Amicus Curiae Brief — Cameron Johnson, et al., Petitioners v. A. Scott Fleming, Director of the State Council of Higher Education for Virginia, et al.

Nos. 26-193, 26-240

In the Supreme Court of the United States

____________________________

BETHANY M. HALL,

Petitioner,

v.

A. SCOTT FLEMING, DIRECTOR, VIRGINIA

STATE COUNSEL OF HIGHER EDUCATION,

_________________________

Respondent.

CAMERON JOHNSON, et al.,

Petitioners,

v.

A. SCOTT FLEMING, DIRECTOR, VIRGINIA

STATE COUNSEL OF HIGHER EDUCATION, et al.,

_________________________

Respondents.

On Petitions for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_________________________

BRIEF OF AMICI CURIAE ASSOCIATION FOR

BIBLICAL HIGHER EDUCATION,

INTERNATIONAL ALLIANCE FOR CHRISTIAN

EDUCATION, INTERNATIONAL ASSOCIATION

OF BAPTIST COLLEGES AND UNIVERSITIES,

AND THE CARDINAL NEWMAN SOCIETY

IN SUPPORT OF PETITIONER

_________________________

MICHAEL B. SYLVESTER

Counsel of Record

JOSHUA A. HETZLER

FOUNDING FREEDOMS LAW CENTER

707 E. Franklin St.

Richmond, VA 23219

(804) 971-5509

michael@foundingfreedomslaw.org

September 14, 2026

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 4

I.

Locke’s Foundations Have Been Quadruple

Eroded. ................................................................ 4

A. Locke was predicated on four key

foundations. ........................................... 4

B. Locke’s four key foundations have been

eroded..................................................... 8

II.

This Court Has Tightly Narrowed Locke’s

Application. Yet these Certiorari Petitions Show

that Locke Remains Problematic. .................... 13

A. Trinity Lutheran, Espinoza, and Carson,

narrowed Locke. .................................. 13

B. These Certiorari Petitions show that

Locke’s Problems Remain.................... 17

III. Locke Should Be Overruled and the Court’s

Religious Equality Precedents Should Control

Instead. ............................................................. 19

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Page

Agostini v. Felton, 521 U.S. 203, 236 (1997) ........ 2, 19

Board of Educ. of Westside Community Schools

v. Mergens, 496 U.S. 226 (1990) ............................. 7

Bowen v. Kendrick, 487 U.S. 589 (1988) .................... 7

Comm. for Public Educ. and Religious Liberty v.

Nyquist, 413 U.S. 756 (1973) .................................. 7

Corp. of the Presiding Bishop of the Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987)................................................. 7

Edwards v. Aguillard, 482 U.S. 578 (1987) ............... 7

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993)........................................... 6, 21

County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989) .................................... 7

Employment Division v. Smith,

494 U.S. 872, 879 (1990)....................................... 20

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020)........................................ passim

Estate of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985)................................................. 7

Hall v. Fleming,

175 F.4th 510 (4th Cir. 2026) ....................10, 17, 18

Hernandez v. Commissioner, 490 U.S. 680 (1989) .... 7

Jimmy Swaggart Ministries v. California Board of

Equalization, 493 U.S. 378 (1990) ......................... 7

iii

Johnson v. Fleming, No. 3:25cv407, 2026 U.S. Dist.

LEXIS 71085 (E.D. Va. Mar. 31, 2026) .......3, 17, 18

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022)........................................ passim

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) ... 7

Larson v. Valente, 456 U.S. 228 (1982) ...................... 7

Lawrence v. Texas, 539 U.S. 558 (2003)…………2

Locke v. Davey, 540 U.S. 712 (2004)…………….passim

Lemon v. Kutzman, 403 U.S. 602 (1971)……… passim

Mahmoud v. Taylor, 606 U.S. 522 (2025) ................ 11

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm’n, 584 U.S. 617 (2018) ......................... 11, 21

Mueller v. Allen, 463 U.S. 388 (1983) ........................ 7

Nat’l Republican Senatorial Comm. v. FEC,

__ U.S. __, 146 S. Ct. 2404 (2026) .......................... 2

Nken v. Holder, 556 U. S. 418 (2009) ....................... 11

NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ................................................ 7

Payne v. Tennessee, 501 U.S. 808 (1991)…………..2, 19

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020)................................................. 11

Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000)................................................. 7

