In Hall v. Fleming, (4th Cir., May 13, 2026), the U.S. 4th Circuit Court of Appeals upheld the constitutionality of a Virginia Tuition Assistance Grant Program that denies grants to undergraduate students studying in programs that provide religious training or theological education, The court said that the facts of this case are directly analogous to those in the Supreme Court case of Locke v. Davey which upheld the constitutionality of a Washington tuition grant program with nearly identical exclusions. So, in the court's view, the only question is whether the later Supreme Court decisions in Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin effectively overruled Locke. The court held that the Supreme Court has not overruled or abandoned its decision in Locke, saying in part:
... [I]n the absence of any statement from the Supreme Court questioning or rejecting Locke’s holding, it is still the law. We must therefore faithfully apply it.
Judge Richardson filed a concurring opinion, saying in part:
I write separately because Locke was wrongly decided. It betrays the founding generation’s commitment to religious liberty, and the Supreme Court should formally overrule it. But, until the Court does, Locke binds us—even as a moth-eaten shell of its former self.
