It was twenty five years ago today,
Widmar v. Vincent, a case that fathered the doctrine of "equal access" in religious speech cases, came on for oral argument before the U.S. Supreme Court. 
I was 31 years old, seated at counsel table beside my 35 year-old partner, James M. Smart, Jr., who argued-- and won -- the case that day for Clark Vincent and ten college students from UMKC. Twenty five years later, I plan to have lunch today with the Honorable James M. Smart, Jr., a judge on the Missouri Court of Appeals, hosted by my son, Jonathan, a 2004
It was the first Tuesday in October, the second day of the 1981 term, and the first week on the job for new justice Sandra Day O'Connor. The marshal of the US Supreme Court cried "oyez, oyez, oyez. God save the
In 1981, Smart and Whitehead was a prestigious, internationally acclaimed law firm specializing in Constitutional law and religious liberty. Well, not exactly. We were a two-man law office in
In 1977, what walked in the door was several Christian college students from the
Jim Smart, in a solo law practice at the time, tried to reason with university lawyers, but they would not budge from their conviction that religious worship was different from religious speech, and that tax-supported facilities could not be made available to this group without violating the doctrine of "separation of church and state" contained in the federal First Amendment Establishment Clause, as well in the Missouri State constitution. Jim filed suit on behalf of the students in federal court in
I joined Jim Smart in partnership in 1978. The case was pending before Judge William Collinson on "cross-motions for summary judgment." This is a procedure that avoids a jury trial and lets the judge rule where the facts are undisputed and the law is clear. In December 1979, Judge Collinson said the law was clear clearly against us, and he granted summary judgment in favor of the university.
The heart of his ruling was a distinction he made between speech and "religious worship." He admitted that normally, the state university could not discriminate against persons based on the content of their speech. That rule is based on the Free Speech clause, which prohibits government censorship or discrimination against the speech of private persons. But Judge Collinson found in the First Amendment an exception to the Free Speech Clause, namely, the No Establishment of Religion clause. He said that religious worship that involves speech is not the same as other kinds of Free Speech. Government must censor or discriminate against religious worship speech if it occurs on government property. Otherwise, it would amount to indirect government financial support of religion, forbidden by the Establishment clause.
The Eighth Circuit Court of Appeals reversed in 1980, by a unanimous vote of a three judge panel. Religious speech, like other speech, is protected by the First Amendment, and allowing "equal access" for religious and non-religious student uses did not violate the Establishment Clause. When UMKC's motion for rehearing was denied, two judges took the unusual step of writing a dissent, saying the case should be reheard because the decision was clearly wrong. Religious worship should not be treated as Free Speech, they warned.
The University appealed, and we opposed it. We had won the court of appeals decision and didn't want to take any chances before the Supreme Court, for lots of reasons, not to mention the fact that we had never been before the U.S. Supreme Court. If the Court granted certirorari, (the University's request for appeal) it might be a bad sign that 4 justices wanted to reverse the Eighth Circuit decision. We filed an opposing brief, begging the Supreme Court not to invite us to Washington, but just leave well enough alone.
I wasn't even a member of the Bar of the Supreme Court yet. Fortunately, Jim Smart was, so he signed my application for admission, vouching for my good moral character and fitness to be practice before the Supreme Court. I was admitted to the bar in a little ceremony before cases were called the morning or our argument. Jim was my sponsor. Archibald Cox, former White House Counsel was seated in morning coat behind me, so that he could move the admission of one of the young associates in his D.C. firm. Then Jim Smart moved my admission. "Motion granted," intoned Chief Justice Warren Burger. "Mr. Whitehead, welcome to the Supreme Court." (Motion granted, I thought. We're on a roll. Things are going our way.)
I was praying. Seated ten feet away from the justices, I was praying for victory. Victory for the students. Victory for religious liberty. Victory for the sake of the Gospel. Again, I smiled. My prayer in a tax-supported courtroom would violate the Establishment Clause, in the opinion of the University lawyers.
I began scribbling notes on my legal pad, to flow-chart the arguments. Twenty five years later, I am reviewing those hand-written notes as I write this article, trying to recall the thoughts and emotions of the morning. (The "quotes" below are not verbatim, but are based on my notes.)
