Evangelicals’ Champion to Argue Case at High Court
The nation’s leading lawyer for evangelical Christians was born and raised a Jew in Brooklyn, but decided in college that Christ was the Messiah.
“I’ve never found a conflict between my Jewish identity and my Christian beliefs,” said Jay Alan Sekulow, 47, chief counsel for the American Center for Law and Justice, a nonprofit law firm founded by religious broadcaster Pat Robertson.
The firm was created to be a mirror image of the American Civil Liberties Union. And thanks in part to Sekulow’s victories in the Supreme Court over the last decade, the strict separation of church and state -- the constitutional rule long championed by liberal groups such as the ACLU and the American Jewish Congress -- is being edged aside by a new equal-treatment-for-religion rule favored by Sekulow and other conservatives.
Today, Sekulow is scheduled to argue before the Supreme Court a case that asks whether the government sometimes must pay for religious teaching. It is a constitutional clash that pits one part of the 1st Amendment against another, a case in which liberals are touting the state’s right to “just say no” to funding religion, while conservatives, including Bush administration lawyers, insist federal courts should tell the states how to spend their money.
Sekulow said that growing up Jewish helped him see issues from a minority viewpoint. In the courts, on radio and on television, Sekulow has brought the perspective of a combative outsider determined to fight discrimination against Christians.
He has represented children who want to pray in school; high school students who hope to form a Bible study club; abortion protesters who want to pass out leaflets on sidewalks outside medical clinics; and community activists who want to display the Ten Commandments.
His daily radio program, “Jay Sekulow Live!,” which is heard on about 150 Christian radio programs, along with his regular appearances on the Christian Broadcasting Network’s “700 Club,” have made him a familiar figure to many across the nation.
With his short, stocky build and booming voice, Sekulow looks and acts like a fighter. His opponent is what he and his supporters see as a hostility toward religion that has been foisted upon the nation by the ACLU and enforced by the courts.
Sekulow has portrayed the dispute that will bring him before the Supreme Court today as a matter of discrimination against a Christian student. “Josh’s case is the fulfillment of the struggle for freedom in America,” he said last week.
He was referring to Joshua Davey, a Christian student and aspiring minister who lost a state scholarship because of his religious aims.
Davey’s case began in 1999, when Gov. Gary Locke of Washington created the Promise Scholarship to aid high-achieving students from middle- and low-income families. Davey graduated near the top of his high school class and qualified for the state scholarship of $1,125. He enrolled in Northwest College, a private school affiliated with the Assemblies of God, and said he planned to prepare for the ministry.
When state officials learned of Davey’s plans, they informed him that he could not receive public money. Washington, like 35 other states including California, has a ban in its constitution on the use of taxpayers’ money to support religion. While it protects the “absolute freedom of conscience” in all matters relating to religion, the constitution also says, “No public money shall be applied to any religious worship, exercise or instruction.”
The 1st Amendment to the U.S. Constitution has a similarly two-sided approach to religion. On the one hand, it protects individuals in their rights to “freedom of speech” and the “free exercise” of religion. On the other, it forbids the government from taking any action “respecting an establishment of religion.”
Sekulow sued on Davey’s behalf in a federal court in Seattle, charging that the loss of the scholarship violated Davey’s rights to free speech, free exercise of religion and the equal protection of the laws. A federal judge ruled for the state, but the U.S. 9th Circuit Court of Appeals ruled for Davey on a 2-1 vote.
Sekulow said he hopes the Supreme Court justices set to hear arguments in the case of Locke vs. Davey today will “send an important message to states that they cannot discriminate against students who choose to focus on religious studies.”
A Bush administration lawyer is set to join Sekulow in arguing for the student. A victory for Davey would give a boost to President Bush’s “faith-based initiative” and remove a barrier to the funding of state vouchers, money that can be used to send children to religious schools.
