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High Court Hears HLS Student's Lawsuit

By William C. Marra, Contributing Writer

As Supreme Court justices deliberate his case, Harvard Law School (HLS) first-year Joshua D. Davey has reached near-celebrity status on campus.

Since the beginning of this week, Davey has become a recognizable face to law students and professors alike, according to Emily D. Zimmer, Davey’s friend and a fellow first-year at HLS.

Gov. Gary Locke, et al. v. Joshua Davey, a case Davey first brought forth in 2000, made itself all the way to the docket of the United States’ highest court this week.

Davey brought the suit after his home state of Washington revoked a scholarship it had granted him when it learned he would be using the money to study theology from a religious perspective.

The Court heard oral arguments Tuesday morning and is expected to issue a decision by next July.

In determining whether government bans on the use of public funds for religious purposes violates the constitution’s free exercise clause, the ruling will set an important precedent in terms of how far the separation between Church and State outlined in the First Amendment extends.

The Supreme Court ruled last year that parents could send their children to religious schools using public tax money, because this does not represent the promotion of the establishment of religion.

Thus while allowing public money to fund religious education is legal, said HLS Visiting Professor of Law Eugene Volokh, the Davey case raises the question of whether it ought to be mandatory.

Supreme Court justices were divided over the case at Tuesday’s oral arguments.

If the Supreme Court frames the debate in terms of discriminating against religion, it will rule in Davey’s favor, said Professor of Law Martha Field.

Davey has a chance to win the case, Field said, due to a gradual change in the Supreme Court’s interpretation of the separation between Church and State.

“The basic rule used to be that the state couldn’t give money to religion, period,” she said. “Now [the Court] has gotten it so it is almost the opposite of what it was before. They’re much more worried about not discriminating against religion.”

While most professors and many students at HLS had heard of the important case before, they said it was only this week’s oral arguments and accompanying media coverage that made many of them realize that Davey was the plaintiff.

“Prior to the arguments Tuesday it wasn’t sort of widely known,” Zimmer said. “Within our section the news had kind of spread sporadically, but none of the professors have said anything in class.”

But now, people are approaching Davey on campus and asking to talk about the case, Zimmer said.

Davey said that most of his classmates have reacted very positively towards his legal effort.

“Certainly there are people who disagree with me,” he said, “but at least they’re excited about the issue.”

Davey said he enjoys having a chance to plead his case to the public.

“It’s great to be able to get to address the media because I think it is such an important issue,” he said. “I really think this will have popular support.”

With so much attention suddenly thrown his way, Davey admits the case is a distraction from his workload—“but certainly a worthwhile one.”

Nonetheless, many HLS professors have chosen to play down Davey’s celebrity status.

“We have a lot of celebrities. They’ve been in the NBA; we had a guy who was on Survivor. I don’t think it makes a whole lot of a difference,” Field said.

“For a few days at least Davey will have celebrity status with students, and certainly every professor probably knows his name,” said Professor Richard Fallon, though he stressed that Davey would not be treated differently in the classroom.

However, at least one professor found the presence of Davey on campus intriguing.

Volokh, whose expertise lies in Church-State relations, said he looks forward to meeting and discussing the case with Davey, whom he jokingly called “Harvard Law School’s Supreme Court celebrity.”

Amidst all the attention, Davey remains optimistic that within the courtroom itself, his side will emerge victorious.

“I’m definitely confident. I think we have a great case,” he said, predicting that the justices’ decision will be a close one—almost certainly 5-4.

But Davey said the significance of his suit lies in the legal precedent a victory would set, not in any measure of personal glory.

“I think it’s a basic discrimination issue,” he said of the case. “The only criteria they’re using to deny the funding is the religious criteria, and religious discrimination can’t be allowed.”

Besides, Davey said, victory would not bring him much in the way of personal benefit.

“If I win I will get about $1,500 plus interest,” he joked. “Though with the economy as of late, [the interest] won’t be a lot.”

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