Ted Ayers, attorney for the University, spoke first, because UMKC was the appellant. He began reading his prepared remarks for less than ten seconds. "This case involves a conflict between the Religion Clauses and the interests of Public Education." The Chief interrupted him. "The Religion Clauses? What about the entire First Amendment?"
(Yesss! Free Speech! Free Association! The other clauses in the First Amendment. Chief Burger has read our briefs and understands our position.)
Mr. Ayers: "Well, Mr. Chief Justice, Cornerstone's activities involve religious worship, not just speech."
Justice Rehnquist: "But wasn't the
Chief Justice Burger: "And I see in the briefs that you allow the Young Marxist League to meet on campus, and to speak against our democratic system of government."
Justice Rehnquist: "So are you saying that only religious groups cannot meet on campus?"
Mr. Ayers: "They can meet, Justice Rehnquist. They just cannot engage in religious worship and teaching."
Justice Rehnquist: "Could Jerry Falwell be invited once per month to speak to the students at their meeting?"
Mr. Ayers: "Yes, your honor, he could come, but there could be some possible questions about his speech, depending upon the content."
(Depending upon the content? THE CONTENT? Is anyone else thinking that this sounds like classic censorship language, unequal treatment based on CONTENT of speech?)
Justice Rehnquist: "Well, then what about William Kunstler? Could he be invited by a student group to speak?"
(Yesss! Rehnquist gets it. He is thinking about unequal treatment of speech, based on content and viewpoint of the speaker. For those who didn't live through the Vietnam War era, Mr. Kunstler was a self-described "radical" ACLU lawyer who defended liberal causes in the 1970s, including the famed "Chicago Seven" rioters at the 1968 Democrat National Convention. But that's a different case for a different day.)
Chief Justice Burger: "You referred to the "content," of Jerry Falwell's speech, if he came on campus. When the state discriminates based on content, doesn't that violate the Free Speech Clause?
(Yessss! Burger gets it. It is also interesting to recall that Jerry Falwell made headlines for his outspoken concern that Sandra O'Connor might not be a strong pro-life judge. Falwell's concerns proved prophetic, but today it is interesting that several justices mention Falwell's name during this argument.)
Mr. Ayers: "Religious content cannot be treated by the State the same as other kinds of speech, your honor. Otherwise, the Free Speech clause would swallow up the Establishment Clause."
Justice Stevens speaks for the first time. He will write a concurring opinion in our favor. "What about military chaplains? They are government officers engaged in leading religious speech and worship?"
And Justice Powell chimes in: " Does the University distinguish between worship in buildings as opposed to the campus lawn? Could Jerry Falwell be banned from a public park because of his speech involves religious worship?" (Powell will author the majority opinion in favor of the students and equal access.)
Mr. Ayers: "Cornerstone asked for regular meetings for religious worship, not a single use.
Chief Burger: "The Pope held a Mass on the National Mall recently, and we upheld that. That may be a single event, but there are regular uses of the national mall that involve religious expression. The National Christmas tree with crèche is on government property for an extended period."
Justice Blackmun speaks for the first time: "Are you troubled by prayer breakfasts with government officials, on government property? Are you concerned about daily prayer in Congress?"
Justice Stevens: "Regular use is not the issue here. The University policy prohibits a single use by Cornerstone for religious worship. It is not fair to say you are only prohibiting regular use."
Chief Burger points to the frieze on the ceiling, showing Moses resting the Ten Commandment tablets on his knees: "Do you object to the Ten Commandments being regularly in this court room? That's a religious symbol to some. Does the University view of the Establishment Clause require us to take that down?"
(I am tempted to nudge Jim Smart and suggest that he waive oral argument. We are winning by the power of prayer. Let's don't take any chances of speaking up and losing it. But I keep my excited, nervous thoughts to myself. Mr. Ayers reserves his remaining time for rebuttal, and sits down.)
