Amicus Curiae Brief — Bethany M. Hall, Petitioner v. A. Scott Fleming, Director, Virginia State Counsel of Higher Education

NO. 26-193

IN THE

Supreme Court of the United States

BETHANY M. HALL

Petitioner,

v.

A. SCOTT FLEMING, DIRECTOR, VIRGINIA

STATE COUNSEL OF HIGHER EDUCATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

__________________________________

AMICUS CURIAE BRIEF OF

NC VALUES INSTITUTE

IN SUPPORT OF PETITIONER

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

NC Values Institute

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT....................................................... 1

ARGUMENT ............................................................... 3

I.

FEDERAL

ESTABLISHMENT

CLAUSE

JURISPRUDENCE HAS SHIFTED FROM A

RIGID "NO AID" POSITION TO PRINCIPLES

OF NONDISCRIMINATION ................... ………3

A. Financial aid to religion was long viewed

with suspicion and rigidly regulated. ........... 4

B. The tide eventually turned toward

nondiscrimination principles. ....................... 9

C. The Court’s shift to a flexible, permissible

approach did not initially mandate the

equal inclusion of religious beneficiaries.... 14

D. The

recent

Trinity-Espinoza-Carson

trilogy has moved the needle toward equal

treatment of religion—but without

explicitly overruling Locke. ......................... 15

ii

II.

LOCKE SHOULD BE BURIED IN THE

GRAVE NEXT TO THE LEMON “GHOUL.”

...................................................................…..18

A. Locke’s facial discrimination against

religion assaults the First Amendment.19

B. The Religion Clauses are complementary,

not contradictory. .................................. 20

C. “Play in the joints” is a flawed phrase that

should be abandoned............................. 21

D. There is no Establishment Clause issue

where the government itself does not

advance religion. ................................... 22

CONCLUSION ......................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ............................. 7, 10, 12, 24

Aguilar v. Felton,

473 U.S. 402 (1985) ..........................................7-12

Am. Atheists, Inc. v. City of Detroit Downtown Dev.

Auth.,

567 F.3d 278 (6th Cir. 2009) ............................... 25

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) ............................................... 18

Badger Catholic, Inc. v. Washington,

620 F.3d 775 (7th Cir. 2010) ............................... 14

Bd. of Educ. v. Allen,

392 U.S. 236 (1968) ............................................... 6

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

512 U.S. 687 (1994) ........................................... 8, 9

Bowen v. Kendrick,

487 U.S. 589 (1988) ....................................... 10, 12

Carson v. Makin,

596 U.S. 767 (2022) ........................ 2, 15-17, 21, 24

iv

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ............................................. 19

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ....................... 4, 14

Comm. for Public Educ. v. Nyquist,

413 U.S. 756 (1973) ............................................... 4

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ............................................. 23

Emp’t Div. v. Smith,

494 U.S. 872 (1990) ....................................... 19, 20

Espinoza v. Mont. Dept. of Revenue,

591 U.S. 464 (2020) .........................2, 15-17, 21-24

Everson v. Board of Education,

330 U.S. 1 (1947) ......................... 2, 5, 6, 15, 17, 21

Good News Club v. Milford Central School,

533 U.S. 98 (2001) ............................................... 11

Groff v. DeJoy,

600 U.S. 447 (2023) ............................................. 18

Hall v. Fleming,

175 F.4th 510 (4th Cir. 2026) ........ 2, 17-19, 22, 23

Hunt v. McNair,

413 U.S. 734 (1973) ........................................... 4, 7

v

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................. 18, 20-22

Lamb's Chapel v. Center Moriches Union Free Sch.

Dist.,

508 U.S. 384 (1993) .................................. 11-12, 18

Lee v. Weisman,

505 U.S. 577 (1992) ............................................... 3

Lemon v. Kurzman,

403 U.S. 602 (1973) ............ 1, 2, 5, 7-10, 18, 19, 22

Locke v. Davey,

540 U.S. 712 (2004) .......................... 1-3, 10, 15-25

Lynch v. Donnelly,

465 U.S. 668 (1984) ............................................... 4

McDaniel v. Paty,

435 U.S. 618 (1978) ....................................... 16, 20

Meek v. Pittenger,

421 U.S. 349 (1975) ............................... 7, 9, 10, 12

Mitchell v. Helms,

530 U.S. 793 (2000) ................... 7, 9, 10, 13, 23, 24

Mueller v. Allen,

463 U.S. 388 (1983) ......................................... 9, 24

Roemer v. Bd. of Pub. Works,

426 U.S. 736 (1976) ............................................... 4

vi

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ............................................. 11

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ............................................... 6

Sch. Dist. v. Ball,

473 U.S. 373 (1985) ................................ 7, 8, 10-12

Sherbert v. Verner,

374 U.S. 398 (1963) ............................................. 17

Thomas v. Anchorage Equal Rts. Comm'n,

165 F.3d 692 (9th Cir. 1999),

rev'd en banc, 200 F.3d 1134 (9th Cir. 2000) ....... 6

Town of Greece v. Galloway,

572 U.S. 565 (2014) ......................................... 6, 18

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017) .................. 2, 15-17, 21, 22, 25

Van Orden v. Perry,

545 U.S. 677 (2005) ............................................... 3

Walz v. Tax Comm'n of N.Y.,

397 U.S. 664 (1970) ....................................... 21, 22

Widmar v. Vincent,

454 U.S. 263 (1981) ............................................... 4

Witters v. Wash. Dep't of Servs. for the Blind,

474 U.S. 481 (1986) ................................ 2, 9-11, 24

vii

Wolman v. Walter,

433 U.S. 229 (1977) ...................................... 7, 9-11

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ....................... 2, 10, 13, 14, 24

Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993) ..................................... 10, 12, 24

Zorach v. Clauson,

343 U.S. 306 (1952) ............................................... 5

Constitutional Provisions

Miss. Const., Art. I, § 7 ............................................... 2

Mont. Const., Art. X, § 6(1) ......................................... 2

Wash. Const., Art. I, § 11 ................................ 2, 10, 19

Statutes & Regulations

Wash. Admin. Code § 250-80-020(12)(g) .................. 25

Wash. Rev. Code § 28B.10.814 (1997) ...................... 19

Wash. Rev. Code § 28B.119.010(8) ........................... 25

Wash. Rev. Code § 74.16.181 (1981) ......................... 10

Individuals With Disabilities Educational Act ........ 12

viii

Other Authorities

5 Writings of James Madison 288,

(G. Hunt ed. 1904) ..................................................... 20

William W. Bassett, SYMPOSIUM: Educational

Choice: Emerging Legal and Policy Issues: Changing

Perceptions of Private Religious Schools: Public Money

and Public Trust in the Education of Children,

2008 BYU L. Rev. 243 (2008) ......................... 8, 24

Ryan A. Doringo, Comment: Revival: Toward a

Formal

Neutrality

Approach

to

Economic

Development Transfers to Religious Institutions,

46 Akron L. Rev. 763 (2013) ............................... 13

Patrick M. Garry, The Supreme Court Corrects a

Seventy-Five-Year Distortion in Establishment Clause

Jurisprudence,

56 Ind. L. Rev. 95 (2022)................................... 5, 6

Douglas Laycock, SYMPOSIUM: Educational Choice:

Emerging Legal and Policy Issues: Why the Supreme

Court Changed Its Mind About Government Aid to

Religious Institutions: It's a Lot More than Just

Republican Appointments,

2008 BYU L. Rev. 275 (2008) ..................... 7, 8, 10

Douglas Laycock, Comment, Theology Scholarships,

The Pledge of Allegiance, and Religious Liberty:

Avoiding the Extremes but Missing the Liberty,

118 Harv. L. Rev. 155 (2004) .................. 4, 5, 9, 15

ix

Falco Anthony Muscante II, "Play in the Joints"

Among the Religion Clauses: Rebuilding the Strong

Joints the Framers Formed,

22 Ave Maria L. Rev. 27 (Spring 2024) .........19-21

1

INTEREST OF AMICUS CURIAE1

Amicus curiae respectfully urges this Court to

grant the Petition, reverse the Fourth Circuit

decision, and overrule Locke v. Davey.

NC Values Institute, formerly known as the

Institute for Faith and Family, is a North Carolina

nonprofit corporation that works in various arenas of

public policy to protect faith, family, and freedom. See

https://ncvi.org.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Government aid to religious organizations has

generated heated debate over the course of American

history. This nation’s unique protection for religious

liberty guards against both government compulsion

and interference. Since absolute separation is neither

wise nor feasible, courts have tried to flesh out the

appropriate church-state relationship over decades of

litigation. A strict "no-aid" position prevailed in this

Court after the tripart test inaugurated in Lemon v.

Kurzman, 403 U.S. 602 (1974). That approach was

eventually replaced by a growing trend toward

nondiscrimination, resurrecting and strengthening

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae's intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amicus, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

the weak nondiscrimination principle evident in

Everson v. Board of Education, 330 U.S. 1 (1947).

Since Witters v. Wash. Dep't of Servs. for the Blind,

474 U.S. 481 (1986), this Court has increasingly

advanced nondiscrimination over the no-aid standard

that previously prevailed.

A strong consensus has emerged that state funds

may reach religious organizations as the result of

private choices. See, e.g., Zelman v. Simmons-Harris,

536 U.S. 639, 652-653 (2002). Initially, this line of

authority failed to articulate exactly if or when the

state must include religious organizations among

other eligible recipients. Locke v. Davey, 540 U.S. 712

(2004) appears to say "no" but only under narrowly

defined circumstances. Later cases—Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449

(2017), Espinoza v. Mont. Dept. of Revenue, 591 U.S.

464 (2020), Carson v. Makin, 596 U.S. 767 (2022)—

have eroded Locke but not explicitly overruled it. The

time has now come to bury Locke, just as this Court

buried the Lemon “ghoul” that once “stalked” this

Court’s Establishment Clause jurisprudence. “Locke

was wrongly decided. It betrays the founding

generation's commitment to religious liberty, and

[this] Court should formally overrule it.” Hall v.

Fleming, 175 F.4th 510, 516 (4th Cir. 2026)

(Richardson, J., concurring).

Many state constitutional provisions, e.g., Wash.

Const., Art. I, § 11 (Witters and Locke), Miss. Const.,

Art. I, § 7 (Trinity), and Mont. Const., Art. X, § 6(1)

(Espinoza), rigidly deny even indirect financial aid to

religion. These discriminatory provisions are

3

antithetical to the Religion Clauses, which prohibit

both favoritism and animosity toward religion.

Nondiscrimination principles promote the

"benevolent neutrality" that should characterize all

levels of American government. The Virginia Tuition

Assistance Grant Program (“VTAG”) uses neutral

criteria to select academically qualified students but

then rigidly excludes those pursuing theology degrees.

This is neither benevolent nor neutral. This Court

should reach the logical conclusion in its trend toward

nondiscrimination, overrule Locke v. Davey, and

require VTAG to grant equal treatment to all students

who are otherwise qualified for the scholarship

program.

