Petition for Writ of Certiorari — Cameron Johnson, et al., Petitioners v. A. Scott Fleming, Director of the State Council of Higher Education for Virginia, et al.

Supreme Court briefAug 20, 2026

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NO. __________

IN THE

Supreme Court of the United States

CAMERON JOHNSON; LUKE THOMAS; TRACE STEVENS,

Petitioners,

A. SCOTT FLEMING, in his official capacity as the

Director of the State Council of Higher Education for

Virginia; JOHN JUMPER, in his official capacity as the

Chair of the State Council of Higher Education for

Virginia; MAJOR GENERAL JAMES W. RING, in his

official capacity as the Adjutant General of Virginia;

and DONALD L. UNMUSSIG, in his official capacity as

the Chief Financial Officer of the Virginia

Department of Military Affairs,

Respondents.

On Petition for Writ of Certiorari Before Judgment

to the United States Court of Appeals for the Fourth

Circuit

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

STEVEN W. FITSCHEN

THE NATIONAL LEGAL

FOUNDATION

524 JOHNSTOWN ROAD

CHESAPEAKE, VA 23322

JAMES A. CAMPBELL

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

(571) 707-4655

jcampbell@ADFlegal.org

Counsel for Petitioners

(additional counsel listed on inside cover)

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

RYAN J. TUCKER

JEREMIAH J. GALUS

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

JACOB E. REED

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

Counsel for Petitioners

QUESTIONS PRESENTED

Petitioners Cameron Johnson, Luke Thomas, and

Trace Stevens are Virginia residents eligible for

grants funding study at private colleges in the Commonwealth. Virginia funds some religious degrees at

Liberty University—the private college that Petitioners attend—but denies funding for Petitioners’ chosen

religious degrees. Yet the favored and disfavored degrees are materially indistinguishable—they include

similar religious courses and lead to both secular and

religious careers. This results in arbitrary exclusions,

state religiosity standards, and the indignity of unequal treatment because of one’s faith.

This religious discrimination violates the First

Amendment. But the district court dismissed Cameron’s and Luke’s claims and denied Trace a preliminary injunction based on Locke v. Davey, 540 U.S.

712 (2004), holding that Locke bars any First Amendment challenge to any educational grant program

that excludes some religious degrees, in conflict with

a ruling by the Tenth Circuit. The Fourth Circuit then

denied an injunction pending appeal and deferred a

motion to accelerate, extending Petitioners’ ongoing

and irreparable harm.

Excluding students based on their religious use of

public benefits raises two issues of broad significance:

1. Whether the Religion Clauses allow governments to exclude some religious degrees while funding similar religious degrees in educational grant programs.

2. Whether this Court should overrule Locke.

PARTIES TO THE PROCEEDING

Petitioners Cameron Johnson, Luke Thomas, and

Trace Stevens are individual Virginia residents.

Respondents are A. Scott Fleming, in his official

capacity as the Director of the State Council of Higher

Education for Virginia; John Jumper, in his official

capacity as the Chair of the State Council of Higher

Education for Virginia; Major General James W.

Ring, in his official capacity as the Adjutant General

of Virginia; and Donald L. Unmussig, in his official

capacity as the Chief Financial Officer of the Virginia

Department of Military Affairs.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Fourth Circuit, No.

26-1437, Johnson v. Fleming, motion for an injunction

pending appeal denied May 18, 2026, and motion to

accelerate the appeal deferred May 22, 2026.

U.S. District Court for the Eastern District of

Virginia, No. 3:25-cv-407, Johnson v. Fleming, order

dismissing Cameron Johnson’s and Luke Thomas’s

claims and denying Trace Stevens a preliminary

injunction March 31, 2026.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

LIST OF ALL PROCEEDINGS ................................. ii

TABLE OF AUTHORITIES ................................... viii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL

PROVISIONS, STATUTES, AND

REGULATIONS ................................................... 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 6

I. Virginia’s grant programs .................................... 6

A. Virginia Tuition Assistance Grant Program .. 6

B. Virginia National Guard State Tuition

Assistance Program ....................................... 11

II. Virginia denies Petitioners’ grant requests. ...... 13

A. Cameron Johnson .......................................... 14

B. Luke Thomas ................................................. 14

C. Trace Stevens ................................................ 15

III.Procedural history .............................................. 16

REASONS FOR GRANTING THE PETITION ...... 17

I. The lower court’s ruling is manifestly wrong

and conflicts with a decision by the Tenth

Circuit. ................................................................ 18

A. Locke doesn’t categorically bar all

challenges to educational grants that

exclude some religious degrees. .................... 18

B. The lower court’s application of Locke

conflicts with the Tenth Circuit’s ruling in

Colorado Christian University. ..................... 22

C. Under normal First Amendment rules, the

constitutional violation is clear..................... 24

II. Locke should be overruled. ................................. 29

A. This Court’s precedents have fatally

undermined Locke’s flawed foundation. ....... 29

B. Stare decisis is no impediment. .................... 33

III.The students satisfy the other preliminaryinjunction requirements. .................................... 35

IV. This case is an ideal vehicle. .............................. 36

V. Certiorari before judgment is warranted........... 37

CONCLUSION ......................................................... 38

APPENDIX TABLE OF CONTENTS

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Memorandum Opinion

Issued March 31, 2026 ............................................. 1a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Order

Entered March 31, 2026 ........................................ 28a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Memorandum Order Denying Injunction Pending

Appeal and Granting Stay

Entered April 21, 2026 ........................................... 30a

United States Court of Appeals

For the Fourth Circuit

Case No. 26-1437

Order Denying Injunction Pending Appeal

Entered May 18, 2026 ............................................ 34a

U.S. Const. amend. I .............................................. 36a

U.S. Const. amend. XIV, § 1 .................................. 36a

U.S. Const. art. VI, cl. 2 ......................................... 36a

Va. Const. art. IV, § 16........................................... 37a

Va. Const. art. VIII, § 10........................................ 37a

Va. Const. art. VIII, § 11........................................ 38a

Va. Code § 23.1-610 ................................................ 39a

Va. Code § 23.1-628 ................................................ 41a

Va. Code § 23.1-629 ................................................ 42a

Va. Code § 23.1-631 ................................................ 43a

Va. Code § 23.1-632 ................................................ 44a

8 Va. Admin. Code § 40-71-10 ............................... 45a

8 Va. Admin. Code § 40-71-30 ............................... 52a

8 Va. Admin. Code § 40-71-40 ............................... 54a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Verified Complaint

Filed May 28, 2025 ................................................. 61a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Virginia Tuition Assistance Grant Denial

Email to Cameron Johnson ................................. 118a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Command Policy 22-023 Virginia National Guard

State Tuition Assistance Program ...................... 120a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Adjutant General Letter to Trace Stevens.......... 134a

vii

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Declaration of Cameron Johnson

Filed June 27, 2025 .............................................. 136a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Declaration of Trace Stevens

Filed June 27, 2025 .............................................. 142a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Declaration of Luke Thomas

Filed June 27, 2025 .............................................. 151a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Supplemental Declaration of Trace Stevens

Filed November 25, 2025 ..................................... 156a

United States District Court

For the Eastern District of Virginia

Case No. 3:25-cv-407

Supplemental Declaration of Luke Thomas

Filed November 25, 2025 ..................................... 160a

viii

TABLE OF AUTHORITIES

Cases

Alabama Association of Realtors v. Department

of Health and Human Services,

594 U.S. 758 (2021)........................................ 5, 35

Carson v. Makin,

596 U.S. 767 (2022).................3, 24, 28, 30, 34–35

Catholic Charities Bureau, Inc. v. Wisconsin

Labor & Industry Review Commission,

605 U.S. 238 (2025).........................3–4, 27–28, 37

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

Hialeah,

508 U.S. 520 (1993)............................................ 26

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th Cir. 2008).....4, 22, 27–28, 34

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022)............................................ 34

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020).....................24–26, 30, 33–35

Fulton v. City of Philadelphia,

593 U.S. 522 (2021)............................................ 27

Galette v. New Jersey Transit Corporation,

607 U.S. 509 (2026)............................................ 35

Griffin v. County School Board of Prince Edward

County,

377 U.S. 218 (1964)............................................ 26

Hall v. Fleming,

175 F.4th 510 (4th Cir. 2026) ............. 2, 5, 17, 23,

29–30, 33, 37

Kennedy v. Bremerton School District,

597 U.S. 507 (2022)................................ 26, 30–31

Larson v. Valente,

456 U.S. 228 (1982)............................................ 28

Locke v. Davey,

540 U.S. 712 (2004).................... i, 3–5, 12, 18–23,

25, 29–32, 34

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024)...................................... 33–34

Mahmoud v. Taylor,

606 U.S. 522 (2025)............................................ 35

Mirabelli v. Bonta,

607 U.S. 492 (2026)............................................ 37

National Republican Senatorial Committee v.

