Twenty-two §25F states asked the Supreme Court to overrule Locke v. Davey, and the federal government wants ten minutes at the November 3 argument

Two weeks ago we wrote that two petitions were asking the Supreme Court to overrule Locke v. Davey, the 2004 decision that lets a state leave religious study out of an education benefit it otherwise funds. On September 14 the first of those petitions, Hall v. Fleming, No. 26-193, drew the filing that usually signals a petition is being taken seriously: a brief from West Virginia and twenty-one other states asking the Court to grant review and overrule Locke outright. “Locke v. Davey is an aberration,” the brief opens. “Under it, States can discriminate against religious students by excluding them from scholarship programs.”

The signatories are West Virginia, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Utah. Every one of them is on the IRS §25F participation roster for 2027. That repeats the pattern we found in August, when all 21 states backing the Catholic parishes in St. Mary v. Roy turned out to be participating states. The two coalitions are not identical. Indiana, Mississippi, Ohio, and Tennessee signed in Hall but not in St. Mary; Kentucky, Oklahoma, and Wyoming signed in St. Mary but not here. Counting both briefs, 25 of the 30 participating states have now told the Court that states should not be able to use religion to narrow a benefit program. The five that signed neither are Colorado, Nevada, New Hampshire, North Carolina, and Virginia, and Virginia is the state being sued.

The brief's most practical argument is about administration, not doctrine. Under the heading “Locke is causing concrete harm to the States,” the attorneys general describe a catch-22. A state that excludes religious degrees has to decide which programs are too religious to fund, which the Court has repeatedly warned is an entangling inquiry. A state that funds them anyway invites Establishment Clause suits from the other direction, and a lower court's blessing of the exclusion gives those plaintiffs something to cite. The brief's example is Virginia's own program, which it says funds a religious studies degree at one university while denying a pastoral leadership degree at another.

The same day brought a wave of private briefs supporting review, including from The Heritage Foundation, the American Center for Law and Justice, the Christian Legal Society and National Association of Evangelicals, Samaritan's Purse and the Billy Graham Evangelistic Association, the Notre Dame Education Law Project with the Union of Orthodox Jewish Congregations of America, the Jewish Coalition for Religious Liberty, and the Council for Christian Colleges & Universities. The Association of Christian Schools International and the American Association of Christian Schools, both K-12 school associations, had filed jointly on September 11. Virginia's response is due October 14.

There is also a third petition, which our September 1 post did not include. Johnson v. Fleming, No. 26-240, filed August 20 by Alliance Defending Freedom, involves three Liberty University students who say Virginia funds some religious degrees at their school while denying funding for theirs, under both the Virginia Tuition Assistance Grant and the Virginia National Guard State Tuition Assistance Program. It asks for certiorari before judgment, meaning review before the Fourth Circuit has ruled, and it asks the same two questions: whether a state may fund some religious degrees and not similar ones, and whether the Court should overrule Locke. Virginia's response is due September 24.

Meanwhile the case the Court has already agreed to hear gained a new participant. On August 31 the Solicitor General asked for leave to argue as amicus curiae in St. Mary Catholic Parish v. Roy, No. 25-581, proposing that the hour be split 20 minutes for the parishes, 10 for the United States, and 30 for Colorado. The United States had already filed at both stages, and its merits brief argues that Colorado's universal preschool program is subject to strict scrutiny and violates the Free Exercise Clause. The motion came a week after the deadline, and the government says so plainly: it “regrets that oversight and does not lightly make this request out of time.” The parishes consented. As of today the Court has not acted on it.

None of these filings mentions §25F, and it is worth saying precisely why they still matter to anyone building a scholarship organization. The federal statute does not tell a state to include or exclude religious schools. It asks a participating state to submit a list of qualifying organizations under §25F(g), and it sets the organizational tests itself. Whether a state can add conditions of its own when it builds that list is the open question we have tracked as federal floor or federal ceiling, and Locke is the strongest precedent a state would have for a religion-based condition. What these briefs show is that the states actually running §25F in 2027 are, almost without exception, on record against giving themselves that power.

The honest caveat is the same as two weeks ago. Most cert petitions are denied, and a large amicus showing improves the odds without guaranteeing anything. The likeliest sequence is still that St. Mary is argued on November 3 and decided by the end of June 2027, and that the Locke petitions are held until then. For an organization forming now, nothing here changes a federal requirement: 501(c)(3) public-charity status, a separate account for contributions, at least 90% of income to scholarships, and scholarships for at least ten students who do not all attend the same school. Work through those with the free SGO builder and follow your state on the participation map.