School District of the City of Grand Rapids v. Ball,

473 U.S. 373 (1985)................................................. 7

iv

Trinity Lutheran, 582 U.S. 449 (2017).............. passim

Widmar v. Vincent, 454 U.S. 263 (1981) .................... 7

Witters v. Washington Dep’t of Services for the Blind,

474 U.S. 481 (1986)................................................. 7

Rules and Statutes

Supreme Court Rule 37.6 ........................................... 1

Other Authorities

Peter J. Smith, Establishment Clause Mythology,

75 Case W. Res. 573, 632 (2024)……………..16–17

Steven D. Smith, Jurisdictional Diversity, Tradition,

and the Religion Clauses,

100 Chi.-Kent L. Rev. 729, 749 (2025)…………..17

1

INTEREST OF AMICI CURIAE 1

The Association for Biblical Higher Education

(ABHE) is an association of more than 170 institutions

of biblical higher education, which enroll more than

90,000 students.

ABHE institutions offer

undergraduate

and

graduate

educational

opportunities

through

traditional

residential,

extension, and distance learning models. Its member

schools have diverse histories and affiliations, but they

are all centered on promoting a Christian education

and biblical worldview in their students.

The mission of the International Alliance for

Christian Education (IACE) is to unify, synergize, and

strengthen collective conviction around biblical

orthodoxy and orthopraxy, cultural witness,

scholarship, professional excellence, and resourcing of

Christian education at all levels. Functioning as a

network and umbrella organization, IACE seeks to

provide enablement, connections, and collaborative

opportunities for the various aspects of Christian

education.

The mission of the International Association of

Baptist Colleges and Universities is to provide and

maintain an organization through which educational

institutions currently or historically cooperating with

Baptists may work together in promoting the interests

of Christian higher education.

The Cardinal Newman Society, through The

Newman Guide, promotes and defends faithful

Catholic education by recognizing schools, colleges,

1 Pursuant to Rule 37.6, amici state that no counsel for a party

authored this brief in whole or in part, and no person other than

the amici and their counsel made any monetary contribution

intended to fund the preparation or submission of this brief.

2

and graduate programs that meet high standards of

fidelity to Catholic teaching and formation of students

in the light of the Catholic faith, without compromise

to Catholic beliefs or morals. The Society’s Newman

Guide Network brings together leaders of recognized

institutions and programs for collaboration and

defense of their religious freedom.

INTRODUCTION

The need to overrule precedent becomes far more

apparent when that precedent’s “foundations . . . have

sustained serious erosion from [the Court’s] recent

decisions.” Lawrence v. Texas, 539 U.S. 558, 576

(2003). This Court has repeated that “[s]tare decisis is

not an inexorable command.” E.g. Payne v. Tennessee,

501 U.S. 808, 828 (1991). It “may yield where a prior

decision’s underpinnings have been eroded by

subsequent decisions of this Court.” Agostini v. Felton,

521 U.S. 203, 236 (1997) (citation modified). Indeed,

just this past term, the Court explained that

“hollowed-out precedents” can become “so undermined

by subsequent developments that they are no longer

good law and retain no vitality.” Nat’l Republican

Senatorial Comm. v. FEC, __ U.S. __, 146 S. Ct. 2404,

2424 (2026) (citation modified). Such a precedent is at

issue here.

The foundations for Locke v. Davey, 540 U.S. 712

(2004), have been quadruple eroded. First, its reliance

on a purported “tension” prompting “play in the joints”

between the Religion Clauses has since been

disavowed by this Court. Second, its teaching that a

state’s distinct “antiestablishment interests” can

constitute a sufficient interest that overrides Free

Exercise concerns is no longer true. Third, its view

that

some

government-approved

religious

discrimination can be cast off as “mild” has lost

3

purchase before the Court. And fourth, the shadow of

Lemon v. Kurtzman, which undeniably affected the

outcome in Locke, has since been removed by Lemon’s

modern overturning.

Unsurprisingly then, in modern practice, Locke has

been viewed as having a very narrow application—

applying only to the specific context of the bona fide

training of clergy. But even this narrow role retains

Locke’s problems, as shown by these Certiorari

Petitions. What is to be done—as raised by the

Johnson petitioners—when students are not bona fide

trainees for ministry roles but instead pursue

ministry-related degrees simply as their chosen path

to possible secular professional growth. Does Locke

apply then? Certainly “the study of theology does not

necessarily implicate religious devotion or faith.”

Locke, 540 U.S. at 734 (Thomas, J., dissenting). So it

would be anomalous indeed to hold that Constitutional

restraints on state educational funding turns on the

level of commitment a student has to a life spent in

ministry.

Locke has long stood on shaky foundations,

foundations which one-by-one have been removed.

Given the current state of the law, the Court now

should bring an end to Locke’s lingering effect. The

Court should grant these Petitions, overrule Locke,

and apply its ordinary religious equality precedents

instead.

