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Locke v. Davey: States' Rights Meets the New Establishment Clause
Tulsa Law Review (2004)
  • Martin H. Belsky, University of Akron School of Law

In early 2001, a number of Oklahoma state representatives introduced Oklahoma House Bill 1859. This proposed legislation stated that the Department of Corrections and private correctional facilities were to:

(1) promote the availability and development of faith-based programs; (2) keep records on recidivism rates for all inmates participating in faith-based or religious programs; (3) increase the number of volunteers ministering to inmates in various faith-based institutions in the state; and (4) develop community linkages with churches, synagogues, mosques, and other faith-based institutions to assist in the release of participants back into the community. The legislation was opposed by the Oklahoma Department of Corrections on state and federal constitutional grounds. The bill went nowhere. In May of 2003, I was asked to address the annual Oklahoma Prison Chaplain's Training Conference. The topic was to be ‘faith-based services.‘ Ministers of all faiths and all political affiliations wanted to know what the law was concerning services they or church groups could provide to prisoners. Specifically, they wanted me to address the validity of proposed legislation that would have promoted a new ‘faith-based re-entry program‘ for prisoners. Again, the Oklahoma Department of Corrections was opposing the legislation, based on state and federal constitutional grounds.

I thought the issue was clear. For a number of years, the Supreme Court had been moving away from the so-called ‘Lemon test,‘ established in 1971. That *280 three-part standard, premised on a strict separation of church and state, was an almost total bar on government funding, directly or indirectly, of religion. Because of a change in the membership of the Court, more recent Supreme Court cases have implicitly overruled the three-part Lemon test and said that a rule or regulation ‘does not violate the Establishment Clause unless it indicates a government ‘endorsement’ of religion or the law actually ‘coerces' someone to be involved in a religious activity. ‘ Neutrality was the key. Under this new analysis, faith-based programs, I believed, were now presumptively constitutional.

Moreover, in Zelman v. Simmons-Harris, the Supreme Court had recently approved an Ohio voucher program that gave students and their parents the choice to use government money (vouchers) for private secular or parochial schools. Specifically, the Court held this was a ‘neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, [and thus did not carry] with it the imprimatur of government endorsement.‘

Surely, if the Constitution can allow students and parents to receive government money and attend a religious school, it would allow government money for prisoners or substance abusers to select faith-based services. In my mind, the issue of faith-based services was no longer a legal or constitutional question, but only a political one.

Lawyers from the Oklahoma Department of Corrections disagreed. Oklahoma is one of thirty-seven states that had state religion clauses, called ‘Blaine Amendments,‘ that provided independent bars to government funding of *281 religious entities or activities. [FN10] While the various states' provisions differed, Oklahoma's Blaine amendment was a complete bar to any government funding of sectarian programs:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such. Despite my own personal preferences, I disagreed with the legal advisors to the Oklahoma Department of Corrections. This was a post-9/11 world. Faith-based services were being touted, with some evidence, as being successful, and especially in education and treatment. Oklahoma is a ‘Bible Belt‘ state. Whether I agreed or disagreed with the cases leading up to Zelman, I could not believe that a state constitutional provision would be interpreted by the state courts to be more restrictive than the federal Establishment Clause. Moreover, I believed that the federal courts would not allow state laws to be upheld that were inconsistent with federal policy, as expressed by the federal legislature, and approved by the Supreme Court.


This article will explore why my absolute certainty as to how the Court would rule in Locke v. Davey was so misplaced. Individual justices had to balance their concerns about state power and sovereignty with a desire to lessen government's ability to assist religious entities. Specifically, Justices O'Connor, Kennedy, and even Chief Justice Rehnquist felt that a ‘play in the joints‘ between these two philosophical premises allowed a particular state constitution to restrict government aid to religion and religious institutions in that state, even where the federal Constitution would allow and even encourage it.

  • states' rights
Publication Date
Citation Information
Martin H. Belsky, Locke v. Davey: States' Rights Meets the New Establishment Clause, 40 Tulsa Law Review 279 (2004).