FEC,

146 S. Ct. 2404 (2026).................................. 33–35

New York v. Cathedral Academy,

434 U.S. 125 (1977)............................................ 28

Polk v. Montgomery County Public Schools,

166 F.4th 400 (4th Cir. 2026) .............................. 2

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017)....... 5–6, 24, 26, 30–33, 35, 37

Trump v. Hawaii,

585 U.S. 667 (2018)............................................ 29

Trump v. Slaughter,

146 S. Ct. 2283 (2026).............................. 4, 33–34

United States v. Raines,

362 U.S. 17 (1960).............................................. 35

United States v. Sineneng-Smith,

590 U.S. 371 (2020)............................................ 18

Waters v. Churchill,

511 U.S. 661 (1994)............................................ 21

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021)................................................ 2

Statutes

28 U.S.C. 1254 ............................................................ 2

28 U.S.C. 1292 ............................................................ 1

28 U.S.C. 1331 ............................................................ 1

28 U.S.C. 1343 ............................................................ 1

28 U.S.C. 2101 ............................................................ 2

28 U.S.C. 2201 ............................................................ 1

28 U.S.C. 2202 ............................................................ 1

42 U.S.C. 1983 ............................................................ 1

Va. Code § 23.1-610 .................................................. 11

Va. Code § 23.1-628 .................................................... 7

Va. Code § 23.1-631 ................................................ 6–7

Constitutional Provisions

Va. Const. art. IV, § 16............................................. 25

Va. Const. art. VIII, § 10.................................... 25–26

Va. Const. art. VIII, § 11.......................................... 25

Regulations and Rules

8 Va. Admin. Code § 40-71-10 ....................... 7, 11, 26

8 Va. Admin. Code § 40-71-40 ................................... 7

Sup. Ct. R. 11 ....................................................... 5, 37

Other Authorities

1 Report of the Proceedings & Debates of the

Constitutional Convention of the State of

Virginia (1901–02) (Hermitage Press 1906) ..... 25

56A Chaplain, ARMY NAT’L GUARD,

perma.cc/YW7N-335E........................................ 13

About IES, INST. OF EDUC. SCIENCES,

perma.cc/9SSH-NTKS ......................................... 7

Chaplain Support, VA. NAT’L GUARD,

perma.cc/3T2U-YQ35 ........................................ 13

Comm’n on Constitutional Revision, THE

CONSTITUTION OF VA. (1969),

perma.cc/6UWF-EEFQ ...................................... 25

Course Catalog – Religious Studies Major, VA.

UNION UNIV., perma.cc/PNM2-3YYA .................. 8

Detail for CIP Code 38, NCES, perma.cc/ESD9LZTZ ................................................................. 7–8

Detail for CIP Code 38.0203, NCES,

perma.cc/K4V9-MWZ9 ......................................... 9

Detail for CIP Code 39, NCES, perma.cc/CD9T8B8Q................................................................. 7–8

Detail for CIP Code 39.0201, NCES,

perma.cc/89Z9-V3VC ........................................... 9

xii

Emp. Outcomes – Earnings, Va. Insts., STATE

COUNCIL FOR HIGHER ED. OF VA.,

bit.ly/4emSA6C .................................................. 10

Introduction to the Classification of Instructional

Programs: 2020 Edition (CIP-2020), NCES,

perma.cc/549R-8G2C ........................................... 8

Liberty Hall History, WASHINGTON & LEE UNIV.,

perma.cc/ZM8X-W8SF ....................................... 32

Mark Storslee, Church Taxes & the Original

Understanding of the Establishment Clause,

169 U. PA. L. REV. 111 (2020) ............................ 32

Music (BA), BLUEFIELD UNIV., perma.cc/VW7MHXBS .................................................................... 9

Nathan S. Chapman & Michael W. McConnell,

Agreeing to Disagree: How the Establishment

Clause Protects Religious Diversity and

Freedom of Conscience (2023)............................ 32

Religion and the Founding of the Am. Republic,

LIBRARY OF CONGRESS, perma.cc/BV94-SXGX.. 21

Religious Leadership & Ministry (Minor), MARY

BALDWIN UNIV., perma.cc/D3ZE-TYDF ............ 11

Thomas C. Berg & Douglas Laycock, The

Mistakes in Locke v. Davey and the Future of

State Payments for Services Provided by

Religious Institutions, 40 TULSA L. REV. 227

(2004).................................................................. 33

Va. Tuition Assistance Grant Program, STATE

COUNCIL OF HIGHER EDUC. FOR VA.,

perma.cc/PN4N-VM45 ..................................... 6–7

xiii

VANGSTAP Summary, VA. NAT’L GUARD,

perma.cc/7EC5-TEDK ....................................... 11

VTAG and Other Virginia State Aid – Religious

Undergraduate Degree Programs, LIBERTY

UNIV., bit.ly./4eP2ePV ......................................... 9

DECISIONS BELOW

The district court’s March 31, 2026, unreported

order dismissing Petitioners Cameron Johnson’s and

Luke Thomas’s claims and denying Petitioner Trace

Stevens a preliminary injunction is available at 2026

WL 915533 and reprinted at App.1a–27a.

The district court’s April 21, 2026, unreported

order denying an injunction pending appeal and staying the proceedings is reprinted at App.30a–33a.

The Fourth Circuit’s May 18, 2026, unreported

order denying an injunction pending appeal is reprinted at App.34a–35a.

STATEMENT OF JURISDICTION

On May 28, 2025, Cameron, Luke, and Trace

challenged Virginia’s religious discrimination in two

educational grant programs under 42 U.S.C. 1983 and

the First Amendment’s Religion Clauses. They also

sought a preliminary injunction. The district court

had jurisdiction under 28 U.S.C. 1331 and 1343, and

authority to issue declaratory and injunctive relief

under 28 U.S.C. 1331 and 2201–02.

On March 31, 2026, the U.S. District Court for the

Eastern District of Virginia dismissed Cameron’s and

Luke’s claims and denied Trace a preliminary injunction. Nine days later, the students filed a notice of

appeal. The U.S. Court of Appeals for the Fourth

Circuit has jurisdiction over this interlocutory appeal

under 28 U.S.C. 1292(a)(1).

Because awarding a preliminary injunction on

Cameron’s and Luke’s dismissed claims would necessitate reinstating those claims, the Fourth Circuit

and this Court have pendent jurisdiction to review the

dismissal of Cameron’s and Luke’s claims. Whole Woman’s Health v. Jackson, 595 U.S. 30, 38 (2021)

(courts have jurisdiction over the order appealed and

rulings inextricably intertwined with it); Polk v.

Montgomery Cnty. Pub. Schs., 166 F.4th 400, 411 (4th

Cir. 2026) (same).

This Court has appellate jurisdiction under 28

U.S.C. 1254(1) and 2101(e). Each semester that Petitioners’ constitutional rights are violated, they are

forced to pay thousands more in tuition expenses than

their peers—past damages that are unrecoverable

due to sovereign immunity. Therefore, they file this

petition under this Court’s Rule 11 and 28 U.S.C.

2101(e) before the Fourth Circuit has ruled and while

a petition is pending before this Court in a related

case out of the Fourth Circuit, see Pet. for Cert., Hall

v. Fleming, No. 26-193 (seeking review of Hall v.

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

Fourth Circuit briefing in this case is complete, and

the students have asked the Fourth Circuit to forego

oral argument and expedite its ruling, it is likely that

the Fourth Circuit will issue its opinion before the

Court considers this petition. Regardless, this petition warrants the Court’s review and resolution

before the end of the 2026 Term.

PERTINENT CONSTITUTIONAL

PROVISIONS, STATUTES, AND

REGULATIONS

The relevant constitutional provisions, statutes,

and regulations appear at App.36a–60a.

INTRODUCTION

Virginia deprives Petitioners Cameron Johnson,

Luke Thomas, and Trace Stevens of educational

grants worth thousands of dollars per year based

solely on their chosen religious degrees, even though

the Commonwealth funds other religious degrees.

This violates the First Amendment’s Religion Clauses

by punishing students’ “religious use of [public]

benefits,” engaging in “denominational favoritism,”

and excessively “entangl[ing]” the Commonwealth in

religious questions. Carson v. Makin, 596 U.S. 767,

787, 789 (2022).

Yet the district court upheld the two funding

programs that inflict this religious discrimination,

relying only on Locke v. Davey, 540 U.S. 712 (2004).

The court went so far as to say that Locke categorically bars any challenge under the Religion Clauses

to educational-grant programs that exclude some religious degrees. The Fourth Circuit then refused, without explanation, to stop Virginia’s unequal treatment.