4

ARGUMENT

I.

LOCKE’S FOUNDATIONS

QUADRUPLE ERODED.

HAVE

BEEN

a. Locke was predicated on four key

foundations.

Significant to the Court’s decision in Locke v. Davey

were four key qualities. In reaching its decision, the

Court focused on a belief that (1) there is “tension”

between the Religion Clauses, (2) a state’s own

antiestablishment interests can justify restrictions on

Free Exercise, and (3) the perceived “mild[ness]” of a

religious burden can diminish the requisite

constitutional protection. 540 U.S. at 718, 720, 722.

And Locke was decided at a time when (4) the

Establishment Clause was viewed as significantly

restrictive under the test prescribed in Lemon v.

Kurtzman, 403 U.S. 602 (1971), a reality that

meaningfully affected Locke’s outcome. However, each

of these four foundations for Locke have since been

jettisoned by the Court.

For background, Locke, 540 U.S. 712, tested a

Washington state scholarship program that broadly

benefited many students, but excluded those who

pursued a theology degree. Id. at 716–17. The Court

upheld this program as not violating the Free Exercise

Clause.

However, the context was key.

The

scholarship applicant who was denied this benefit

because he sought a degree in pastoral ministries, 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.”

Id. at 717. Indeed, his “religious beliefs [were] the only

reason for [him] to seek a college degree.” Id. at 721.

As best as the Court was aware, his state-funded

5

scholarship would directly pay for his entry into

religious ministry.

Said simply, Locke was all about a bona fide

ministry trainee. It was this context that primarily

animated the holding in Locke, leading it to rest on its

key foundations discussed above—Religion Clause

“tension,” separate state antiestablishment interests,

mere “mild” religious burdens, and Lemon-type

reasoning.

The Court explained, “[t]raining someone to lead a

congregation is an essentially religious endeavor,” and

few areas more readily raise a state’s own

“antiestablishment interests.”

Id. at 721–22.

“Historically,” it continued, society has balked against

“procuring taxpayer funds to support church leaders,

which was one of the hallmarks of an ‘established’

religion.” Id. at 722.

In that context, the Court recited that “there is

room for play in the joints” between the Free Exercise

and Establishment Clauses, which are “frequently in

tension.” Id. at 719. Under this doctrinal teaching,

“there are some state actions permitted by the

Establishment Clause but not required by the Free

Exercise Clause.” Id. The Court held, “[t]his case

involves that ‘play in the joints.’”

Locke presented no true Establishment Clause

problem.

The Court expressly determined this,

explaining that the link between government funds

and religious training, would be “broken by the

independent and private choice of [scholarship]

recipients.” Id. at 719. “As such,” it held, “there is no

doubt that the State could, consistent with the Federal

Constitution, permit [scholarship recipients] to pursue

a degree in devotional theology.” Id. Rather, the issue

before the Court was whether a state’s own

6

antiestablishment interest sufficed to allow it to create

a generally-available benefit while excluding genuine

ministry students from that program. Id.

The Court’s prior holding in Church of Lukumi

Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993),

would seem to answer this question in the negative. A

state preventing its generally-available benefit from

aiding ministry students would be impermissible

religious discrimination. Lukumi held that, “[a]t a

minimum, the protections of the Free Exercise Clause

pertain if the law at issue discriminates against some

or all religious beliefs or regulates or prohibits conduct

because it is undertaken for religious reasons.” Id.

Put simply, laws which are not neutral to religion are

presumptively unconstitutional.

But in Locke, the Court avoided Lukumi. While

acknowledging that the scholarship program at issue

there was not entirely neutral toward religion—

stating that the religious-studies exception could be

referred to as “disfavor of religion,” id. at 720—the

Court waved off this detail as being disfavor “of a far

milder kind,” id., and thus meriting a special exception

to the ordinary principles espoused in Lukumi.

Anomalous? Yes. But Locke was decided at a time

when Lemon v. Kurtzman, 403 U.S. 602 (1971), held

dominant sway, terminating numerous religious

freedom claims.

Lemon was contextually similar to the factual

background of Locke and these cases too. Lemon

considered whether two states’ programs that

provided state aid to church-related schools violated

the First Amendment.

Id. at 606–07.

In its

groundbreaking decision, Lemon held that the

Establishment Clause required government programs

to satisfy a three-pronged test—(1) secular purpose,

7

(2) non-advancement nor inhibition of religion, and

(3) in-excessive entanglement between government

and religion. Id. at 612–13. Finding that the states’

programs that it evaluated failed this test, Lemon held

that the Establishment Clause invalidated them. Id.

at 606.

