Let's hope Joshua wins. This has gone on for long enough. I'm all for state's rights, but not when they interfere with the individual's right to study whatever they want and keep their scholarship at the same time.
www.cbn.com/CBNNews/News/031203e.asp
Davey Decision Could Be Landmark for Free Exercise of Religion
By John Jessup
Washington Correspondent
December 4, 2003
Attorneys for the state argue their laws have more restrictions, which specifically bar state funding for religious studies and schools.
CBN.com - WASHINGTON -- The Supreme Court has now heard the arguments in the case of Joshua Davey. The question: Should he be allowed to use his state scholarship to pay for religious instruction?
Both sides stepped out of the high court keenly aware of the issues at stake in the case of Locke v Davey.
It's a court battle that started in 1999, when the state of Washington withheld Joshua Davey's merit-based scholarship money solely based on his college major: Theology.
Joshua Davey said, "This is case about discrimination and fairness and equal justice under the law."
Davey says the state's constitution violated his constitutional guarantee of the free exercise of religion.
Attorneys for the state argue their laws have more restrictions, which specifically bar state funding for religious studies and schools.
Narda Pierce, Solicitor General for the State of Washington said, "People who adopted the constitution of Washington did not believe that monies that were paid under the compulsion of taxes should be used to promote religious beliefs which some citizens may disagree."
The case now rests in the hands of the Supreme Court and is seen as a follow up to last year's high court ruling. A ruling that gave parents the right to use public tax money to send their kids to religious schools. The outcome of Locke v Davey is expected to re-ignite the voucher debate, and may address whether federal, state and local governments can fund tuition for religious schooling.
Jay Sekulow of the American Center for Law and Justice said, "The Court was very specific in asking me whether this policy and principle we're advocating, that you cannot target religion for an exclusion, was required and we believe that it is. You cannot exclude religion from a broad-base program."
The court is expected to make its ruling next June.
For more about the possible outcome and far reaching effects of Locke v Davey, Pat Robertson spoke with Sekulow, chief counsel for the American Center for Law and Justice.
Pat Robertson: Joining us now from our Washington studio is Jay Sekulow, who argued his eleventh case before the Supreme Court. And, Jay, as you were being questioned, Justice O'Connor said the outcome of this case is monumental and I think other justices echoed that feeling. Why is it so important?
Jay Sekulow: Well, it's interesting, Justice O'Connor said it's monumental, Justice Breyer said the scope is breathtaking, because as you said Pat, before the piece that just aired, the Court has not dealt with what I call a significant, substantive 'free exercise' case in probably 50 years, maybe even longer. This is the first case, in the 'free exercise' context, where you have a penalty being exerted because someone is pursuing a religious pursuit...The prohibition here, is if you pursue a degree in theology you are automatically disqaulified from this promise scholarship program. It is the only basis for exclusion. And, of course, pursuing the degree in theology, as anybody would have a right to do, is protected under the Free Exercise Clause. No one really disputed that, the question is can you penalize that right or burden that right in a way that, of course would, in our view, be unconstitutional. Pat, when I talked to you after the argument yesterday, I said there were a lot of questions. We went back, got the transcript late last night -- I argued for 20 minutes on our side, Ted Olson argued on our side as well, the Solicitor General, for 10 of the minutes, we had a 30 minute argument, but in my 20 minutes I had 42 questions, if you can imagine. So the court knows the scope of this is tremendously broad in implications. And generally, as you know, they take, usually take smaller steps than larger steps, but this case is, one way or another, really is going to have some significant impact.
Pat Robertson: Jay, Justice O'Connor asked Ted Olson, "You've never done this in 200 years of our history or something, have you had money going out to theological studies.' But the truth is, and the history of America, is we never had this massive federal program. In the early days that wasn't there.
Jay Sekulow: That's right. And Ted mentioned that. Ted talked about the fact that now with hospitals that get millions and billions of dollars from the federal government -- to exclude a Catholic hospital or one of the Baptist hospitals from a program that was generally available wouldn't make much sense. And while it is true, in one sense, that you haven't had this 200-year history -- we do have a 200-year history of protecting the free exercise of religion, and that's what we kept coming back to here. Washington makes this argument that their state constitution can trump, if you will, the federal Free Exercise Clause, and of course in our view that would be a very dangerous precedent. But this is a closely divided court on these religion cases. It's probably going to come down to Justice O'Connor, as it often does. I think she's going to go with us, but Pat it's probably going to be, as I said yesterday, well see the scope of the opinion. Whatever they do though, to decide a case on the Free Exercise Clause, in and of itself, will be monumental. If they rule in our favor on a Free Exercise Clause, even if they don't address the ultimate voucher issue, which really was not at play, but certainly was the overtone here -- then that would be very, very significant because we haven't had a -- we've been arguing these cases, successfully, on the Free Speech Clause, we've arguing that they've been showing hostility under the Establishment Clause, this is the flip side of that.
Pat Robertson: Jay, in 1875 James G. Blaine brought forth the Blaine Amendment and he tried to say the 14th Amendment incorporates the First Amendment and makes it apply to the states. The same Congress that ratified the 14th Amendment said, 'No way. We're not going to do that.' But yet, this Blaine Amendment slipped into the constitutions of many states and it was aimed at Catholics, wasn't it? It was an anti-Catholic bigotry statute.
