At Stanford, Clinical Training for Defense of Religious Liberty

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PALO ALTO, Calif. -- Backed by two conservative groups, Stanford Law School has opened the nation's only clinic devoted to religious liberty, an indication both of where the church-state debate has moved and of the growth in hands-on legal education.

Begun with $1.6 million from the John Templeton Foundation, funneled through the Becket Fund for Religious Liberty, the school's new Religious Liberty Clinic partly reflects a feeling that clinical education, historically dominated by the left's concerns about poverty and housing, needs to expand.

"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well," said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. "My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity." Mr. Marshall became a hero to liberals for his work to exonerate death penalty inmates when he was a professor at Northwestern Law School a decade ago.

The clinic's students, who began this month, are taking cases focused on free expression of religion -- representing Seventh-day Adventists who were fired by FedEx for refusing to work on Saturdays, a Jewish convert in prison whose request to be circumcised was rejected and a Muslim group that was told its plan to build a mosque violated land-use laws.

They will avoid the other side of the issue -- challenging government endorsement of faith. This includes crèches in public squares, prayer sessions at public events, and cases tied to believers' rejection of gay rights (a Christian photographer refusing to shoot a same-sex wedding) and elements of the new health care law (a business owner refusing to cover contraceptives for employees).

"In framing our docket, we decided we would represent the believers," said James A. Sonne, the clinic's founding director, explaining that the believers, rather than governments, were the ones in need of student lawyers to defend them. "Our job is religious liberty rather than freedom from religion."

Mr. Sonne, who grew up the son of a psychoanalyst in a nominally Episcopalian home near Cherry Hill, N.J., converted to Roman Catholicism while a student at Duke University. He went on to Harvard Law School and later a professorship at Ave Maria School of Law, a Catholic institution. He acknowledges the political coloration of much of the religious-freedom debate but says he does not want his clinic to be seen as a program for conservatives.

His first four students -- a Mormon, a Methodist, a Catholic and someone brought up as a Seventh-day Adventist -- agree, saying they were drawn to the clinic by the profound questions it raises and the real lawyering it offers, from meeting a potential client to appellate review.

"This is not only about strong family values but about democracy," said James Wigginton, 26, the Mormon member of the clinic. "Religious ideas need to be expressed openly in public. Hopefully that attracts liberals as well as conservatives."

The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and a major political divide of recent years has been which of those needs more attention. Liberals tend to worry about religious establishment or imposition by government, while conservatives mostly focus on free exercise.

And while religious-freedom disputes through much of the country's history were between Christian sects -- Baptists versus Anabaptists, Protestants versus Catholics -- the divide today, according to Michael W. McConnell, a law professor here who came up with the idea for the clinic, is between those who are religiously committed and those who are not.

Or as Alan J. Reinach, a leader and lawyer with the Seventh-day Adventists, put it, there is a fight between those who want government to control the church and those who want the church to control government.

Leading conservative scholars across the country welcomed the opening of the clinic as a breakthrough in elite legal education. Stephen L. Carter of Yale Law School hailed it as a "milestone," Philip Hamburger of Columbia Law called it a "blessing," and Thomas F. Farr of Georgetown University called it "corner turning."

But not everyone is so enthusiastic. Catherine Baylin, a third-year law student and doctoral candidate in history at Stanford, said the way the clinic's work was being pitched echoed the way conservative Christians frame the debate -- and liberal students, she said, are concerned.

"It matters how we talk about things, and it seems with this approach religious belief is inherently privileged," she said. "Moreover, no one is mentioning the real religious-freedom concern of our day, Islamophobia."

Barry Lynn, the executive director of Americans United for Separation of Church and State, said he was "shocked that a major law school would accept a gift from Becket," which he described as "a group that wants to give religious institutions or individuals a kind of preferential treatment, even if that hurts a third party."

But Hannah C. Smith of Becket, who took part in a panel discussion here on Monday to observe the clinic's opening, said what liberals like Mr. Lynn call the strict wall of separation is found nowhere in the Constitution. Her group, she said, is working to show that "there are certain God-given rights that existed before the state. God gave people the yearning to discover him. Religious freedom means we have to protect the right to search for religious truth free from government intrusion."

The new clinic joins 10 others at Stanford -- including community law, criminal law, environmental law and immigrants' rights -- and is part of the increase in practical education at law schools nationwide as institutions try to show that they are responding to students' needs. At Stanford, some two-thirds of the students take part in a clinic, and the school is considering making everyone do so eventually, according to its dean, M. Elizabeth Magill.

David Santacroce, a professor at the University of Michigan Law School who has studied the growth of clinical education, said the field had come a long way since a 1990 law-review article about clinics that was titled "What's Going On Down There in the Basement?"

"Clinics are no longer a place for hippie students," he said. "We have business-law clinics, a human-trafficking clinic and immigration clinics as part of a move to serve a broad swath of students."

Douglas Laycock, a professor of law at the University of Virginia and the keynote speaker here at the clinic's celebratory opening, said he was struck by how religious minorities and gay people were telling society essentially the same thing -- "I cannot change, and as long as I am not harming others, I shouldn't be asked to."

He also praised Stanford's decision to open the clinic. But he said it is not a religious-liberty clinic in the full sense of the term. Given its docket, he would have named it the "free-exercise clinic."

nation

This article originally appeared in The New York Times.


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