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Cambridge, Mass. — First-year Harvard Law School student Joshua Davey recently attended a faculty discussion of the top cases before the U.S. Supreme Court this fall. Panelists discussed a potential landmark church-state case in which a Christian college student challenged a Washington state law that prohibits theology majors from receiving state scholarship money. The case is called Locke v. Davey , 02-1315, set for argument Tuesday, and Joshua Davey, 1L at Harvard, is that Christian student whose case is before the high court. “They didn’t know I was there,” Davey says, smiling. “But they said I’d win.” At Harvard Law School — a constitutional crossroads — you might think that a student whose name will be in the con law casebooks would attract attention. But, in fact, the plaintiff in what could be the biggest church-state case in years is hiding in plain view. Hardly anyone on campus seems to know that Davey, 23, is a Supreme Court celebrity. Several students and faculty members contacted for this story had not made the connection between the case and the Josh Davey they knew. Davey, quiet and unassuming in manner, does not seem to mind his anonymity a bit. “He’s not parading around the fact that he’s in the case — not much time for that for first-year students anyway,” says Lucas Osborn, head of the law school’s Christian student fellowship group. In fact, Davey still seems slightly stunned that he is here at Harvard at all — a sharp detour from his earlier plans to be a minister in Washington state. He was pursuing that career goal at Northwest College, a small Christian school in Kirkland, Wash., that is affiliated with Assemblies of God — similar to his own Foursquare denomination. He applied for a state Promise Scholarship, open to high-achieving low-income high school graduates. But the scholarship is not available to students majoring in theology — an exception that has roots in the strong church-state barrier written into Washington’s state constitution. When Northwest College financial aid officials in 1999 told Davey that his planned major in pastoral ministries would make him ineligible for the $1,125 scholarship, Davey was shocked. His spiritual calling, he says, had turned him into a “second-class citizen in the eyes of the state.” After a lot of prayer, Davey says he decided not to change his major, but to challenge the law instead. “To take the scholarship and change my major would have been a lie,” Davey says. Ironically, that decision ultimately led Davey away from the ministry and toward a new career goal as a lawyer. He worked on his case with the American Center for Law and Justice, and especially its chief counsel, Jay Sekulow. “I began to see that you can do things for other people as a lawyer, too,” Davey says. “These lawyers were doing things for me.” He adds, “It is a rare preacher or clerical figure who can have the impact on society that a lawyer has.” As his case made its way through the courts, Davey studied for the LSAT. He scored in the 99th percentile and, with a straight-A average in college, he applied to some top law schools. Davey says he mentioned his own case in some of his application essays, but doubts that had much to do with his chances of success. He was wait-listed at Yale and Stanford and accepted at Harvard and the University of Michigan. He chose Harvard and says, “I’m the first person from my school to attend here.” As for his college scholarship battle, Davey was rejected at the district court level, but he won before the Ninth Circuit U.S. Court of Appeals. By singling out theology majors for disfavor, the Washington law “lacks neutrality on its face,” wrote Judge Pamela Rymer, and violated Davey’s right of free exercise of religion under the First Amendment. The state of Washington appealed, claiming that its legitimate funding choice did not keep Davey from majoring in theology-or exercising his faith. Two days after Davey graduated from Northwest in May, the Supreme Court granted review. Since then, the case has been largely out of Davey’s hands, though he has seen drafts of briefs and attended a Nov. 20 moot court rehearsal for Sekulow. “I normally don’t have the client attend my moots,” says Sekulow. “But Josh is different.” Sekulow calls Davey a “deep thinker” who will go far in his new career trajectory as a lawyer. Davey may clerk for Sekulow next summer. “This case caught his attention, and he became fascinated with the law.” NEW ROUND IN CHURCH-STATE FIGHT Davey’s case has also caught the attention of dozens of scholars and civil liberties and religious rights organizations. It came to the court at a pivotal time in the development of its church-state doctrine. The high court in June 2002 ruled in Zelman v. Simmons-Harris that local governments could enact school voucher programs that subsidize tuition for parochial schools, without violating the establishment clause. That ruling prompted the next logical question: If the establishment clause is interpreted to mean that governments could provide taxpayer dollars to religious schools, does the free exercise clause mean that they must do so? Zelman also opened up a second battlefront crucial to the voucher movement. No matter what the First Amendment to the U.S. Constitution provided, 37 state constitutions — including Washington’s — erect a higher barrier between church and state, many explicitly forbidding any expenditure of public money for religious schools or institutions. In the wake of Zelman , school voucher opponents vowed to take their battle to state courts and exploit these state constitutional provisions. Known collectively