Davey vs. Goliath

"Davey vs. Goliath" Continued...

Issue: "Daniel of the Year 2003," Dec. 13, 2003

State governments weighed in as well, hoping to clear up constitutional confusion over the funding of religious projects. Florida Gov. Jeb Bush, for example, filed a friend-of-the-court brief on Mr. Davey's behalf, knowing that a favorable ruling would overturn a lower court ruling that blocked his state from providing aid to church schools.

In opposing Mr. Davey's lawsuit, liberal interest groups like the ACLU found themselves taking an awkward states'-rights position. "Within the range of acceptable options, there is nothing wrong with letting states pursue their own visions of religious freedom," said Aaron Caplan of the Washington ACLU, which filed a brief supporting the state's policy. That's 180 degrees from the ACLU's position in the Alabama Ten Commandments case, where the organization urged the federal courts to overrule the state's vision of religious freedom.

Conservatives also found themselves on the opposite end of their usual states'-rights arguments. Although the federal courts are often viewed as the enemy of religious freedom, the 37 states with Blaine Amendments frequently go beyond federal public policy in their restrictions on religion. By asking the Supreme Court to override a state constitution, conservatives tacitly admitted that the court does have a proper role in such disputes.

As with so many major issues before the Supreme Court, the outcome in Davey will likely hinge on a single vote. Justice Stephen Breyer noted during oral arguments that the implications of overturning the Washington law would be "breathtaking." He's expected to side with the state of Washington, joined by John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg.

Justice Clarence Thomas, on the other hand, wrote an earlier opinion blasting the Blaine Amendments as being "born of bigotry" toward Catholics. He was joined in that opinion-and probably will be again-by William Rehnquist, Antonin Scalia, and Anthony Kennedy.

That scenario leaves Sandra Day O'Connor holding the decisive vote. She decided last year to uphold vouchers, but seemed troubled during oral arguments last week by the scope of the Davey case. "What you are urging would have a major impact," she said during Mr. Sekulow's arguments, noting that there are "a couple of centuries of practice in this country of not funding religious institutions with tax money."

The court is expected to rule by next summer. In the meantime, life goes on for the young man at the center of the legal storm. He has no younger siblings who would benefit from a change in Washington's laws, but he hopes to see the day when "the state will no longer be able to discriminate on the basis of religion in its Promise Scholarships or any other state program. I hope this can be a stepping stone to ending religious discrimination everywhere," he told WORLD shortly after leaving the court chambers.

Maybe one day he'll be back in a different role. After working his way through school and graduating with honors, he decided his future lay in a different direction than he'd originally planned. He says there were "lots of personal implications" to his ordeal. He's in law school today because the case "got me thinking about my role as a Christian in society and how I was going to live out my faith. I see it as a different kind of ministry."


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