Locke v. Davey Remains Controlling: States May Exclude “Vocational Religious” Majors from Tuition Grants Absent Supreme Court Overruling

I. Introduction

In Bethany Hall v. A. Scott Fleming (Fourth Circuit, May 13, 2026), plaintiff-appellant Bethany M. Hall, a Liberty University undergraduate, challenged Virginia’s Tuition Assistance Grant Program (“VTAG Program”) under 42 U.S.C. § 1983, alleging that Virginia’s denial of VTAG funds after she switched into a “religious vocation” major violated the Free Exercise Clause of the First Amendment. The defendant-appellee, A. Scott Fleming, was sued in his official capacity as Director of the State Council of Higher Education for Virginia (“SCHEV”), the agency administering VTAG.

The central legal question was narrow but consequential: whether the Supreme Court’s modern Free Exercise decisions—Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, and Carson ex rel. O.C. v. Makin—had effectively displaced Locke v. Davey such that lower courts could treat Locke as no longer controlling. Hall conceded the facts were “on all fours” with Locke, but argued that Locke had been functionally overruled.

II. Summary of the Opinion

The Fourth Circuit affirmed the district court’s dismissal with prejudice. Judge Benjamin’s majority opinion held:

  • Locke v. Davey, 540 U.S. 712 (2004), directly controls challenges to state aid programs that exclude funding for “vocational religious” (clergy-training) degrees.
  • Trinity Lutheran, Espinoza, and Carson did not overrule or abrogate Locke; each distinguished it and reaffirmed its narrow domain.
  • Under Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), lower courts must follow directly controlling Supreme Court precedent unless and until the Supreme Court itself overrules it.

Judge Richardson concurred, agreeing that Locke binds the court, but forcefully arguing that Locke was wrongly decided and should be formally overruled by the Supreme Court; he also addressed whether lower courts may ever treat disfavored Supreme Court precedents as implicitly abandoned, concluding they may not do so here.

III. Analysis

A. Precedents Cited

1. Locke v. Davey (the controlling rule)

The majority treated Locke v. Davey as the decisive comparator. In Locke, Washington created a scholarship program for college students but excluded those “pursuing a degree in theology.” The Supreme Court upheld the exclusion, emphasizing:

  • The state “merely chose[] not to fund a distinct category of instruction.”
  • Recipients could still attend religious schools and take devotional theology courses.
  • The exclusion was tied to a “historic and substantial state interest” against using taxpayer funds to train clergy, a hallmark concern associated with establishment.

The Fourth Circuit found Virginia’s VTAG restriction materially identical in operative effect: Hall’s ineligibility arose from her selection of a CIP Code 39 major (“prepare individuals for the professional practice of religious vocations”), i.e., a vocational religious course of study.

2. Trinity Lutheran Church of Columbia, Inc. v. Comer (status discrimination; distinguishes Locke)

Trinity Lutheran, 582 U.S. 449 (2017), invalidated Missouri’s categorical “no churches need apply” policy excluding churches from a playground resurfacing grant. The Fourth Circuit emphasized the Supreme Court’s own framing: Trinity Lutheran concerned discrimination “solely because of [religious] character,” whereas Locke involved a refusal to fund “a distinct category of instruction” (vocational theology).

The Fourth Circuit relied on Trinity Lutheran not as an overruling of Locke, but as a reaffirmation of Locke’s narrow carve-out: the “training of clergy” context is different from blanket exclusion of a religious entity from a public benefit.

3. Espinoza v. Montana Department of Revenue (status discrimination; reaffirms Locke’s narrowness)

In Espinoza, 591 U.S. 464 (2020), Montana barred scholarship use at religious schools. The Supreme Court invalidated the ban because it turned on religious “status” (religious character). The Fourth Circuit highlighted Espinoza’s express treatment of Locke: it distinguished the denial of funds for ministerial preparation from the categorical disqualification of religious schools “simply because of what [a school] is.”

