Amicus Curiae Brief — Bethany M. Hall, Petitioner v. A. Scott Fleming, Director, Virginia State Counsel of Higher Education
Supreme Court briefSep 14, 2026
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No. 26-193
In the Supreme Court of the United States
BETHANY M. HALL,
Petitioner,
V.
A. SCOTT FLEMING, IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF THE STATE COUNCIL
OF HIGHER EDUCATION FOR VIRGINIA,
Respondent.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF OF AMICI CURIAE STATE OF WEST
VIRGINIA AND 21 OTHER STATES
IN SUPPORT OF PETITIONER
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
HOLLY J. WILSON
Principal Deputy Solicitor
General
S. HALLIE HOVEY-MURRAY
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
I
TABLE OF CONTENTS
Introduction and Interests of Amici Curiae ..................... 1
Summary of Argument ........................................................ 3
Reasons for Granting the Petition...................................... 5
I.
The Court should overrule Locke ................................ 5
A. Locke was wrong on the law—then and now ........ 5
B. Locke’s historical analysis was flawed, too .......... 11
II. Trying to limit Locke again won’t work .................... 14
III. Locke is causing concrete harm to the States .......... 18
Conclusion ........................................................................... 21
II
TABLE OF AUTHORITIES
Page(s)
Cases
Carson v. Makin,
596 U.S. 767 (2022) ................................................ 2, 4, 9,
10, 17, 19
Catholic Charities Bur., Inc. v. Wis. Labor
& Indus. Rev. Comm’n,
605 U.S. 238 (2025) ....................................................... 20
Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah,
508 U.S. 520 (1993) ................................................. 1, 6, 7
Cutter v. Wilkinson,
544 U.S. 709 (2005) ......................................................... 9
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) ..................................................... 5, 7
Espinoza v. Mont. Dep’t of Rev.,
591 U.S. 464 (2020) ................................................ 1, 2, 4,
9, 10, 17
Everson v. Bd. of Educ. of Ewing Twp.,
330 U.S. 1 (1947) ........................................................... 12
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31,
585 U.S. 878 (2018) ....................................................... 11
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ....................................................... 10
Larson v. Valente,
456 U.S. 228 (1982) ....................................................... 19
III
Locke v. Davey,
540 U.S. 712 (2004) ............................................ 1, 2, 3, 4,
5, 6, 7, 8,
9, 10, 11, 12,
13, 14, 15, 16,
17, 18, 19, 20, 21
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ....................................................... 14
Mahmoud v. Taylor,
606 U.S. 522 (2025) ....................................................... 10
McDaniel v. Paty,
435 U.S. 618 (1978) ......................................................... 7
Our Lady of Guadalupe Sch. v.
Morrissey-Berru,
591 U.S. 732 (2020) ....................................................... 19
Perry v. Commonwealth,
44 Va. (3 Gratt.) 632 (1846) .......................................... 13
Ramos v. Louisiana,
590 U.S. 83 (2020) ........................................................... 9
Shurtleff v. City of Bos.,
596 U.S. 243 (2022) ....................................................... 13
Trinity Lutheran Church of Columbia,
Inc. v. Comer,
582 U.S. 449 (2017) ................................................ 1, 4, 6,
7, 9, 10,
11, 15, 17, 21
Trump v. Slaughter,
146 S. Ct. 2283 (2026) ..................................................... 2
Widmar v. Vincent,
454 U.S. 263 (1981) ....................................................... 19
IV
Witters v. Wash. Dep’t of Servs.
for the Blind,
474 U.S. 481 (1986) ................................................... 8, 20
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) ................................................... 8, 20
Constitutional Provisions
Constitution of Ohio, 1802,
51 CLEV. ST. L. REV. 665 (2004) .................................. 14
OHIO CONST. art. VIII, § 3 (1802) ..................................... 14
U.S. CONST. amend. I ........................................................... 6
VA. CONST. art. I, § 16 ........................................................ 16
VA. CONST. art. IV, § 67 (1902) .......................................... 16
VA. CONST. art. IX, § 141 (1902) ........................................ 16
Regulations
8 VA. ADMIN. CODE § 40-71-10 .......................................... 16
WASH. ADMIN. CODE § 250-80-020(12)(g)
(2003) .............................................................................. 11
Other Authorities
BRYAN A. GARNER ET AL.,
THE LAW OF JUDICIAL
PRECEDENT (2016) ......................................................... 9
CTR. FOR APPLIED RSCH. IN THE
APOSTOLATE, GEO. UNIV.,
THE CLASS OF 2026: SURVEY
OF ORDINANDS TO THE
PRIESTHOOD (2026)....................................................... 18
V
Elizabeth W. Green,
Jesus in the Ivory Tower,
HARV. CRIMSON (Feb. 18, 2004) .................................. 18
Erin Hawley,
A Mandate to Discriminate?: Why the
Establishment Clause Does
Not Justify the Exclusion of
Religious Charter Schools,
HARV. J.L. & PUB. POL’Y PER CURIAM,
no. 9, Spring 2025 .......................................................... 13
J. Brett Pritchard,
Conduct and Belief in the Free