ARGUMENT

I.

FEDERAL

ESTABLISHMENT

CLAUSE

JURISPRUDENCE HAS SHIFTED FROM A

RIGID "NO AID" POSITION TO PRINCIPLES

OF NONDISCRIMINATION.

The establishment threat that drove the outcome

in Locke v. Davey is out of step with this Court’s

current approach to the Religion Clauses. Providing

scholarships to academically qualified students to use

at schools of their choice is far removed from "[t]he

coercion that was a hallmark of historical

establishments . . . coercion of religious orthodoxy and

of financial support by force of law and threat of

penalty." Van Orden v. Perry, 545 U.S. 677, 693 (2005)

(Thomas, J., concurring), citing Lee v. Weisman, 505

U.S. 577, 640 (1992) (Scalia, J., dissenting).

4

Over several decades, Establishment Clause

jurisprudence has gradually progressed from a strict

"no aid" stance to a point where "federal constitutional

restrictions on funding religious institutions have

collapsed." Douglas Laycock, Comment, Theology

Scholarships, The Pledge of Allegiance, and Religious

Liberty: Avoiding the Extremes but Missing the

Liberty, 118 Harv. L. Rev. 155, 156 (2004). Instead of

"a substantive liberty, triggered by a burden on

religious practice," there emerges "a form of

nondiscrimination right, triggered by a burden that is

not neutral or not generally applicable." Ibid.

A. Financial aid to religion was long viewed

with suspicion and rigidly regulated.

For many decades, this Court hesitated to approve

anything

but

remote,

incidental,

indirect,

inconsequential benefits. Lynch v. Donnelly, 465 U.S.

668, 683 (1984); Widmar v. Vincent, 454 U.S. 263, 273274 (1981); Comm. for Public Educ. v. Nyquist, 413

U.S. 756, 771 (1973). There was a pervasive paranoia

that somehow, somewhere, a nickel might

inadvertently slip through the public fingers to bestow

a slight benefit on religion. This Court "struck down

in their entirety state statutes that contained

insufficient safeguards against the direct funding of

pervasively

sectarian

institutions."

Colorado

Christian University v. Weaver, 534 F.3d 1245, 1245

(10th Cir. 2008); see, e.g., Roemer v. Bd. of Pub. Works,

426 U.S. 736, 755 (1976) ("no state aid at all [may] go

to institutions that are so 'pervasively sectarian' that

secular activities cannot be separated from sectarian

ones," citing Hunt v. McNair, 413 U.S. 734 (1973)).

5

Early history (pre-Lemon). Decades ago, this

Court rightly found "no constitutional requirement

which makes it necessary for government to be hostile

to religion and to throw its weight against efforts to

widen the effective scope of religious influence."

Zorach v. Clauson, 343 U.S. 306, 313-314 (1952). At

that time, the Court began to consider state programs

funding religious and secular education. Both "no aid"

and nondiscrimination principles were evident in

Everson, when this Court upheld state-funded bus

rides that included a Catholic high school. The Court

concluded that New Jersey could not exclude

individuals of a particular faith from receiving the

benefits of public welfare legislation (330 U.S. at 16),

essentially applying a "weak form of the

nondiscrimination principle" that "permitted equal

funding, but did not require it." Laycock, Theology

Scholarships, 118 Harv. L. Rev. at 164. At this point,

"[f]ew judges took seriously the possibility that equal

funding might be constitutionally required." Ibid. But

the decision was far from unanimous. Four dissenting

justices advocated the rigid no aid position that later

prevailed for a long stretch, insisting the

Establishment Clause "broadly forbids state support,

financial or other, of religion in any guise, form or

degree. It outlaws all use of public funds for religious

purposes." Everson, 330 U.S. at 33 (J.J. Rutledge,

Frankfurter, Jackson, Burton, dissenting).

In Everson, this Court “articulated a historically

inaccurate metaphor” – the infamous “wall of

separation” – “that would pervert First Amendment

jurisprudence for the next seventy-five years.” Patrick

M. Garry, The Supreme Court Corrects a Seventy-Five-

6

Year

Distortion

in

Establishment

Clause

Jurisprudence, 56 Ind. L. Rev. 95, 100 (2022). The

“wall” led to the creation of “a chaotic and

unpredictable patchwork of constitutional tests” (id.

at 95) and tended to “shield a secular society” (id. at

107). The resulting “confused muddle of contradictory

mandates” left the erroneous impression that the

Religion Clauses conflict with one another. Id. at 95.

One court characterized the confusing case law as "a

sort of jurisprudential schizophrenia." Thomas v.

Anchorage Equal Rts. Comm'n, 165 F.3d 692, 717 (9th

Cir. 1999), rev'd en banc, 200 F.3d 1134 (9th Cir.

2000). That “schizophrenia” is displayed in cases

about public prayer—allowed at a city council meeting

(Town of Greece v. Galloway, 572 U.S. 565 (2014),

applying the historical traditions test) but not at a

high school football game (Santa Fe Indep. Sch. Dist.

v. Doe, 530 U.S. 290 (2000), using the coercion test).

Garry, The Supreme Court Corrects a Seventy-FiveYear Distortion, 56 Ind. L. Rev. at 99. It has taken

decades to return to sanity.

Everson involved bus transportation, a religiously

neutral benefit that hardly raised establishment

concerns. A few years later, this Court approved a

state program loaning textbooks to children in both

public and parochial schools. Building on Everson, the

Court found this program did not advance religion,

but furthered educational opportunities for the young.

Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968). But a

strong dissent objected “even to the extent of one

penny” toward religious school buildings, books,

teachers, or maintenance. Id. at 253-254 (Black, J.,

dissenting).

7

Following these early decisions, this Court

"struggled to reconcile two competing intuitions"—the

rigid no aid position that prevailed from Lemon

through the mid-1980's, and the nondiscrimination

approach that later won the day. Douglas Laycock,

SYMPOSIUM: Educational Choice: Emerging Legal

and Policy Issues: Why the Supreme Court Changed

Its Mind About Government Aid to Religious

Institutions: It's a Lot More than Just Republican

Appointments, 2008 BYU L. Rev. 275, 276 (2008).

"No Aid" Era (1971-1985). Lemon ushered in a

series of Establishment Clause challenges filed by

taxpayers. Hunt v. McNair survived Lemon scrutiny

because the Baptist college financed with state

revenue bonds was not pervasively sectarian. But this

era was largely dominated by a strict "no aid" policy

that struck down many forms of state aid for private

religious schools and their students: Lemon (teacher

salaries); Meek v. Pittenger, 421 U.S. 349 (1975)

(materials and services); Wolman v. Walter, 433 U.S.

229 (1977) (same); Sch. Dist. v. Ball, 473 U.S. 373

(1985) (enrichment courses for private school

students); Aguilar v. Felton, 473 U.S. 402 (1985)

(salaries and special services). Some of these cases

were overruled in whole or in part by Mitchell v.

Helms, 530 U.S. 793 (2000) and/or Agostini v. Felton,

521 U.S. 203 (1997).

"The no-aid principle derived from eighteenthcentury debates over earmarked taxes levied

exclusively for the funding of churches." Laycock, Why

the Supreme Court Changed Its Mind About

Government Aid to Religious Institutions, 2008 BYU

8

L. Rev. at 276. The “no-aid” policy protected citizens

from compelled support for religion and protected

churches from financial dependence on the

government. Ibid. The policy continued to dominate

for many reasons, including lingering anti-Catholic

sentiment that declined and ultimately faded in the

1950's and 1960's, and concerns about "white flight"

in response to desegregation mandates. Id. at 285288. Eventually, a broad Protestant-Catholic coalition

reframed the issue in terms of private choice and

neutrality (id. at 292), but meanwhile, "the no-aid

principle predominated from then [Lemon] until its

high-water mark in Aguilar v. Felton in 1985." Id. at

277.

Aguilar and Ball, filed the same day, were both

"ideological, strict constructionist attacks on

programs that brought public-school teachers onto the

premises of parochial schools." William W. Bassett,

SYMPOSIUM: Educational Choice: Emerging Legal

and Policy Issues: Changing Perceptions of Private

Religious Schools: Public Money and Public Trust in

the Education of Children, 2008 BYU L. Rev. 243, 259

(2008). These rulings created "excessive costs to bus

children from parochial schools to some 'neutral'

premises to avoid the appearance of a church-state

union." Id. The result was not only costly but chaotic.

Id. at 263. The New York state legislature created a

special school district to accommodate the needs of a

religious group and its disabled children, but that

raised its own Establishment Clause concerns. Id. at

264, discussing Bd. of Educ. of Kiryas Joel Vill. Sch.

Dist. v. Grumet, 512 U.S. 687 (1994). But in Kiryas

Joel, five of this Court's justices (Chief Justice

9

Rehnquist and Justices O'Connor, Scalia, Kennedy,

and Thomas) called for Aguilar to be overruled in a

subsequent case and to return Establishment Clause

jurisprudence to “government impartiality, not

animosity, toward religion." Id. at 717-718 (O'Connor,

J., concurring).

B. The tide eventually turned

nondiscrimination principles.

toward

"Even at the height of the Lemon era," this Court

“approved financial aid from time to time.” Laycock,

Theology Scholarships, 118 Harv. L. Rev. at 165-166.

This Court "never squarely repudiated the

nondiscrimination principle," resulting in an

incoherent body of law and leaving the no-aid position

"vulnerable to new Justices measuring neutrality

from a different baseline." Id. at 166; see, e.g., Meek,

421 U.S. at 359-62 (bus transportation); Wolman, 433

U.S. at 241-244, 244-248 (standardized testing, offpremises remedial instruction); Mueller v. Allen, 463

U.S. 388, 394-403 (1983) (state tax deductions).

This Court gradually modified its approach and

discarded the absolute prohibition of funding for

"pervasively sectarian" institutions. Indeed, "the

application of the 'pervasively sectarian' factor

collides with our decisions that have prohibited

governments from discriminating in the distribution

of public benefits based upon religious status or

sincerity." Mitchell, 530 U.S. at 828.

Beginning

progressively

with

Witters,

"[this]

Court

elevated

the

nondiscrimination

10

principle while subordinating the no-aid principle."

Laycock, Why the Supreme Court Changed Its Mind

About Government Aid to Religious Institutions, 2008

BYU L. Rev. 275 at 278. The Court subsequently

upheld five additional programs allowing funds to

reach religious institutions (Bowen, Zobrest, Agostini,

Mitchell, Zelman), partially or wholly overruling

several Lemon era rulings (Meek, Wolman, Aguilar,

Ball). Ibid.

This Court decided Witters around the end of the

"no-aid" era. Witters has several parallels to Locke v.

Davey, the cornerstone of the Fourth Circuit's ruling

against Hall. Petitioner was a blind student, studying

to become a pastor, who applied for assistance under

a vocational rehabilitation program. Wash. Rev. Code

§ 74.16.181 (1981). The State of Washington—the

same state where Locke v. Davey originated—denied

the application based on the state constitution (Wash.