Since its issuance, Lemon comprehensively

dominated its space. It was followed in no less than a

staggering seventeen subsequent decisions from the

Supreme Court leading up to Locke, if not more. 2

Lemon did more than just affect the environment

in which Religion Clause matters like Locke were

evaluated. More directly, its concepts are reflected in

Locke. Lemon taught against laws that “advance . . .

religion”

or

cause

“excessive

government

entanglement with religion.” Lemon, 403 U.S. at 612–

13. These teachings are notably similar to Locke’s

teaching about “tension” and “play in the joints”

between the Religion Clauses, Locke, 540 U.S. at 718–

2 Lemon was followed in these seventeen Supreme Court cases

leading up to Locke: Comm. for Public Educ. and Religious

Liberty v. Nyquist, 413 U.S. 756 (1973); NLRB v. Catholic Bishop

of Chicago, 440 U.S. 490 (1979); Widmar v. Vincent, 454 U.S. 263

(1981); Larson v. Valente, 456 U.S. 228 (1982); Larkin v. Grendel’s

Den, Inc., 459 U.S. 116 (1982); Mueller v. Allen, 463 U.S. 388

(1983); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985);

School District of the City of Grand Rapids v. Ball, 473 U.S. 373

(1985); Witters v. Washington Dep’t of Services for the Blind, 474

U.S. 481 (1986); Corp. of the Presiding Bishop of the Church of

Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987);

Edwards v. Aguillard, 482 U.S. 578 (1987); Bowen v. Kendrick,

487 U.S. 589 (1988); Hernandez v. Commissioner, 490 U.S. 680

(1989); County of Allegheny v. American Civil Liberties Union,

492 U.S. 573 (1989); Board of Educ. of Westside Community

Schools v. Mergens, 496 U.S. 226 (1990); Jimmy Swaggart

Ministries v. California Board of Equalization, 493 U.S. 378

(1990); and Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000).

8

19, and its idea that even without concern of violating

the Establishment Clause, states can have

“antiestablishment

interests”

that

justify

discrimination against religion, id. at 722.

Locke certainly was anomalous. It departed from

ordinary teachings that non-neutrality toward religion

prompted strict scrutiny. However, because it was

moored into the four key foundations discussed above,

its holding initially was given significant weight. That

since has changed.

b. Locke’s four key foundations have

been eroded.

Two decades after Locke’s issuance, its four key

foundations now have all been abandoned. First, the

idea of their being “tension” between the Religion

Clauses requiring “play in the joints” no longer

applies. This is the result of the Court’s decision in

Kennedy v. Bremerton School District, 597 U.S. 507

(2022), a case with relevant similarities to Locke.

In Kennedy, during downtime after public school

football games, school coaches were permitted to enjoy

free time before returning to specific coaching duties.

During those moments, the plaintiff Coach Kennedy—

a public school employee—would pray on the football

field, and some players would join him. The School

District believed that these prayers created religious

establishment concerns, and eventually it terminated

the Coach’s employment, prompting religious liberty

litigation that reached this Court. Id.

Under that backdrop, the Court could have taken

an approach like that illustrated in Locke. It could

have declared that, while the Establishment Clause

did not foreclose the Coach’s prayers, the

Free Exercise Clause did not compel tolerance of them

9

either, and because the school district sought to

vindicate “antiestablishment interests” this sufficed to

overcome the Coach’s free exercise concerns.

An outcome like this was contemplated, as hinted

at in Justice Sotomayor’s Kennedy dissent. There, she

cited Locke to illustrate a perceived tension between

the Free Exercise and Establishment Clauses that

needed balancing and that should have been balanced

against the Coach’s Free Exercise claim. See id. at 568

(Sotomayor, J., dissenting) (“The Court, however, has

long recognized that these two [Religion] Clauses,

while expressing complementary values, often exert

conflicting pressures.”) (cleaned up).

The majority did not adopt that position, however.

Instead, determining that there was no pure

Establishment Clause violation, the majority decision

penned these doctrinally significant words:

In the end, the [School] District’s case hinges on

the need to generate conflict between an

individual’s rights under the Free Exercise

[Clause] . . . and its own Establishment Clause

duties—and then develop some explanation

why one of these Clauses in the First

Amendment should trump the other two [the

Free Exercise and Free Speech Clauses]. But

the project falters badly. Not only does the

[School] District fail to offer a sound reason to

prefer one constitutional guarantee over

another. It cannot even show that they are at

odds. In truth, there is no conflict between

the constitutional commands before us.

