Jay Sekulow says defending religious liberty is ‘personal’

Matt K. Lewis Senior Contributor
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Jay Sekulow, the Chief Counsel for the American Center for Law and Justice (ACLJ), is well known among top political and legal observers. After all, he has argued numerous cases before the Supreme Court, and TIME Magazine even named him one of the “25 Most Influential Evangelicals” in America. But I suspect few observers know where Sekulow’s passion for defending liberty was birthed.

“My grandfather faced that persecution at the time of the Russian Revolution, as a lot of Jewish people did in 1914, ’15, ’16 and ’17,” he told me. “I have this statue in my office which is a model of Ellis Island because my grandfather came through Ellis Island.”

During a recent conversation, Sekulow and I discussed his calling to defend religious liberty, as well as his experiences arguing cases before the Supreme Court.

“I always think about that,” he said, recalling his grandfather. “Here I am, Mr. Sekulow, the grandson of a Russian immigrant who came through Ellis Island, and his grandson is arguing cases before the Supreme Court of the United States. So I think both as it relates to this whole idea of religious freedom, but liberty and freedom generally, I take very personally.”

If you’re interested in learning more about Sekulow, religious liberty, or the ACLJ, you can listen to our full conversation here — or read the full transcript below:


Interview with Jay Sekulow

Matt Lewis: We’re happy to have with us today Jay Sekulow. He is the Chief Counsel for the American Center for Law and Justice. Jay Sekulow, welcome to the podcast.

Jay Sekulow: Hey, Matt. Thanks for having me. It’s great to be with you.

Matt Lewis: So a lot of folks may have heard of the ACLJ; some people maybe haven’t; but if you would, tell us what is the group about? What is the mission?

Jay Sekulow: Well, you know, it’s interesting because we’ve been around, you’re right, a long time. I actually started this work doing religious liberty work back in the 1980s. The ACLJ was formed in 1990, and we had some other organizations that are a part of it that pre-existed all this. So the idea initially was to serve as a kind of counterweight to the ACLU, primarily at that time, in the early days, if you look at it, dealing with the religious liberties issues. The school issues were the really big ones.

Probably the most significant case of the last 30 years at that point, I’d say certainly—probably the last 40 years, was a case involving students who wanted to have a Bible club in high school. Now in today’s world, we think of that as a non-issue. They want to have a Bible club or religious club, what’s the problem? There are political clubs; you’re allowed to do these things. But back in the ‘80s, that wasn’t the case; and it actually took an act of Congress to authorize the law, and then that law was challenged in court. It ended up at the Supreme Court of the United States, and I argued that case in 1990s. But even before that case, we had cases involving free speech; so I had a series of Supreme Court cases; and as I said, the focus was primarily religious liberties in the early days, but it quickly expanded into the pro-life arena as well. By the late ‘80s/early 1990s, we were representing Operation Rescue. We had a series of major cases that were big news back in the late ‘80s and early ‘90s, and we had a series of cases at the Supreme Court dealing with that.

Matt Lewis: Now you are the grandson of Russian immigrants, and I’m wondering how that might have influenced you to go into this calling because, you know, you can make a lot of money as a lawyer representing corporations or whatever. Was there something about being the grandson of an immigrant?

Jay Sekulow: Yes, I think it’s not just being the grandson of an immigrant; it was the grandson of an immigrant who left Russia because of religious persecution. My grandfather faced that persecution at the time of the Russian Revolution, as a lot of Jewish people did in 1914, ’15, ’16 and ’17; and he came to the United States as a 14 year old. When he came here, I have this statue in my office which is a model of Ellis Island because my grandfather came through Ellis Island. Actually, my son, Logan, found his immigration papers online, signed by my grandfather, who was naturalized in 1930 as a U.S. citizen. But he came here through Ellis Island, and I do think—I do this from a personal standpoint. When I argue those cases at the Supreme Court of the United States—and I say this with deep admiration for living in this country—when they call my name and they say, “Mr. Sekulow, we will now hear from you,” (which they’ve done over a dozen times now and I’ve had a lot of cases up there, obviously), I always think about that. Here I am, Mr. Sekulow, the grandson of a Russian immigrant who came through Ellis Island, and his grandson is arguing cases before the Supreme Court of the United States. So I think both as it relates to this whole idea of religious freedom, but liberty and freedom generally, I take very personally.