Exercise Clause: Developments and
Deviations in Lyng v. Northwest
Indian Cemetery Protective
Association,
76 CORNELL L. REV. 268 (1990) .................................... 8
J. Madison,
Memorial and Remonstrance Against
Religious Assessments (June 20, 1785) ................ 12, 13
KATHERINE LEU,
U.S. DEP’T OF EDUC., NCES 2018-434,
BEGINNING COLLEGE STUDENTS WHO
CHANGE THEIR MAJORS WITHIN 3
YEARS OF ENROLLMENT (2017) .................................. 18
Mark Storslee,
Church Taxes and the Original
Understanding of the Establishment
Clause,
169 U. PA. L. REV. 111 (2020) .......................... 11, 12, 13
VI
Michael Bindas,
Using My Religion: Carson v. Makin
and the Status/use (Non)distinction,
2021-2022 CATO SUP. CT. REV. 163
(2022) ........................................................................ 10, 11
Michael W. McConnell,
Establishment and Disestablishment
at the Founding,
44 WM. & MARY L. REV. 2105 (2003) .......................... 12
Michael W. McConnell,
Free Exercise Revisionism and the
Smith Decision,
57 U. CHI. L. REV. 1109 (1990) ...................................... 6
Religious Studies,
HAMPTON UNIV.,
https://perma.cc/G3GN-5UQ3
(last visited Sept. 2, 2026) ............................................ 20
Richard F. Duncan,
Locked Out: Locke v. Davey and the
Broken Promise of Equal Access,
8 U. PA. J. CONST. L. 699 (2006) .................................... 8
Stephen Pepper,
Taking the Free Exercise Clause
Seriously,
1986 B.Y.U. L. Rev. 299 (1986) ..................................... 6
Steven K. Green,
Locke v. Davey and the Limits to
Neutrality Theory,
77 TEMP. L. REV. 913 (2004) .......................................... 8
VII
1 VA. CONST. CONVENTION (1901-1902),
REPORT OF THE PROCEEDINGS AND
DEBATES OF THE CONSTITUTIONAL
CONVENTION (1906) ..................................................... 16
1
INTRODUCTION AND INTERESTS
OF AMICI CURIAE*
Locke v. Davey is an aberration. Under it, States can
discriminate against religious students by excluding them
from scholarship programs. So long as the State can claim
some “historic and substantial” antiestablishment interest
in refusing to fund the program, and so long as the burden
on religious students can be characterized as “mild[]” or
“minor,” the State can engage in acts that would otherwise
run afoul of the Free Exercise Clause. Locke v. Davey,
540 U.S. 712, 720, 725 (2004). No strict scrutiny required.
Locke’s logic is counter to every Free Exercise case
this Court has decided before or since. The basic rule
provides that “[a] law burdening religious practice that is
not neutral or not of general application must undergo the
most rigorous of scrutiny.” Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). It
“must advance interests of the highest order and must be
narrowly tailored in pursuit of those interests.” Id.
(cleaned up). And there’s no vocational-scholarshipprogram exception to be found in the First Amendment.
Recognizing that Locke doesn’t sit right, this Court has
scaled it back three times. Trinity Lutheran dismissed
the mild burden excuse: religious discrimination stays
odious even if it costs only a few scraped knees. Trinity
Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.
449, 467 (2017). It confirmed, too, that the Free Exercise
Clause limits antiestablishment interests—not the other
way around. Id. at 466. Espinoza said that “[s]tatusbased discrimination remains status based even if one of
its goals or effects is preventing religious organizations
Under Supreme Court Rule 37.2, amici timely notified counsel of
record of their intent to file this brief.
*
2
from putting aid to religious uses.” Espinoza v. Mont.
Dep’t of Rev., 591 U.S. 464, 478 (2020). And Carson erased
a status-use line. Carson v. Makin, 596 U.S. 767, 788-89
(2022). It held that Locke doesn’t “generally authorize the
State to exclude religious persons from the enjoyment of
public benefits on the basis of their anticipated religious
use of the benefits.” Id. at 789 (emphasis added).
Little of Locke thus remains. Yet because that little
still stands, lower courts keep reaching for it. Indeed,
each prior attempt to cabin Locke only marked out where
the next court would go wrong. Stare decisis demands
that the Court preserve and respect well-reasoned
decisions that appropriately guide lower courts. But
Locke doesn’t qualify. It is a decision this Court has
drained of every supporting rationale.
Especially
considering how stare decisis “is at its weakest in
constitutional cases,” Trump v. Slaughter, 146 S. Ct. 2283,
2302 (2026), Locke no longer deserves the deference the
doctrine protects.
This petition and the companion petition in Johnson v.
Fleming, No. 26-240 (U.S. filed Aug. 20, 2026), highlight
the danger of leaving even the few remaining scraps of
Locke in place. Virginia targets religious students without
ever facing strict scrutiny. Through two separate
programs, the Virginia Tuition Assistance Grant Program
and the Virginia National Guard State Tuition Assistance
Program, the Commonwealth makes financial aid broadly
available to students at in-state colleges and universities.
But students who want to pursue majors the State deems
too religious don’t get to participate. And who knows what
“too religious” means? That answer is left up to Virginia’s
officials’ discretion.
The Court should use these cases to do three essential
things. First, the Court should grant the petition to
3
overrule Locke. The decision was a stumble when the
Court handed it down in 2004, and this Court’s recent
cases have since hollowed out the rationales it offered.