There is only the “mere shadow” of a conflict, a

false choice premised on a misconstruction of

the Establishment Clause. And in no world

may a government entity’s concerns about

10

phantom constitutional violations justify

actual violations of an individual’s First

Amendment rights.

Id. at 542–43 (emphasis added) (internal citations

omitted).

This holding in Kennedy abandoned the ideas of

“play in the joints” or “tension” between the Free

Exercise and the Establishment Clauses. Thus, upon

recognizing the absence of a pure Establishment

Clause violation, the Court simply followed ordinary

Free Exercise jurisprudence which prohibited

religious censorship. Religion Clause tension, no

more. 3

Second, just two years earlier, this Court had ended

the teaching set out in Locke, 540 U.S. 722, that a

state’s own “antiestablishment interests”—distinct

from what the U.S. Constitution requires—could

justify a softened approach toward addressing

potential Free Exercise violations. In Espinoza v.

Montana Department of Revenue, 591 U.S. 464 (2020),

3 This point is made in Judge Richardson’s concurrence in Hall v.

Fleming, 175 F.4th 510, 518 n.3 (4th Cir. 2026) (Richardson, J.,

concurring):

[T]he Supreme Court has rejected the notion of “play in

the joints” between the Free Exercise and Establishment

Clauses—a notion on which the Locke majority heavily

relied. See, e.g., Kennedy v. Bremerton Sch. Dist., 597

U.S. 507, 533 [] (2022) (“A natural reading [of the First

Amendment] would seem to suggest the [religion]

Clauses have ‘complementary’ purposes, not warring

ones.”); Espinoza, 591 U.S. at 484–85 (“[A state’s]

interest in separating church and State ‘more fiercely’

than the Federal Constitution . . . ‘cannot qualify as

compelling’ in the face of the infringement of free

exercise.” (quoting Trinity Lutheran, 582 U.S. at 466)

(cleaned up)).

11

the Supreme Court explained that “[a state’s] interest

in separating church and State ‘more fiercely’ than the

Federal Constitution . . . ‘cannot qualify as compelling’

in the face of the infringement of free exercise.” Id. at

485.

Third, the Supreme Court clearly no longer retains

the anomalous idea that perceptions of mere “mild”

religious discrimination receive watered-down

protection under the Free Exercise Clause. Locke

suggested this watering-down, saying that the

religious disfavor at issue in the scholarship program

it evaluated was “of a far milder kind,” not meriting

general Free Exercise protection. Locke, 540 U.S. at

720.

This

Court

now,

however,

consistently

acknowledges the significance of any First

Amendment violation, severe or mild. For example,

when evaluating the appropriateness of issuing a

preliminary injunction—relief that is consistently

characterized as “extraordinary,” see, e.g., Nken v.

Holder, 556 U. S. 418, 428 (2009)—this Court recently

reaffirmed that “[t]he loss of First Amendment

freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.”

Roman Catholic Diocese of Brooklyn v. Cuomo, 592

U.S. 14, 19 (2020); see also Mahmoud v. Taylor, 606

U.S. 522, 569 (2025) (same). Indeed, the Court has

now pronounced, “[t]he Free Exercise Clause bars even

‘subtle departures from neutrality’ on matters of

religion.” Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 584 U.S. 617, 638 (2018).

Today, the mildness of a religious-freedom

deprivation that was relied upon in Locke has lost its

salience to the Court. The Court’s pronouncements

against “subtle departures from neutrality” on matters

12

of religion and the “unquestionable” irreparable injury

that occurs from even minimal periods of First

Amendment deprivations make this plain.

Fourth and finally, the Lemon-type reasoning in

Locke now has lost its force. Particularly, Lemon

taught against laws that “advance . . . religion” or

cause “excessive government entanglement with

religion.” Lemon, 403 U.S. at 612–13. This matched

similarly to Locke’s teaching about “tension” and

“play in the joints” between the Religion Clauses,

Locke, 540 U.S. at 718–19, and its idea that even

without concern of violating the Establishment

Clause, states can have “antiestablishment interests”

that justify discrimination against religion, id. at 722.

However, despite its temporary dominance, Lemon

eventually fell out of favor. In 2022, Lemon’s demise

was sure. The Court declared in Kennedy, that Lemon

indeed was “abandoned” by the Court. Id. at 523; id. at

535 (citation modified) (“In place of Lemon . . . , this

Court has instructed that the Establishment Clause

must be interpreted by reference to historical practices

and understandings.”).

Locke was anomalous. And today, as has been set

out above, each of the four foundations key to its

decision no longer apply.

13

II.

THIS COURT HAS TIGHTLY NARROWED

LOCKE’S APPLICATION.

