Students File First Briefs for New Religious Liberty Clinic

Students in the University of St. Thomas School of Law’s new Religious Liberty Appellate Clinic wrapped up the clinic’s first semester this spring by submitting its first briefs to the federal courts of appeals for the Sixth and Seventh Circuits.

The clinic’s first brief, drafted by 2L student Julie Cayemberg, was filed in the Seventh Circuit in Freedom from Religion Foundation v. Lew, a case challenging the constitutionality of the federal tax-code provision that allows ministers to exclude from their taxable income a cash allowance they receive from their church employer for housing. The brief defends the housing-allowance exclusion based on the principle that government may treat ministers differently from other occupations in order to serve important church-state values—in this case, the value of treating all clergy and churches equally, since ministers who live in a church-owned parsonage are already able to exclude that benefit from their income. The brief also emphasizes that invalidating the allowance would seriously harm retired and near-retired ministers who, “in good faith, structured their finances and their retirement planning around a section of the tax code extant in its current form for 60 years.”

Drafting the brief “was more difficult...and more rewarding than I ever imagined and one of the best experiences of law school thus far,” Cayemberg said. “Somewhere in the innumerable drafts that I wrote, I became better at understanding what arguments really moved our case forward and which ones could be left out.”

The clinic’s second brief, drafted by 3L Nicole Swisher, was filed in the Sixth Circuit in Child Evangelism Fellowship v. Cleveland School District, a case involving the First Amendment right of a private religious club for elementary school students to meet in public schoolrooms on the same terms as the Boy Scouts, who the school permits to use the rooms without paying a fee. The school district asserts that it has an “in kind” arrangement under which the Scouts receive free use in return for providing Scouting materials free of charge to participants in the Scouting program; the religious club points out that it too provides its materials free of charge to its participants but was never told by the district that any such in-kind arrangement was available. The amicus brief explains, by reviewing multiple cases over the last 25 years, that the district’s unpublicized in-kind arrangement fits a pattern of efforts by school districts to evade the requirement that they give equal access to expressive groups with religious viewpoints.

“I was working with clients who knew what they were doing,” Swisher said of her experience collaborating with established religious-liberty organizations. “[M]y client was Christian Legal Society. I worked with Kim Colby, who has years of appellate writing experience. Between her and Professor [Tom] Berg, I was able to learn a lot about formulating and writing compelling arguments.”

The Religious Liberty Appellate Clinic offers four to six School of Law students each year the opportunity to draft briefs in important religious liberty cases, typically on behalf of national civil liberties and religious organizations filing as amicus curiae (“friend of the court”). The clinic is supervised by Berg, James L. Oberstar Professor of Law and Public Policy and a prominent First Amendment appellate advocate, who has written and filed briefs in more than 40 significant cases in the U.S. Supreme Court and other appellate courts. The clinic gives students an intensive experience in formulating, writing and refining appellate arguments, and in the strategy of framing arguments by amici curiae, who typically present distinctive information or issues that may benefit the judges deciding the case.

One of the key takeaways for Cayemberg was the importance of “knowing your court.”

“I wanted very much for our brief to be one of those selected to be read by the judges or their clerks,” she said, “and part of the learning process involved what inclusions would make that more likely.”

The briefs were filed on behalf of coalitions of groups including, among others, the Christian Legal Society, the National Hispanic Christian Leadership Conference, and the National Association of Evangelicals (both cases); the Queens Federation of Churches (Seventh Circuit case); and the Southern Baptist Convention and the General Conference of Seventh-Day Adventists (Sixth Circuit case).