Second, the Court should resist the temptation to
distinguish Locke. This Court has already tried narrowing
Locke three times, and lower courts still misapply it.
Virginia’s sweeping exclusion of degrees with religious
flavor shows that fine line-drawing just isn’t doing the job.
Third, Locke inflicts real harm on the States, which is
what brings Amici to this Court.
Beyond the obvious harms of okaying religious
discrimination, Locke hurts States like the Amici States.
States run tuition-assistance programs for hundreds of
thousands of students of every faith—and none. Locke
traps them. A State that excludes religious degrees must
first grade each program’s religiosity—risking
unconstitutional entanglement and denominational
favoritism. A State that instead funds religious degrees
invites Establishment Clause suits that lean on Locke.
Amici speak from experience about a doctrine that leaves
them nowhere safe to stand. Overruling Locke would free
the States to do what they wish to do already: treat
religious and secular students alike and leave the choice of
what to study to the student.
This Court should grant this petition and the
companion petition in Johnson to end the aberration of
Locke v. Davey once and for all.
SUMMARY OF ARGUMENT
I. Locke cannot be squared with Free Exercise
jurisprudence—not under the law as it stood in 2004, when
the case was decided, and even less today. By the time the
Court handed down Locke, it had already set up the
familiar test for when a law intrudes on a person’s
4
religious exercise: strict scrutiny. But Locke dodged the
test. Instead, Locke treated the “play in the joints”
between the Religion Clauses as license to construct a new
test—one where a religious student’s burden gets
weighed against a State’s asserted antiestablishment
interest in withholding funds. That improvisation was
wrong, as the interaction between the Free Exercise
Clause and the Establishment Clause does not provide a
basis to ignore strict scrutiny. More, Trinity Lutheran,
Espinoza, and Carson have recently rejected nearly every
premise undergirding Locke. Only history is left, which
Locke misread.
Although the Founders opposed
compelling citizens to fund the clergy, they did not intend
to exclude the clergy from benefits open to everyone else.
Given these many flaws, the Court should grant the
petition and overrule Locke.
Even using its own test, Locke reached the wrong
result.
This Court had already held—as Locke
recognized—that using public monies to fund a recipient’s
private choice to pursue religious study raises no
Establishment Clause problem. So, Washington had no
genuine antiestablishment interest; that side of the scale
was empty. Meanwhile, the burden on Joshua Davey was
substantial; the State denied him needed scholarship
money solely because God called him to pursue ministry.
The Court’s botched handling of the test it had just
created presaged the problems that continue to plague the
test today.
II. If the Court grants certiorari, it should not, once
again, merely limit Locke. True, the cases could be
distinguished—the students lack Davey’s fixed intent to
enter the ministry, Virginia lacks a historic and
substantial antiestablishment interest, and Virginia’s
exclusions are far more arbitrary than Washington’s. But
5
this Court has tried that approach, and courts are still
applying Locke incorrectly. (Just witness the Fourth
Circuit’s eagerness to apply the decision here.) Limiting
once again wouldn’t solve the problem. And none of the
available distinctions can support a durable rule—least of
all an intent-based one, which would require predicting
the career of an eighteen-year-old.
III. As long as Locke remains good law, the States will
suffer; Locke traps them coming and going. A State that
excludes religious degrees must decide which courses of
study are too religious to fund. That inquiry risks two
forbidden practices—entanglement and denominational
discrimination. Yet a State that tries to avoid that trap by
funding religious majors invites Establishment Clause
challenges built on Locke. Either way, States are left
holding the bag.
REASONS FOR GRANTING THE PETITION
I.
The Court should overrule Locke.
Locke was “egregiously wrong from the start,” and it is
even more obviously wrong now. Dobbs v. Jackson
Women’s Health Org., 597 U.S. 215, 231 (2022). It set
aside settled law to let Washington’s Promise Scholarship
Program discriminate against religious students without
any heightened scrutiny. It did so by stretching the “play
in the joints” between the Religion Clauses and by resting
on a hollow historical interest against funding the clergy.
This Court should grant this petition and the petition in
Johnson and overrule Locke.
A. Locke was wrong on the law—then and now.
1. Start with the law as it stood in 2004. The Free
Exercise Clause’s text, at that time, as it is now, was
6
“singularly absolute: ‘Congress shall make no law . . .
prohibiting the free exercise [of religion].’” Stephen
Pepper, Taking the Free Exercise Clause Seriously, 1986
B.Y.U. L. Rev. 299, 300 (1986) (quoting U.S. CONST.
amend. I). Its guarantee—a “substantive liberty”—was
worthy of rigorous protection even then. Michael W.
McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. CHI. L. REV. 1109, 1114, 1137 (1990). So
laws that “infringe[d] upon or restrict[ed] practices
because of their religious motivation” were tested against
strict scrutiny—as they still are today. Lukumi, 508 U.S.
at 533.
Yet Locke broke with that precedent by waving away
any scrutiny. To account for the “tension” between the
Establishment Clause and the Free Exercise Clause, the
Court functionally adopted a balancing test instead.
Locke, 540 U.S. at 718, 721-24. Under that test, States can
discriminate against religious use if they have an
animus-free “historic and substantial” antiestablishment
interest in doing so, and the burden on free exercise is
“minor.” Id. at 725. In other words, antiestablishment
interests trump the Free Exercise Clause where the
burden is of a “milder kind.” Id. at 720. But the right to
free exercise couldn’t be balanced away so freely in 2004.