The lower court’s ruling transforms Locke into a

license for States to violate the Religion Clauses. And

that is precisely what Virginia has done—applying

contradictory religious exclusions in its grant programs, preferring some religious degrees over others,

and imposing government religiosity standards despite the First Amendment’s ban on States “favor[ing]

some denominations over others.” Catholic Charities

Bureau, Inc. v. Wisconsin Lab. & Indus. Rev. Comm’n,

605 U.S. 238, 252 (2025).

Locke justifies none of this religious discrimination. It merely “uph[eld] the Promise Scholarship

Program as [then] operated by the State of Wash-

ington.” Locke, 540 U.S. at 725 (emphasis added). Virginia’s arbitrary programs are quite different, and the

state constitutional basis for Virginia’s religious

exclusions is not “historic and substantial.” Ibid. The

lower court ignored these differences in conflict with

the Tenth Circuit’s view that Locke “does not imply

that [S]tates are free to discriminate in funding

against religious [education] however they wish.”

Colorado Christian Univ. v. Weaver, 534 F.3d 1245,

1255–56 (10th Cir. 2008).

If Locke is read to approve Virginia’s discriminatory programs, this Court should overrule it. From the

outset, Locke was wrong. The First Amendment has

always barred religious discrimination in generally

available public benefit programs. Locke, 540 U.S. at

726–27 (Scalia, J., dissenting). Since then, the Court

has “undermined [Locke’s] premises at every turn. To

persist in [Locke] would require [this Court] to depart

from almost every case on the [Religion Clauses it

has] decided since.” Trump v. Slaughter, 146 S. Ct.

2283, 2303 (2026). Nothing in the Religion Clauses

justifies punishing students of “strong” faith who

prepare for potential service in “ministry”—much less

subjecting them to the “indignity of being singled out

for special burdens” because of their faith. Locke, 540

U.S. at 731, 733 (Scalia, J., dissenting).

This case is an ideal vehicle. Virginia funds some

religious degrees but not others, which “differentiates

between religions along theological lines,” Catholic

Charities, 605 U.S. at 248, effectively “impos[ing] a

special tax” on religious activity the Commonwealth

disfavors, Locke, 540 U.S. at 727 (Scalia, J., dissenting). And overruling Locke will halt “facial discrimination against religion,” id. at 731, which is forbidden

in all other contexts, e.g., Trinity Lutheran Church of

Columbia, Inc. v. Comer, 582 U.S. 449, 468 (2017)

(Thomas, J., concurring in part).

Time is of the essence. Petitioners pay thousands

more for their education each year because of their

religious exercise, losing “a public benefit for which

[they are] otherwise qualified solely because” of their

faith. Id. at 467. And beyond this “concrete harm,”

every day they suffer the “profound” “indignity” of enduring discriminatory exclusion for their faith. Locke,

540 U.S. at 731 (Scalia, J., dissenting). All this harm

is irreparable because it involves the violation of First

Amendment rights and sovereign immunity bars

recovery for damages. Alabama Ass’n of Realtors v.

Department of Health and Hum. Servs., 594 U.S. 758,

765 (2021) (per curiam) (“irreparable harm” exists

when there’s “no guarantee of eventual recovery”).

A few months ago, the Fourth Circuit rejected a

related challenge to one of the two grant programs at

issue here, see Hall v. Fleming, 175 F.4th 510 (4th

Cir. 2026), and a petition for a writ of certiorari has

been filed in that case, Pet. for Cert., Hall v. Fleming,

No. 26-193. Meanwhile, in this case, the Fourth

Circuit has refused an injunction pending appeal and

deferred a request to expedite. Because the Fourth

Circuit has already held that Locke controls the

related challenge in Hall, the students have filed this

petition under this Court’s Rule 11 before the Fourth

Circuit has ruled. The issues raised here—facial

religious exclusion from a generally available public

benefit program—are “of such imperative public

importance” that they justify the “immediate”

intervention of this Court. Sup. Ct. R. 11.

In short, Virginia has doubled down on religious

discrimination and a boundless reading of Locke.

Absent this Court’s intervention, Virginia will continue to disfavor religious people and refuse to value

Cameron, Luke, and Trace as “member[s] of the

community” worthy of the same benefits enjoyed by

their peers. Trinity Lutheran, 582 U.S. at 463. Certiorari is warranted.

STATEMENT OF THE CASE

Virginia’s grant programs

Virginia applies conflicting religious exclusions to

the two educational grant programs at issue here: the

Virginia Tuition Assistance Grant Program (VTAG)

for students at private institutions in the Commonwealth; and the Virginia National Guard State

Tuition Assistance Program (VANGSTAP) for National Guard members who study at in-state public or

private schools.

A. Virginia Tuition Assistance Grant Program

VTAG is available to “Virginia students … obligated to pay tuition as full-time undergraduate,

graduate, or professional students.” Va. Code § 23.1631(A). Most undergraduates receive $5,250 annually. Va. Tuition Assistance Grant Program, STATE

COUNCIL OF HIGHER EDUC. FOR VA., perma.cc/PN4NVM45 (VTAG Summary). So over “four academic

years,” VTAG provides generally available benefits

worth up to $21,000. Va. Code § 23.1-631(B).

VTAG is administered by the State Council of

Higher Education for Virginia. To access the funding,

students must satisfy two primary requirements.

First, students must attend “an eligible institution,” defined as “a nonprofit private institution of

higher education whose primary purpose is to provide

collegiate, graduate, or professional education and

not to provide religious training or theological education.” Va. Code § 23.1-628(A) (emphasis added). Here,

the students attend Liberty University, which is an

eligible institution. VTAG Summary, supra (listing

eligible institutions).

Second, students must study “in an eligible program,” 8 Va. Admin. Code § 40-71-40(C)(2), which

includes “undergraduate, graduate, or professional

collegiate work in educational programs other than

those providing religious training or theological education.” Va. Code § 23.1-631(C) (emphasis added). The

State Council narrows this exclusion to “CIP [Classification of Instructional Programs] Code 39-series

programs,” 8 Va. Admin. Code § 40-71-10, outlined by

the National Center for Education Statistics (NCES),

an arm of the U.S. Department of Education. About

IES, INST. OF EDUC. SCIENCES, perma.cc/9SSH-NTKS.

CIP Code 39-series majors that Virginia won’t

fund include Bible/Biblical Studies, Religious Education, Religious/Sacred Music, and Pastoral

Studies/Counseling. Detail for CIP Code 39, NCES,

perma.cc/CD9T-8B8Q. In contrast, CIP Code 38series majors—which Virginia will fund through

VTAG—include Philosophy and Religious Studies,

Religion/Religious Studies, and Christian Studies.

Detail for CIP Code 38, NCES, perma.cc/ESD9-LZTZ.

Five key features highlight the arbitrariness of

VTAG’s reliance on the CIP Code.

First, NCES never intended the CIP Code to be “a

regulatory device” or to serve as “a prescriptive list of

officially recognized … programs.” Introduction to the

Classification of Instructional Programs: 2020

Edition (CIP-2020) at 1, NCES, perma.cc/549R-8G2C.

The CIP Code lists “general categories” for data placement that are used to track and report “fields of study

and program completions.” Ibid. It does not purport to

“exact[ly] duplicate[ ] … a specific major or field of

study.” Ibid.

Second, CIP Code 38-series majors and 39-series

majors are both inherently religious. Yet VTAG includes the former, which is supposedly more concerned with “systems of belief” and “academic study,”

Detail for CIP Code 38, NCES, perma.cc/ESD9-LZTZ,

while excluding the latter, which is allegedly focused

on specific “theolog[ies]” and “religious vocations,”

Detail for CIP Code 39, NCES, perma.cc/CD9T-8B8Q.

Students pursuing an eligible CIP Code 38-series

major—just like those seeking an ineligible 39-series

major—receive religious training or theological education that might (or might not) lead to professional

ministry. Take Virginia Union University’s VTAGeligible Code 38-series Religious Studies program,

which prepares students “for … ministerial studies”

or “to pursue religious vocations (i.e. youth ministers,

pastoral assistance, associate ministers, etc).” Course

Catalog – Religious Studies Major at 49, VA. UNION

UNIV., perma.cc/PNM2-3YYA. Or consider Bluefield

University’s VTAG-eligible Code 38-series Music

program, which allows students to “focus on … church

music” and prepares them “for a professional vocational music ministry in the church.” Music (BA),

BLUEFIELD UNIV., perma.cc/VW7M-HXBS. Accord

C.A.Opening.Br.16–17 (discussing other examples).

Third, the content of CIP Code 38-series majors

and 39-series majors is materially indistinguishable.

