William Bentley Ball, that doughty champion of religious freedom and the underdog, is dead at age eighty-two. He was vacationing in Florida and was found unconscious in a swimming pool. He died a few days thereafter. A frequent contributor to these pages, Bill Ball argued numerous cases before the Supreme Court, including Yoder, which secured Amish parents the right to control the education of their children, and Zobrest, which vindicated the right of a handicapped child to government aid in a religious school. The latter is widely perceived as a breakthrough pointing toward vouchers and other instruments of parental choice in education. He was a devout Catholic, which, he said, is why evangelical Protestants, Mennonites, Mormons, and anyone else could count on his help in protecting their right to the free exercise of religion. Bill was a dear friend and a happy warrior. He loved righteousness and hated iniquity, and I envy the angels his good company. Requiescat in pace.
But more needs to be said. The following tribute is by Edward McGlynn Gaffney, Jr. of Valparaiso University School of Law:
I have always regarded it as a great grace, or gift from God, that I studied law at the time and place that I did. The place was Catholic University of America in the nation's capital. The time was the early 1970s. Because of our location, my professor of constitutional law, Albert Broderick, urged us to skip classes once in a while (not too often !) to hear oral argument at the Supreme Court of the United States.
Following the advice of my professor led to my first encounter with William Bentley Ball on December 8, 1971, the day on which he argued for Jonas Yoder and his family. I recall vividly Bill's crisp, clear voice as he cited the 1925 decision in Pierce v. Society of Sisters: "The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Chief Justice Warren Burger must have been moved by this citation, which he included in his opinion for the Court in Wisconsin v. Yoder (1972). Even when the Court was to announce a sea-change in free exercise standards in Employment Division v. Smith (1990), it did not abandon Yoder, which still stands as a valid precedent requiring states and local public school boards to accommodate the religious concerns of parents. Bill's skillful advocacy in Yoder has benefited not only the Old Order Amish, whom he represented, but also literally hundreds of thousands of parents, including home schoolers, who have derived great benefit from this opinion.
At a symposium at Notre Dame on the fiftieth anniversary of the Pierce case, Bill noted the anti-Catholic roots of the Oregon measure challenged in Pierce, and he reminded us of the strong interreligious coalition that made its first appearance at the Court in this case (the American Jewish Committee, the Episcopal Church, the Lutheran Church--Missouri Synod, several Presbyterian ministers, and a conference of Seventh-day Adventists). Bill was a living example of that sort of generous collaboration in the common cause of preserving religious liberty. Although Leo Pfeifer, counsel for the American Jewish Congress, argued the opposite side of many of the cases in which Bill espoused financial support for children attending religious schools, notably Lemon v. Kurtzman (1971), Bill developed a friendship with Pfeifer; and in the last period of his career Bill came to accept Pfeffer's warning about the danger of strings attached to public assistance. In Bill's paper on Pierce, he gave special credit to the American Jewish Committee for blasting the Oregon act in its amicus brief with this trenchant comment: "If the children …