The only test—strict scrutiny—was the appropriate
test, and it should have applied. See Lukumi, 508 U.S. at
533; Trinity Lutheran, 582 U.S. at 462. Pre-Locke, the
“Court … repeatedly confirmed that denying a generally
available benefit solely on account of religious identity
imposes a penalty on the free exercise of religion that can
be justified only by a state interest ‘of the highest order.’”
Trinity Lutheran, 582 U.S. at 458 (quoting McDaniel v.
Paty, 435 U.S. 618, 628 (1978)). In fact, the Court had just
applied strict scrutiny to a law that “suppress[ed]” a
7
religious use: “animal sacrifices of the Santeria religion.”
Locke, 540 U.S. at 720 (referring to Lukumi, 508 U.S. at
535).
Locke’s facts demanded strict scrutiny, too.
Washington singled out Joshua Davey, excluded him
based on his studies’ ties to his religious beliefs, and
denied him a neutral government benefit.
Even in Locke, the Court never fully explained why
strict scrutiny didn’t apply. It simply said that “the
State’s disfavor of religion … [was] of a far milder kind”
than in recent cases and that Washington’s program
wasn’t motivated by animus for religion. Locke, 540 U.S.
at 720, 725. Those facts shouldn’t have and didn’t matter.
The Court had “no authority for approving facial
discrimination against religion simply because its material
consequences [were] not severe.” Id. at 731 (Scalia, J.,
dissenting). It had never “required proof of ‘substantial’
concrete harm with other forms of discrimination.” Id.
The same goes for animus. The Court had never
“approached other forms of discrimination” by looking for
animus. Id. at 732. If anything, the Court had rejected
good intentions as inadequate to justify facial
discrimination. Id. at 733 (citing Paty, 435 U.S. at 621,
628-29).
2. Even under Locke’s own balancing test, the Court
weighed the interests incorrectly, and its “reasoning was
exceptionally weak.” Dobbs, 597 U.S. at 231. The test’s
malleability confirms it was the wrong one from the start.
Washington had no antiestablishment interest to trade
against free exercise. By 2004, this Court had held that
public funds reaching religious training through a
recipient’s “genuinely independent” private choice raised
no Establishment Clause problem. Witters v. Wash. Dep’t
of Servs. for the Blind, 474 U.S. 481, 488-89 (1986); see
Zelman v. Simmons-Harris, 536 U.S. 639, 649-52 (2002).
8
So, “the State could, consistent with the Federal
Constitution, permit Promise Scholars to pursue a degree
in devotional theology.” Locke, 540 U.S. at 719 (citing
Witters, 474 U.S. at 489). But if funding these degrees
doesn’t offend the Establishment Clause, then refusing to
fund them serves no antiestablishment interest.
Davey’s burden also wasn’t of a “milder kind”—as
anyone who has faced the prospect of paying for an
expensive degree well knows. Locke, 540 U.S. at 720. The
scholarship Davey otherwise would have received “was a
substantial sum of money designed to create a ‘more level
playing field’ by making higher education affordable for
students from low and moderate income families.”
Richard F. Duncan, Locked Out: Locke v. Davey and the
Broken Promise of Equal Access, 8 U. PA. J. CONST. L.
699, 708 (2006). Davey faced “an immediate dilemma”
because of the theology-degree exclusion—he could
“remain faithful to religious belief or suffer the sanction
imposed by law.” J. Brett Pritchard, Conduct and Belief
in the Free Exercise Clause: Developments and
Deviations in Lyng v. Northwest Indian Cemetery
Protective Association, 76 CORNELL L. REV. 268, 294
(1990).
Yet Locke “never explains why the denial of funding on
its own does not constitute a burden on religious practice.”
Steven K. Green, Locke v. Davey and the Limits to
Neutrality Theory, 77 TEMP. L. REV. 913, 925 (2004). In
other words, Locke ignored tangible financial harms that
ran alongside painful dignitary ones. And still, “[t]he
indignity of being singled out for special burdens on the
basis of one’s religious calling is so profound that the
concrete harm produced can never be dismissed as
insubstantial.” Locke, 540 U.S. at 731 (Scalia, J.,
dissenting).
9
3. “Given how unmoored [Locke] was from the start, it
might seem unlikely that later developments could have
done more to undermine the decision.” Ramos v.
Louisiana, 590 U.S. 83, 106 (2020). “Yet they have.” Id.
The Court—in Trinity Lutheran, Espinoza, and
Carson—has “rejected or ignored every premise of
Locke”: the “play in the joints,” the supposed mildness of
the burden, and the status-use distinction. App.17a & n.3
(Richardson, J., concurring). Indeed, this Court has
favorably cited Locke just once—the very next Term and
only in passing, Cutter v. Wilkinson, 544 U.S. 709, 713-14
(2005)—while “erod[ing] Locke’s foundation” at every
turn since, App.16a (Richardson, J., concurring). That
Locke has never received further approval (apart from one
cursory nod) suggests it is, at the least, “vulnerable to
doubt.” BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL
PRECEDENT 234 (2016).