YET THESE

CERTIORARI PETITIONS SHOW THAT

LOCKE REMAINS PROBLEMATIC.

This Court has repeatedly shown that Locke’s

application is narrow. It showed this in Trinity

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

449 (2017) and Espinoza v. Montana Department of

Revenue, 591 U.S. 464 (2020), and stated this

explicitly in Carson v. Makin, 596 U.S. 767 (2022).

Other authorities and scholars recognize this too.

Even so, the problems it creates remain.

a. Trinity Lutheran, Espinoza,

Carson narrowed Locke.

and

After its issuance, Locke was never again viewed as

broadly applicable by this Court. Locke was first

meaningfully evaluated for salience in Trinity

Lutheran, 582 U.S. 449 (2017). But it was not

favorably applied.

In

Trinity

Lutheran,

generally-available,

government-funded rubber surfaces for playgrounds

were denied to a church-operated preschool. That

school functioned as “a ministry of Trinity Lutheran

church” and had as part of its mission allowing

children “to grow spiritually.” Id. at 455. After this

denial, the school brought a Free Exercise challenge.

The district court assessed that challenge under Locke,

which it found barred the school’s claim. Id. at 456.

However, the Supreme Court reversed that decision.

Looking carefully at Locke’s specific facts, the Court

observed that the plaintiff in Locke was denied a

scholarship because he proposed to “use the funds to

prepare for the ministry,” id. at 465, which the Court

held was different from excluding someone simply

14

because they are religious, id. The latter was to be

scrutinized more rigorously.

Ruling in this fashion, Trinity Lutheran read Locke

narrowly. It could have declared that the state’s

“antiestablishment interests” were implicated because

the state’s provision of government-funded playground

surfaces inevitably advanced the ability of a religious

ministry to continue its work. If it ruled in this

fashion, Locke would seem to apply. But it instead

demonstrated this was the wrong approach. Locke did

not reach that far.

That Trinity Lutheran had read Locke narrowly

was clear to the Court when it issued its decision.

Justices Thomas and Gorsuch, concurring in Trinity

Lutheran, observed this narrowing. They stated that

they joined the majority opinion “because the Court

today appropriately construes Locke narrowly, . . .

and because no party has asked us to reconsider it.”

Trinity Lutheran, 582 U.S. at 468 (Thomas and

Gorsuch, J., concurring) (emphasis added). Justice

Sotomayor similarly observed that Trinity Lutheran

reshaped the prescribed view of Locke, dissenting and

saying that the Court had “recast[] Locke as a case

about a restriction that prohibited the would-be

minister from ‘us[ing] the funds to prepare for the

ministry.’” Id. at 492 (emphasis added). After Trinity

Lutheran, Locke was newly focused on those

specifically who were entering into ministry.

Next, Espinoza, 591 U.S. 464, took this same

narrowing tack. Montana’s school tuition scholarship

program which generally benefited private school

students, denied benefits for plaintiff students who

intended to attend a Christian school. Id. at 470.

Overtly religious, this private institution instructed its

15

students in Christian values, the same as would be

taught at home. Id. at 472–71.

With this backdrop, the Court could have applied

Locke and held that providing scholarships where

children are instructed in Christian values would

conflict with the state’s antiestablishment interest.

But again, it stepped around Locke. It explained that

Locke was about “the ‘essentially religious endeavor’ of

training a minister ‘to lead a congregation’”—receiving

“funds to prepare for the ministry.” Id. at 479–80. But

because overt state-supported clergy concerns were

not so clearly implicated in Montana’s school tuition

program, the Free Exercise Clause prevented

Montana’s religious school exception. Id. at 483.

Justice Breyer’s dissent detected Espinoza’s

narrowing of Locke. After referencing Locke, the

dissent exclaimed:

The majority barely acknowledges the play-inthe-joints doctrine here. It holds that the Free

Exercise Clause forbids a State to draw any

distinction between secular and religious uses

of government aid to private schools that is not

required by the Establishment Clause.

Id. at 520 (Breyer, J., dissenting). Justice Breyer

thought this was incorrect. He wrote:

The majority finds that the schoolplayground case, Trinity Lutheran, and

not the religious-studies case, Locke,

controls here. I disagree. In my view, the

program at issue here is strikingly

similar to the program upheld in Locke

and importantly different from the

program we found unconstitutional in

Trinity Lutheran.

16

Id. at 524 (Breyer, J., dissenting). Yet, this

similarity between Espinoza and Locke did not control

the final outcome. It was clear, once again, that the

scope of Locke had been narrowed.

