Taking It Out of Neutral: The Application ofLocke's Substantial Interest Test to the SchoolVoucher Debate

I. IntroductionThat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?1So wrote James Madison in his Memorial and Remonstrance Against Religious Assessments, in opposition to a tax used to pay Christian teachers.2 The Supreme Court has looked to the works of both Madison and Thomas Jefferson for guidance on interpreting the Establishment Clause.3 Relying on those works, the Court wrote that [t]he First Amendment has erected a wall between church and state. . . . [That] must be kept high and impregnable.4 So it is surprising that in the same case in which it articulated a policy of strict separation, the Court found that a state could reimburse parents of parochial school students for the cost of transportation.5Throughout the past half-century, changes in thought about separation of church and state have evolved via debate regarding religion and state-funded education.6 During that time, the Supreme Court heard numerous Establishment Clause challenges to government programs allowing recipients to direct educational materials or aid to religious schools.7 Believing that the Establishment Clause no longer poses a serious obstacle to state aid to religious schools,8 some proponents of school choice programs argue that excluding religious schools from government aid programs violates the Free Exercise Clause.9 Proponents also argue that some state provisions requiring the exclusion of religious schools from government aid programs are tainted with anti-Catholic animus and may violate the First Amendment.10Recent Free Exercise decisions, which emphasized the idea of neutrality towards religion,11 supported the argument that state restrictions on sectarian educational funding violate the Free Exercise Clause.12 School choice proponents hoped the Supreme Court would extend the neutrality principle into the school funding context and disallow programs that excluded religious schools.13 The Supreme Court, however, delivered a serious blow to their arguments in Locke v. Davey.14 The decision addressed the application of the Free Exercise Clause to a postsecondary scholarship program15 and may foreshadow how the Court would decide a Free Exercise challenge to a school aid program that excludes religious schools.16Although the implications of Locke for the school aid debate are not obvious,17 the Court's decision indicates that it will allow the states room within the Religion Clauses to structure school aid programs.18 The Court, without addressing the neutrality principle, concluded that the Promise Scholarship Program made a distinction that the federal Constitution allows.19 Thus, the decision indicates that the Free Exercise Clause does not require absolutely neutral funding of similar religious and secular pursuits. The state of Washington could constitutionally condition a scholarship on the recipient's willingness to forgo a degree in devotional theology.20 The decision's reasoning will allow the Court to reject an unconstitutional condition analysis for state school funding programs that devote all of their resources to secular schools.21 Thus, the exclusion of religious schools from school aid programs does not by itself violate the Free Exercise Clause.22This Note both applies the Court's reasoning in Locke in the school aid context and addresses whether Locke's analysis is appropriate. Part II provides background material on the school voucher debate, recent Establishment Clause cases involving government aid to religious schools, and Free Exercise jurisprudence.23 Part III analyzes the Locke decision and concludes that, after Locke, the Court is unlikely to invalidate a school aid program that excludes religious schools.24 Part V addresses the appropriateness of extending Locked analysis to school aid cases and concludes that extending the analysis is appropriate. …