The High Court And Davey

Handing A Big Victory To The Optimists' Club

I am by disposition a realist, which means I see no point in ignoring the enormous number of challenges to constitutional rights going on these days. During a recent trip to the Tampa, Fla., area, I found that after my speeches, people in the audience were eager to tell me about local problems ranging from city council prayers and Bible displays to possible state funding of religious pre-schools with tax dollars. There is plenty to be worried about.

But I am also by nature an optimist. A gentleman at a recent event at Hofstra Law School told me that is a very dangerous position to have. My response is that optimism is fine as long as you back it up with solid action. Americans United is always busy, so I feel my optimism is warranted.

Sometimes, even optimists get more than they hoped for. I was planning to take Feb. 25 off from work, but shortly after 10 that morning I got a call at home from AU Communications Director Joe Conn, who said the Supreme Court had just ruled in Locke v. Davey, a case questioning whether Washington State had to fund scholarships for ministerial students. Our side had won.

The news got better. It was a 7-2 decision, and Chief Justice William H. Rehnquist authored the opinion. This had now become staggering news. The chief justice is rarely a defender of separation of church and state.

So much for my day off! I did a few interviews for newspapers with early deadlines like the Christian Science Monitor and radio networks looking for sound bites to put on the air at 11 and then got suited up for the ABC and NBC evening news broadcasts, as well as NPR's "All Things Considered" (I realize that you couldn't see that suit on NPR, but I can assure you the purple-and-grey tie was very nice).

It was interesting to listen to those on the losing side trying to "spin" their argument. Religious Right and pro-voucher groups had a lot riding on this case. Last year, Jay Sekulow, Pat Robertson's top legal strategist who argued the case at the high court, issued a fund-raising appeal labeling Davey one of the "MOST IMPORTANT RELIGION CASES OF OUR TIME." Sekulow claimed that if the taxpayers were required to pay for Davey's religious training, "religious freedom will be protected like never before."

But having lost, the right wing suddenly tried to argue that the case was merely an insignificant footnote that really had no implications beyond one state not paying for one student's theological education. TV preacher Jerry Falwell appeared with me that night on CNBC and attempted to pose as a legal scholar, insisting that "there is no separation of church and state." He noted that aside from leaving a "bad impression," this "cloudy" decision had no real significance and "changes nothing."

The Religious Right and its pro-voucher allies had to play it this way, because the truth is almost too much for them to bear. If the high court had bought the Sekulow-Falwell-Bush administration position in this case, every state would have been forced to pay for any religious service or program that had a secular counterpart. In other words, if a state pays for public education, it would have to pay for religious schooling as well.

This would have taken the bad decision of two years ago permitting vouchers for religious institutions under some circumstances and greatly expanded it, forcing states to include religious schools in any subsidy program. That would have been a constitutional catastrophe of biblical proportions. It did not happen. The right-wing lost, and it lost badly.

There is a bizarre footnote to this day. During the CNBC show, before I had even opened my mouth, Falwell referred to me as a "Christ hater." I'm used to him saying ugly things about me, but even I was shocked a few minutes later by an astonishingly bizarre statement Falwell made about a total stranger. The host suddenly turned the topic to Mel Gibson's movie "The Passion of the Christ" and told both of us that a news report had just come in that a woman in Wichita, Kan., had died of a heart attack while viewing the film. Falwell instantly retorted, "That lady would have died if she was at a water fountain in the park." I literally heard broadcast staffers in the room next to the studio gasp in shock over the remark.

Although Falwell and I clearly have different theological views, one would think that a purely pastoral concern would lead any minister to express sympathy instead of making some rude and dismissive comment about any person's death. For the record, the dead woman, Peggy Lee Scott, was in fact a daughter, a wife, a mother and a grandmother who worked for several local radio stations. Whatever point Falwell was trying to make was aptly characterized by one viewer as "a cheap shot" from a man who seems to be "commenting from the gutter."

Barry W. Lynn is executive director of Americans United for Separation of Church and State.