Time has shown that Washington’s supposed
antiestablishment interest is illusory. Trinity Lutheran
confirmed that States’ antiestablishment interests are
“limited by the Free Exercise Clause.” Trinity Lutheran,
582 U.S. at 466 (cleaned up). And a “policy preference for
skating as far as possible from religious establishment
concerns” “cannot qualify as [a] compelling” interest “[i]n
the face of [a] clear infringement on free exercise.” Id.
Espinoza reaffirmed that point. 591 U.S. at 485. And
Carson held flatly that “[a] State’s antiestablishment
interest does not justify enactments that exclude some
members of the community from an otherwise generally
available public benefit because of their religious
exercise.” 596 U.S. at 781. “A natural reading of [the First
Amendment] would seem to suggest the [Establishment,
Free Exercise, and Free Speech] Clauses have
complementary purposes, not warring ones where one
Clause is always sure to prevail over the others.”
10
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 533 (2022)
(cleaned up).
The “mildness” rationale has fared no better. Trinity
Lutheran refused to measure a free-exercise violation this
way: even if only “a few extra scraped knees” resulted,
discrimination was “odious to our Constitution all the
same, and [could not] stand.” 582 U.S. at 467. In the end,
a State need not put “a gun to the head” of religious
observers to trigger strict scrutiny—“a thumb on the
scale” will do. Espinoza, 591 U.S. at 514 (Gorsuch, J.,
concurring). “[T]he government cannot condition [the]
availability” of a “public benefit” on a person’s
“willingness to accept a burden”—that is, any burden—
“on their religious exercise.” Mahmoud v. Taylor, 606
U.S. 522, 561 (2025) (emphasis added) (cleaned up).
Finally, Locke’s application to religious use—not
status—has collapsed. Carson held that “any status-use
distinction lacks a meaningful application not only in
theory, but in practice as well.” 596 U.S. at 788. It
stressed that the Constitution’s “prohibition on statusbased discrimination … is not a permission to engage in
use-based discrimination.” Id. Carson thus “cabined
Locke to its facts,” confining it to the “narrow focus on
vocational religious degrees” and holding that Locke may
not “generally authorize the State to exclude religious
persons from the enjoyment of public benefits on the basis
of their anticipated religious use of the benefits.” Id. at
789; App.32a. By “kill[ing] the status/use distinction,” the
Court “effectively left Locke v. Davey for dead.” Michael
Bindas, Using My Religion: Carson v. Makin and the
Status/use (Non)distinction, 2021-2022 CATO SUP. CT.
REV.163, 183 (2022).
Run the correct test, and Washington’s program would
have failed it.
Because the exclusion “expressly
11
discriminates against otherwise eligible recipients …
solely because of their religious character,” it is subject to
strict scrutiny. Trinity Lutheran, 582 U.S. at 462. “No
field of study but religion” was “singled out for disfavor.”
Locke, 540 U.S. at 727 (Scalia, J., dissenting); see WASH.
ADMIN. CODE § 250-80-020(12)(g) (2003). And the law is
not narrowly tailored or supported by a compelling
interest. Excluding an entire field of study is the opposite
of narrow tailoring. And an antiestablishment interest is
not compelling, as shown. The Washington program could
not survive the scrutiny the First Amendment required.
In short, Locke is “inconsistent with other First
Amendment cases and has been undermined by more
recent decisions.” Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31, 585 U.S. 878, 886 (2018). This
Court should thus use this petition to overrule it.
B. Locke’s historical analysis was flawed, too.
What remains is Locke’s historical analysis. App.17a
(Richardson, J., concurring). But the Court got that part
wrong as well. Locke rested on two pieces of history, and
neither bears the weight the Court placed on it.
First, Locke suggested that “[s]ince the founding,”
Americans had resisted “procuring taxpayer funds to
support church leaders.” Locke, 540 U.S. at 722. “That
history”—however—“involved not the inclusion of
religious ministers in public benefits programs like the
one at issue here, but laws that singled them out for
financial aid.” Id. at 727 (Scalia, J., dissenting); see Mark
Storslee, Church Taxes and the Original Understanding
of the Establishment Clause, 169 U. PA. L. REV. 111, 150
(2020). Opposition to compelling the public to fund the
clergy doesn’t equate to support for excluding the clergy
12
from a neutral benefit the State makes available to
everyone.
The Court’s “famous example,” the “defeat of ‘A Bill
Establishing A Provision for Teachers of the Christian
Religion’ in the Virginia Legislature” doesn’t support the
Court’s thesis. Locke, 540 U.S. at 722 n.6. That bill would
have forced Virginians to fund “Christian teachers.” Id.
at 727 (Scalia, J., dissenting). And contrary to how the
Court painted it, the bill’s defeat shows that Virginia was
striving for religious equality and opposed compelled
support for the clergy—not that it sought to bar clergy
from public life.
A fuller view of Virginia’s history confirms as much.
Virginia maintained an established religion until the
Revolution. Michael W. McConnell, Establishment and
Disestablishment at the Founding, 44 WM. & MARY L.
REV. 2105, 2119 (2003). And Virginia’s disestablishment
in the late 1700s was driven by evangelical religious
revival, not growing secularism or rationalism. Id. The
movement climaxed in 1785 and 1786, just as “the Virginia
legislative body was about to renew Virginia’s tax levy for
the support of the established church.” Everson v. Bd. of
Educ. of Ewing Twp., 330 U.S. 1, 11-12 (1947). Madison’s
Memorial and Remonstrance—also cited in Locke—was
directed at that renewal. J. Madison, Memorial and
Remonstrance Against Religious Assessments (June 20,
1785), reprinted in Everson, 330 U.S. at 66 (appendix to
dissent of Rutledge, J.).
