion is distinct and that there is tension between the Clauses—are clear and settled, the Court has struggled mightily to reconcile them. That is, the Court has not been able to answer the following question: How differently may the government treat religion from non-religion under one Clause without violating the other?

In this Article, I attempt to answer that question. My answer is inspired and informed by Locke v. Davey, 540 US 712 (2004), a case in which the Court held that at least in certain contexts the Free Exercise Clause permits the government to exclude an individual from a funding program on the basis of religion. In answering this question, I hope to accomplish three goals: (1) to defend the holding and reasoning in Davey; (2) to assuage the concerns of Davey’s critics; and (3) to develop a paradigm that grants states discretion over how they partner with religious organizations but still limits states in a way that is consistent with the guarantees in the Religion Clauses. Given the extensive criticism of the Davey opinion, and the enormous normative and practical significance of the question addressed in this Article, this analysis is particularly timely and important.


Constitutional Law

Date of this Version

March 2006