STANFORD, Calif. — Religious-freedom debates have shaped the American experiment in ordered liberty since its foundation and still fire the passions of its citizens.
Capitol Hill and state legislatures often draw much of the heat during partisan contests over issues like prayer in public schools, immigration or the federal contraception mandate. But the nation’s courts are often the places where religious plaintiffs find relief in their quest for legal accommodation for beliefs and practices that challenge community standards or government regulations.
Mindful of the need to train a new generation of lawyers capable of effectively litigating a broad array of First Amendment and statutory cases, the Becket Fund for Religious Liberty, a public interest group that has filed eight lawsuits challenging the Health and Human Services' contraception mandate, worked in concert with the Templeton Foundation to fund the nation’s only legal clinic for religious freedom at Stanford University Law School. The Templeton Foundation provided a $1.6 million gift.
Stanford’s top-rated law school already provides clinical education for its students, and, on Jan. 14, it announced the establishment of its new Religious Liberty Clinic, directed by James Sonne, a former professor of Ave Maria School of Law. During each academic term, 10 students will complete 12 weeks of “hands-on” experience representing actual plaintiffs and dealing with a range of free-exercise cases.
“This clinic will expose students to legal disputes involving religious practice and belief — disputes that date back to the founding of the nation,” Stanford Law School Dean M. Elizabeth Magill said in a statement marking the new initiative.
“Our students will now have a unique opportunity to learn to be lawyers and professionals by taking on the responsibility of representing clients in this ‘old but new’ field.”
Lawrence Marshall, professor of law and associate dean for clinical education at the California law school, said the new clinic will help students “expand their horizons while developing their expertise as lawyers. And it is difficult to imagine anyone more fitting than Jim Sonne — with his vast experience and teaching skills — to run this program.”
The Clinic’s Focus
Based at Stanford’s Mills Legal Clinic, the training program focuses on two types of cases: plaintiffs seeking “accommodation” of religious beliefs and practices and plaintiffs engaging with the public square, possibly to secure access to public facilities or obtain approval for building houses of worship.
“Real-time" cases include a prisoner who converted to Judaism and now needs permission to be circumcised and zoning approval for a mosque.
Sonne said that students will work on cases that were less likely to be entangled in partisan politics, avoiding, for example, legal challenges to the HHS mandate or free-exercise cases arising from opposition to same-sex “marriage.”
“The primary purpose of the clinic is to teach students how to practice law. Working on religious-liberty cases is a fun, exciting, dynamic and deeply human way of dealing with complex issues, personalities, fundamental principles and culture,” said Sonne, during a Jan. 13 telephone interview.
The Becket Fund for Religious Liberty has represented plaintiffs from many religious traditions, and Sonne suggested that the public interest group’s “vision fits in well with an academic environment that offers a different perspective: Whether you are representing a mosque or an evangelical church, the question is whether they have the freedom to act in accord with their conscience.”
Sonne added that the decision to select less incendiary cases for the clinic docket did not signal a retreat from a strong commitment to religious liberty: “We think that religious liberty is a natural right. The kind of cases we will handle will manifest that belief, regardless of the issue.”
Religious Freedom Questioned
That commitment may well be tested at Stanford Law School and other elite academic institutions where many professors and students question whether religious believers should be exempt from laws that provide access to “free” contraception or marriage rights for same-sex couples.
“For too many on the 'pro-choice' and 'gay rights' side, the free exercise of religion begins to look like a bad idea. It is a bad idea because it empowers their enemies. It should be interpreted extremely narrowly,” explained Douglas Laycock, a top constitutional scholar at the University of Virginia School of Law, during an address following the Jan. 14 panel discussion marking the inauguration of the Religious Liberty Clinic.
Indeed, during the panel discussion itself, an emotional student stepped up to the microphone during the question-and-answer period to challenge the credibility of the new initiative. The student noted the incendiary nature of recent First Amendment cases dealing with marriage and life issues and also questioned whether the Becket Fund, because it represents plaintiffs in HHS legal challenges, should have played any role in establishing the new legal clinic.
Sonne and other panelists responded that the clinic’s purpose was to train lawyers, not to evangelize or advocate specific positions on hot-button issues. But the exchange signaled the sensitivity of religious-freedom cases in a world that, according to many religious-freedom proponents, has become indifferent or even hostile to a bedrock human and constitutional right.
History of Contention
Yet, for all the tensions provoked by the latest chapter in the culture wars that continue to divide the nation, the panelists provided ample evidence that Americans have been fighting over such matters since the nation’s founding.
Michael McConnell, a panelist and constitutional scholar at Stanford Law, outlined the storied history of religious tensions in the U.S., from early clashes between members of different Protestant denominations to violence between Protestants and Catholics. Today, he said, there is an emerging contest between believers and non-believers or religiously indifferent Americans.
Another panelist, Judge Carlos Bea of the U.S. Court of Appeals for the Ninth Circuit, acknowledged that the rise of secularism in the U.S. posed fresh challenges to litigants in free-exercise cases.
“It has become difficult to express the importance of religious liberty to people who are not religious,” Judge Bea observed, though other panelists also noted that the culture wars had cemented alliances between Christian churches that once fought over religious doctrine.
McConnell also suggested that some First Amendment cases did not arise from bigotry or intolerance, “but bureaucratic indifference.” In such cases, he said, government regulators “can’t take the trouble to deal with pesky people.” It was easier for them to say, “One size fits all, and the same rules apply to everyone.”
Hannah Smith, senior counsel for the Becket Fund, identified ongoing challenges to the free exercise of religion, from government interference in the appointment of church leaders to pressure on health-care workers to perform services that violate their moral beliefs and attacks on the reference to God in the Pledge of Allegiance.
“The need for a religious-liberty clinic is acute,” Smith confirmed, predicting that Stanford’s new program will make an impact on future litigation.
Joan Frawley Desmond is the Register’s senior editor.