Const., Art. I, § 11). Witters, 474 U.S. at 483-484. The

Washington Supreme Court upheld the denial in a

decision based on the federal Establishment Clause

rather than the state constitution. This Court

reversed, finding no establishment violation. Id. at

489.

But the Court expressed "no opinion" on whether

the Free Exercise Clause mandated the vocational aid

petitioner sought. Id. at 489-490. The case was not a

typical Establishment Clause challenge. As in Locke

v. Davey—and Hall’s case—an individual was denied

funding for religious training. This Court cited

nondiscrimination principles to support its ruling:

"Washington's program is made available generally

11

without regard to the sectarian-nonsectarian, or

public-nonpublic nature of the institution benefited . .

. and is in no way skewed towards religion." Id. at 487488 (emphasis added). Nondiscrimination won the

day in spite of the Court's simultaneous confirmation

of both the "no aid" and nondiscrimination

approaches. “[T]he Establishment Clause is not

violated every time money previously in the

possession of a State is conveyed to a religious

institution” but the state may not grant aid “where the

effect is . . . a direct subsidy to the religious school . . .

even though it takes the form of aid to students or

parents.” Id. at 486. Amazingly, this Court applied

nondiscrimination principles to Witter's claims even

before cases like Ball, Aguilar, and Wolman were

overruled (in part or whole). The Court noted in dicta

that "[o]n remand, the state court is of course free to

consider the applicability of the 'far stricter' dictates

of the Washington State Constitution." Id. at 489.

Nevertheless, Witters is an intriguing step toward

nondiscrimination in funding cases.

Nondiscrimination (1986 and beyond). The

tide eventually turned and this Court began to apply

nondiscrimination principles to funding cases,

facilitating greater equality between religious

organizations and comparable secular entities. This

shift to nondiscrimination principles is also evident in

other contexts, including speech and association:

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819 (1995) (equal access to funding for religious

viewpoints); Good News Club v. Milford Central

School, 533 U.S. 98 (2001) (equal access to school

facilities for religious groups); Lamb's Chapel v.

12

Center Moriches Union Free Sch. Dist., 508 U.S. 384

(1993) (same). In each of these cases, this Court

invalidated a policy that categorically excluded

religion from an otherwise available public benefit.

In 1988, this Court rejected a challenge to a

statutory scheme allowing faith-based organizations

to participate in funding for services related to

adolescent sexuality. "[N]othing on the face of the Act

suggests it is anything but neutral with respect to the

grantee's status as a sectarian or purely secular

institution." Bowen v. Kendrick, 487 U.S. 589, 608

(1988). A few years later, several landmark cases

inaugurated an era where religious and secular

private schools began to enjoy equal access to funding

opportunities, particularly where the services funded

were unrelated to religion or where private choices

directed the funds. In Zobrest, a deaf student at a

Catholic high school requested a sign-language

interpreter, as required by the Individuals With

Disabilities Educational Act. The school district

refused to provide the service based on fear of

violating the Establishment Clause. The lower courts

ruled against him but this Court reversed. Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). In

1997, this Court overruled Aguilar and Ball, and

implicitly overruled Meek, rejecting a taxpayer

Establishment Clause challenge to a program

allowing public school teachers to provide remedial

education to low-income student in both public and

private schools. The program did not define recipients

with reference to religion. Agostini, 521 U.S. at 234.

Three years later, this Court expressly endorsed

nondiscrimination principles and condemned hostility

13

to religion, upholding a federally funded program

distributing equipment to public and private schools

on a per-student basis without reference to religion.

Under these circumstances, “it is a mystery which

view of religion the government has established,” and

it would be “most bizarre that the Court would, as the

dissent seemingly does, reserve special hostility for

those who take their religion seriously.” Mitchell, 530

U.S. at 827-828. The same is true here—Petitioner

Hall “take[s] [her] religion seriously” by choosing to

devote her studies to theology, and she should not be

met with “special hostility” for that choice.

Finally, in Zelman, this Court rejected an

Establishment Clause challenge to a program that

provided tuition and tutorial aid based on financial

need and residence in a particular school district, thus

affirming the constitutionality of “government

programs that neutrally provide benefits to a broad

class of citizens defined without reference to religion.”

536 U.S. at 651 (internal citations and quotation

marks omitted). Zelman and other cases "should be

understood as evidence of [this] Court's shift from a

focus on effects and perceptions to a focus on the

principle that government decisions which do not

utilize religion as a standard for action or inaction do

not violate the Establishment Clause." Ryan A.

Doringo, Comment: Revival: Toward a Formal

Neutrality Approach to Economic Development

Transfers to Religious Institutions, 46 Akron L. Rev.

763, 794 (2013).

14

C. The Court’s shift to a flexible, permissible

approach did not initially mandate the

equal inclusion of religious beneficiaries.

As this Court's jurisprudence shifted from a rigid

denial of government aid to a more flexible

nondiscrimination approach, Establishment Clause

challenges focused on what the state was permitted to

do rather than what it was required to do. The shift

occurred almost exclusively in cases where the

question of mandatory inclusion was not in front of

the Court. "Zelman held that a state is entitled to offer

school vouchers that can be cashed at sectarian

schools but not that it is required to do so." Badger

Catholic, Inc. v. Washington, 620 F.3d 775, 779 (7th

Cir. 2010). Some states crafted programs “designed . .