For example, there is no functional difference between a VTAG-eligible Code 38.0203 program that

“focuses on the philosophy and teachings of Jesus

Christ and his apostles,” including “instruction in

Christian sacred scripture,” Detail for CIP Code

38.0203, NCES, perma.cc/K4V9-MWZ9, and a VTAGineligible Code 39.0201 program that “focuses on the

Christian … Bible … with an emphasis on understanding and interpreting [its] theological, doctrinal,

and ethical messages,” Detail for CIP Code 39.0201,

NCES, perma.cc/89Z9-V3VC.

Liberty University’s degree catalog further illustrates the point. While “Christian Studies” is VTAG

eligible, “Biblical Studies” is not. VTAG and Other

Virginia State Aid – Religious Undergraduate Degree

Programs, LIBERTY UNIV., bit.ly./4eP2ePV (listing

“Eligible Programs” and “Ineligible Programs”). And

while VTAG funds majors in “Religion: Christian

Ministries” and “Religion: Evangelism,” it excludes

majors in “Youth Ministries: Sport Outreach” and

“Music and Worship: Worship Tech.” Ibid. These

distinctions are arbitrary.

Indeed, the course requirements for Code 38series majors and Code 39-series majors often overlap. C.A.J.A.197–204 (showing Code 38-series majors

and Code 39-series majors with very similar course

requirements). To illustrate, Liberty’s Code 38-series

“Biblical Studies” major and Code 39-series “Applied

Ministry” major both require the following classes:

Intro to Biblical Worldview; Evangelism and the

Christian Life; Old Testament Survey; New Testament Survey; and Theology Survey. C.A.J.A.200–201.

In fact, the eligible Code 38-series “Biblical Studies”

major requires courses on The Church and its Mission

and on books of the Bible like Genesis and Romans,

whereas the ineligible Code 39-series “Applied Ministry” major requires nine credits in “Non-Divinity”

classes and allows for more electives. Id. at 201 (emphasis added).

Fourth, most students who obtain Code 39-series

degrees take secular jobs instead of entering professional ministry. So VTAG’s religious exclusion doesn’t

effectively target future clergy. It merely punishes

students with strong personal faith by denying them

a public benefit available to their peers.

Virginia’s own data shows this: Liberty graduates

from 2016 to 2018 with a Code 39-series major designation of “Theology and Religious Vocations” overwhelmingly reported secular, not religious, employment a year later. Emp. Outcomes – Earnings, Va.

Insts., STATE COUNCIL FOR HIGHER ED. OF VA.,

bit.ly/4emSA6C. *

Finally, in some circumstances, VTAG does in fact

fund religious studies in CIP Code 39-series programs. Strangely, students who “double-major” in a

* To access this data, select “Liberty University,” “Four-Year

Bachelor’s Degree,” “Theology and Religious Vocations,” “20162018 cohort,” and “1 year” postgrad. “Employment by Industry”

then appears on the bottom.

Code 39-series major and a secular major that requires “an equal or greater number of courses” as the

Code-39 major are VTAG eligible. 8 Va. Admin. Code

§ 40-71-10. So are students who minor in a Code 39series program, even if that program “prepar[es]

[them] for religious leadership” or “formal training in

… seminaries.” Religious Leadership & Ministry

(Minor), MARY BALDWIN UNIV., perma.cc/D3ZETYDF; accord 8 Va. Admin. Code § 40-71-10 (regulating only “eligible major[s] or concentration[s]”

within a major).

B. Virginia National Guard State Tuition

Assistance Program

VANGSTAP is available to Virginia National

Guard members enrolled and in good standing at instate colleges, provided they have “a minimum

remaining obligation of two years,” complete their

“initial active duty service,” and perform their duties

in a “satisfactor[y]” manner. Va. Code § 23.1-610(A).

VANGSTAP provides Guard members between

$4,500 and $10,000 a semester, depending on participation and funding. VANGSTAP Summary, VA. NAT’L

GUARD, perma.cc/7EC5-TEDK.

VANGSTAP is overseen by the Adjutant General

of Virginia. The program has two major conditions.

First, Guard members must attend a public institution or “nonprofit” private school “whose primary

purpose is to provide collegiate or graduate education

and not to provide religious training or theological

education.” Va. Code § 23.1-610(A) (emphasis added).

Liberty University is a grant-eligible institution.

Second, the Guard excludes religious majors. Via

a command policy, the Adjutant General says VANGSTAP won’t fund “theological degrees” or “seminary

school.” C.A.J.A.99; accord id. at 108. The promissory

note that Guard members must sign to receive

VANGSTAP clarifies that “degrees in religious training or theological education” are ineligible. Id. at 120

(all caps omitted; emphasis added); accord id. at 123.

And the Guard instructs members that “religious

degrees” or “religious studies” are excluded, id. at 152,

154, though VANGSTAP may “pay for a particular

religious ‘required’ course for another type of degree,”

id. at 110. The plain import of this language is that

all religious majors are forbidden. (Virginia argued

below that not all religious degrees are excluded but

has identified none that qualify. C.A.Resp.Br.35.)

The Guard does not have a command policy establishing standards for what qualifies as an excluded

decree. Ibid. But Virginia disclosed two factors below:

(1) whether a “school of divinity” offers the major; and

(2) whether Guard members pledge that the program

isn’t “religious training or theological education.” Id.

at 14, 36. Virginia has backtracked from the first,

saying the Guard “does not limit ineligible programs

… to those offered through divinity schools.” Id. at 35.

And the second is an unconstitutional condition,

which Locke itself seemingly disapproves. 540 U.S. at

717 n.1 (“The State does not require students to

certify anything or sign any forms.”).

Even when a private institution classifies a religious major as non-devotional under the CIP Code,

the Guard reviews how the “institution structures

[the] program[ ],” C.A.Resp.Br.40, and will reject the

institution’s decision, id. at 14, 37. So Guard officials

have unbridled discretion to declare religious majors

ineligible on a case-by-case basis.

Ironically, VANGSTAP bans religious majors that

directly further the Guard’s own operations. The

Guard has an official Chaplains Office, which provides “religious support” to members and is led by a

“State Chaplain” who holds the rank of colonel and

earns commensurate pay. Chaplain Support, VA.

NAT’L GUARD, perma.cc/3T2U-YQ35. Guard chaplains

must possess a bachelor’s and master’s degree that

includes 36 semester hours in theology. 56A Chaplain, ARMY NAT’L GUARD, perma.cc/YW7N-335E. And

the Guard operates a Chaplain Candidate Program

“designed for religious ministry students” who are

“still in school.” Ibid. A few weeks ago, Trace commissioned as a Second Lieutenant in the Guard as a

Chaplain Candidate. Yet VANGSTAP won’t fund the

study necessary for Trace to meet the requirements of

the Chaplain Candidate Program.

The Guard is aware that the State Council of

Higher Education funds some religious majors

through VTAG grants. But the Guard has refused to

do likewise, stating that “VTAG[ ] is managed by

another organization within the State government

that [the Guard] has nothing to do with,” C.A.J.A.123,

and the two “separate grant program[s] … do not

work together,” id. at 125.

II. Virginia denies Petitioners’ grant requests.

Virginia denies VTAG grants to Cameron

Johnson and Luke Thomas, and it refuses VANGSTAP grants to Trace Stevens, denying them public

benefits based solely on their religious exercise.

A. Cameron Johnson

Cameron Johnson is a lifelong Virginian and

Christian of the Baptist denomination who is an

upcoming sophomore at Liberty University. App.67a,

77a. He believes that every Christian must share

their faith with others, though Cameron doesn’t yet

know if God will call him to a religious vocation or a

secular career. But he feels led to pursue an undergraduate degree in Pastoral Leadership at Liberty

University to develop his leadership skills, lay a

foundation for graduate school, and leave the door

open to vocational ministry. App.77a–79a, 137a–39a.

Cameron also has an interest in pursuing real estate

or leading a community-building nonprofit, so he

plans to minor in business. App.79a, 138a.

Cameron submitted a VTAG application to

Liberty’s financial-aid office before his first year, but

it was denied because Pastoral Leadership is “a CIP

code 39 program.” App.118a; accord App.79a–80a,

138a–40a.

B. Luke Thomas

Luke Thomas has lived in Virginia his whole life.

App.67a. He is a non-denominational Christian who

believes that every believer must tell others about

their faith, regardless of their occupation. Luke is

passionate about music and serves on his church’s

worship team. App.81a, 152a. He believes that God

gave him musical talent to minister to people, either

as a worship leader or commercial singer/songwriter.

Regardless of where God leads him, Luke has an

interest in starting a small business and plans to do

so someday. App.81a–82a, 152a–55a.

Luke is an upcoming sophomore at Liberty

University who plans to major in Music and Worship,

a CIP Code 39-series program that VTAG excludes.

App.82a–83a, 153a–54a. He initially declared a Music

Vocal major to begin taking required instrument

classes and temporarily preserve his VTAG grant.

