The Nine [49]
Still, he had to make a living. Sekulow went to law school at Mercer University, in Georgia, found a job with the Internal Revenue Service, and then started a private practice with a friend. His firm set up tax shelters for renovations of historic buildings in Atlanta. Soon Sekulow and his partner were prospering. As Sekulow later related in speeches, he was amazed that clients were paying him retainers of $25,000 or more, and he was just twenty-six years old! “Both my family and my business life were flourishing,” he said. “In addition to the law practice, I began a real estate development firm which grossed over $20 million after the first year.” Sekulow generally omitted what happened next. The deals turned sour. His law firm declared bankruptcy. A new chapter in his life hovered somewhere between a good idea and a necessity.
Fortunately, about a year earlier, Sekulow had signed on as the general legal counsel for the national Jews for Jesus organization, and it turned out that the group had a case that was heading to the Supreme Court. Sekulow decided to argue it himself and wound up changing American constitutional law.
Jews for Jesus believes its members should engage in missionary work to seek out converts. Their best-known (or notorious) form of proselytizing consists of aggressive leafleting, especially in public places like airports. In response to this practice, which was frequently annoying to passengers, the governing board of Los Angeles International Airport banned all “First Amendment activities” on its grounds. On July 6, 1984, pursuant to the policy, airport police evicted Alan Howard Snyder, “a minister of the Gospel” in Jews for Jesus, for distributing religious literature. Before Sekulow became involved in the matter, his colleagues in California sued to invalidate the airport rule.
The original theory of the case was straightforward. Proselytizing was a form of religious activity among Jews for Jesus followers. A blanket ban on the practice thus interfered with their First Amendment right to the “free exercise” of their religion. That was how these cases had customarily been argued. Religious expression was always defended under the Free Exercise Clause.
But Sekulow’s relative ignorance about the Constitution turned out to be his best weapon. Sure, cases involving religion were always argued under the Free Exercise Clause. But Sekulow came up with a different theory. The First Amendment, after the religion clauses, goes on to say that Congress shall make no law “abridging the freedom of speech.” (In a series of cases after World War I, the Court said that the First Amendment was binding against states and localities as well as Congress.) Sekulow thought the eviction of the Jews for Jesus minister was a speech case, not a religion case. What the airport was doing was censoring free speech—and it didn’t matter whether the speech concerned religion or politics, which was the more familiar basis for free speech claims. What made Sekulow’s idea so appealing was that the Court had been far more generous in extending protection to controversial speech than to intrusive religious activities. Sekulow could draw on a legion of cases where the justices protected all sorts of obnoxious expression, including distributing obscenity, waving picket signs, even, in one famous case, wearing a jacket bearing the words “Fuck the Draft” in the Los Angeles County Courthouse. Sekulow wondered how these activities could be permitted but not the polite distribution of pamphlets.
So did the justices. At the oral argument on March 3, 1987, Sekulow later recalled in a speech, “I had walked into the courtroom thinking about Jesus and how he overturned the money-changers’ tables at the Temple. Jesus was an activist. He stood up for what he knew was right. I drew strength from his example.” But in front of the justices, Sekulow didn’t even mention religion. He said the case was