The Nine [50]
“Nothing is wrong with what they do,” the lawyer said.
“Well, how can you prohibit something that doesn’t do anything wrong?”
Marshall had gone to the heart of the matter. For all the airport’s rationalizations, the case was about the censorship of an unpopular group—exactly what the speech clause of the First Amendment was designed to prevent. The vote in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. was unanimous, with O’Connor writing for the Court that the ordinance violated the First Amendment.
Sekulow immediately began putting his insight to work for the broader evangelical movement. A group of students at Westside High School in Omaha wanted to start a Christian club, to read the Bible and pray together after class. The principal and local board of education turned the group down, saying that to permit a Christian student group in a public school would amount to an “establishment” of religion, in violation of the First Amendment. Sekulow took the appeal to the Supreme Court.
Again, Sekulow steered away from the religion arguments under the First Amendment. To him, the case was about the free speech rights of the students. If other youth groups could use the school facilities, why not the Christian kids? Once more, Sekulow won overwhelmingly, with O’Connor again writing the opinion and only Stevens in dissent. More importantly, O’Connor essentially gave Sekulow and his allies a road map for expanding the place of religion in public schools. In the key passage in Board of Education of Westside Community Schools v. Mergens, O’Connor wrote, “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” The Court was saying that religious activity was welcome at public schools, as long as it was students and not teachers or administrators who initiated it. Evangelical students and their parents were only too happy to accept the invitation.
Sekulow’s victory in the Mergens case in 1990 drew Pat Robertson’s attention. The son of a senator and a graduate of Yale Law School himself, Robertson had established himself as a political, financial, and religious powerhouse. He had started the Christian Broadcasting Network in 1960 and soon found that he needed $7,000 per month to keep it on the air. So he ran a telethon seeking seven hundred people to give $10 apiece, and he called the program The 700 Club. Based in Virginia Beach, the network and its signature program launched Robertson’s vast empire, which included, by the 1980s, broadcast, real estate, cable operations, and even a university, Regent, with more than a thousand students. (Later, he and his partners sold just one part of his operation to ABC for $1.9 billion.) In 1988, Robertson ran a respectable race for the Republican presidential nomination, which included besting Vice President George H. W. Bush in the Iowa caucuses, but he had never figured out a reliable way to bring his fight to the courts.
So in 1990, he asked Sekulow to join him in starting a conservative counterpart to the American Civil Liberties Union. Like the ACLU, the new entity would not limit itself to a single issue—such as abortion or school prayer—but instead represent a complete political agenda. Even the name of the new operation would announce an institutional rival to the ACLU; it was called the American Center for Law and Justice, the