But Luke ultimately intends to major in Music and

Worship and must declare that major after a few more

semesters to access other required coursework. As

soon as Luke does this, his VTAG grant will disappear. App.83a, 154a–55a, 161a–62a.

C. Trace Stevens

Trace Stevens is a longtime Virginia resident and

Christian of the Assemblies of God denomination who

believes God is calling him to prepare for the ministry.

App.67a, 88a–89a, 143a. When a Virginia National

Guard recruiter told Trace that VANGSTAP would

help pay for his education, he joined the Guard only

to learn later that VANGSTAP excludes religious

degrees, though federal Army grants offer some help.

App.89a–90a, 99a, 143a–45a.

Given the National Guard recruiter’s error, Trace

asked the Governor’s office for an exception to

VANGSTAP’s religious exclusion. App.145a. But the

Adjutant General declared his undergraduate “theological degree program … ineligible.” App.134a;

accord App.90a, 145a. When Trace explained that his

Religion (General Track) degree at Liberty University

was CIP Code 38-series and qualified for VTAG, the

Guard said that was irrelevant and reaffirmed the

denial. App.93a–94a, 147a–49a; C.A.J.A.123.

In undergrad, Trace was a Guard Specialist with

a Bachelor of Science in Religion that is VTAG eligible

but VANGSTAP ineligible. App.91a, 142a, 146a–50a.

He then enrolled in Liberty’s Master of Divinity

program, which is also VANGSTAP ineligible; he did

so to become a commissioned officer and Guard chaplain. App.150a, 157a–58a.

Over the years, Trace has struggled to cover his

educational expenses. App.99a, 149a. In fact, he had

to postpone his studies during the fall 2025 semester

because of a debt that VANGSTAP should have paid.

App.157a–58a.

Recently, Trace commissioned as a Second Lieutenant. He is now a Guard Chaplain Candidate. Trace

continues paying for tuition expenses that VANGSTAP would cover but for the program’s religious

discrimination. App.157a–58a.

III. Procedural history

The students filed suit in the U.S. District Court

for the Eastern District of Virginia, alleging that

Virginia’s grant programs violate the Religion

Clauses by (1) excluding them from generally available public benefits, (2) violating principles of neutrality and general applicability, (3) favoring certain denominations, and (4) causing excessive entanglement.

App.104a–111a. The students also moved for a preliminary injunction. C.A.J.A.158–230.

Nearly eight months after briefing completed, the

district court denied a preliminary injunction and

dismissed Cameron’s and Luke’s claims. App.27a–

28a. The court reasoned that “so long as Locke

remains good law, [Cameron’s and Luke’s claims]

against the State Council Defendants, as administrators of the VTAG Program, must fail.” App.11a.

The court “suspect[ed] that Locke also dooms [Trace’s]

claims against the administrators of [VANGSTAP]”

but declined to dismiss his claims because of “the

limited factual record.” Ibid.

The students filed a timely notice of appeal and

requested an injunction pending appeal from the

district court. The court denied their motion but

granted the parties’ request to stay the proceedings

during the interlocutory appeal. App.31a–32a.

The students also filed a motion for injunction

pending appeal in the Fourth Circuit, arguing that

Locke is distinguishable and preserving the argument

that Locke should be overruled. But that court denied

the request in a one-sentence order with no explanation. App.34a–35a. So the students moved to expedite

their appeal and waive oral argument. The Fourth

Circuit deferred ruling on that request. The case is

now fully briefed before the Fourth Circuit.

REASONS FOR GRANTING THE PETITION

Virginia says that Locke allows it to discriminate

against religion and distinguish between religious

degrees within its generally available grant programs. The district court ratified that position. And

when the Fourth Circuit faced a related First Amendment challenge to VTAG’s religious exclusion in Hall,

it characterized Locke as governing any case in which

a student brings claims under “the Free Exercise

Clause” against the exclusion of some religious “vocation[al]” majors from a government’s “tuition grant”

program. 175 F.4th at 514. Subsequently, the Fourth

Circuit denied the students here an injunction pending appeal in a one-sentence order. App.34a–35a.

Virginia continues to invite the Fourth Circuit to

broadly read Locke and perpetuate the unequal treatment of religious people. Given the straightforward

First Amendment violations and irreparable injury to

the students, this Court should grant the petition and

decide the future of Locke without delay.

The lower court’s ruling is manifestly

wrong and conflicts with a decision by the

Tenth Circuit.

A. Locke doesn’t categorically bar all challenges to educational grants that exclude some religious degrees.

The district court deemed Locke “too analogous …

to meaningfully distinguish” and refused to “analyze

every religious freedom case raised by Plaintiffs,”

simply holding that “Locke is good law that renders

the VTAG Program constitutional.” App.14a, 17a.

And the court announced that the VANGSTAP

Program is likely constitutional for the same reason.

App.26a. So the lower court declared Locke a categorical bar foreclosing First Amendment challenges to

educational grants that exclude some religious

degrees. Only this Court can decide whether Locke’s

rule extends that far.

Locke didn’t go as far as the lower court said. The

decision merely “uph[eld] the Promise Scholarship

Program as [then] operated by the State of Washington,” 540 U.S. at 725 (emphasis added), after considering the “questions presented by the parties,” United

States v. Sineneng-Smith, 590 U.S. 371, 376 (2020)

(quotation omitted). Virginia’s two grant programs

operate differently from Washington’s—and from

each other. And here, the students’ claims are largely

based on precedent that didn’t exist when Locke was

decided. So the district court was wrong to apply

Locke’s rule in this case.

By its own terms, Locke rejects extending precedent “well beyond … [its] facts … [and] reasoning.”

540 U.S. at 720. The lower court flouted this principle

in three ways.

First, Locke’s facts are distinguishable. Washington uniformly excluded “devotional theology” degrees

from its grant program, allowed each “institution” to

“determine[ ] whether the student’s major is devotional” under its own religious principles, and made

no exception for secular double majors. Id. at 717.

Compare this to VTAG. That program draws an

incoherent line between equally religious CIP Code

38-series (which qualify for a grant) and 39-series

majors (which don’t) based on government-imposed

religious criteria. VTAG excludes those called to

pursue Code 39-series majors, even though Code 38series majors also prepare students for religious

ministry and are largely indistinguishable from Code

39-series majors in substance. Supra pp. 7–10. And

under VTAG’s secular-double-major exception, Virginia would have granted funding to the plaintiff in

Locke—Joshua Davey—because he “double major[ed]

in … business management/administration,” Locke,

540 U.S. at 717; accord supra p. 10–11.

Next consider VANGSTAP. It appears to exclude

all—or nearly all—“religious studies,” C.A.J.A.152,

not just programs that are “devotional in nature or

designed to induce religious faith,” Locke, 540 U.S. at

716 (quotation omitted). Unlike Washington’s grant,

VANGSTAP’s hard line against people of faith doesn’t

go “a long way toward including religion in its benefits.” Id. at 724. Even accepting Virginia’s word that

some religious majors qualify, VANGSTAP subjects

Guard members to a standardless regime under

which officials exclude religious majors on a case-bycase basis, which is entirely unlike Locke.

Zooming out enhances the factual difference.

Locke considered one grant program and one prohibition involving “a distinct category of [religious]

instruction,” 540 U.S. at 721, not two grant programs

with conflicting religious exclusions. Compare Cameron and Trace: both chose religious majors that could

lead to religious ministry or secular careers. But

Cameron’s Pastoral Leadership major is VTAG

ineligible, whereas Trace’s Religion (General Track)

major was VTAG eligible. And yet Trace, as a Guard

member, was denied VANGSTAP grants while

civilians in his same undergraduate program received

VTAG grants. Supra pp. 14–16.

Second, Locke’s reasoning is not controlling. Locke

turned on Washington’s allegedly historic interest in

not “supporting the clergy.” 540 U.S. at 723. That

interest applied because Davey told the Court—based

on his then-existing plans—that his “only reason” for

pursuing “a college degree” was to become a “church

pastor,” and Locke viewed “[t]raining someone [intent

on] lead[ing] a congregation” as akin to “support[ing]

church leaders.” Id. at 717, 721–22.

That logic doesn’t apply here. Cameron and Luke

aren’t intent on becoming church leaders; they are

interested in both secular jobs and professional ministry. Supra pp. 14–15. Unlike Davey, Cameron and

Luke presented evidence that religious degrees prepare them for both types of pursuits and that secular

employment is more likely. Supra pp. 10. So Virginia’s purportedly historic interest has no clear relevance, especially as VTAG funds other religious

majors that equally prepare students for potential

ministry. Supra pp. 8–11.

Nor is Locke’s reasoning applicable to Trace’s

pursuit of a Master of Divinity to become a Guard

chaplain. Locke didn’t consider the military context.

