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With Liberty and Justice and Religious Freedom for All

Religious liberty is among America’s bedrock principles; indeed, scholars often refer to it as our “first freedom.” But it is often controversial in its particular applications, and never has that been more so than in 2016. Two leading candidates in the Republican presidential race have proposed discriminatory treatment of Muslims (Donald Trump called for barring all Muslim immigration, Ben Carson suggested that Muslims should not run for president). And bitter disputes over social issues have spawned multiple cases involving religious-liberty claims by conservative Christian religious organizations and individuals who object to facilitating abortion, contraception or same-sex marriage.

Religious liberty in America protects the ability of all people – Muslims and Christians, conservatives and liberals – to maintain faithfulness to their deepest beliefs without government coercion or penalty. Since the spring semester of 2014, University of St. Thomas School of Law students have been involved directly in the effort to defend our first freedom. Through the Religious Liberty Appellate Clinic, directed by Professor Tom Berg, students write amicus curiae briefs in important religious liberty cases in the U.S. Supreme Court and other appellate courts nationwide. Two students each semester (I was one of them) write amicus briefs in collaboration with national religious-liberty organizations.

Amicus curiae in federal and state litigation are persons or organizations, not parties to the case, who will be affected indirectly by the court’s decision or who have knowledge or expertise that can inform the court concerning the grounds or consequences of a decision. Briefs by amici increasingly have become important in the U.S. Supreme Court and other appellate courts.

Berg has written more than 40 briefs in religious liberty cases over the last 25 years, including 22 briefs in the Supreme Court. He has represented atheists, Christian Scientists, conservative and liberal Christians, Hare Krishnas, Jehovah’s Witnesses, Jews and Native Americans. He began the St. Thomas clinic to involve students directly in this work. “There is a crying need,” he said, “for strong, intelligent advocacy of religious freedom for all; the coming generation of lawyers will have to defend this right against challenges from many directions.”

Doing multiple primary drafts with Berg’s comments and revisions, clinic students have advanced distinctive arguments on a wide range of prominent religious-liberty issues.

For example, my classmate Julie Cayemberg ’15 J.D. co-drafted a brief to the U.S. Court of Appeals for the 7th Circuit in Freedom from Religion Foundation v. Lew,1 a legal challenge to the federal law giving clergy an exemption from income tax for the rental value of their parsonage or other home. The St. Thomas brief defended this exemption, on which congregations of all faiths have long relied, on the ground that the Constitution permits the enactment of provisions designed to keep the government separate from matters involving clergy and their churches. The court ultimately rejected the challenge to the provision.

Cayemberg said working in the Religious Liberty Clinic “was easily the most difficult and the most important part and the most exhilarating part of my St. Thomas education.”

Nicole Swisher ’14 J.D. drafted a brief to the 6th Circuit in Child Evangelism Fellowship v. Cleveland School District,2 supporting a religious student club’s right to meet in public school- rooms on the same terms as the Boy Scouts. The brief argued that the case resembled numerous others over the past 25 years in which school districts gave access to secular groups but not religious groups.

The Cleveland brief, like several others by the clinic, was written for the Christian Legal Society’s Center for Law and Religious Freedom, one of the nation’s oldest religious-liberty organizations. (The clinic also has worked with the prominent religious-liberty organization The Becket Fund.) The history in the brief reflected the long experience of the CLS Center and its senior counsel, Kim Colby, who also works closely with clinic students. Swisher commented that she “was able to learn a lot about formulating and writing compelling arguments,” from Berg and Colby.

I also drafted a brief in the U.S. Supreme Court in Reed v. Town of Gilbert,3 supporting an Arizona church, meeting in a public school, whose small roadside signs advertising its Sunday worship were limited severely in size and duration by a town ordinance. (The church could not put up its signs for Sunday services until late Saturday night.) The brief, filed on behalf of nine religious and civil rights groups, argued that the restrictions violated both freedom of speech and the equally important (but lesser known) freedom of assembly. The Supreme Court’s decision for the church, rendered on free speech grounds, has received substantial attention from legal commentators.

I think that writing the brief with Professor Berg and Christian Legal Society attorney Kim Colby was one of the most rigorous and rewarding experiences I have had. It deepened my desire to work to protect the rights of individuals and organizations to live their lives in accordance with their deeply held religious beliefs.

In working with Colby, students also benefit from her 30-plus years’ experience as a leading national religious-liberty advocate. Among other things, she played a major role in securing passage for the Equal Access Act, a federal statute that ensures equal rights for various student clubs to meet on their high-school campuses (the statute has been used by both evangelical Christian and LGBT student groups). Colby praised the briefs produced by the clinic and its students for their “stellar caliber, as to both argument quality and writing style.” She added that “[w]hile the students improve their legal skills,” they simultaneously serve as “a significant asset to the defense of basic religious principles in a variety of cases.”

I would describe the clinic as a world-class experience to work under the tutelage of one of the top religious liberty scholars in the country working on cases that have a huge impact. It’s a unique opportunity that students interested in these issues should not pass up.

The clinic also filed briefs drafted by Jim Kovacs ’15 J.D. in two cases in the North Carolina Supreme Court, involving the constitutionality of the state’s school voucher program, which assists more than 24,000 low-income families a year who choose to send their children to private schools.4 And the clinic has just filed briefs in cases from Colorado and Montana that also involve the ability of parents to receive equal assistance from the state if they choose religious schooling for their children. The Colorado brief supports a petition for certiorari in the U.S. Supreme Court, so students in a future semester may be writing another amicus brief to be read by the justices and their law clerks.

1 773 F.3d 815 (7th Cir. 2014).

2 600 Fed. Appx. 448 (6th Cir. 2015).

3 135 S. Ct. 2218 (2015).

4 Hart v. State and Richardson v. State, 774 S.E.2d 281 (N.C. 2015) (upholding the program as constitutional).

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