The Fourth Circuit used Espinoza as evidence that the Supreme Court continues to preserve Locke (rather than silently extinguish it), repeatedly returning to the “historic and substantial” antiestablishment interest in not funding clergy training.

4. Carson ex rel. O.C. v. Makin (use discrimination; still cabins Locke)

In Carson, 596 U.S. 767 (2022), Maine excluded “sectarian” schools from a tuition program. The Supreme Court held that discrimination based on religious “use” is also unconstitutional and stated that Locke could not help Maine. The Fourth Circuit read Carson the same way the Supreme Court wrote it: Locke survives, but is confined—“only a ‘vocational religious’ degree was excluded.”

Thus, the very passage that made Carson so important for Free Exercise claimants also made it decisive here for the government: Carson did not erase the vocational-degree exception; it described it as narrow and distinct.

5. Lemon v. Kurtzman, Am. Legion v. Am. Humanist Ass’n, and Kennedy v. Bremerton Sch. Dist. (rejected analogy)

Hall attempted to analogize her request to treat Locke as dead letter to the Supreme Court’s treatment of the Lemon v. Kurtzman, 403 U.S. 602 (1971), test. The Fourth Circuit rejected that analogy. It noted the Supreme Court explicitly stated in Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29 (2019), and Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022), that Lemon had been abandoned. By contrast, the Supreme Court has made no comparable explicit repudiation of Locke.

6. Vertical stare decisis: Rodriguez de Quijas v. Shearson/Am. Express, Inc. and related authority

The majority anchored its method in the Supreme Court’s instruction in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989): lower courts must follow directly controlling Supreme Court precedent and leave overruling to the Supreme Court. The concurrence amplified this theme by citing Agostini v. Felton, 521 U.S. 203 (1997), and Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023), as further confirmation of strict vertical stare decisis.

7. Additional authorities in the concurrence (critiquing Locke and discussing abandonment)

Judge Richardson’s concurrence cited a wide range of cases to argue that Locke is historically and doctrinally unstable, including:

  • Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (non-neutral laws burdening religion trigger strict scrutiny).
  • Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint neutrality; discussion of special benefits vs general programs).
  • N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) (history-and-tradition method, invoked by analogy).
  • Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020), and Elrod v. Burns, 427 U.S. 347 (1976) (irreparable harm from loss of First Amendment freedoms).
  • Planned Parenthood S. Atl. v. Kerr, 95 F.4th 152 (4th Cir. 2024), and Medina v. Planned Parenthood S. Atl., 606 U.S. 357 (2025) (debate over “abandonment” signals).
  • Trump v. Boyle, 145 S. Ct. 2653 (2025), and Nat’l Insts. of Health v. Am. Pub. Health Ass’n, 145 S. Ct. 2658 (2025) (reaffirming lower courts cannot overrule Supreme Court precedent).

While these citations did not alter the case’s outcome, they frame a growing intra-judicial dialogue: whether Locke is a narrowing exception in Free Exercise doctrine or an anomaly awaiting formal overruling.

B. Legal Reasoning

1. The court’s controlling move: factual identity + binding precedent

The majority’s reasoning is intentionally spare: Hall conceded her case is materially indistinguishable from Locke. That concession makes the doctrinal question dispositive—whether subsequent Supreme Court decisions abrogated Locke. The Fourth Circuit answered “no” because the Supreme Court itself repeatedly distinguished Locke rather than disavow it.

2. Status vs. use vs. vocational-degree carve-out

The court treated the modern “status/use” framework (prominent in Espinoza and Carson) as compatible with—rather than fatal to— Locke, because Locke is characterized as a distinct category: exclusion of funding for a vocational religious degree (training for ministry). The opinion repeatedly returns to the Supreme Court’s own language distinguishing “a distinct category of instruction” from blanket exclusion of religious organizations.

3. The antiestablishment interest as a preserved justification

The majority’s analysis tracks the Supreme Court’s recurring observation that funding clergy training is historically sensitive. Regardless of modern Free Exercise expansion in other education-funding contexts, the Supreme Court has continued to describe clergy-training funding as uniquely situated.