But what the majorities in Trinity Lutheran and

Espinoza did simply through their analysis, Carson,

596 U.S. 767, did explicitly. The context for Carson

was that the state of Maine excluded religious schools

from a tuition assistance program, which the Supreme

Court held violated the Free Exercise Clause. Id. The

Court repeated that Locke did not apply because it

pertained to the use of scholarship funds for the

“‘essentially religious endeavor’ of pursuing a degree

designed to ‘train[] a minister to lead a congregation.’”

Id. at 788. Locke, it repeated, pertained to funds

“intended to be used ‘to prepare for the ministry.’” Id.

This was, it said, Locke’s “narrow focus.” Id. at 789.

Once again, anomalous Locke could not be used to

justify restrictions on religious free exercise.

The principal dissent in Carson stressed the

teachings espoused in Locke and expressed

disappointment that Locke was not being applied. Id.

at 790, 792, 801–802. Yet, those teachings did not win

the day. Locke had been profoundly narrowed. Going

forward, its application pertained only to the bona fide

training of clergy. Id. at 788.

Unsurprisingly, many scholars likewise have

observed Locke’s modern narrowness. See, e.g., Steven

D. Smith, Jurisdictional Diversity, Tradition, and the

Religion Clauses, 100 Chi.-Kent L. Rev. 729, 749

(2025) (“[T]he more recent decisions, while not

explicitly overruling Locke, have distinguished and

severely limited it.”); Peter J. Smith, Establishment

Clause Mythology, 75 Case W. Res. 573, 632 (2024)

17

(“The Court also effectively confined Locke to its

facts.”).

Indeed, Locke’s modern narrowness is apparent

from its subsequent disuse. After its issuance in 2004,

Locke has never since been cited by a majority of the

Supreme Court to foreclose a Free Exercise Clause

claim. The Court could have applied Locke in Kennedy,

Trinity Lutheran, Espinoza, or Carson. But it did not.

b. These Certiorari Petitions Show

That Locke’s Problems Remain.

Despite Locke’s modern narrowness, these two

Certiorari Petitions, viewed together, well illustrate

Locke’s enduring problems. The facts in the Hall case

are analogous to those in Locke, while the facts in the

Petitioners in the Johnson case fall outside of the

reach of Locke, when construed narrowly as the Court

previously has. This creates a particularly untenable

oddity—constitutional protection that turns on the

degree of committed interest that a religious

individual has in entering a bona fide religious

ministry.

The facts in Hall, 175 F.4th 510, were directly

analogous to those in Locke. In Hall, a plaintiff

challenged Virginia’s Tuition Assistance Grant

program after she was denied from pursuing a

religious degree using those funds specifically to

prepare her for religious ministry. Id. at 512. She said

she “heard God’s call to ministry” and because of that

calling, she “changed her major to ‘Youth Ministries.’”

Id. There could be no doubt regarding her intended

direction. She had become a bona fide ministry

trainee. Faced with this similarity, the plaintiff in

Hall conceded that “her situation aligns with the one

faced by the undergraduate student pursuing a

religious vocation major in Locke.” Id.

18

However, the three plaintiffs in Johnson simply

sought collegiate education in their chosen degree

program. Their study programs were religious in

nature—pastoral leadership (plaintiff Johnson), music

and worship (plaintiff Thomas), and religion, general

track (plaintiff Stevens)—but they were not studying

for the purpose of assuming the role of clergy. Johnson

v. Fleming, No. 3:25cv407, 2026 U.S. Dist. LEXIS

71085, at *7–*8, *11–*12 (E.D. Va. Mar. 31, 2026).

Neither knew whether he would pursue a vocational

or secular career. Id. Johnson was unsure if he was

going to enter a “vocational calling” or a “secular

career or workplace.” Id. at *7. Thomas did not know

if he would enter “the ministry field” or careers other

than those strictly in vocational ministry.” Id. at *7.

And Stevens was unsettled as to whether his

occupation would be “in ministry,” “the Army,” or

“other career interests.” Id. at *12. Put simply, the

plaintiffs in Johnson are not bona fide ministry

trainees.

Does Locke foreclose the Hall Petitioner’s claims

while allowing the Johnson Petitioners’ claims to

proceed? Is the only detail that dooms Hall’s claim her

clarity regarding her forthcoming employment in

ministry? Such an outcome would only compound

Locke’s anomalous holding and would permit a

striking disparity in treatment.

The Court should bring an end to Locke’s

confounding of constitutional law. Ordinary Free

Exercise principles should apply instead.

19

III.

Locke Should be Overruled and the

Court’s

Religious

Equality

Precedents Should Control Instead.