I have not only a deep affinity and affection for our country, but a desire to preserve and protect and defend it in the courtrooms, and within the context of the vision the Founding Fathers intended. That’s the motivating force for me in all of these cases that we’ve done, including the campaign finance cases, the religion cases, the statutory cases, that’s been a big part of who I am. I take that charge—you said it right, Matt—as the grandson of a Russian immigrant very seriously.

Matt Lewis: I want to talk about some of the cases—your Supreme Court cases—but before I do, you know, it’s got to be intimidating to go before the Supreme Court. Could you just tell me what is it like? What was it like the first time? How intimidating is it? Just what does it feel like?

Jay Sekulow: Well, the first time, I will tell you the truth, I went to the Supreme Court and I saw an argument three weeks before I did my first argument at the Supreme Court. And the first appellate argument I ever did was the Jews for Jesus case at the Supreme Court. I had never argued an appeal before; I did trial work. My first appellate argument was before the Supreme Court of the United States. It is an intimidating factor in one sense because it’s the whole formality of the occasion; but it’s also, as nervous as any lawyer is your first time, it’s an awe-inspiring event—the majesty of the law, the grandeur of our system of justice. It had a real impact on me.

And the intensity level of preparation, it never changed since the first case I argued. I prepare. It becomes my life for a long number of months leading up to the Supreme Court arguments. Usually from start to finish when your case is granted review, you’ve got briefing that goes for about three months and then you have oral argument preparation, which is another three months. Basically, for that six months, that’s your life.

It was an incredible experience, and I will tell you something about it from a little bit of a different perspective, I recently participated in an event at the International Criminal Court in the Hague on a very complex international law matter. I came back and the first thing I said to my partners and associates and friends was the fact that you really learn to appreciate our system of justice when you go overseas (and I litigate around the world), how great this system is. With all its problems, with all the parties disagreeing with your position, it’s still the greatest system in the world.

The nervous factor is there, but that evaporates when you make oral arguments in seconds because then you’re just engaged. I don’t actually think it gets easier each time you do it; because I think as you become more of a repeat lawyer or “regular-?” as it’s called, the expectations are high. The answer is “yes” or “no”; it’s not “I don’t know.” “I don’t know” is not a good answer at the Supreme Court of the United States.

Matt Lewis: So, your first case before the Supreme Court in 1987, Board of Airport Commissioners v. Jews for Jesus, tell us, if you would, about that case.

Jay Sekulow: Well, it was a straightforward case. The City of Los Angeles, in light of the 1988 Olympic Games, passed a resolution prohibiting free speech activities at the airport. The Ninth Circuit Court of Appeals upheld our position. The concern was that the Supreme Court took the case to reverse. Rather than arguing it as a religion case, we presented the case as a classic free speech case. We received wide support from political parties, labor unions, civil liberties groups, and others. The Supreme Court ruled unanimously in our favor, and Justice O’Connor wrote that there was no conceivable governmental interest justifying such a sweeping prohibition of free speech.

One of the news articles described my oral argument initially as very aggressive and obnoxious. When the decision came out unanimously, another legal periodical described that in my oral argument, I remained undeterred during intense questioning. But it was a big case because it utilized the free speech perspective in a case involving religious speech, and that was a big deal at the time.

Matt Lewis: You are now operating in a lot of different countries. America is an important country and there’s a lot of work to be done here. What was it that led you to decide that this needed to be done internationally as well?