In his paper, Madison urged that all people retain “an
equal title to the free exercise of Religion according to the
dictates of conscience.” Memorial and Remonstrance,
supra (cleaned up). His objection was to “a system of
compelled financial support for clergy, not a neutral
program where public funds follow private choice.” Erin
13
Hawley, A Mandate to Discriminate?: Why the
Establishment Clause Does Not Justify the Exclusion of
Religious Charter Schools, HARV. J.L. & PUB. POL’Y PER
CURIAM, no. 9, Spring 2025, at 1, 21. When the bill failed,
the Assembly enacted Thomas Jefferson’s Bill for
Religious Liberty, which put “all religions on a footing of
perfect equality; protecting all; imposing neither burdens
nor civil incapacities upon any; conferring privileges upon
none.” Perry v. Commonwealth, 44 Va. (3 Gratt.) 632, 641
(1846). And on the heels of disestablishment, the Virginia
legislature supported religious colleges through land
grants and surveyor fees. Storslee, supra at 131.
So founding-era sources applied more of an equalfooting doctrine towards religion—not the kind of “hands
off” approach that Locke perceived. Accord Shurtleff v.
City of Bos., 596 U.S. 243, 261 (2022) (Kavanaugh, J.,
concurring) (“[A] government does not violate the
Establishment Clause merely because it treats religious
persons, organizations, and speech equally with secular
persons, organizations, and speech in public programs,
benefits, facilities, and the like.”).
Second, the Court pointed to founding-era state
constitutional provisions that prohibited “using tax funds
to support the ministry,” reasoning that “States … sought
to avoid an establishment of religion around the time of
the founding.” Locke, 540 U.S. at 723 (citing state
constitutional provisions). But those provisions go the
same way as the popular uprisings: they reflect a desire
not to compel the public to fund religion, not a preference
that the clergy be excluded from neutral benefits. As
Justice Scalia put it, “[n]o one would seriously contend, for
example, that the Framers would have barred
ministers from using public roads on their way to church.”
Locke, 540 U.S. at 727-28 (Scalia, J., dissenting).
14
Look at Ohio’s constitution. It provides “[t]hat all men
have a natural and indefeasible right to worship Almighty
God, according to the dictates of conscience” and thus “no
human authority can, in any case whatever, control or
interfere with the rights of conscience; that no man shall
be compelled … to maintain any ministry, against his
consent; and that no preference shall ever be given, by
law, to any religious society or mode of worship.” OHIO
CONST. art. VIII, § 3 (1802) (emphasis added), reprinted
in Constitution of Ohio, 1802, 51 CLEV. ST. L. REV. 665,
680 (2004). So, true, Ohio couldn’t compel citizens to
support the clergy. But the Court should have read on.
Article 8, Section 3 of Ohio’s 1802 Constitution mandated
that the legislature encourage religious education, stating
“religion, morality and knowledge, being essentially
necessary to good government and the happiness of
mankind, schools and the means of instruction shall
forever be encouraged by legislative provision, not
inconsistent with the rights of conscience.” Id. (emphasis
added).
Without history to stand on, the last of Locke falls
apart.
***
So, Locke is no more than “a decaying husk.” Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 410 (2024). The
Court should now clear it away.
II.
Trying to limit Locke again won’t work.
The Court could once again distinguish Locke rather
than overrule it. But it shouldn’t. This Court has
distinguished Locke three times already, yet courts keep
reading it wrong. Each time the Court has narrowed
Locke, it has just invited the next case. This petition, and
15
the companion petition in Johnson, are those next cases.
The better course is to overrule Locke, not to limit it again.
A. Three features make this case and Johnson
distinguishable.
Principally, the petitioner here and those in Johnson
lack Davey’s unequivocal intent to enter the clergy. Davey
“had planned for many years to attend a Bible college and
to prepare himself through that college training for a
lifetime of ministry, specifically as a church pastor.”
Locke, 540 U.S. at 717 (cleaned up). And ultimately, Locke
hinged on that fact; Davey “was denied a scholarship
because of what he proposed to do—use the funds to
prepare for the ministry.” Trinity Lutheran, 582 U.S. at
464 (cleaned up). The students here and in Johnson don’t
have such a laser-focused plan to become “church leaders”
who “lead … congregation[s].” Locke, 540 U.S. at 721-22.
Petitioner Hall has changed her major three times, from
“Music Education: Choral” to “Youth Ministries” to
“Christian Leadership and Church Ministries” and finally
to “Music and Worship.” App.4a, 24a-25a. And the
Johnson petitioners are weighing secular careers in
music, real estate, nonprofit work, and the military. See
Pet. 5-8, Johnson v. Fleming, No. 26-240.