This Court has repeatedly explained its

prioritization of adopting a correct interpretation of

the Constitution over adherence to an incorrect past

holding. Payne v. Tennessee, 501 U.S. 808 (1991), well

illustrates the circumstances that make overruling a

prior decision appropriate.

In Payne, the Supreme Court reversed its prior

Eighth Amendment holdings preventing prosecutors

from presenting victim impact evidence during the

sentencing phase of a capital trial. Holding that those

prior decisions were incorrect, the Supreme Court

explained that “when governing decisions are

unworkable or are badly reasoned, this Court has

never felt constrained to follow precedent.” Id. at 827.

Contributing

considerations arise

when the

challenged precedent was “decided by the narrowest of

margins, over spirited dissents challenging the basic

underpinnings” of that decision and when that

decision has been “questioned by Members of the

Court in later decisions.” Id. at 828–29.

Again, Agostini v. Felton, 521 U.S. 203 (1997),

sheds light on when the Court will overrule a

precedent interpreting the Constitution. There this

Court overruled its precedents restraining state

employees from providing nonsectarian, supplemental

education services in a religious school. It did so

because those decisions were “inconsistent with [the

Court’s] more recent decisions.” Id. at 235. In making

this judgment, the Court emphasized that its policy of

dutifully following its prior decisions without question

“is at its weakest” when it interprets the Constitution.

Id. at 235. This is so because: “[O]ur interpretation

20

can be altered only by constitutional amendment or by

overruling our prior decisions.” Id. The Court then

provided a long string cite of cases supporting the

historicity of that approach. Id.

The Court should take the same approach here.

Locke’s key foundations have been undermined. See

Part I above. And the Court has tightly narrowed

Locke’s lingering application, yet its problems

continue. See Part II above. Locke was decided over

the dissent of some of the Court’s Members. Id. at 726

(saying the majority opinion in Locke was

“irreconcilable with” the Court’s religious equality

precedents) (Scalia and Thomas, J., dissenting); id. at

734 (Thomas, J., dissenting), and it continues to face

criticism by sitting members of this Court. Trinity

Lutheran, 582 U.S. at 468 (“This Court’s endorsement

in Locke of even a “mil[d] kind” [] of discrimination

against religion remains troubling.”) (Thomas and

Gorsuch, J., concurring); Espinoza, 591 U.S. at 492

(“Locke incorrectly interpreted the Establishment

Clause and should not impact free exercise

challenges.”) (Thomas and Gorsuch, J., concurring);

In his dissent in Locke, Justice Scalia aptly

observed that the Court’s religious equality precedents

provide the correct rule of decision rather than the

anomalous decision issued by the Locke majority. Id.

at 726.

Employment Division v. Smith, 494 U.S. 872, 879

(1990), set out the view that “the right of free exercise

does not relieve an individual of the obligation to

comply with a ‘valid and neutral law of general

applicability.’” However, as this rule states, this space

of regulatory freedom evaporates in the absence of

religious neutrality.

21

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520, 532 (1993), made this clear. It explained,

“[a]t a minimum, the protections of the Free Exercise

pertain if the law at issue discriminates against some

or all religious beliefs or regulates or prohibits conduct

because it is undertaken for religious reasons.” Id. It

plainly expressed that a law is not neutral if its object

“is to infringe upon or restrict practices because of

their religious motivation.” In that case, the law is

“invalid unless it is justified by a compelling interest

and is narrowly tailored to advance that interest.” Id.

at 534.

Masterpiece Cakeshop, 584 U.S. 617, 638 (2018),

stated this principle even more plainly: “The Free

Exercise Clause bars even ‘subtle departures from

neutrality’ on matters of religion.” Id. Trinity

Lutheran made this same point: “The Free Exercise

Clause protects religious observers against unequal

treatment and subjects to the strictest scrutiny laws

that target the religious for special disabilities based

on their religious status.” 582 U.S. at 458.

It is these principles that should govern these

cases.

CONCLUSION

Locke failed to apply the correct standard for

government educational funding programs that

discriminate

against

religious

students.

Subsequently, Locke’s foundations were removed and

this Court has sharply narrowed its application. The

time has come for Locke’s overruling. The Court grant

the Petitions for Certiorari, overrule Locke, and apply

its religious equality precedents instead.

22

Respectfully submitted,

MICHAEL B. SYLVESTER

Counsel of Record

JOSHUA A. HETZLER

FOUNDING FREEDOMS

LAW CENTER

707 E. Franklin St.

Richmond, VA 23219

(804) 971-5509

michael@foundingfreedomslaw.org

September 14, 2026

Counsel for Amici Curiae