James M. Smart, Jr. rises and steps to the Advocate's Lectern. A green light atop the lectern glows, and he speaks until that light goes out, and a yellow light, then a red light flashes. He is well prepared. We had done several "moot court" sessions with local appellate attorneys like Dennis Owens and Charlie Blackmar-- some of the sessions were in the UMKC law school moot court room. He speaks calmly and eloquently. He answers questions concisely and persuasively. Good questions. Some hard questions. But he is a superb appellate advocate. I am proud to be his partner in Smart and Whitehead even though, as someone said, I am always the one who is not Smart.
Justice Byron White asks several questions at the end of Mr. Ayers' time, and throughout Jim Smart's time. He is concerned that the State is taking on a greater burden than it needs to. Why not just argue that UMKC is permitted to exclude religious worship, as a matter of advancing its goal of strict church-state separation? Mr. Ayers likes that argument, but also wants to cling to the Establishment Clause as mandating the school policy against religious worship.
Mr. Justice White is concerned that a Catholic student group could invite a priest to come every week and perform mass in the student union. And then they could ask for space every day. And then for all day every day. And the next thing you know, in this world of Imaginary Horribles, the Student Union will be taken over by one religious group and used exclusively for religious worship.
Jim Smart calmly explains that no private group should be permitted to dominate a public building. The problem is not that the group is religious, but that it is private. If the Rotary Club took over a public building for its meetings, that would be an improper use of public funds. But that problem can be solved by administrative use policies that fairly allocate the uses among all groups, not by discriminatory bans on religious worship.
Justice O'Connor asks about the "appearances" of approval and disapproval by government. "If government denial of space for your group attaches a stigma, would government allowance indicate approval of your group and its beliefs?" No, Jim explains. The university allows many groups, and has a written disclaimer in its student catalog that denies sponsorship or endorsement of any group. We see Justice O'Connor's "endorsement test" in embryo, but it will not give birth in Widmar.
Thurgood Marshall bellows: "Many groups are not meeting weekly. This group wants to meet every week. Aren't regular meetings different"
The red light glows and Jim is seated.
Ted Ayers gives his rebuttal. As he speaks, I take a 3x5 card with a seating chart of the justices, furnished to us by the marshal so we won't forget the justices names during argument. I begin to mark a "W" or "L" by each name, recording my guess whether we'll win or lose that vote. I mark five "W's: Burger, Brennan, Powell, Rehnquist and O'Connor. I put "L's" by Byron White and Thurgood Marshall. I put a question mark by Blackmun. I make no guess about Stevens.
Two months and two days later,
Only Byron White voted against us in Widmar. He could not accept the notion that religious speech and worship is still speech. And he feared that a religious group might monopolize the forum. Nine years later, in Mergens, he will vote with the majority, 9-0, suggesting that his fears of religious groups dominating the forum had not materialized. For a quarter of a century, Widmar bears much fruit in a multitude of cases. Lambs Chapel. Rosenberger. Good News.
Now, 25 years later, the Ninth Circuit Court of Appeals threatens to Religious Free Speech back into the Dark Ages. A church group sought to use a community room in a public library for its meetings. The library denied the permit because the meeting included religious worship. Judge Lawrence Karlton writes a cocky concurring opinion that ridicules Widmar as bad law.
"This should be a simple case it asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question." " As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.
It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. To coin a phrase, one can only pray for the court's enlightenment.
Pray for the court's enlightenment? Wouldn't that violate Judge Karlton's view of the Establishment Clause? Maybe his prayer is okay as long as it is silent prayer. Twenty five years after Widmar, and appeals judges are still rebelling at the thought that religious speech should get at least equal treatment with other kinds of speech. Pardon my indignation, but the Father of Equal Access deserves more respect. This Ninth Circuit nonsense must be appealed. Maybe the Supreme Court will grant cert, and take this opportunity to reaffirm that Widmar is still vigorous at 25. This Ninth Circuit Nonsense must be appealed.
But that is for tomorrow. Today, at lunch with Judge Smart and my son, Jon, we will remember, and celebrate, and look forward. God is good.
* Mike Whitehead has practiced law in
© Copyright, Michael K. Whitehead, 2006.
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