The state interest differs in these cases, too. Locke
credited Washington with an animus-free “historic and
substantial” interest against using “taxpayer funds to
support church leaders.” Locke, 540 U.S. at 722. But
Virginia has no equivalent tradition. Virginia’s funding
restrictions on religious education appear not in the
Establishment Clause of its Bill of Rights, see VA. CONST.
art. I, § 16, but in its Education article. And those
provisions are not the product of principled founding-era
anti-establishment
conviction,
like
Washington’s
supposedly was. See Locke, 540 U.S. at 723. Instead,
16
Virginia’s no-aid provisions are the product of Blaine
Amendments adopted more than 100 years after the
founding, rooted in anti-Catholic animus. See VA. CONST.
art. IX, § 141 (1902); VA. CONST. art. IV, § 67 (1902); 1 VA.
CONST. CONVENTION (1901-1902), REPORT OF THE
PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL
CONVENTION 805 (1906) (Charles Meredith inquiring “is
not the whole milk in the cocoanut [sic] the Catholic
question”); id. at 812 (Meredith making case that
government shouldn’t deny benefits to Catholics because
they do charitable work). Locke declined to resolve what
happens when a State’s no-aid provision has that pedigree.
Locke, 540 U.S. at 723 n.7.
Finally, Locke tolerated Washington’s choice because
Washington “merely chose[] not to fund a distinct
category of instruction” and imposed only a “minor
burden” on students. Locke, 540 U.S. at 713, 724-25.
Virginia’s exclusions look different. Virginia has drawn
lines within religious education, delegated religious
classification authority to state officials, and constructed
an entirely arbitrary scheme. VTAG’s dual-degree rule
highlights the arbitrariness. Virginia will fund a CIP
Code 39 major—in other words, a major relevant to
religious or theological vocations—if the student also
pursues an eligible double major and takes at least as
many courses in the eligible major per semester. 8 VA.
ADMIN. CODE § 40-71-10. Virginia, thus, doesn’t even do
what it purports it must: exclude religious vocational
instruction. And the burden isn’t minor at all. Petitioner
Hall is denied VTAG funding for her entire course of study
unless she picks up a secular double-major and
restructures her course load around Virginia’s
proportionality rules.
17
On these facts, the Court could admittedly once again
hold that Locke does not reach this case and stop there.
That would at least provide a partial solution.
B. But the Court should decline that path. It has
walked it three times recently, to no lasting effect. In
Trinity Lutheran, Espinoza, and Carson, the Court
distinguished and limited Locke—each time reversing a
lower court that had applied Locke to approve of religious
discrimination. Trinity Lutheran, 582 U.S. at 449 (Eighth
Circuit); Carson, 596 U.S. at 789 (First Circuit); Espinoza,
591 U.S. at 482 (state high court applying a Blaine-era noaid provision). And yet, after each one, the issue of Locke’s
reach returned. The Court should recognize that Locke’s
experiment has failed and end it.
This case and Johnson are the latest examples of how
lower courts are incorrectly interpreting Locke. The
Fourth Circuit applied Locke broadly: it treated Locke as
“directly analogous” to any case where a plaintiff pursues
“a religious vocation at a private religious college”; the
“state statutes” prohibit funds from going “toward an
ineligible major”; and the plaintiffs’ “choice of majors”
made them ineligible for scholarship money. App.7a. The
court didn’t even engage with Locke’s balancing test, and
it threaded a needle to resurrect Locke from the Court’s
recent decisions. The district court in Johnson used Locke
to impose an even broader categorical bar. It said Locke
was “too analogous” to any free exercise claim against
educational grants that exclude some religious degrees “to
meaningfully distinguish” it.
App.14a, Johnson v.
Fleming, No. 26-240. It was good enough for the district
court that Locke remained “good law.” App.17a, Johnson
v. Fleming, No. 26-240. So, both courts applied Locke how
it shouldn’t have been—the same problem the Court has
stepped in to correct thrice before.
18
And any of the distinguishing features found here offer
a poor basis to write a new rule. Rules based on statespecific historical interests or breadth of excluded
programs are fact intensive and too easily distinguished
away to provide any meaningfully clear line. An intentbased refinement would be unworkable. Few eighteenyear-olds know where they will end up, and their stated
plans routinely change: about a third of bachelor’s
students switch majors within three years. KATHERINE
LEU, U.S. DEP’T OF EDUC., NCES 2018-434, BEGINNING
COLLEGE STUDENTS WHO CHANGE THEIR MAJORS
WITHIN
3
YEARS
OF
ENROLLMENT
(2017),
https://perma.cc/BJU3-YY6Y. Even a degree that sounds
ministerial is a poor proxy: most clergy never majored in
it. Of the 2026 class of Catholic ordinands who attended
college, only 22% majored in theology or philosophy. CTR.
FOR APPLIED RSCH. IN THE APOSTOLATE, GEO. UNIV.,
THE CLASS OF 2026: SURVEY OF ORDINANDS TO THE
PRIESTHOOD 24 (2026), https://perma.cc/P86G-9WED.
Davey himself proves the point. He ended up not at a
pulpit, but at Harvard Law School. Elizabeth W. Green,
Jesus in the Ivory Tower, HARV. CRIMSON (Feb. 18, 2004),
https://perma.cc/HZZ7-7S9R.
Distinguishing Locke a fourth time would only repeat
this cycle. It would resolve Petitioner Hall’s case while
leaving the next court to guess (likely, wrongly) how to
continue applying Locke’s ever-shrinking, ad hoc
exception to free exercise.
III.
Locke is causing concrete harm to the States.
