By Annie Laurie Gaylor
What's it like to take a case all the way up to the Supreme Court?
Starting the day of the hearing by reading The New York Times' pro-FFRF editorial, "Government by Law, Not Faith" (Feb. 28), was a high. It was also fun to read the USA Today's pre-write of the oral arguments, by Joan Biskupic, running that morning. (It featured a photo of me--behind our office door imprinted with "Freedom From Religion Foundation"--that was larger than the photo of the solicitor general!)
The line of people waiting by 8 a.m. for tickets to watch the oral arguments snaked halfway up the Supreme Court steps and out of sight on the sidewalk. There was already evidence of a pro-FFRF rally set for 9:30 a.m.--organized by Roy Spreckhart of American Humanist Association--and of some Christian protesters, too.
My mother, Anne Gaylor, Dan and I (the taxpayer plaintiffs) arrived early to be interviewed by ABC News' rising star, Dan Harris, whose story, he said, would emphasize the increasing "assertiveness of atheists"--which made for a nice change from legalisms. After a friendly 20-minute interview in the cold on that subject, we joined the line at the side for those of us with reserved seating. As we waited to be admitted, an attorney asided to my mother in amazement that he had been at a previous hearing about a "tax question," and "there was no trouble getting seats then." It seems our case was the legal event of the season.
I recognized almost no one. Who the heck were all these people? I felt like asking, "Friend or foe?"
When we finally filed into the Supreme Court chambers about 9:15 a.m., the plainclothes police continually "shushed" everyone in the chambers: "Keep it down, people!" Everyone was decorous and talk was quiet. What was the problem? My mother leaned over to whisper, "You'd think we were a pack of yipping dogs!" To my amusement, next the officers began lecturing everyone in the front rows about not chewing gum! (I don't think any of them were.) At ten minutes to ten, they sternly announced, "Absolute silence from this point on!"
I was pleasantly surprised by how hard Scalia and some of the other justices were on the solicitor general, who argued the Bush case. I wanted to bite my nails when they turned their questioning to our attorney.
About 20 years ago, the Court changed its policy of letting each side state its case without interruption for the first 10 or 20 minutes. Now it's a free-for-all. It seemed like equal opportunity hectoring. However, Chief Justice Roberts was painfully obvious in rescuing the solicitor general. Justice Breyer seemed our "knight in shining armor."
If the legal precedent is followed, we ought to have a unanimous victory. Kennedy, the swing vote, kept his own counsel, but made one ominous comment about not "intruding" on the White House.
While fascinating to see the court in person and at work, it was hard, with so much at stake, to feel comfortable during any of it.
On the way out, we bumped into two professors who routinely analyze our state/church lawsuits. They were jocular, joking that the Foundation is a "meal ticket" for them since our faith-based cases give them so much to analyze.
We repaired down the multitudinous steps of the Supreme Court for media. My spry 80-year-old mother, who has vision problems, gamely but carefully descended the blindingly white steps. Anne was interviewed at length by friendly Katherine M. Skiba from The Milwaukee Journal Sentinel, who now lives in D.C. I was not thrilled that my very first question from another member of the press was . . . "How old are you?"
I was pleased to finally meet in person the charming Adelle Banks, of the Religious News Service, who has interviewed us by phone for years. Some of the freethinkers and secular supporters who had attended the rally were still mingling. The media were attentive and we felt in general like we were among friends.
In addition to representing us pro bono, the law firm of Mayer & Brown treated us to a post-oral arguments lunch. The long, polished boardroom table was impressive, and we sat with the team of Yale Law School students who had helped research and even write some of our brief for the Court.
Now for the long wait, until the court's decision comes down in May or June.
By Dan Barker
A number of groups sympathetic to state/church separation and freethought held a rally in support of our lawsuit, at the bottom of the steps of the Supreme Court. Led by the American Humanist Association, the participants and speakers in the rally included people from the Secular Coalition for America, Americans United for the Separation of Church and State, the Freethought Society of Greater Philadelphia, and other groups.
We needed to be inside by 9:15 a.m. to get our seats in the Supreme Court . . . which is quite a process, just to get in.
As I was going in the door on the Maryland Street side of the building, I discovered I was standing between Ayesha Kahn of Americans United and Jay Sekulow of the ACLJ (Pat Robertson's American Center for Law and Justice, which had submitted an amicus brief in favor of the government).
"So what do you predict?" Ayesha asked Jay.
"I think we have at least four votes," he said, somewhat self-consciously.
"Well, so do we," she said, which is no surprise. Ha . . . Sekulow really went out on a limb!
Security is very tight at the Supreme Court. All of our belongings had to be screened. We were allowed to take pencil and paper, but no cameras or recording equipment, of course. Our attorneys sat up front by the justices, and we three had random seats about halfway back in the audience, in the middle with a good view. Sekulow made it a point of standing up front, smiling as if in order to be noticed by all. When our attorneys came into the room (Rich Bolton and Andy Pincus), I was glad to see they did the same thing, standing right up front, smiling.
We noticed a "Moses"-like man holding a tablet with the Roman numerals I through X, seated next to many other "lawgivers" (historical and mythical) up on the friezes above the courtroom. Note: the tablets are blank, a legally-important omission! (I counted exactly 100 decorative bas-relief flowers in the ceiling).
The room, which we were told holds about 320 people, was filled to capacity, and included many students.
All of the justices (except Thomas, who never speaks) raised tough questions for both sides. There was bantering between justices as they started to argue the case with each other. The nature of the questions seemed predictable from each justice (except for Scalia's surprising, to us, opening questions to the solicitor general). Those "for us" asked all the right questions, and those "agin' us" asking all the wrong questions! Chief Justice Roberts seemed surprisingly candid in his apparent agreement with the government's position.
The arguments were esoteric, since this case is not about the merits of our complaint (the establishment of faith-based offices in the government), but about our taxpayer standing to take the case in the first place. There was much mention of legal precedent, such as Flast v. Cohen and Bowen v. Kendrick, etc.
We left the court feeling like both sides were equally beat up on--which is better than feeling that only our side was beat up on!
After the arguments were over (the only case heard that day), we came out to the steps of the Supreme Court to talk to media. There was an area set aside where various media could tap into the same microphone, and Annie Laurie and I both took turns answering questions. The ABC World News crew was still there, and they had a few more questions. They filmed us walking down the last set of steps at the Supreme Court; the footage was used in their March 4 evening news broadcast.
We cabbed over to Andy Pincus's law firm. During lunch, my cell phone kept ringing with media calls from AP print and radio, CNN, the BBC News, the Capital Times (in Madison, Wis.), and many others.
I was tired, but strangely energized. It is pretty exciting to feel, to know, that we are a part of history. And it is heartwarming to meet so many capable friends who agree with us that the separation of state and church is a principle worth fighting for.
Jackie, our office manager, told us the morning of the oral arguments that our website was briefly down, because it was being bombarded by so many hits, mostly positive. She later emailed to give us the welcome news that the Freedom From Religion Foundation passed the 9,000 membership mark that very day . . . and she and staff members Nora and Lynn still had a large stack of new members to process, plus more than 2,000 "prospects" asking for information.
We have been rolling around in our minds what happened at the Supreme Court. The discussions are something of a roller-coaster ride. It is impossible to predict the outcome. We waver between the extremes of pessimism and optimism. Even if we get a bad decision, and end up losing our right to have our day in court . . . to "take it all the way to the Supreme Court" . . . at least we can say that we had a chance to take this leg of the lawsuit "all the way to the Supreme Court."
Given what is at stake, we had no choice but to try.