Prospective pastor fights Virginia tuition aid ban for religious degrees at Fourth Circuit

RICHMOND, Va. (CN) — A prospective youth pastor argued before the Fourth Circuit on Wednesday that a Virginia policy barring the use of public funds for vocational religious degrees violates the Constitution.

Bethany Hall claims she heard a call to ministry before deciding to study music and worship with a focus on youth ministries at Liberty University, a private Baptist college in Lynchburg, Virginia. Hall applied and was denied access to the Virginia Tuition Assistant Grant Program, a scholarship worth $5,000 per school year.

Hall claims the state’s decision not to spend public funds on vocational religious degrees violates the First Amendment’s Free Exercise Clause, prompting her to sue the director of the State Council of Higher Education for Virginia, Scott Fleming. A lower court dismissed the challenge, relying on the Supreme Court’s decision in Locke v. Davey. In this nearly identical case, a theological student challenged a policy that prohibited the award of the Washington State Promise Scholarship to those pursuing religious studies.

“A brief review of Locke and the Supreme Court’s subsequent Free Exercise decisions compels this court’s dismissal of plaintiff’s complaint,” U.S. District Judge David Novak, a Donald Trump appointee, wrote.

Hall argues subsequent Supreme Court decisions overruled *Locke.*In *Carson v. Makin,*a 6-3 majority ruled Maine’s restriction of school vouchers to secular schools violated the Free Exercise Clause. In *Trinity Lutheran Church of Colombia v. Comer,*the Supreme Court held that a Missouri law that disqualifies churches from receiving grants under a playground resurfacing program also violated the Free Exercise Clause.

The government argues the recent decisions are distinct from Lockebecause, in the subsequent cases, the state governments prohibited funding based on the fundseeker being a church or a religious school, while in Locke, Washington funded secular majors at religious institutions but drew the line at majors that prepared students for careers in ministry.

“Lockeinvoked a historic and substantial state interest in not funding the training of clergy that was absent in these three cases,” the government wrote in its brief. “As* Locke* directly applies to the claims and facts presented by Hall’s case, the district court rightly granted Fleming’s motion to dismiss.”

Hall is hoping to get the case before the Supreme Court, which now has a majority of conservative justices, unlike when the high court ruled in Locke.

“You may well have a winner at the Supreme Court,” U.S. Circuit Judge Steven Agee, a George W. Bush appointee, said. “We may agree the tea leaves show you might have a shot at this, but I don’t know if we have the ability to give you that shot.”

U.S. Circuit Judge Julius Richardson, a Trump appointee, asked whether a distinction could be made between* Locke*and Hall because Hall is pursuing a music major.

“Is there an argument that if we applied Locke as it stands, that your client somehow is different enough that it shouldn’t matter?” Richardson asked. “You might think of the music ministry as a little different.”

Attorney Steven Fitschen of the National Legal Foundation, representing Hall, said there are no distinguishable differences between his client and the plaintiff in Locke and that he prefers the panel find* Locke* is no longer good law.

Hall seeks a declaration that the policy violates the Constitution and an injunction requiring the state to pay all amounts she would have received under the Virginia Tuition Assistance Grant Program.

U.S. Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee, completed the panel. Attorneys representing Hall and the government did not respond to a request for comment.