4. Methodological constraint: lower courts may not anticipate overruling

The opinion’s institutional reasoning is as important as its Free Exercise reasoning: even if the doctrinal wind is shifting, Rodriguez de Quijas bars courts of appeals from treating a directly controlling Supreme Court case as overruled “in effect.” The concurrence underscores that even a “moth-eaten shell” of precedent remains binding when it still “directly controls” the dispute.

C. Impact

1. Immediate doctrinal impact (Fourth Circuit)

The decision cements, at least within the Fourth Circuit, that state tuition-aid programs may exclude funding for majors categorized as vocational religious training (here, CIP Code 39-series programs) without violating the Free Exercise Clause—so long as the program resembles Locke rather than the categorical exclusions invalidated in Trinity Lutheran, Espinoza, or Carson.

2. Litigation impact: where plaintiffs will (and won’t) have traction

  • Harder claims: facial challenges to clergy-training/ministerial-degree exclusions closely tracking Locke, especially where religious institutions remain otherwise eligible for participation and funds can be used at religious schools.
  • Stronger claims: exclusions based on religious character (status), or broad “sectarian” bans that deny access to generally available benefits for religious schools or organizations as such.

3. Practical program-design implications

Virginia’s program illustrates an administrable approach: using a neutral-seeming classification system (CIP codes) to define “religious vocation” programs, and permitting continued eligibility for double majors under certain credit-balance conditions. Future program challenges may focus on whether such classifications are applied neutrally and consistently, but Hall suggests that, at least where the classification aligns with vocational religious training, Locke supplies a safe harbor.

4. Broader doctrinal significance: the “future of Locke” question remains open

The concurrence functions as an invitation for Supreme Court review. By stating plainly that Locke “was wrongly decided” and “should formally overrule it,” the concurring opinion helps crystallize the issue for future certiorari petitions: whether the vocational-degree exception can coexist with the Supreme Court’s increasingly robust anti-discrimination Free Exercise doctrine.

IV. Complex Concepts Simplified

  • Free Exercise Clause: the First Amendment protection against government actions that prohibit or burden religious exercise.
  • Establishment Clause: the First Amendment limit on government establishing religion; historically implicated by state support of clergy.
  • “Status” discrimination vs. “use” discrimination: excluding someone because they are religious (status) versus because they will use funds for religious activity (use). Carson treated both as constitutionally suspect—yet still preserved Locke as a narrow vocational-degree case.
  • “Vocational religious degree” (clergy training): a course of study aimed at preparing someone for ministry or religious vocation; the Supreme Court has treated this as a special historical category.
  • Vertical stare decisis: lower courts must follow higher-court precedent. Even if later cases undermine the logic of an older case, lower courts generally cannot declare it overruled.
  • Abrogation/implicit overruling: the idea that later decisions so conflict with an earlier one that the earlier one is no longer good law. Hall rejects that characterization for Locke because the Supreme Court has continued to cite and distinguish Locke rather than repudiate it.
  • CIP Code 39: a federal education taxonomy used here as a proxy for identifying majors associated with professional religious vocations; Virginia uses it to define VTAG ineligibility.

V. Conclusion

Bethany Hall v. A. Scott Fleming is a precedent about precedent as much as it is a Free Exercise case. The Fourth Circuit held that where a state tuition-aid program excludes funding for “vocational religious” degrees—while otherwise allowing aid to flow to students at religious institutions—Locke v. Davey remains controlling, and modern cases like Trinity Lutheran, Espinoza, and Carson do not permit lower courts to treat Locke as silently extinguished.

The majority cements Locke’s continuing force in the precise setting the Supreme Court has repeatedly called “narrow.” The concurrence, however, signals a brewing doctrinal reckoning: if the Supreme Court’s current Free Exercise framework cannot be reconciled with a categorical exclusion of ministry preparation from public benefits, the final resolution must come from the Supreme Court itself—not from lower courts attempting to read between the lines.