The Nine [70]
The centerpiece of Sekulow’s empire was a town house less than a block from the Supreme Court. The ACLJ bought the building for $5 million, then meticulously renovated it, with such features as a hand-painted mural of the Washington skyline in the ground-floor conference room. (The mural cost more than $40,000.) The ACLJ also bought the town house next door to its headquarters for $1.5 million for the use of Sekulow and his family, as well as an $850,000 home in Virginia Beach and a “retreat” in North Carolina. By the late nineties, the convenient D.C. town house allowed Sekulow to become a familiar figure at the Court, whether he was arguing cases or just stopping by to chat up the Supreme Court beat reporters.
Sekulow kept bringing cases to the Court as well, but in the 1999–2000 term, he discovered the limit of his free speech arguments. The case arose out of one of the central rituals of Texas life—the high school football game.
The local school board in Santa Fe, a small town in the southern part of the state (not to be confused with the city in New Mexico), had studied the Court’s precedents with care, trying to carve out a role for prayer at the Friday night football games. Following extensive negotiations and litigation, the board established a program where a student elected by his or her peers would give a “nonsectarian, nonproselytizing” prayer before each game. Nevertheless, two students, a Catholic and a Mormon, sued to stop the practice, arguing that the policy violated the Establishment Clause.
Sekulow, representing the school board, went before the justices with what had worked before: “Santa Fe Independent School District has adopted a neutral policy which simply permits student-led, student-initiated speech at football games,” he said. The policy “allows for the individual student to determine the content of the message. That message may include a prayer at the student’s discretion…. The Santa Fe policy creates a venue for student expression. It is neutral as to religious or secular speech.”
This time, however, the justices looked behind Sekulow’s characterization of what was happening. The record in the case showed that the entire policy was designed by the school to allow students to lead prayers—not just “speech”—at games. “This is not a neutral speech policy,” Souter said to Sekulow. “It is not merely religious subject matter. It is religious worship. It is an act of religious practice.”
“And if the student decides to engage in a prayer,” Sekulow answered, “that is speech protected by the First Amendment, and to then say that a policy—”
“As private speech,” Souter shot back. “The question is whether that speech can be, in effect, involuntarily inflicted upon those who may not want it by the power of the state.”
Scalia tried to come to the rescue of the school board’s policy, but this time his bombastic style hurt his cause. He attempted to trivialize the dispute by pointing out that the two students who brought the case didn’t even use their real names, which was why the case was called Santa Fe Independent School District v. Doe. “Could I ask you about that? That’s just a curiosity I have in this case. I don’t even know who the plaintiffs are,” Scalia said. “Do people have rights to sue anonymously in federal court? Is anybody who just doesn’t want it known that he’s bringing a lawsuit, he’s ashamed of it for one reason or