Is Locke the Next Supreme Court Decision the Lower Courts Should Ignore?

I observed in a recent blog that the Supreme Court has begun to chide the lower courts for continuing to apply the Court’s own precedents that it has not yet formally overruled when later decisions of the Court cast doubt on their continuing viability. In particular, the Court in its 2022 decision Kennedy v. Bremerton School District criticized the Ninth Circuit’s (and other lower courts’) continued use of the three-part standard set out by the Supreme Court in Lemon v. Kurtzman 50 years earlier because the Court hadn’t used that standard in a decade. After Kennedy, the Court in another decision declared Lemon “abrogated.” I questioned in my blog whether the Court’s 1990 decision in Employment Division v. Smith might be suitable for similar interment.

At the end of this term, in Medina v. Planned Parenthood, the Supreme Court Lemon-ized three others of its decisions. At issue in Medina was whether a statutory provision of the Medicaid program granted individuals a private right of action under 42 U.S.C. § 1983. The Fourth Circuit (repeating its error in its second attempt after remand from the Court) held that it did, relying on a trio of Supreme Court precedents issued as late as 1997. Wrong. The Court pointed out that, in more recent cases, it had tightened up the analysis, making it harder to find a private right of action. It tongue-lashed the lower courts, including the Fourth Circuit, for continuing to rely on the analysis of its own decisions that it had overruled. It barked, “They should not,” and “To the extent lower courts feel obligated, or permitted, to consider the contrary reasoning of [the earlier trio of decisions], they should resist the impulse.” Like in Kennedy, the Court in Medina did not expressly overrule its earlier cases. But taking the Court at its word, we can assume that it has “abrogated” them, like it did Lemon.

It seems there’s a new game in town. The Supreme Court used to chide lower courts if, based on its more recent rulings, the lower court anticipated that the Supreme Court would overrule one of its precedents or that it had been abrogated. Now the Supreme Court is chiding them for following precedents that the Court doesn’t even take the trouble to overrule formally. So what’s the next Supreme Court precedent that the lower courts should consider in desuetude?

A good candidate is the 2004 decision in Locke v. Davey. In that case, the majority, over a strenuous dissent penned by Justice Scalia and joined by Justice Thomas, upheld the refusal of Washington State, pursuant to its constitution’s Blaine Amendment, to provide an educational scholarship to a student solely because he was studying for the ministry. The majority saw some purpose in allowing “play in the joints” between Free Exercise Clause and Establishment Clause interests, observed that many states refused to fund ministers, thought the failure to receive the funds a minimal burden on the student, and perceived no animus toward religion in the Blaine Amendment. It rejected Justice Scalia’s argument that a generally available public benefit provides the baseline for consideration of a burden on free exercise and that no such burden could properly be considered de minimis.

The Locke rationales have been completely undermined in a trio of later Supreme Court decisions. Thirteen years later, in Trinity Lutheran Church v. Comer, the Court had before it Missouri declining to grant an otherwise eligible school reimbursement for playground resurfacing because it was affiliated with a church. The Court, adopting Justice Scalia’s argument in his Locke dissent, used the generally applicable public benefit as the baseline to determine whether Missouri had burdened the free exercise of religion, and held that it had. It distinguished Locke because Washington had denied a benefit because the student was doing something religious (studied for the ministry), rather than because the student was a religious organization himself.

In 2020, the Supreme Court built on Locke in Espinoza v. Montana Department of Revenue. Montana established a tax credit system for private school tuition paid by parents, but it refused to reimburse tuition for religious schools due to its Blaine Amendment prohibiting funding of sectarian schools. The Supreme Court struck this down as penalizing the free exercise of religion. It also found that Blaine Amendments were “born of bigotry” against Catholics. But again, the Court distinguished Locke because Montana discriminated against religious schools simply due to their status, not because of their course of instruction.

That distinction fell by the wayside two years later in Carson v. Makin. Maine did not deny tuition reimbursement under its program to all religious schools, just those that were “sectarian” in their curriculum. Extending Trinity Lutheran and Espinoza, the Court pointed out that the Free Exercise Clause protects not just religious status, but religious behavior, presumably like pursuing a religious ministry degree. But the Court once again distinguished Locke, noting that it had a “narrow focus” of vocational religious degrees, something many states had refused to fund (albeit not in a generally applicable benefit program funding all vocations).

Obviously, the Supreme Court has painted Locke into a very small corner. One must wonder, though, if it really survives the more recent triumvirate of Trinity Lutheran-Espinoza-Carson. After all, why should studying for a theology degree not be considered almost a quintessential free exercise of religion? Why should that religious activity, alone, be allowed in generally applicable public benefit programs? Moreover, in Kennedy the Court jettisoned the “play in the joints” rationale that was front and center in Locke, holding in Kennedy that the religion clauses should be read in harmony and that the Establishment Clause does not provide an excuse to violate the Free Exercise Clause.

So what’s a lower court to do if it is confronted with a carve-out for ministerial training in a generally applicable grant or scholarship program? Locke is clearly “dead on its feet,” but it is still on its feet, not having been explicitly overruled or abrogated. Is the lower court meant to wait to be chided by the Supreme Court for not recognizing that later decisions have completely undercut Locke, or is it to apply Locke because the Court has continued to distinguish it, rather than overruling it? Both approaches have obvious risks and involve considerations of a lower court’s proper deference due to the Supreme Court. If a lower court considers what to do with a toss-up though, protection of an individual’s First Amendment rights would arguably be the tiebreaker, relegating Locke to its rightful place in the dustbin. Who knows, the Supreme Court might next compliment a lower court for properly divining that one of its precedents had been silently abrogated.