Supreme Victory: High Court Thwarts Religious Right Scheme to Require State Funding for Religion

By Boston, Rob | Church & State, April 2004 | Go to article overview

Supreme Victory: High Court Thwarts Religious Right Scheme to Require State Funding for Religion


Boston, Rob, Church & State


Religious Right legal strategist Jay Sekulow called it "one of the MOST IMPORTANT RELIGION CASES OF OUR TIME to go before the Supreme Court of the United States!"

The case that got Sekulow so excited was a dispute from Washington State known as Locke v. Davey. When the Supreme Court announced last year that it would hear the case, Sekulow, chief attorney for TV preacher Pat Robertson's American Center for Law and Justice (ACLJ), got so excited he couldn't refrain from writing to his donors in capital letters.

Sekulow pleaded for funds to support the legal effort in an Aug. 15, 2003, e-mail appeal.

"The outcome of this case will make an impact on virtually EVERY religious liberty issue we are involved with!" he wrote. "RELIGIOUS FREEDOM WILL BE PROTECTED LIKE NEVER BEFORE !"

Sekulow noted that "opponents of faith"--including Americans United for Separation of Church and State and the American Civil Liberties Union--were opposing him in the courts.

"They are determined to DEFEND the anti-faith policies of public institutions across the country!" he bellowed.

Readers of Sekulow's missive could be forgiven for assuming that the very fate of religious freedom in America hung in the balance. In fact, the reality of the Davey case was quite different: It was an effort to force Washington State to pay for the pastoral degree of a young Bible college student named Joshua Davey. According to Sekulow's reasoning, Davey's "religious freedom" would not be secure until Washington taxpayers picked up the tab for his ministerial education.

Davey had won a scholarship from the state, but officials told him he could not use it to become a minister. Washington's Constitution, they said, erects a higher wall of church-state separation than the federal Constitution and does not allow for taxpayer-subsidized ministerial degrees.

Sensing yet another opportunity to bash the church-state wall, Sekulow and the ACLJ quickly cried discrimination and filed suit in federal court. All seemed to go well at first. A federal appeals court ruled that state officials discriminated against Davey by denying him the scholarship. When the U.S. Supreme Court announced it would review the matter, Sekulow wasn't the only one who got excited.

Groups that oppose church-state separation lined up to file legal briefs and promptly mailed out hyperbolic fund-raising letters highlighting their latest assault on Thomas Jefferson's church-state wall. The Bush administration jumped on the bandwagon with its own pro-Davey briefs--and later intervened in the case more directly to help shape the argument.

At the same time, groups that support the wall, including Americans United, pledged to mount a vigorous defense. The stage was set for a legal showdown of biblical proportions.

Bursting with confidence, opponents of church-state separation seemed to relish the fight. TV preacher Robertson gleefully announced that Sekulow would personally argue the case.

"Jay Sekulow has argued nearly as many cases before the Supreme Court as Thurgood Marshall," Robertson bragged on the May 29, 2003, edition of his "700 Club" program. "It's like watching Hank Aaron."

But on Feb. 25, the Religious Right's grand scheme to usher in mandatory taxpayer-funded religious education abruptly collapsed. The Supreme Court, by a lopsided 7-2 margin, ruled that states have the right to deny public support for ministerial students like Davey. The ACLJ's Hank Aaron had struck out.

The high court's ruling in Davey was surprising for many reasons. To begin with, the justices disposed of the case very quickly. Oral arguments were heard on Dec. 2, and less than three months later the decision was made public. Controversial rulings are usually held until the end of the term in June, so this indicates that Davey just wasn't controversial among the justices.

The 7-2 ruling was also a surprise. …

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