. to make funds available as broadly as was thought

permissible under the Supreme Court's then-existing

Establishment Clause doctrine.” Colorado Christian

University, 534 F.3d at 1251. The Tenth Circuit took

the next logical step in analyzing a state scholarship

program. It was not only "undisputed that federal law

[did] not require Colorado to discriminate" against a

religious university—it was also clear that the state

could not constitutionally "choose to exclude

pervasively sectarian institutions" from the program.

Id. at 1253 (emphasis added).

Nondiscrimination principles promote government

neutrality, eliminating the threat that religious

entities could be denied generally available

government services and benefits dispensed according

to neutral criteria. Discrimination against religion

stifles religious liberty rather than preserving it. The

15

First Amendment “requires the state to be a neutral

in its relations with groups of religious believers and

non-believers; it does not require the state to be their

adversary.” Everson, 330 U.S. at 18 (emphasis added).

But initially the result of the Court’s shift was a

“new middle ground . . . to permit most funding but to

require hardly any.” Laycock, Theology Scholarships,

118 Harv. L. Rev. at 161 (emphasis added). “This

position maximizes government discretion and

judicial deference, but it threatens religious liberty.”

Ibid.

In Locke, this Court admitted that “there is no

doubt that the State could, consistent with the

Federal Constitution, permit Promise Scholars to

pursue a degree in devotional theology.” 540 U.S. at

714 (emphasis added). Nevertheless, the Court

allowed the State of Washington to exclude theology

degrees—facially discriminating against religion and

eroding religious liberty.

D. The

recent

Trinity-Espinoza-Carson

trilogy has moved the needle toward

equal treatment of religion—but without

explicitly overruling Locke.

In three recent rulings, this Court struck down

state laws that “disqualif[ied] a religious organization

. . . from a generally available benefit, solely because

of [its] religious character.” Trinity, 582 U.S. at 462

(Missouri’s

Scrap

Tire

Program

“expressly

discriminates” by “put[ting] Trinity Lutheran to a

choice” to either “participate in an otherwise available

16

benefit program or remain a religious institution”);

Espinoza, 591 U.S. at 476 (“Montana’s no-aid

provision bars religious schools from public benefits

solely because of the religious character of the

schools”); The “unremarkable” principles applied in

these two cases were sufficient to resolve the issues in

Carson, where the State paid for private school tuition

“so long as the schools [we]re not religious.” 596 U.S.

at 780. “That is discrimination against religion.” Id. at

781.

Under such discriminatory programs, “free

exercise isn’t free”. Locke, 540 U.S. at 731 (Scalia, J.,

dissenting) (internal quotation marks omitted,

emphasis added). “[W]hen the State exacts a financial

penalty of almost $3,000 for religious exercise—

whether by tax or by forfeiture of an otherwise

available benefit—religious practice is anything but

free.” Ibid. Similarly, the challenged statute in

McDaniel v. Paty “require[d] [McDaniel] to purchase

his right to engage in the ministry by sacrificing his

candidacy,” thereby infringing the free exercise of his

religion. 435 U.S. 618, 634 (1978) (plurality)

(emphasis added). “[F]reedom comes at the cost of

automatic and absolute exclusion” from an otherwise

available benefit. Trinity, 582 U.S. at 462 (applying

McDaniel). In Espinoza, likewise, “the no-aid

provision” that prohibited all aid to religious schools .

. . “put[] families to a choice between sending their

children to a religious school or receiving [otherwise

available] benefits.” 591 U.S. at 480.

As Trinity Lutheran reaffirmed, “[i]t is too late in

the day to doubt that the liberties of religion and

17

expression may be infringed by the denial of or placing

of conditions upon a benefit or privilege.” 582 U.S. at

463 (quoting Sherbert v. Verner, 374 U.S. 398, 404

(1963)). Even before Sherbert, it was clear that a State

may not exclude individuals from public benefits

“because of their faith, or lack of it.” Everson, 330 U.S.

at 16.

These three landmark cases strongly suggest

overruling Locke, but each of them stopped short of

taking that step. Trinity explained that “Davey was

not denied a scholarship because of who he was . . .

but because of what he proposed to do—use the funds

to prepare for the ministry.” 582 U.S. at 464. The

opposition to government funding of such an

“essentially religious endeavor . . . lay at the historic

core of the Religion Clauses.” Id. at 465. Espinoza

explained that in Locke, the State had “merely chosen

not to fund a distinct category of instruction”—

training a minister “to lead a congregation.” 591 U.S.

at 479 (citing Locke, 540 U.S. at 721). Carson,

likewise, explained Locke’s rationale as the “historic

and substantial state interest” against using

“taxpayer funds to support church leaders.” 596 U.S.

at 788 (citing Locke, 540 U.S. at 722, 725).

Still, it “remains troubling” that this Court

endorsed even such a “mild kind” of discrimination

against religion. Trinity, 582 U.S. at 468 (Thomas, J.,

concurring). Like the scholarship program in Locke,

VTAG “facially discriminates” against "those whose

belief in their religion is so strong that they dedicate

their study and their lives to its ministry." Hall, 175

18

F.4th at 516-517 (Richardson, J., concurring) (quoting

Locke, 540 U.S. at 733 (Scalia, J., dissenting)).

II. LOCKE SHOULD BE BURIED IN THE

GRAVE NEXT TO THE LEMON “GHOUL.”

“Like some ghoul in a late-night horror movie that

repeatedly sits up in its grave and shuffles abroad,

after being repeatedly killed and buried, Lemon stalks

our Establishment Clause jurisprudence once again.”

