Appeals court upheld Virginia's theology tuition exclusion 20 days before Becket called it "constitutionally indefensible"

The sentence doing the work in Johnson v. Fleming is not a court's. Announcing an amicus brief in that case, the Becket Fund for Religious Liberty stated that "Virginia's discriminatory policy is constitutionally indefensible, historically illiterate, and breaks one of our best national traditions." The announcement text read for this piece names no individual speaker, so the words belong to the organization rather than to any lawyer, and that text never mentions Johnson v. Fleming at all: the connection between the sentence and the case comes from the page's title and address, not from its body.

Becket's separate case page supplies the who and the argument. The brief, that page states, was filed "on behalf of retired Chaplains Douglas L. Carver and Thomas J. Solhjem, who both retired at the rank of Major General and served as the Army's 22nd and 25th Chief of Chaplains, respectively." The same page sets out the engine of the complaint: "the Guard requires its chaplains to have a master's degree with at least 36 credits in theology, but signing up for a theology degree gets them cut from the tuition assistance program." The mechanism, on that account, runs in a circle - the state asks for a credential and then declines to help pay for the only coursework that produces it. The 36-credit figure is Becket's own characterization of Guard policy. No Defense Department instruction was retrievable for this piece to test it against, and no text of the amicus brief itself could be obtained, so everything attributed to the chaplains' side here comes from Becket's public pages rather than from a filing.

That is the claim, and it is a serious one. Now the record, which is a different document in a different case.

In Hall v. Fleming, an appellate opinion whose text was read for this piece through FindLaw's mirror, Bethany M. Hall sued A. Scott Fleming in his official capacity as director of the State Council of Higher Education for Virginia, bringing a free-exercise claim under 42 U.S.C. § 1983. The district court granted the motion to dismiss with prejudice, and the appeals panel affirmed. Fleming is a defendant by office; nothing in the opinion, and nothing here, is a finding about him personally.

The reasoning is the part that bears on the campaign now under way. Hall's side argued that the Supreme Court's recent religious-funding decisions had displaced Locke v. Davey, the ruling that allowed a state to decline to fund devotional theology degrees. The panel refused that reading, and put it flatly: "Trinity Lutheran did not abrogate or overrule Locke; it instead reaffirmed Locke's holding." Espinoza, the opinion adds, offers no account of why Locke should drop out of free-exercise analysis. Describing what the state had actually done, the panel wrote that Virginia had "merely chosen not to fund a distinct category of instruction," and it treated a devotional theology major as closer to a religious calling than to an ordinary course of study. The opinion records that Hall received no grant for the 2023-2024 and 2024-2025 academic years; it does not state, in the text read for this piece, the reason her application failed.

Two Virginia statutes sit underneath all of this, and they are not built the same way. Section 23.1-628 establishes the Tuition Assistance Grant Program for students at eligible private nonprofit institutions and writes the disqualification into the law itself: an eligible institution is one whose primary purpose is "to provide collegiate, graduate, or professional education and not to provide religious training or theological education." Section 23.1-610, the Virginia National Guard State Tuition Assistance Program, conditions its grants on service and paperwork instead - a member must have "a minimum remaining obligation of two years," and must apply "no later than 30 days prior to the beginning of an academic semester" - and in the text read for this piece it carries no religious exclusion at all. One caveat belongs with that asymmetry: the opinion calls the grant at issue the VTAG Program and never expands the acronym, and § 23.1-628 never uses it, so treating the two as the same program rests on their shared eligibility sentence rather than on any statement in either document.

The general-audience coverage is thinner than the litigation record. A Stars and Stripes report, dated June 3, 2026 by its address, carries the account that students may pursue "myriad different secular programs and even some religious programs in college while remaining eligible for both the State Tuition Assistance and National Guard Grants," while programs officials deem religious training or theological education are out of reach; the same report carries a line that policies treating religious students as second-class citizens have no place in the law, and the captured text does not establish whose voice either passage is. Charisma Magazine Online's account describes excluding students from a state grant "simply because their choice of major is religious" as discriminatory and states that "Locke betrayed the Founder's commitment to religious liberty," again with no speaker identifiable in the captured text. Catholic World Report published on the subject in August 2026; the snapshot of that article read for this piece holds two words of body text, too little to support any characterization, so none is drawn from it here.

As analysis, grounded only in the documents cited above: the target of this litigation is not really Virginia. The exclusion the advocacy calls indefensible is the same exclusion an appellate panel has already examined and left standing, and it left it standing on a precedent that both the announcement's framing and the Charisma account attack by name. A state legislature could repeal the sentence in § 23.1-628 tomorrow; that is a different remedy from the one being sought, which is the removal of Locke v. Davey from the analysis.

What a reader can check next is concrete. The first test is whether the panel hearing Johnson v. Fleming distinguishes Hall v. Fleming or follows it, and the docket in that case will show it. The second is legislative: § 23.1-628 still contains the exclusion, and the Virginia General Assembly can strike it without any court's permission. The third is administrative and runs on a clock already written into § 23.1-610, whose applications fall due 30 days before each semester begins, which means the students in these suits face the same decision again before the spring term.

A prediction, offered as analysis and checkable by date: because the published opinion holds that Locke was reaffirmed rather than displaced, no panel decision in the same circuit granting relief on these facts, and treating Trinity Lutheran as having overruled Locke, will issue on or before June 30, 2027, absent rehearing en banc or Supreme Court intervention. If one does, the reading offered here was wrong.