In Florida, for example, a state judge blocked the use of state aid in church-related schools, citing a state provision similar to the Washington measure. In an echo of the Bush vs. Gore case, Florida Gov. Jeb Bush, the president’s brother and an advocate of vouchers, has filed a friend-of-the-court brief in the Supreme Court, urging the justices to hand down a ruling that reverses the decision of the Florida courts.
Meanwhile, lawyers for Washington state say the real issue is whether the state must subsidize the “free exercise” of religion. “Davey has a constitutional right to pursue a degree in theology, but the state has no obligation to fund Davey’s exercise of the right,” state Atty. Gen. Christine Gregoire said in a brief to the court.
In the last decade, the Supreme Court stepped back from the separation of church and state doctrine that held sway in the 1960s and 1970s. Then, the court struck down state laws that gave free textbooks to students in religious schools and barred the use of tuition vouchers for students in parochial schools.
In the 1990s, the court overturned those rulings and said states may give money, computers, books or tutoring to students in church schools, as long as the religious programs did not receive favored treatment.
The Washington state case is being closely watched because it goes a step further than before. In earlier cases, states such as Ohio or Wisconsin wanted to provide vouchers for students in parochial schools, and the Supreme Court upheld their efforts as constitutional.
In the Washington case, by contrast, officials do not want to spend the state’s money on religious instruction, but are being told by a federal court they must do so. Compared to the upcoming case on the Pledge of Allegiance and the use of the words “under God,” the Washington state case is unlikely to receive much attention, but many legal experts say it will have a more far-reaching significance.
“The Locke case is hugely important. It could put a dagger in all the old constitutional rules about funding religion,” said Marc D. Stern, counsel for the American Jewish Congress.
It will be Sekulow’s 11th argument before the Supreme Court. He prepares with an unusual drive and determination. For weeks, he has held moot court arguments with different groups of lawyers who pepper him with hostile questions. Since the Supreme Court is not the place to ponder the right answer to a complicated question, Sekulow said he wants to be ready, no matter what the inquiry.
He also has a surprising number of friends among lawyers who are ideological opposites.
“He may be the Jewish guy from Brooklyn who came to be Pat Robertson’s lawyer, but he is genuinely friendly on a personal level with people who disagree with him,” said Art Spitzer, an ACLU lawyer in Washington.
Nadine Strossen, the ACLU’s national president, described him as “my friend Jay. I have an extremely high regard for his intellect and his oral argument skills. And while we have very strong disagreements, he doesn’t distort the law. I think he has a lot of integrity.”
For the most part, Sekulow also has been unwilling to demonize the ACLU and other liberal groups seen by many of his supporters as the enemy. On Friday, the first caller to his radio program wanted to tell him “the communist ACLU” in Minnesota is blocking several Christmas displays.
“I don’t want to disparage any particular group,” Sekulow replied. “We disagree with the ACLU in some areas, but not others.”
Sometimes the two groups take the same side in free-speech cases. Both opposed the McCain-Feingold campaign finance law that is before the Supreme Court.
They sound less friendly in their fund-raising appeals. In October, Sekulow’s group sent out a fund-raising letter than began, “The ACLU is coming after YOU.” It urged contributors to help it “stop the ACLU’s attack on the Ten Commandments.”
In truth, each group benefits from the other. “They raise money by using the ACLU,” Spitzer said. “We raise money by using Pat Robertson.”
Married with two sons, Sekulow recently moved to the Washington area after years of commuting from Atlanta. Like his organization, Sekulow said he thinks he is maturing as a Supreme Court advocate. In his first case in 1987, he represented Jews for Jesus in a lawsuit against Los Angeles International Airport, which had barred groups from raising money in terminals.
Though he won a unanimous ruling, Sekulow said he was too intense and combative in his appearance before the justices. One legal commentator at the time said he was “rude, aggressive and obnoxious.”
“I think that’s right,” he said, amused by the unflattering description. “My mother was there, and she said I was rude and aggressive. But she didn’t think I was obnoxious.”