Lamb's Chapel, 508 U.S. at 398 (Scalia, J.,

concurring). But now the “wicked witch” – the Lemon

“late-night ghoul” – is dead. “The Court overrules

Lemon” and “question[s] decades of subsequent

precedents that it deems ‘offshoot[s]’ of that decision.”

Kennedy v. Bremerton, 597 U.S. 507, 546 (2022); see

also Groff v. DeJoy, 600 U.S. 447, 460 (2023) (Lemon

is "now abrogated"). Indeed, this Court “long ago

abandoned Lemon and its endorsement test offshoot.”

Bremerton, 597 U.S. at 534; see Am. Legion v. Am.

Humanist Ass’n, 588 U.S. 29 (2019); Town of Greece,

572 U.S. at 575-577.

The Lemon “ghoul” should be left in its grave to

rest in peace. But there’s a new “ghoul” in town,

sneaking

discrimination

in

through

state

constitutions and statutes that facially discriminate

against religion by denying generally available public

benefits, based solely on religion. In Locke and

comparable cases, such denials signal a return to the

troublesome “no aid” position that characterized past

decisions. Lemon’s position was anything but neutral

toward religion. “Aiding religion would certainly not

be neutral toward non-religious people,” but Lemon’s

19

“secular purpose” and “primary secular effect” prongs

are not “neutral toward religious people.” Falco

Anthony Muscante II, "Play in the Joints" Among the

Religion Clauses: Rebuilding the Strong Joints the

Framers Formed, 22 Ave Maria L. Rev. 27, 35 (Spring

2024).

The pesky Locke “ghoul” should be stricken from

this Court’s jurisprudence and buried next to Lemon

before it does further damage to religious liberty.

A. Locke’s facial discrimination against

religion assaults the First Amendment.

"The minimum requirement of neutrality is that a

law not discriminate on its face." Church of Lukumi

Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993).

“Discrimination on the face of a statute . . . is not like

a facially neutral law that happens to burden religious

exercise, as in Smith.” Locke, 540 U.S. at 731 (Scalia,

J., dissenting). In Locke, as in this case, the statute’s

facial discrimination causes an “indignity . . . so

profound that the concrete harm produced can never

be dismissed as insubstantial.” Ibid.; see Wash. Rev.

Code § 28B.10.814 (1997) ("No aid shall be awarded to

any student who is pursuing a degree in theology");

Wash. Const., Art. I, § 11; Locke, 540 U.S. at 716.

Withholding a generally available public benefit

“solely on the basis of religion . . . violates the Free

Exercise Clause no less than if it had imposed a

special tax.” Id. at 726-727 (Scalia, J., dissenting).

That is precisely what Washington (Locke) and

Virginia (Hall) have both done, establishing

scholarship programs conditioned on neutral, non-

20

religious factors but categorically excluding students

who choose theology degrees. These policies are

“specifically directed at . . . religious practice”

(Employment Div. v. Smith, 494 U.S. 872, 878 (1990))

and “will not qualify as neutral” (Bremerton, 597 U.S.

at 526).

VTAG's facial discrimination is comparable to

both the discrimination in Locke and the exclusion of

clergy from public office this Court denounced in

McDaniel v. Paty. There—as in this case—the state

"punish[ed] a religious profession with the privation

of a civil right." 435 U.S. at 626, quoting 5 Writings of

James Madison 288 (G. Hunt ed. 1904). VTAG’s

exclusion violates the Free Exercise Clause.

B. The

Religion

Clauses

complementary, not contradictory.

are

The Religion Clauses are two sides to the same

coin, both guarding religious liberty. It frustrates this

purpose to penalize a religious institution or person

simply because it is a religious entity. It also

frustrates this purpose to imagine a tension between

the Clauses that “did not exist for the Framers.”

Muscante II, "Play in the Joints", 22 Ave Maria L. Rev.

at 28.

“[T]hree clauses appear in the same sentence of

the same Amendment”—the Establishment, Free

Exercise, and Free Speech Clauses. Bremerton, 597

U.S. at 533 (emphasis added). “A natural reading of

that sentence . . . suggest[s] the Clauses have

‘complementary’ purposes, not warring ones where

21

one Clause is always sure to prevail over the others.”

Ibid. (emphasis added); see Everson, 330 U.S. at 13,

15.

C. “Play in the joints” is a flawed phrase

that should be abandoned.

“Play in the joints” is a judicially created phrase

coined in Walz v. Tax Comm'n of N.Y., 397 U.S. 664

(1970) and used only in rare cases, including Locke,

Trinity Lutheran, Espinoza, and Carson. In Locke,

this Court allowed the State of Washington to

discriminate against religion, based on the alleged

“play in the joints,” i.e., "state action that is permitted

by the [Establishment Clause] but not required by the

[Free Exercise Clause]." 540 U.S. at 718.

Locke permits government to “play” with religious

liberty rights, allowing Free Exercise violations even

where the Establishment Clause presents no obstacle.

Locke “weaponized the doctrine against religious

exercise.” Muscante II, "Play in the Joints", 22 Ave

Maria L. Rev. at 39. As this Court has “repeatedly

held,” “the Establishment Clause is not offended when

religious observers and organizations benefit from

neutral government programs” (Espinoza, 591 U.S. at

474) but the Free Exercise Clause is offended “when

[a State] excludes religious observers from

otherwise available public benefits” (Carson, 596 U.S.

at 778).

