The U.S. Supreme Court on Dec. 2 heard oral arguments in a crucial church-state case that could result in unprecedented taxpayer funding of religious schools and other "faith-based" organizations.
At issue in Locke v. Davey is a Washington state constitutional provision that bars taxpayer funding of religion. Washington's mandate has been interpreted as stricter than the federal First Amendment. Thirty-six other states have similar provisions ensuring church-state separation.
Religious Right legal organizations are trying to have the constitutional safeguards declared null and void by asserting that they conflict with the First Amendment's command that the "free exercise of religion" be protected.
The case was brought by TV preacher Pat Robertson's American Center for Law and Justice (ACLJ) on behalf of Joshua Davey, a student in Washington who obtained a state scholarship to go to college. Davey wanted to use the money to study to become a minister at a sectarian college, but state officials rescinded the scholarship.
Backed by the ACLJ, Davey sued, asserting that the state's action had violated his freedom of religion. The 9th U.S. Circuit Court of Appeals agreed, ruling that the state discriminated against Davey. ACLJ chief attorney Jay Sekulow argued the case at the Supreme Court.
The high court is closely divided on church-state issues a split that became immediately apparent during the oral argument. The four-member bloc that supports separation, led by Justice David Souter, seemed skeptical of Sekulow's position, while the anti-separationist bloc, led by Justice Antonin Scalia, aggressively questioned Narda Pierce, solicitor general for Washington state.
With the court so closely divided, Justice Sandra Day O'Connor is considered the crucial swing vote. O'Connor questioned both Sekulow and Pierce extensively, asking Pierce if the Washington scholarship program was like a private-school voucher plan. (O'Connor provided the swing vote to uphold vouchers in 2002.)
Pierce admitted the program is similar to vouchers but went on to add that Washington probably could not fund religious schools under a voucher plan due to its more restrictive Constitution.
O'Connor appeared to be worried over the implications of a far-reaching decision in Davey's favor. She repeatedly questioned Sekulow, demanding to know if a ruling in Davey's favor would require the government to fund religion in a variety of other contexts.
Sekulow at first tried to dodge the question but finally admitted that if a state set up a voucher program, it should be required to fund religious schools.
O'Connor seemed troubled by that.
"What you're proposing here would have a major impact on voucher programs," she shot back.
The Bush administration has aggressively entered the case on Davey's side and filed legal briefs on his behalf. During the oral argument, the federal government requested time to argue after Sekulow, with U.S. Solicitor General Theodore B. Olson representing the Bush administration. Olson told the justices that requiring Washington to give Davey the aid would not be a major step, but at least one justice seemed skeptical of that claim.
"The implications of this case are breath-taking," asserted Justice David Breyer. Breyer insisted that if the high court ruled in Davey's favor, states could be forced to fund numerous religious welfare programs.
Religious Right groups see the case as crucial. The day before the argument, a prayer alert went out from the Alliance Defense Fund (ADF), an umbrella organization of TV preachers and far-right legal groups that is helping advance the Davey case.
"A victory," said the ADF's Alan Sears, "would eliminate another large brick in the artificial wall of 'separation of church and state' which ADF has been working hard since our founding to rebuild to look like what our nation's Founders intended not the ACLU's version."
Sekulow also sees the case as a step toward a larger goal of securing government funding of religion. Appearing on Robertson's "700 Club" after the argument, Sekulow said, "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."
Sekulow also conceded that he tried to avoid answering O'Connor's question about how the ruling might affect government funding of religion in other cases.
"I hedged a little, as we planned to do, as we do in our moot court at Regent [University], with the professors," he said. "You hedge a bit at first and say nothing is demanded unless the government sets out a program."
A decision in the case is due by the end of June.