In a 7-2 decision,
Locke v. Davey, the Supreme Court ruled that Washington State could deny a college student a Promise Scholarship because he chose to major in pastoral ministries, which the state classifies as a "devotional theology degree" and hence contravenes the State Constitution’s bar against "public money" used for "the support of any religious establishment." Scalia and Thomas wrote the only dissents to Rehnquist’s majority opinion.

Rehnquist argued that the state’s program does not violate the 1st Amendment’s "free exercise of religion" clause because the "State’s interest in not funding the pursuit of devotional degrees is substantial, and the exclusion of such funding places a relatively minor burden on Promise Scholars." Here is the Court’s conclusion:

[T]he entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits, since it permits students to attend pervasively religious schools so long as they are accredited, and students are still eligible to take devotional theology courses under the program’s current guidelines. Nothing in the Washington Constitution’s history or text or in the program’s operation suggests animus towards religion. Given the historic and substantial state interest at issue, it cannot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey’s claim must fail.

Scalia’s dissent, joined by Thomas, drew upon the precedents of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) and Everson v. Board of Ed. of Ewing (1947). He argued that

When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.