Jay Sekulow: Well, starting in 1997, so it’s been a long time, we were invited to speak with some lawyers in Europe and I realized very quickly that what was happening in Europe on critical issues involving life, involving religious freedom, were really at stake there. I was also concerned that I saw this growing phenomenon and this idea that they were going to take international law, because it had already started creeping in, and apply it to the U.S. Constitution despite the fact that Europe does not have a constitution. We thought it would be in our interest to litigate in Europe on issues of life and liberty and religious freedom with a clear understanding that the law determined there involves Europe and should not be placed on the United States even though the same principles were at stake. I thought that was dangerous. So I said, well, if establish a full office and operation—we initially opened in Strasbourg, France, which is where the European Court of Human Rights sits. Look, we know that there’s importance regarding law in Europe, but we also know this—we have an office over there—we don’t take European law which is not based on a constitution and apply it to the United States. Now that’s coming from lawyers who litigate in Europe and have offices in Europe with European lawyers running them. So, the idea was to address a lot of the same issues that were in a strictly European context and not mix the two.That’s what we really focused on. So, our first international office was there in Strasbourg, France.

Matt Lewis: And so, going back to America, I wanted to get the sense; you know, I guess starting in like, you know, the ‘60s, liberalism and sort of the radicalized (culture), and you had these “you can’t have prayer in school” and these different things, and obviously Roe v. Wade in 1973. So, do you have a sense though that things are getting better or worse or staying the same in terms of where we’re going with religious liberty?

Jay Sekulow: Well, I think our religious liberty has actually gotten better. I think you saw, you’re right, in the ‘60s, ‘70s and ‘80s, it was pretty awful; and now you have a very different situation and that is, if you look starting in about 1985/middle ‘80s, you started seeing what we call “equal access doctrine”—this idea to allow a broad array of speakers into the public fora, you can’t discriminate against the religious speaker simply because they’re religious.

We actually had an oral argument, a case involving Lamb’s Chapel Church, where the State of New York argued that religious advocacy served no benefit to the general community. And Justice Scalia, in the oral argument, asked the attorney for the State of New York, he said, “Is that still a position of New York that religious advocacy is not beneficial to the general community?” and the lawyer said, indeed, it was their position currently. And Justice Scalia then retorted and said, “Well, you know, it used to be thought that a person who was religious was less likely to mug me or rape my sister.” That’s what Justice Scalia said to the lawyer from the other side on this. We had a unanimous decision in that one as well.

So, what happened was the Court—conservative and liberal—quickly understood that we’re dealing with a situation where (and I think this is important to note), a situation where the Court came to grips with the idea that you cannot treat religious people and religious practices, as Justice Brennan said, as if they’re subversive to the American Republic. You started seeing that in the ‘80s, so in a very real way, Matt, I think we are a lot better off now than we were then. I will say that we’re hanging on by a thread, though. These cases are very close now. We used to win 6-3, 9-0; now they’re 5-4. So the ideological shift on the Court’s been significant. We’re hanging in there, but these are tough cases.

I’ve got one pending right now that may be granted review, and I’m looking at it and saying, “Well, if we win, we’re going to win by a vote; if we lose, we’ll probably lose by a vote.”

Matt Lewis: Wow, okay, are you allowed to talk about that?

Jay Sekulow: Yes, it involves a judge who had a rule of law displayed in his courtroom. It included the Ten Commandments but a lot of other documents as well, and he called it “Moral Absolutes.” The ACLU challenged it. They tried to get him held in contempt once for a previous case. We won the contempt. They then filed suit again. The court said that the ACLU individuals involved had standing and secondly (and this is what was so interesting here), that it violated the Constitution. This case is now pending, and we think the standing issue—can you simply, “I don’t like to see something, therefore I get to file a lawsuit” is what needs to be addressed. I think if the Court grants review—and I’m hopeful they will; it’s always an uphill battle—it will be because of that.

Matt Lewis: Now obviously, the ACLU, their mission at least sounds noble; and I think we all believe in, you know, liberty and free expression. And every once in a while they do come down sort of on the right side of something.

Jay Sekulow: Yep.

