by Mitch Kokai
Senior Political Analyst, John Locke Foundation
School choice advocates are in pretty good moods right now. The Supreme Court ruled that if a state has a school choice program, it cannot exclude options simply because they are religious. It is a major win, but at least two more big legal steps must be taken to achieve full equality under the law.
The first step is ending the false distinction, which loomed over the Espinoza decision, between religious “status” and religious “use.” Basically, government cannot keep otherwise available aid from someone because they are religious but can do so if they intend to use the aid to advance religion.
Supreme Court precedent here is tricky in large part because of Locke v. Davey, a 2004 decision that determined Washington state could withhold college scholarship funding from someone who would use it for training to become a minister. The court found that withholding the money was constitutional because of how it would be used: to train someone to promote religion.
At this point, Locke is clearly inconsistent with the core rationale that the Supreme Court has otherwise been following when it comes to state aid programs and religion: Government must be neutral, neither favoring nor disfavoring religion. …
… Locke does not fit the basic and just neutrality rationale. It is not neutral to allow aid to go to people if they choose any profession but one that advances religion. Neutrality is allowing aid to go to people for whatever education they choose, including those that advance religion. …
… To fix this, the Supreme Court needs to rule in a future case that government can draw no line between religious “status” and “use.” Religious “status” without “use” is dead, and discrimination is discrimination.