'To litigate and protect'

As religious freedom litigation has ballooned in the United States, especially over the last year, Stanford Law School has opened the nation’s first legal clinic devoted exclusively to religious freedom cases.

“It’s not needed because the United States is uniquely persecuting—it’s not,” said former U.S. Circuit Judge Michael McConnell, a professor at Stanford Law who argues many religious liberty cases before the U.S. Supreme Court. “I believe we are the freest and most welcoming country in the world … but we still need to fight and to think and to litigate and protect.”

The legal clinic opens at one of the most prestigious law schools in the United States. Stanford Law, ranked the second-best law school in the country by U.S. News & World Report, currently has 11 legal clinics, where students enroll full-time for 12 weeks. The students in each clinic handle actual cases, but do so under the supervision of a professor. The religious freedom clinic has four students working this quarter under the clinic’s director, James Sonne, and six signed up for the next quarter.

“It’s like a small law firm,” Sonne said.

The Becket Fund for Religious Liberty donated $1.6 million to get the religious freedom clinic off the ground. But Sonne said McConnell, who was on President George W. Bush’s short list of possible Supreme Court nominees, was the driving force behind opening the clinic.

McConnell explained why fighting real religious freedom cases would help students, and the public, understand the underlying right.

“The story of real human beings matter more than theory,” he said. “When you learn about real people and what they value and what they undergo, that is the sort of thing that changes hearts much more than abstraction.”

The students will start by handling two religious land use cases, one for a mosque and one for a church. They’ll also handle a case of a Jewish convert seeking a circumcision in prison, and a case of employment discrimination over Sabbath observance.

Sonne hopes the clinic will lower the temperature on religious freedom disputes.

“We’re not going to avoid controversy but we need to be prudent in our case selection,” he said. “We are not a litigation group that has a particular goal in mind other than to train students.”

McConnell concurred: “Religious liberty needs to be articulated by people whose agenda is neither the left nor the right.”

The Becket Fund, which helped fund the clinic, is currently handling seven lawsuits just on religious liberty violations under the federal contraceptive mandate. The organization also handles a wide variety of other religious liberty cases in the United States and abroad.

McConnell, in the unveiling of the clinic this week at Stanford Law, said that he thinks there will be more and more litigation based off what he called “bureaucratic indifference,” which he characterized as, “We can’t take the trouble to deal with these pesky people who want to do odd things. … It’s easier to say ‘one size fits all, the same rules for everyone.’”

In the past, McConnell noted, many of the religious conflicts in the United States were between Catholics and Protestants. Now, he believes, the conflicts will arise mainly between those who are religiously committed and those who are not.

“We are going to see clashes between those people who have deep commitments to a variety of religious traditions … versus those who think it’s premodern, it’s superstitious, it’s reactionary,” he said.

Sonne put it another way.

“As our culture diversifies, people might look at religious liberty as a historical accident,” he said. “And we’re trying to show that’s not the case. It’s a natural human right that affects all of us.”