Matt Lewis: Sometimes they come down on a really weird side—the wrong side—but sort of like a weird principled stance. Do you think, are they just sort of misguided or do you think they’re like openly hostile to religious liberty?

Jay Sekulow: Well, talking about and I’m not so sure about this. “Hostile” is a strong word, only in the sense that I think they really believe this. Their view of church-state relations is very different than ours. They believe in a strict separation of church and state; and because of that, it’s not the hostility, it’s just who they are. They really believe this stuff.

On free speech, there are a lot of cases where they back me up. I’ve had cases where they’ve joined with us on protest cases, but sometimes they’ll take a skewed position on that as well. So, you hope that it’s not ideologically driven; but what I’ve found is that they sincerely believe their position. I just believe a lot of these are sincerely wrong.

Matt Lewis: Gotcha.

Jay Sekulow: There are other groups, quite frankly, that take it to a much higher level of extreme. The Freedom From Religion Foundation. The American Atheists Association. The Military Religious Freedom Foundation, which is Mikey Weinstein. They take it to a whole different level.

Matt Lewis: Let me ask you, if you would talk about something. You’ve got a lot of these Supreme Court trials. We can’t talk about all of them, but say Operation Rescue v. NOW; Locke v. Davey; Elkwood Unified School District v. Newdow. If there’s one that you think would be of interest to the audience, I’d love to hear more about it because these are like Supreme Court cases and even a Supreme Court, the average person doesn’t really, you know, come in contact with them. You don’t hear it a lot of times on FOX News or MSNBC or USA Today even.

Jay Sekulow: Right. You know, it’s hard to pick the ones that really made a difference. Obviously, the one I mentioned earlier, the Bible club case, had a huge impact. The one I really enjoyed arguing was the campaign finance case [McConnell v. FEC]. There was a provision in what was called the Bipartisan Campaign Finance Act that was McCain-Feingold that prohibited minors from participating in these elections. If a student, a 17 year old, wanted to give $5 to a Sunday School teacher who was running for Congress, it would be, you know, a crime. And we challenged that and, actually, I argued that at the Supreme Court of the United States, that while they upheld most of the Campaign Finance Act, the provision that we challenged was declared unconstitutional unanimously. That was a fun case. I had a very short time for oral argument; I think it was 10 or 15 minutes, and it was very intense.

Matt Lewis: What was that practice called? Specifically, this notion that if you gave money to your Sunday School teacher who was running for office that was illegal.

Jay Sekulow: They actually had in the law, in the Bipartisan Campaign Act, saying that minors were prohibited from contributing to elections.

Matt Lewis: Okay.

Jay Sekulow: And the idea was that you had to be 18 years old to vote; and you could say that if you have to be 18 years old to vote, well then if you’re not 18, you shouldn’t be able to give to a campaign. My retort to that was that women, before they had suffrage, weren’t entitled to vote; but they funded a lot of campaigns on the streets and in political environments to make sure they got the right to vote. So, you know, it didn’t quite work out that way, and the First Amendment wasn’t based on that kind of context. Again, unanimously, the Court all agreed. So, that was a really fun case and an important case on precedent. It kind of re-established student rights and that these students do have free speech rights which became important.

You know, some of the most intense cases were clearly the Operation Rescue cases, just by their nature. There was a situation where you had the case at the Supreme Court when all the controversies were going on, and you had them in the lower courts as well. So it began an all-consuming event, as you can imagine.

Matt Lewis: Indeed. Well, Jay, I really appreciate you coming on. How do people find out more about you and what you do?

Jay Sekulow: The best way to do it is ACLJ.org. Matt, thanks for having me. I really appreciate it.

Matt Lewis: My pleasure. Jay Sekulow. He is the Chief Counsel for the American Center for Law and Justice. Jay, thanks for coming on the show.

Jay Sekulow: Thanks, Matt.

(Note: You can find Jay Sekulow on Facebook and Twitter.)

Matt K. Lewis