I wonder: Would it indeed, given Locke, be unconstitutional for
the state to bar all studies which in effect are focused on devotional
theology, setting aside the major? (Imagine a cap on the number of such
classes you could take.) It would surprise me if "major" became a
constitutionally significant category.
As to the state's antiestablishment being weaker, why? In both
instances, the state is claiming an interest in keeping tax money from
flowing, even as a result of private choice, to religious education (or,
in Alan's modification, in which the state barred the religious donation
or tithing of aid money, to churches). Why can't the state assert that
its interest is identical, and identically strong, in both contexts?
Eugene
Dan Conkle writes:
> As I read the opinion, Locke v. Davey applied a sort of
> balancing test. As Mark notes, the Court found a strong and
> historically recognized antiestablishment interest on the
> part of the state. At the same time, the Court also found
> the free exercise burden, if any, to be slight. The Court
> concluded that the state's disfavor of religion was minimal
> and did not suggest hostility. The Court might well find a
> greater burden--and perhaps increased evidence of
> hostility--if a state were to bar welfare recipients from
> using their benefits for religious instruction. Note that
> Davey could have kept his scholarship and used it to study
> devotional theology, as long as he did not declare that field
> as his major.
>
> If I'm right, the balance tips differently in Eugene's
> hypothetical for each of two reasons: the state's
> antiestablishment interest is weaker and the burden on free
> exercise is greater.
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