And the history there is clear: early Americans

supported military chaplains. The Continental Congress authorized them to be paid the same rate as

majors. Religion and the Founding of the Am.

Republic, LIBRARY OF CONGRESS, perma.cc/BV94SXGX. Yet Trace is excluded from VANGSTAP even

after becoming a Chaplain Candidate.

What’s more, the plaintiff in Locke failed to “establish[ ] a credible connection between the Blaine

Amendment” and the state constitutional provision at

issue there. 540 U.S. at 723 n.7. Here, however, the

students have drawn a direct connection between the

Blaine Amendment and Article VIII, § 11 of the

Virginia Constitution. Infra pp. 25–26. That makes

“the Blaine Amendment’s history” relevant. Locke,

540 U.S. at 723 n.7.

Third, Locke can’t “foreclos[e] … argument[s] that

[it] never dealt with.” Waters v. Churchill, 511 U.S.

661, 678 (1994). Davey argued that excluding “voca-

tional religious instruction alone is inherently constitutionally suspect.” Locke, 540 U.S. at 725. And while

the Court rejected this “presumption of unconstitutionality,” it didn’t “venture further” into the “Religion Clauses … to uphold” Washington’s program.

Ibid.

But here, the students contend that Virginia’s

grant programs violate the Religion Clauses based

largely on caselaw that didn’t exist when Locke was

decided. Infra Part I.C. This recent precedent requires stepping deeper into the Religion Clauses than

Locke did.

B. The lower court’s application of Locke

conflicts with the Tenth Circuit’s ruling

in Colorado Christian University.

The lower court’s extension of Locke to any exclusion of religious study from any educational grant program conflicts with the Tenth Circuit’s ruling in a

similar case, Colorado Christian University v.

Weaver, 534 F.3d 1245 (10th Cir. 2008). The students

cited that case below, but the lower court ignored it.

In Colorado Christian University, Colorado defended a grant program that excluded “‘pervasively

sectarian’” schools. Id. at 1250. Like Virginia, the crux

of Colorado’s defense was a broad reading of Locke—

specifically, “that Locke subjects all state decisions

about funding religious education to no more than

rational basis review.” Id. at 1254–55 (quotation

omitted). That echoes Virginia’s claim that Locke

allows States to “constitutionally deny taxpayer

funding for religious vocational training programs” no

matter the circumstance. C.A.Resp.Br.40.

The Tenth Circuit rejected that position. Locke,

the court said, “does not imply that states are free to

discriminate in funding against religious [education]

however they wish.” 534 F.3d at 1256. Though Locke

“indicated that the State has greater latitude to

discriminate in decisions about the use of tax dollars

than in its use of regulatory authority,” Locke “did not

overrule any prior cases subjecting funding decisions

to constitutional scrutiny.” Id. at 1255. So in appropriate circumstances, regular First Amendment rules

apply because “the State’s latitude with respect to

funding decisions has limits.” Ibid.

The Tenth Circuit identified two factors “that

were not present in Locke,” “offend longstanding

constitutional principles,” and trigger normal First

Amendment rules. Id. at 1256. According to that

court, Locke doesn’t apply when state grant programs

(1) “discriminate among religions” or (2) “entail intrusive governmental judgments regarding matters of

religious belief and practice.” Ibid. Because Virginia’s

grants do both, infra pp. 27–28, the Tenth Circuit

would not apply Locke here.

Yet the district court did so for no persuasive

reason, and the Fourth Circuit in Hall took a

similarly expansive view of Locke. E.g., Hall, 175

F.4th at 513 (calling Locke “a seminal … case on the

relationship between the Free Exercise Clause … and

state educational scholarship programs”). So far in

this case, the Fourth Circuit has declined to express a

different view.

Only this Court may authoritatively determine

Locke’s scope and resolve the divide in the lower

courts. That is reason enough to grant the petition.

C. Under normal First Amendment rules,

the constitutional violation is clear.

Once Locke is set to the side, this case is straightforward. Virginia’s religious exclusions violate normal First Amendment rules in at least four ways.

First, Virginia’s grants discriminate based on

religious character, use, and activity. In a recent

trilogy of cases, this Court clarified that States cannot

force people of faith to “disavow [their] religious

character” to “participate in a government benefit

program,” Trinity Lutheran, 582 U.S. at 463, forbid

grant recipients “from putting aid to religious uses,”

Espinoza v. Montana Department of Revenue, 591

U.S. 464, 478 (2020), or exclude citizens “from an

otherwise generally available public benefit because

of their religious exercise,” Carson, 596 U.S.at 781.

But Virginia does all this.

Virginia denied Cameron, Luke, and Trace grants

based on the intensity and character of their religious

beliefs, as reflected by their chosen degrees. Virginia

deems their religious majors not “secularly[ ] focused”

enough. C.A.Resp.Br.52–53. So the Commonwealth

excludes “religious vocational training,” Id. at 51–53,

to prevent students “from putting aid to [a] religious

use[ ],” Espinoza, 591 U.S. at 478. That “effectively

penalizes” students for taking their faith seriously

enough to consider a career in ministry and “indirect[ly] coerc[es]” them to moderate their beliefs

and pursue less meaningful religious study. Trinity

Lutheran, 582 U.S. at 462–63 (citation modified). By

“exclud[ing] otherwise eligible [students] on the basis

of their religious exercise,” Virginia violates the First

Amendment. Carson, 596 U.S. at 781, 789.

Second, Virginia’s grant programs aren’t neutral

or generally applicable. The religious exclusions are

not neutral because they’re based on state constitutional provisions “credibl[y] connect[ed]” to the federal Blaine Amendment, Locke, 540 U.S. at 723 n.7,

which “was born of bigotry and arose [from] pervasive

hostility” to Catholicism. Espinoza, 591 U.S. at 482

(citation modified).

To trace the connection, start with Article VIII,

§ 11 of the Virginia Constitution, which bars grants

for “religious training or theological education.” This

was intended to avoid “weakening the wall of separation between church and state … erected in other

sections of the Constitution.” Comm’n on Constitutional Revision, THE CONSTITUTION OF VA. 274 (1969),

perma.cc/6UWF-EEFQ (emphasis added). By “other

sections,” the drafters meant Article IV, § 16 and

Article VIII, § 10. Id. at 101 n.38, 271–72.

The first of those provisions—Article IV, § 16,

which forbids granting funds “to any church or

sectarian society,” using Blaine’s “bigoted [sectarian]

code language,” Espinoza, 591 U.S. at 501 (Alito, J.,

concurring)—has its roots in Blaine’s anti-Catholic

bigotry. Indeed, the debates on that section centered

on two Catholic charities, 1 Report of the Proceedings

& Debates of the Constitutional Convention of the

State of Virginia (1901–02), at 792–93, 802–04, 807–

08, 811–12 (Hermitage Press 1906); its main advocate

attacked “Catholic schools,” regarding them as “an

indirect assault upon the public free school system,”

id. at 803; and he expressed concern that orphans

were “being indoctrinated in the creed of the Roman

Catholic Church,” id. at 804. Those are the Blaine

Amendment’s ingredients simpliciter.

The other relevant provision—Article VIII, § 10—

also has Blaine ties. When “‘massive resistance’” to

desegregation led to support for private-school

funding, Griffin v. County Sch. Bd. of Prince Edward

Cnty., 377 U.S. 218, 221 (1964), Virginia carried over

Blaine’s code “sectarian” language into Article VIII,

§ 10, by excluding “[ ]sectarian private schools.” So

the religious exclusion imposed on the students here

is directly linked to the Blaine Amendment’s “original

bias.” Espinoza, 591 U.S. at 507 (Alito, J., concurring)

(citation modified).

Virginia’s exclusions also fail neutrality because

they are “specifically directed at religious practice,”

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 526

(2022) (citation modified), “suppress[ ]” religious

study, a form of “religious conduct,” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

533 (1993), and “single out” religious majors for

exclusion, while forcing taxpayers to fund secular

majors they deem objectionable, Trinity Lutheran,

582 U.S. at 460. Even worse, Virginia disfavors

certain religious people, such as those who select CIP

Code 39-series programs. Supra pp. 8–10, 14–16.

