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Was Chief Justice William Rehnquist having a senior moment? Or was he just trying to help out a beleaguered lawyer standing before him? It was hard to tell during the second half of oral arguments in the key church-state case Locke v. Davey on Dec. 2. Lawyer Jay Sekulow, who has had impressive success in expanding the rights of the religious before the Supreme Court in the past, was in the midst of trying again. This time he represented Joshua Davey, who challenged a Washington state law that barred him from receiving a state scholarship because he wanted to major in theology. A sympathetic client to say the least, and Sekulow was expected to encounter little turbulence. Instead, the questioning was rough and incessant: Sekulow fielded nearly 40 questions in his allotted 20 minutes. In the thick of one barrage, Rehnquist leaned forward and asked, “Do you want to reserve the rest of your time, Mr. Sekulow?” A nice offer, but there was a slight problem. Lawyers who, like Sekulow, are representing respondents in a Supreme Court case � the bottom side � don’t get to reserve rebuttal time. Only petitioners do. Sekulow, startled but grateful for a brief chance to catch his breath, politely told Rehnquist, “I cannot reserve any more time. That’s OK. But I would normally be happy to.” Rehnquist, appearing confused, said he was sorry. The questioning resumed. It was an awkward moment, but forgivable in a way. Sekulow usually represents the petitioner, the aggrieved religious adherent who lost the right to practice his faith because of a court decision below. But in the case at bar, Joshua Davey had won below � and the court that ruled in his favor by striking down the Washington law was the famously liberal U.S. Court of Appeals for the 9th Circuit. It was the state of Washington � in the name of its Democratic governor, Gary Locke � that sought help from the Court. The case seemed hopelessly upside-down, and Rehnquist was not the only justice struggling with it. The struggler in chief, as is often the case, was Justice Sandra Day O’Connor. Two terms earlier, she had joined the majority in Zelman v. Simmons-Harris, the precursor to the Davey, which said that government dollars in the form of vouchers could go toward parochial school tuition if they were being offered to nonreligious private schools as well. Now that it was established that the state could provide funds to religious education under the establishment clause, the next question, posed in Davey, was whether states must do so to obey the free exercise clause. It seemed like a logical next step to say yes, and both Sekulow and his ally, U.S. Solicitor General Theodore Olson, stood ready to take the Court in that direction. But count on O’Connor to step in, mid-juggernaut, and wonder aloud whether the Court should go that far, that fast. O’Connor’s first line of questioning went to Narda Pierce, the Washington state solicitor general tasked with defending the law. O’Connor probed to find out exactly who receives the scholarship check under the program that barred Davey from eligibility � the school or the student. “Is it like a voucher program in that sense?” she asked, making it clear from the start that she felt Davey would impact the voucher issue. Pierce was not entirely clear in her answer, and she missed several other chances to advance her cause. Justice Antonin Scalia tried to derail her with a series of hypotheticals asking whether Washington could single out Jewish studies, say, or atheism, for favor or disfavor. She never quite made the crucial point that Davey is still entirely free to be a theology major � but just without state subsidy. And it fell to Justice Ruth Bader Ginsburg to lend a helping hand by putting a positive spin on Washington’s law. After Justice Anthony Kennedy repeatedly asked Pierce what compelling state interest the law served, Ginsburg intervened: “May I ask you just to clarify what I thought was the purpose of this, that the state has decided it does not want to fund the training of clergymen?” Ginsburg asked helpfully. As soon as Sekulow rose to speak, he wisely returned to O’Connor’s unanswered question about how the scholarship worked. The checks go to the student once a qualifying college certifies that the student is attending � and is not majoring in theology. That answered any establishment clause concern, but O’Connor was not won over. “How does this violate the student’s free exercise of religion?” she asked. “Maybe it’s more expensive to go to school, but why does that violate his free exercise of religion?” Sekulow acknowledged that Davey retains the free exercise right to major in theology, but “the question here is the burden that’s placed on it.” O’Connor was not satisfied. If a state offers vouchers to private schools at all, she asked, must it include all religious schools? No, said Sekulow, but O’Connor replied sharply, “Well, why not? I mean, why wouldn’t it follow from what you are saying today?” Sekulow’s response made it clear he was taking O’Connor’s question too literally. States could establish neutral accreditation requirements, Sekulow said, indicating that if a religious school failed that test, it could be excluded. That wasn’t what O’Connor was driving at, so she persisted: “Can they refrain from making that program available for use in religious schools?” Sekulow, seemingly caught off-guard, fessed up. “I would think not . . .” To which O’Connor replied, “So what you’re urging here would have a major impact, would it not, on voucher programs?” Sekulow couldn’t escape. “Well, it would,” he said. O’Connor appeared lost to the pro-voucher cause, suddenly fearful of what Zelman had wrought. And Solicitor General Olson, up next, did little to get O’Connor back. The Washington state scholarship program at issue, Olson proclaimed, “practices the plainest form of religious discrimination. . . . The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged.” O’Connor interrupted, “Well, but of course there’s been a couple of centuries of practice in this country of not funding religious instruction by tax money. I mean, that’s as old as the country itself, isn’t it?” Yes, countered Olson, but the free exercise clause is just as old. True enough, but O’Connor already knew that. Justice Stephen Breyer weighed in to reinforce O’Connor’s doubts. “The implications of this case are breathtaking,” he said. If Davey wins, Breyer added, all kinds of government grant programs would have to be offered to religious institutions as well as secular ones, raising the specter of religious strife over “billions and billions of dollars” of taxpayer money. Olson had little to say that would calm Breyer’s � and O’Connor’s � concerns. Justice John Paul Stevens also chimed in, repeating the point that Washington state’s advocate had not made: “Can’t he practice his religion just as he always would and become a minister? He just has to pay for it.” At this point Davey, who was in the audience, might have done well to raise his hand and inform the Court that his career plans have changed. He is now a 1L at Harvard Law School, and mootness of the scholarship issue might have been a good gambit to try to end the case without losing it. The seeming collapse of Sekulow’s “mandatory neutrality” argument marked a turning point in his long and heretofore mostly successful campaign to recast free exercise violations as an affront to free speech as well. In other words, Sekulow argued that by denying Davey a scholarship because of his decision to major in theology, Washington was violating the free speech requirement of viewpoint neutrality as well as punishing him for exercising his faith. If that argument drops out of the equation, the classic battle between the religion clauses of the First Amendment will resume. During the argument Justice Ginsburg put her finger on the problem, asking both sides whether there is any “breathing space” between what government can do under the establishment clause and what it has to do under the free exercise clause. Neither side answered the question well. This article was first published as Tony Mauro’s “Supreme Advocacy” column in the February 2004 issue of The American Lawyer.

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