“Play in the joints” is not a viable doctrine and this

Court should decline to apply it. Bremerton’s

language,

noting

that

the

Clauses

have

22

complementary purposes, not warring purposes (597

U.S. at 533), implies that this Court “has [already]

rejected the notion of ‘play in the joints’ between the

Free Exercise and Establishment Clauses—a notion

on which the Locke majority heavily relied.” Hall, 175

F.4th at 518 n. 3 (Richardson, J., concurring).

If a government action does not violate the

Establishment Clause, but it does infringe on free

exercise by making an individual ineligible for an

otherwise generally available benefit, then it violates

the Free Exercise Clause—period. A state’s interest in

“separating church and State more fiercely than the

Federal Constitution” is not compelling “in the face of

the infringement of free exercise.” Espinoza, 591 U.S.

at 484-85 (quoting Trinity, 582 U.S. at 466) (cleaned

up).

VTAG's categorical exclusion is clearly not

warranted. “[C]onstitutional neutrality” is not “an

absolutely straight line.” Walz, 397 U.S. at 669.

Nondiscrimination promotes "benevolent neutrality."

VTAG's express exclusion of theology students, who

are otherwise qualified for the scholarship program, is

neither benevolent nor neutral.

D. There is no Establishment Clause issue

where the government itself does not

advance religion.

Even under the defunct and widely criticized

Lemon test, “[f]or a law to have forbidden 'effects' . . .

it must be fair to say that the government itself has

advanced religion through its own activities and

23

influence." Mitchell, 530 U.S. at 809, quoting

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337

(1987). Here, it is not “fair to say” that the government

itself has advanced religion. First, the chain is broken

by the private choices of scholarship recipients who

are selected according to neutral, non-religious

criteria. Second, the government uses religiously

neutral criteria to select those recipients.

Private Choices. VTAG distributes funds on

behalf of qualified scholarship recipients “who choose

to attend accredited, private, nonprofit colleges and

universities in Virginia,” based on their enrollment

choices. Hall, 175 F.4th at 511 (emphasis added).

In Locke, the Court cited “historic and

substantial” state interests in prohibiting the use of

state funds for clergy training, a restriction seen in

many founding-era state constitutions. Espinoza, 591

U.S. at 480. But there were really no antiestablishment interests in Locke, because “[t]he State

neither coerced students to study devotional theology

nor conscripted taxpayers into supporting any form of

orthodoxy.” Espinoza, 591 U.S. at 492 (Thomas, J.,

concurring). Locke’s flawed interpretation of the

Establishment Clause “should not impact free

exercise challenges” like the one this case presents.

Ibid.

In Locke, Petitioner Davey sought no special

benefit, but only equal treatment—“the right to direct

his scholarship to his chosen course of study, a right

every other Promise Scholar enjoys.” Locke, 540 U.S.

24

at 727 (Scalia, J., dissenting). Even the Locke Court

admitted that “the link between government funds

and religious training is broken by the independent

and private choice of recipients.” Locke, 540 U.S. at

719, citing Zelman, 536 U.S. at 652; Zobrest, 509 U.S.

at 13-14; Witters, 474 U.S. at 487; Mueller, 463 U.S. at

399-400. There is no direct funding in cases where

private beneficiaries control the flow of funds, as they

did in Espinoza and Carson, and as they do here. See

Espinoza, 591 U.S. at 474 (“government support

makes its way to religious schools only as a result of

Montanans independently choosing to spend their

scholarships at such schools”); Carson, 596 U.S. at 775

(“private citizens direct government aid to religious

schools wholly as a result of their own genuine and

independent private choice”). As Justice Gorsuch

explained, there were several layers of private choice

in Espinoza—taxpayers who donated to independent

scholarship organizations, who then selected

scholarship recipients, and finally the recipients’ free

choice of where to use the funds. 591 U.S. at 508-509

(Gorsuch, J., concurring). Locke upheld a ban that

encompassed indirect funding. This is not the sort of

state action required for a constitutional violation.

Selection Criteria. Another key to the analysis

is the criteria used to select funding recipients. Where

financial aid “is allocated on the basis of neutral,

secular criteria that neither favor nor disfavor

religion,” it is unlikely to advance religion or

incentivize

religious

indoctrination.

Bassett,

Changing Perceptions, 2008 BYU L. Rev. 243 at 269,

citing Mitchell, 530 U.S. at 817; Agostini, 521 U.S. at

231.

25

Trinity Lutheran Church Child Learning Center

received high ratings based on factors unrelated to

religion, “rank[ing] fifth among the 44 applicants in

the 2012 Scrap Tire Program . . . but despite its high

score, the Center was deemed categorically ineligible

to receive a grant.” Trinity, 582 U.S. at 456. Similarly,

Detroit determined eligibility for its downtown

refurbishing program "in spite of, rather than because

of" the religious character of applicants. Am. Atheists,

Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d

278, 289 (6th Cir. 2009). The "program allocate[d]

benefits to a broad spectrum of entities on a neutral

basis." Id. at 282.

In Locke, the State of Washington created a

generally available scholarship program “conditioned

only on academic performance, income, and

attendance at an accredited school” but “then carved

out a solitary course of study for exclusion: theology.

Wash. Rev. Code § 28B.119.010(8) (Supp. 2004);

Wash. Admin. Code § 250-80-020(12)(g) (2003).”

Locke, 540 U.S. at 727 (Scalia, J., dissenting).

Allowing that exclusion cannot be reconciled with this

Court’s current approach to the Religion Clauses.

CONCLUSION

This Court should grant the Petition, reverse the

Fourth Circuit decision, and overrule Locke.

26

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

NC Values Institute

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

Counsel for Amicus Curiae

NC Values Institute