General applicability is lacking too. VTAG funds

CIP Code 39-series majors with secular double majors

subject to certain restrictions and makes secular

exceptions to those conditions on an individualized

basis if “circumstances beyond the control of the

student” demand it. 8 Va. Admin. Code § 40-71-10. No

one knows when this exception applies. C.A.Resp.Br.54–55. And VANGSTAP turns on the Guard’s

case-by-case assessment of whether a religious major

is secular enough for inclusion. Supra pp. 12–13. So

both programs “invite[ ] the government to decide

which reasons for [funding religious study] are

worthy of solicitude.” Fulton v. City of Philadelphia,

593 U.S. 522, 537 (2021) (citation modified).

Third, Virginia imposes a denominational preference, “differentiating between religions based on

theological practices” and making public benefits

“turn[ ] on inherently religious choices.” Catholic

Charities, 605 U.S. at 250. VTAG funds religious

degrees that officials regard as more “secularly[ ]

focused” and excludes degrees they deem more “vocational.” C.A.Resp.Br.52–53. But the extent to which

“religious education” should “inculcate religious doctrine” is a “fundamentally theological choice[,] driven

by … religious doctrines.” Catholic Charities, 605 U.S.

at 252. So VTAG “establishes a preference” for religious programs that don’t “proselytize” in the classroom. Id. at 250.

VANGSTAP funding, too, turns on officials’ ad

hoc decisions about “the boundary between religious

faith and academic” study, Colorado Christian Univ.,

534 F.3d at 1262, based on religious institutions’ “fundamentally theological choices,” Catholic Charities,

605 U.S. at 252. For instance, the Guard examines

how an “institution structures its programs,” including whether the major is associated with a “school of

divinity”—and if it is, the major is “ineligible” for a

grant. C.A.Resp.Br.14, 40. That “imposes a denominational preference” in favor of religions that use less

religious terminology or place less emphasis on

evangelization. Catholic Charities, 605 U.S. at 250.

Practically speaking, Virginia favors students at

institutions associated with mainline denominations,

which offer CIP Code 38-series majors and lack

divinity schools. And Virginia disfavors students at

evangelical institutions, which offer CIP Code 39series majors and prioritize divinity schools. C.A.Reply.Br.23–24. Such “textbook denominational discrimination” violates the Religion Clauses. Catholic

Charities, 605 U.S. at 248.

Fourth, Virginia’s grants result in excessive “state

entanglement with religion.” Carson, 596 U.S. at 787.

VTAG foists CIP Code-based religiosity standards on

private institutions, making “government officials …

judges of the ‘indoctrination’ quotient of theology

classes.” Colorado Christian Univ., 534 F.3d at 1263.

That overrides religious institutions’ own beliefs

about what is “consistent with scholarly objectivity,”

id. at 1266, and opens the door to “litigating in court

about what … ha[s] religious meaning,” New York v.

Cathedral Acad., 434 U.S. 125, 133 (1977).

VANGSTAP magnifies “the intrusiveness problem.” Colorado Christian Univ, 534 F.3d at 1266.

Officials have unbridled discretion to make “religious

judgments” about majors, ibid., scrutinizing how a

“religious school pursues its … mission,” Carson, 596

U.S. at 787, including how it “structures its programs,” C.A.Resp.Br.40. Officials also “second[ ]

guess[ ]” religious institutions’ own classifications.

Colorado Christian Univ., 534 F.3d at 1266; accord

C.A.Resp.Br.40. The result is excessive entanglement

with religion. Accord Larson v. Valente, 456 U.S. 228,

255 (1982).

II. Locke should be overruled.

Locke was wrong from its inception, and this

Court’s recent precedent continues to hollow out its

flawed foundation. Judge Richardson just said as

much in Hall, calling for this Court to “formally

overrule” Locke. 175 F.4th at 516 (Richardson, J., concurring) (all caps omitted). Stare-decisis factors

squarely support that result. So the Court should

grant review, and if Locke allows Virginia’s discriminatory programs, the Court should overrule it.

A. This Court’s precedents have fatally undermined Locke’s flawed foundation.

Locke “was gravely wrong the day it was decided”

and “has no place in law under the Constitution.”

Trump v. Hawaii, 585 U.S. 667, 710 (2018) (quotation

omitted); accord Hall, 175 F.4th at 516 (Richardson,

J., concurring) (“Locke was wrongly decided.”). Under

the First Amendment, the rule has always been that

“[w]hen the State makes a public benefit generally

available,” it forms “part of the baseline against which

burdens on religion are measured,” and “withhold[ing] that benefit from some individuals solely on the

basis of religion” violates the Constitution “no less

than … impos[ing] a special tax” on them. Locke, 540

U.S. at 726–27 (Scalia, J., dissenting).

Locke was wrong to allow a state funding program

that excludes students with “deep religious conviction,” denying them the “equal treatment” the

Religion Clauses command. Id. at 727, 733 (emphasis

omitted). It is “a stain on our Free Exercise jurisprudence” that the Court should eradicate. Hall, 175

F.4th at 520 (Richardson, J., concurring).

Perhaps that’s why the Court hasn’t applied

Locke’s holding in any subsequent case. Instead, the

Court has consistently struck down programs that

exclude religious people from public benefits. E.g.,

Carson, 596 U.S. at 780; Espinoza, 591 U.S. at 475–

77; Trinity Lutheran, 582 U.S. at 458–63. And in so

doing, the Court has confined Locke’s holding to its

facts. E.g., Carson, 596 U.S. at 788–89 (distinguishing

Locke); Espinoza, 591 U.S. at 479–81 (same); Trinity

Lutheran, 582 U.S. at 464–65 (same); see Hall, 175

F.4th at 520 (Richardson, J., concurring) (noting that

this Court has “confined [Locke] to its facts”).

Recent caselaw has not only limited Locke but has

also decisively rejected the four pillars on which its

holding rests.

First, Locke presumed “tension” between the

Establishment Clause and the Free Exercise Clause,

necessitating “room for play in the joints between

them.” 540 U.S. at 718 (citation modified). But

Kennedy has since recognized that the Religion

Clauses have “complementary purposes, not warring

ones.” 597 U.S. at 533 (citation modified). So “there is

no conflict between” the Religion Clauses, and thus

the play-in-the-joints concept no longer has purchase.

Id. at 543. That is especially true after Espinoza

rejected any “state experimentation in the suppression of … the free exercise of religion.” 591 U.S. at 485

(quotation omitted).

Second, Locke minimized “the State’s disfavor of

religion” as a “mild[ ] kind” and characterized the

harms to religious students as insignificant because

Washington didn’t ban any “religious service or rite”

and Davey could still “participate in … political

affairs” and use the scholarship “to pursue a secular

degree at a different institution.” 540 U.S. at 720, 721

n.4. Yet Trinity Lutheran didn’t gauge religious discrimination’s constitutional harm based on its practical effects. Even if only “a few extra scraped knees”

resulted from denying religious people “a public

benefit” for a safer playground surface, the Court said

discrimination “is odious to our Constitution all the

same, and cannot stand.” 582 U.S. at 467. This echoes

Justice Scalia’s observation that “[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).

Third, Locke distorted the Court’s commitment to

religious neutrality, holding that a targeted religious

exclusion from funding didn’t “disapprov[e] of a particular religion or of religion in general.” 540 U.S. at

725 n.10 (citation modified). But that suggestion runs

headlong into Kennedy, which held that seeking “to

restrict … actions at least in part because of their

religious character” isn’t “neutral toward religion.”

597 U.S. at 526 (quotation omitted).

Finally, Locke elevated “a State’s [nebulous] antiestablishment interests” over citizens’ established

First Amendment rights. 540 U.S. at 721–22. Again,

Kennedy rejects this, declaring that “phantom” antiestablishment concerns cannot “justify actual violations of an individual’s First Amendment rights.” 597

U.S. at 543. And Trinity Lutheran similarly held that

any state interest “in achieving greater separation of

church and State than is already ensured under the

Establishment Clause … is limited by the Free

Exercise Clause.” 582 U.S. at 466 (quotation omitted).

Locke also rewrote history. 540 U.S. at 723. The

Founding generation opposed churches receiving

“public money solely to support their worship, because

such funding essentially required … a religious

offering [or tithe]. But the same was not true of

funding … education, even if beneficiaries used some

of the funds for religion.” Mark Storslee, Church

Taxes & the Original Understanding of the

Establishment Clause, 169 U. PA. L. REV. 111, 183

(2020) (emphasis added).

Indeed, Virginia “frequently and uncontroversially provided state support to schools and colleges

that educated aspiring clergy.” Nathan S. Chapman

& Michael W. McConnell, Agreeing to Disagree: How

the Establishment Clause Protects Religious Diversity

and Freedom of Conscience 71 (2023). Liberty Hall is

one example. When Virginia’s General Assembly sold

glebes or land set aside to support Anglican clergy, it

channeled the profits to schools like Liberty Hall, a

Presbyterian institution. Storslee, supra, at 134. Such

schools fostered “a well-educated clergy” equipped to

delivered “informative sermons.” Liberty Hall

History, WASHINGTON & LEE UNIV., perma.cc/ZM8XW8SF. No one considered “providing money for [this]

education” problematic, even if students pursued

professional ministry. Storslee, supra, at 135.

