RICHMOND, Va. (CN) - The Fourth Circuit sided with Virginia Wednesday, ruling the commonwealth's decision not to fund vocational religious degrees doesn't run afoul of the Constitution. 

The three-judge panel considered a challenge to the policy from a student at Liberty University, a private Baptist college in Lynchburg, Virginia, who accused state officials of violating the free exercise clause of the First Amendment. The state denied Bethany Hall, a student studying music and worship with a focus on youth ministries, a $5,000-per-year scholarship through the Virginia Tuition Assistance Grant Program.

The panel agreed that the Supreme Court's 2004 decision in Locke v. Davey foreclosed the challenge. In Locke, the high court upheld a Washington state policy closing off a scholarship to those pursuing religious studies. 

Attorney Steven Fitschen of the National Legal Foundation, representing Hall, said in an interview his client is excited and hopeful that the Supreme Court will use the pending appeal to officially overrule Locke.

"The historical analysis in Locke was flawed," Fitschen said. "We certainly hope that the Supreme Court will grant cert in this case." 

U.S. Circuit Judge Julius Richardson echoed the sentiment in a concurring opinion, criticizing the Locke ruling. 

"It betrays the founding generation's commitment to religious liberty, and the Supreme Court should formally overrule it," the Donald Trump appointee said about Locke. But until the court does, Locke binds us - even as a moth-eaten shell of its former self." 

Richardson pointed to Justice Antonin Scalia's dissent in Locke, where the Ronald Reagan appointee argued the majority misunderstood the country's history of hostility to funding the clergy. 

"The difference between giving ministers special treatment and including them in programs available to everyone is one of kind, not degree," Richardson said. "Founding-era opposition to special funding does not provide a historical basis for carving religion out of generally available benefits."

Hall argued that despite being indistinguishable from the plaintiff in Locke, the Supreme Court had effectively abrogated the decision with its more recent rulings in Carson v. Makin, Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue.

Hall relied on the Supreme Court's 2022 establishment clause opinion in Kennedy v. Bremerton, in which the majority explicitly ditched its own precedent from the 1971 case Lemon v. Kurtzman. He insisted the high court has a history of abandoning its own precedent after using different approaches in subsequent cases. 

But U.S. Circuit Judge DeAndrea Gist Benjamin wasn't convinced.

"Nowhere in Trinity Lutheran, Espinoza or Carson did the Supreme Court make such explicit statements rejecting Locke's holding," Benjamin, a Joe Biden appointee, wrote for the majority. "In the absence of any statement from the Supreme Court questioning or rejecting Locke's holding, it is still the law."

In Carson, a 6-3 majority ruled that Maine's restriction of school vouchers to secular schools violated the free exercise clause. 

In Espinoza v. Montana Department of Revenue, the court held that Montana's rule prohibiting the use of tax-credit scholarships for religious schools discriminates against religious schools and families in violation of the free exercise clause. Benjamin said the decision doesn't abrogate Locke because, in Espinoza, the rule barred all aid to religious schools, forcing the plaintiffs to choose between being religious and receiving government benefits. In Locke, the student could still use public funds to attend religious universities and take theology courses, but he couldn't major in a degree akin to a religious calling. 

In Trinity Lutheran, the court determined a Missouri law disqualifying churches from receiving grants under a playground resurfacing program also violated the free exercise clause. Benjamin said the court distinguished Locke - where state chose not to fund a distinct category of instruction - from Trinity Lutheran, where Missouri denied a grant solely because the recipient is a church. 

Benjamin found the three cases differ from Locke in that they aren't about taxpayer funds supporting church leaders, which states have a historic interest in. 

"The effects of the state laws challenged in Trinity Lutheran, Espinoza and Carson were the same - to disqualify a religious organization or school from a generally available benefit, solely because of their religious character," Benjamin said. "The funding in Locke was intended to be used 'to prepare for the ministry,' but it could still be used for theology courses - only a 'vocational religious' degree was excluded.'"

Attorneys representing the state did not respond to a request for comment. U.S. Circuit Judge Steven Agee, a George W. Bush appointee, concurred with the other judges. 

"Locke v. Davey is a stain on our free exercise jurisprudence. And the Supreme Court has all but confined it to its facts," Richardson said. "But until the court formally buries Locke, we lower-court judges must keep applying it."

Source: Courthouse News Service