Jay Sekulow: It clearly was. In fact, Justice O'Connor asked me how many states have this law and Justice Scalia followed up and said, 'You know a lot about this. Tell us how it's used, tell us how it's applied.' I said there's 39 states that have it on their books, but, interesting, Washington is part of a handful that apply it in this discriminatory fashion. Most states do not apply this targeted discrimination. There are a few states that do, but the vast majority, 25 of the 39 that have these scholarship programs, 25 of them don't have any discrimination in them at all and about six of them have this kind of targeted discrimination, Virginia, by the way, being one of those.
Pat Robertson: The judges apparently got it, but this has far-reaching consequences, it has to do with vouchers and it of course has to do with [President] Bush's Faith-Based Initiative.
Jay Sekulow: They knew it, Pat. The second question I got asked, and when you're arguing these cases you try to get a temperature reading of the court, so when she asked me, 'Does this automatically require, Mr. Sekulow, that we approve vouchers for all religious schools and private schools and now it's an oblication?' I hedged a little, as we planned to do, as we do in our moot court at Regent, with the professors, you hedge a little bit at first and say nothing is demanded, unless the government sets up a program. She didn't want to hear any of that. She said, 'Look, I read your briefs, I know your argument . Here's what you're saying. You're saying if the Establishment Clause, if there's not an Establishment Clause violation here, if the state comes up with a broad-based program they cannot target under the Free Exercise Clause, a religious disqualifier. That's what you're saying, correct, Mr. Sekulow?' Absolutely, Justice O'Connor, that's what we're saying.
Pat Robertson: The bottom line is, Jay, did they buy it? I read the New York Times description, and the Washington Post. The New York Times I'm sure it was against you and so they were trying to say, 'Surely five justices are against your opinion.' You didn’t' read it that way, did you?
Jay Sekulow: No, I think what Charles Lane wrote in the Washington Post is probably correct. I think we probably have five votes on our side, the question is how broad they'll be in the opinion. But Pat, you know I've been, in all these years of doing this with the American Center for Law and Justice, we believe in an incremental approach. You don't go from A to Z, you've got to go through the steps. This is the next logical step. The implications are broad-based because it's a free exercise case. I think what Linda Greenhouse was saying was there was resistance on the New York Times side. Resistance on this broad-based, you know, 'Now we've gotta do vouchers.' And they really don't have to go that far to rule in our favor, so -- I think we'll get five votes, but it is clearly, in my view, as all these religion cases are, you generally have three or four on our side you could count as votes we would get, three or four on their side that you know you're not going to get and it often comes down to Justice O'Connor. But she was very direct with Ted Olson, she was very direct with me in her questioning and we gave her very direct, honest answers to the 42 questions I got in 20 minutes.
Pat Robertson: It's an awful ordeal. They vote today, don't they?
Jay Sekulow: They have conferences today.This afternoon they will vote. They go around the table in order of seniority, they vote. Then the majority, whoever is in the majority, the senior justice, assigns the opinion out. So, we'll see. We'll literally know, the vote will take place, we will not know the answer though, I suspect, until the end of the term. This case has a late spring, summer kind of feel to it.
Pat Robertson: I have seen so much discrimination against religious people in the public schools of America, it is nothing short of appalling how often the free exercise of religion is being denied. Is this case going to have major implications in future lawsuits against such practices.
Jay Sekulow: I think it will, Pat. Even if the court rules in our favor on a limited ground. In other words, if they say, 'Look there's a free exercise violation here and the government's interest was not compelling or it wasn't narrowly tailored' -- that in and of itself could be very, very significant. If the court were to say, for instance, 'Joshua Davey should have gotten that scholarship, the state of Washington could have met their concerns in other ways and they didn’t have to make this targeted discrimination' -- even if they don't address the voucher issue, that would be significant. It would be the first substantive victory on the Free Exercise Clause, in this kind of context, that we could then use in other cases as litigation goes forward. I think it could breathe some new life into the Free Exerccise Clause, which frankly has been very difficult, as I have mentioned to you over the past couple of weeks, very difficult to litigate in court. This could be at least the opening shot on that to give us some litigation capabilities on the free exercise issue, so I think it will be very significant.
Pat Robertson: It's interesting the judges didn't go into free speech, nor did they go into history. They wanted to talk about free exercise and that in itself is unusual, isn't it?
Jay Sekulow: Very. Pat we had briefed and been briefed in the courts below -- the free speech issues had been briefed extensively by all the parties including the amici (briefs) that were filed on both sides. But at the end of the day it was very clear, the lawyer representing the state of Washington went up, Ms. Pierce, and she made her argument. The court was interested in one thing, that was the Free Exercise Clause, so when I got up the first thing I said was, 'In the free exercise context, the minimum requirement is you've got to have at least neutrality and you don't have neutrality here you've got targeted discrimination.' The Free Speech Clause, not even a mention, there was a couple of very brief discussions about one of the free speech cases, but no in the context of a substantive holding at all. This is a free exercise case.
Pat Robertson: Jay, congratulations. We look forward to we hope a 5-4 or even bigger win in your favor.
Jay Sekulow: As someone asked me in court, he says, 'What do you want the opinion to say?' And Pat I told him, 'That somewhere at the bottom of the opinion it says, 'affirmed.'
Pat Robertson: That's all we've got to do. Jay Sekulow.
Jay Sekulow: Thanks, Pat.