Simply put, Founding-era Virginians objected

only to “laws that singled [ministers] out for financial

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

That “historic … interest” doesn’t apply to generally

available educational grants. Id. at 725. Because

Locke’s holding lacks any legal or historical foundation, it should be overruled. See Trinity Lutheran, 582

U.S. at 470 (Gorsuch, J., concurring in part) (noting

Locke “can [only] be correct” based on “the opinion’s

claim of a long tradition against [using] public funds

for training of the clergy).

B. Stare decisis is no impediment.

Now “akin to a … stool where all [the] legs have

… been knocked out,” National Republican Senatorial

Comm. (NRSC) v. FEC, 146 S. Ct. 2404, 2424 (2026),

Locke cannot be saved by stare decisis. The doctrine

is “weakest in constitutional cases, where only [this

Court] may readily fix [its] own mistakes. Slaughter,

146 S. Ct. at 2302. Here, “every factor … counsels in

favor of letting [Locke] go.” Ibid.

Begin with Locke’s reasoning, which was clearly

“flaw[ed] … from the start.” Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 407 (2024). Justice Scalia’s

dissent, joined by Justice Thomas, “was persuasive in

[2004] and has … been amply vindicated by this

Court’s subsequent precedents.” NRSC, 146 S. Ct. at

2425. And “Members of this Court have long

questioned [Locke’s] premises.” Loper Bright, 603

U.S. at 407. E.g., Espinoza, 591 U.S. at 492 (Thomas,

J., concurring); id. at 512–14 (Gorsuch, J., concurring); Trinity Lutheran, 582 U.S. at 468 (Thomas, J.,

concurring in part). So have lower court judges, e.g.,

Hall, 175 F.4th at 516–20 (Richardson, J., concurring), and scholars, e.g., Thomas C. Berg & Douglas

Laycock, The Mistakes in Locke v. Davey and the

Future of State Payments for Services Provided by

Religious Institutions, 40 TULSA L. REV. 227 (2004).

On consistency, Locke is “far out of step with [the

Court’s] cases,” which have “limited [Locke] to its

facts.” Slaughter, 146 S. Ct. at 2302. The Court

“applied [Locke] only once” and has since distinguished it “at every turn.” Id. at 2303. People of faith

otherwise have a right to “equal treatment” because

“the Religion Clauses demand neutrality.” Locke, 540

U.S. at 727–28 (Scalia, J., dissenting).

Locke has also proven unworkable. From the

beginning, the “bounds of [Locke’s] holding” were “far

from clear.” Colorado Christian Univ., 534 F.3d at

1254. States and lower courts have consistently

gotten them wrong, using Locke to justify blatant

discrimination that wouldn’t be tolerated in other

contexts. Accord, e.g., Espinoza, 591 U.S. at 492

(Thomas, J., concurring); Locke, 540 U.S. at 732

(Scalia, J., dissenting). This case is a prime example.

Overturning Locke is the only way to stop lower courts

from continuing to license First Amendment violations.

Nor do reliance interests support preserving

Locke. After Trinity Lutheran, Espinoza, and Carson,

“all that remains of [Locke] is a decaying husk.” Loper

Bright, 603 U.S. at 410. And scholarship has established that Locke “relied on an erroneous historical

narrative” to justify its rule. Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 270 (2022). So it’s

“hard to see how anyone … could reasonably expect …

to rely on [Locke].” Loper Bright, 603 U.S. at 410.

Plus, pointing to Locke to justify “exclud[ing] some

members of the community from an otherwise generally available public benefit because of their religious

exercise,” Carson, 596 U.S. at 781, is the sort of “unwarranted and unfair” action that engenders no legitimate “reliance interest,” NRSC, 146 S. Ct. at 2426.

At bottom, Locke was defective from the start, and

over the last two decades, its “reasoning has been

rejected by subsequent cases.” Ibid. The Court should

grant the petition and bring Locke’s misadventure to

an end.

III. The students satisfy the other preliminaryinjunction requirements.

The students easily satisfy the remaining

preliminary-injunction factors. Virginia irreparably

harms the students by violating their rights under the

Religion Clauses. Mahmoud v. Taylor, 606 U.S. 522,

569 (2025). And Virginia denies the students thousands of dollars in grants each year, which they have

“no guarantee of eventual[ly] recover[ing]” due to

sovereign immunity. Alabama Ass’n of Realtors, 594

U.S. at 765; see Galette v. New Jersey Transit Corp.,

607 U.S. 509, 527 (2026) (“a damages claim against a

state or federal officer in their official capacity is

barred by sovereign immunity”).

The public interest also favors the students. The

“observance of … constitutional guarantees” serves

“the highest public interest.” United States v. Raines,

362 U.S. 17, 27 (1960). And Virginia has no valid

interest in “protect[ing] the [so-called] religious liberty of taxpayers” by denying some religious students

public benefits. Espinoza, 591 U.S. at 485.

The final consideration—the balance of equities—

likewise tips sharply toward the students. They

merely seek equal treatment as “member[s] of the

community.” Trinity Lutheran, 582 U.S. at 463.

Virginia’s “antiestablishment interest” can’t justify

excluding them. Carson, 596 U.S. at 781.

IV. This case is an ideal vehicle.

Locke has been at odds with the First Amendment

for 22 years, and its scope continues to divide the

lower courts. The Court should grant this petition and

put the confusion to rest. This case is an ideal vehicle

for six reasons.

First, this case provides a full picture of Virginia’s

religious discrimination, raising VTAG’s and VANGSTAP’s conflicting and arbitrary exclusions.

Second, the students have raised all relevant

theories under the Religion Clauses—ranging from

non-neutrality to denominational discrimination to

excessive entanglement. This ensures that the Court

has the full range of constitutional arguments before

it.

Third, the students’ declarations discussing their

still-indeterminate career plans expose Locke’s error

in assuming that the government funds ministers

when it awards grants to individuals pursuing the

excluded religious majors.

Fourth, this case demonstrates the broad scope of

Locke’s harms. Most obviously, Locke allows States to

unfairly exclude religious people from public benefits.

But as this case illustrates, courts also use Locke to

excuse non-neutral government action, denominational discrimination, and excessive entanglement.

Fifth, the proceedings below fleshed out Virginia’s

position on Locke’s scope, the Religion Clauses, and

the Commonwealth’s anti-establishment interests.

Finally, Virginia makes no effort to satisfy strict

scrutiny. So if Locke doesn’t apply or is overruled, the

outcome is clear: Virginia’s religious discrimination

must fall.

V. Certiorari before judgment is warranted.

The students request certiorari before judgment

under Rule 11. That is warranted for three reasons.

First, the issues raised here—facial discrimination against and among religious students in a

generally available public benefit program—are of

“imperative public importance.” Sup. Ct. R. 11. This

Court’s rulings establishing that States cannot “treat

religious people … as second-class” are “some of [its]

most important cases.” Oral Arg. Tr. at 106, Oklahoma Statewide Charter Sch. Bd. v. Drummond, No.

24-394 (Kavanaugh, J.). That discrimination betrays

principles “fundamental to our constitutional order.”

Catholic Charities, 605 U.S. at 254. The Court should

put a stop to that “odious” practice immediately, Trinity Lutheran, 582 U.S. at 467, given the irreparable

harm to countless students in Virginia and the many

other States with similar religious exclusions, accord

Mirabelli v. Bonta, 607 U.S. 492, 497 (2026) (per

curiam); Pet. for Cert. at 30–31, Hall v. Fleming, No.

26-193 (listing other States). It’s of the utmost public

importance to end that religious discrimination now.

Second, the Fourth Circuit in Hall already said

that Locke is “directly analogous” to a related freeexercise challenge to VTAG’s religious exclusion. 175

F.4th at 514. And a petition is pending in that case.

Pet. for Cert. at 30–31, Hall v. Fleming, No. 26-193.

This Court should grant review in both cases.

Third, the Fourth Circuit has not heeded the

students’ pleas for relief. That court denied their

motion for an injunction pending appeal without

explanation. And it deferred the students’ motion to

accelerate the appeal, declining to act on the motion

even now that the appeal is fully briefed.

The constitutional issues presented here are of

utmost importance. The harms to people of faith are

ongoing and substantial. The time for review is now.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

STEVEN W. FITSCHEN

THE NATIONAL LEGAL

FOUNDATION

524 JOHNSTOWN ROAD

CHESAPEAKE, VA 23322

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

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Suite 600

Washington, DC 20001

RYAN J. TUCKER

JEREMIAH J. GALUS

ALLIANCE DEFENDING

FREEDOM

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Scottsdale, AZ 85260

AUGUST 2026

JAMES A. CAMPBELL

Counsel of Record

JACOB E. REED

ALLIANCE DEFENDING

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(571) 707-4655

jcampbell@ADFlegal.org

DAVID A. CORTMAN

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APPENDIX