as Blaine amendments after James Blaine, the Maine congressman who sought to amend the U.S. Constitution along similar lines in 1875, many of these provisions have been weakened over the years by state court rulings. But many still have enough vitality to pose a major obstacle to vouchers. Into this mix came Joshua Davey’s case, almost by accident, and it has become the crucible for both post-Zelman debates. The 1969 Washington law invoked to deny Davey his scholarship stems from one of its own Blaine-style constitutional provisions enacted in 1889. Locke v. Davey was not the voucher-related Blaine amendment case either side was primed for, and the Supreme Court’s decision to accept the case was unexpected. “We were surprised the Supreme Court took it. We thought the issue would percolate in the courts some more,” says Steven Green, a professor at Willamette University College of Law in Salem, Ore., and formerly a lawyer for Americans United for Separation of Church and State. With the battle joined and the briefs filed in Locke v. Davey , it is apparent that the Blaine amendment debate has almost overtaken the dispute over Davey’s scholarship — even though Davey does not directly challenge Washington’s Blaine amendment. Washington state Solicitor General Narda Pierce, who will argue before the Supreme Court, says Blaine amendments “should not be an important consideration” in resolving the case. Green was first out of the gate with a brief on behalf of legal scholars and historians that portrays state Blaine Amendments benignly, as legitimate enactments based at least in part on “notions of religious liberty and liberty of conscience.” Another brief, by the American Jewish Congress, suggests that the Blaine amendments were motivated by “legitimate fear [that] only in hindsight can be dismissed as unfounded” that the Catholic Church in the 19th century was seeking to establish itself as America’s official church. Numerous briefs on Davey’s side paint a darker picture. The Becket Fund for Religious Liberty, which has targeted Blaine amendments for years, traces them back to nativist and anti-Catholic movements in 19th century America. Referring to this history, the brief by Kevin Hasson asserts, “This case presents the court with the opportunity to expose it and condemn it, once and for all — to tear out, root and branch, the state constitutional provisions that have enforced religious discrimination in the funding of education for well over a century.” Public schools at the time were “pervasively and intentionally Protestant institutions, hostile to the Catholic faith,” according to a similar brief filed by the Institute for Justice, a leading pro-voucher organization. “They are part and parcel of this nation’s dirtiest linen,” says the institute’s Richard Komer, who wrote the brief. HEARING HISTORY Why so much focus on the Blaine amendment issue? Strategists on both sides of the case say that the Supreme Court is likely to be closely divided on the direct question that Davey poses about Washington’s scholarship ban. And swing justices Sandra Day O’Connor and Anthony Kennedy may not want to support Washington’s law if they believe their vote would also embrace anything that retains the odor of anti-Catholicism. “The Blaine issue is part of the atmospherics of the case,” says Sekulow. “I can’t imagine they will say the Blaine amendments are OK.” In fact, seven justices in recent cases — all except O’Connor and Ruth Bader Ginsburg — have signed on to opinions that have made brief but negative references to Blaine amendments. “History is increasingly important to the court, and nowhere more so than in the First Amendment area,” says Willamette’s Green. Recasting the story of Blaine amendments more positively, he adds, will “shore up the legitimacy of the state interest” in not funding theology majors. On the scholarship issue itself, a battle of perceptions will also be waged before the high court. As he has in the past, Sekulow will portray his client as someone whose free speech as well as free exercise rights have been violated. “It’s Rosenberger . It’s free speech,” says Sekulow, referring to the 1995 decision in Rosenberger v. University of Virginia , which said public universities could not single out religious student publications and not fund them. Solicitor General Theodore Olson will also argue on Davey’s side. “The First Amendment prevents the state from singling out and excluding religious viewpoints from the educational opportunities and university discourse that the state otherwise chooses to subsidize,” Olson writes. Pierce counters that Washington’s scholarship program does not create a “platform for speech” in which all viewpoints must be allowed. Instead, she points to early abortion funding and other cases that state that government need not provide tax dollars to support all constitutionally protected activities. “We don’t believe the state of Washington is required to provide funding for religious beliefs.” To Davey’s mind, “it’s not an easy case. It’s not a slam-dunk either way.” His brief time at Harvard, he says, has helped him think “in a lawyerlike fashion,” seeing and understanding both sides of an issue. He is also talking like a Supreme Court strategist, even though he won’t take constitutional law until next year. “Did they take the case so they could reverse the Ninth Circuit?” he asks, hoping the answer is no. “Or did they take it so they could turn the Ninth Circuit into a nationwide precedent?” He won’t predict the outcome. “It’s an interesting puzzle.” Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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