For the States, these issues aren’t academic. Amici
States administer their own tuition-assistance programs
for hundreds of thousands of students, religious and
secular alike. And as long as Locke remains, Amici will
19
face a catch-22. If a State decides to exclude religious
degrees, it will inevitably be forced into entangling
decisions
on religiousness
and denominational
preferences—both of which are constitutionally
forbidden. On the other side, if a State decides to fund
religious degrees, it will face suits alleging violations of the
Establishment Clause. Either way, Locke’s consequences
land squarely on the States.
Consider first a Virginia-style regime that excludes
religious majors. A State that conditions scholarship
eligibility on whether a program is for religious training
or theological education must conduct a risky entangling
inquiry the Supreme Court has oft cautioned against. See
Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591
U.S. 732, 761 (2020). Simply, governments should not
engage in inquiries that grade-out religiosity. See id. at
761; see also Carson, 596 U.S. at 787 (noting that
“scrutinizing whether and how a religious school pursues
its educational mission would also raise serious concerns
about state
entanglement with religion and
denominational favoritism”).
Any kind “of state
inspection and evaluation of the religious content of a
religious organization is fraught with … entanglement”
concerns. Larson v. Valente, 456 U.S. 228, 255 (1982)
(cleaned up). And entanglement aside, tackling the
categorization assignment may be “an impossible task in
an age where many and various beliefs meet the
constitutional definition of religion.” Widmar v. Vincent,
454 U.S. 263, 272 n.11 (1981) (cleaned up).
Because the State will have to grade each major’s
religiosity, it will predictably engage in entanglement’s
byproduct: “denominational preference … based on
theological choices.” Catholic Charities Bur., Inc. v. Wis.
Labor & Indus. Rev. Comm’n, 605 U.S. 238, 250 (2025).
20
The State will end up funding faiths that speak in
academic terms while denying those that speak in
devotional ones. Really, Virginia’s VTAG program
already does that. It funds Hampton University’s
Religious Studies program, for instance—designed to
prepare students “already in ministry,” Religious
Studies, HAMPTON UNIV., https://perma.cc/G3GN-5UQ3
(last visited Sept. 2, 2026)—while denying funds to
students seeking a Pastoral Leadership degree. So,
States cannot adopt a Virginia-style regime—kosher
under Locke in the Fourth Circuit’s view—without
running into other constitutional problems.
And States that choose not to adopt Virginia-style
exclusions face a different risk: Establishment Clause
challenges. Witters and Zelman notwithstanding, those
future plaintiffs could cite the Fourth Circuit’s blessing of
Virginia’s approach as evidence that neutral, inclusive
funding of religious programs is constitutionally suspect.
Even if those challenges ultimately fail, they will impose
real litigation costs and chill the very inclusivity the Free
Exercise Clause demands.
Amici want no part of that choice. They prefer to serve
religious and secular students alike and intend to keep
doing so—without being forced into judgments about
which degrees are too religious to fund. Overruling Locke
would lift that burden and restore a rule the States can
actually administer: treat religious and secular students
equally, and leave the choice of what to study with the
student (where it belongs).
Even more, Amici States’ students also suffer. They
are forced to structure their education around what the
government will fund—choosing the secular version of
their desired major, doubling up on secular coursework to
dilute the religious content, or abandoning their chosen
21
religious program entirely. Those consequences are
precisely the kind of choice between faith and public
benefit that the Free Exercise Clause was designed to
eliminate. See Trinity Lutheran, 582 U.S. at 463 (“[T]he
Free Exercise Clause protects against ‘indirect coercion
or penalties on the free exercise of religion, not just
outright prohibitions.’” (cleaned up)).
Locke thus forces an impossible choice on the States
and an unconstitutional one on their students; overruling
it would spare both.
CONCLUSION
The Court should grant the petition for certiorari.
Respectfully submitted.
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
HOLLY J. WILSON
Principal Deputy Solicitor
General
S. HALLIE HOVEY-MURRAY
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
22
ADDITIONAL LEGAL
REPRESENTATIVES FOR THE STATES
STEVE MARSHALL
Attorney General
State of Alabama
KRIS KOBACH
Attorney General
State of Kansas
CORI MILLS
Acting Attorney General
State of Alaska
LIZ MURRILL
Attorney General
State of Louisiana
TIM GRIFFIN
Attorney General
State of Arkansas
LYNN FITCH
Attorney General
State of Mississippi
JAMES UTHMEIER
Attorney General
State of Florida
CATHERINE HANAWAY
Attorney General
State of Missouri
CHRIS CARR
Attorney General
State of Georgia
AUSTIN KNUDSEN
Attorney General
State of Montana
RAÚL LABRADOR
Attorney General
State of Idaho
MICHAEL T. HILGERS
Attorney General
State of Nebraska
THEODORE E. ROKITA
Attorney General
State of Indiana
DREW WRIGLEY
Attorney General
State of North Dakota
BRENNA BIRD
Attorney General
State of Iowa
ANDY WILSON
Attorney General
State of Ohio
23
ALAN WILSON
Attorney General
State of South Carolina
MARTY JACKLEY
Attorney General
State of South Dakota
JONATHAN SKRMETTI
Attorney General and
Reporter
State of Tennessee
KEN PAXTON
Attorney General
State of Texas
DEREK BROWN
Attorney General
State of Utah
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.