Clinic is only one of three in the country that concentrates on religious-liberty issues
By Dick Dahl
BridgeTower Media Newswires
MINNEAPOLIS, MN — Thousands of small and medium-sized churches across the U.S. are anxiously awaiting a Seventh Circuit decision, expected early next year, which could have a major impact on the way they operate. At issue in Gaylor v. Mnuchin is whether or not the so-called “parsonage allowance” under Internal Revenue Code Section 107(2), is unconstitutional because it favors religion by allowing ministers to exclude from their income (and thus avoid paying taxes on) the value of church-provided housing.
Kacie Phillips, a 2018 graduate of the University of St. Thomas School of Law, is also keenly interested in what happens in that case — but not because she’s necessarily an affected parishioner. It’s because she’s had a direct hand in it as the author of an amicus brief that she wrote as a 3L in the school’s Religious Liberty Appellate Clinic.
The clinic, created four years ago by Professor Thomas Berg, is one of three in the U.S. that focus on religious-liberty issues—the others are at Stanford and UCLA—but the only one that concentrates solely on religious appellate matters. (UCLA’s clinic involves itself in free-speech, as well as religious-liberty, matters.) In the fall and spring semesters, Berg selects two students from those who apply, and each receives one case to work on during that semester under his close guidance.
One of the lessons he seeks to impart to the student clinicians from the beginning, Berg says, is the importance of writing the briefs so they provide the court some kind of new information that’s different from what other parties are saying. In the case of Gaylor v. Mnuchin, he and Phillips settled on an approach that has come to be known as the “Brandeis brief”—one that does not address legal precedents but instead focuses on what the real-life impact of an action will be.
“We relied on case studies to demonstrate how medium-sized churches would be affected by invalidation,” said Phillips, who is now clerking in the Minnesota Court of Appeals. “We argued that this housing allowance is deeply embedded in American society. We did research into various surveys and detailed what the consequences of invalidation would be. Our brief shows that 61 to 81 percent of congregations already rely on the housing allowance as part of their ministerial compensation packages, and so the brief shows that 61 to 81 percent of these congregations would be harmed by invalidation and would be required to restructure their compensation packages.”
For Berg, the decision to create the clinic was a pragmatic extension of work that he has been doing pro bono for years as the author of some 40 amicus briefs involving religion and free speech in the Supreme Court and lower courts.
“About five years ago it struck me that I was having students helping me with the research on these briefs,” he said. “So why shouldn’t they be doing the initial drafting, with me supervising and then editing.”
Berg works largely with two conservative Christian organizations — the Christian Legal Society and the Beckett Fund for Religious Liberty — to identify cases of interest involving religion in appellate courts, but that cases come from other sources as well.
The majority of cases the clinic handles involve conservative national religious and civil-liberties organizations. The cases it has weighed in on for conservative religious organizations have included:
• Trinity Lutheran Church v. Pauley, an Eighth Circuit case that went to the Supreme Court, where the clinic filed an amicus brief. It involved the exclusion of churches from a state aid program that provided grants to public schools and other organizations to purchase pour-in-place playground surfaces made from scrap tires. The plaintiff argued that exclusion of churches was discriminatory, and in June 2017 the U.S. Supreme Court agreed, 7-2.
• Hart v. State of North Carolina, a North Carolina Supreme Court case involving a state-funded program that allows students from lower-income families to receive scholarships to attend private schools. A trial court ruled that the program was unconstitutional, but the Supreme Court reversed.
Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council, a Fourth Circuit case involving a pregnancy center, which was closely associated with (and had space in) a church. The center filed suit, claiming that the City of Baltimore’s requirement that the waiting rooms of “limited service pregnancy centers” include signs that the centers do not provide or make referrals for abortions violated its free-speech rights. The court agreed, the city filed for cert with the U.S. Supreme Court, and in June the Supreme Court rejected the city’s appeal.
Religious accommodation
While the majority of cases have had conservative Christian viewpoints, Berg points out that there are exceptions. The clinic was an amicus in a Ninth Circuit case involving a Muslim prison inmate who was denied access to the Quran. The student who wrote the brief in that case for St. Thomas was current 3L Thomas Wheeler, a religious Catholic with strong commitment to his faith. Holder of a 2017 master’s degree in Catholic Studies from St. Thomas, Wheeler says he enrolled in law school, at least in part, to study constitutional issues involving religion.
Wheeler wrote an amicus brief on behalf of four Muslim organizations in Harris v. Escamilla, involving the desecration of a Muslim inmate’s Quran. Wheeler says that the plaintiff, inmate Darrell Eugene Harris, alleged that a prison guard had violated his Free Exercise rights when, during a cell search, the guard threw down and kicked and desecrated his Quran, and that that prevented him from doing his daily reading of the Quran for 10 days—whereupon the prison provided him a new one.
“We wrote an amicus brief on behalf of the four Muslim organizations with two main arguments. First, we said intentional hostile acts, when they are committed toward a person’s religious book, violate the Free Exercise clause even if he could have gotten another copy of the Quran or other books with Quranic passages. The idea is that intentional hostile acts are, in and of themselves, substantial, Wheeler said.
“In the alternative, we said, Mr. Harris believes he must read from the Quran daily and he was prevented from doing so, which means he was substantially burdened.”
On May 24, the court agreed, reversing a trial court’s grant of summary judgment against the prisoner.
“I think it’s important to protect all religious freedom under First Amendment jurisprudence for all religions,” Wheeler says. “In this case, I had a chance to learn more about Islam, which I didn’t know much about. Learning a religion that I didn’t know much about and then trying to craft an argument was a humbling and valuable experience.”
Berg points out that another case that the clinic has weighed in on, Patterson v. Walgreen, although not directly involving Muslims, may be of significant interest to that religion. The U.S. Supreme Court has received a cert petition in that case, which involves religious accommodation in the workplace and the degree to which an employer can claim “undue hardship” in accommodating employees’ religious activities in the workplace.
“We have a section showing how much this matters to religious minorities, because it’s religious minorities that face burdens from employers’ work rules,” Berg says. “We have statistics showing what percentage of these cases involve, for example, Muslims. We say that in the database of cases we have over 18 years, 19 percent of the cases involve Muslim employees, even though they’re less than one percent of the population.”
Berg points out that sometimes the religious-liberty argument of one side can be used down the road by people on the other side. In the famous Hobby Lobby case, for instance, the store owners cited their religious beliefs in filing suit against the federal government over requirements that health insurance provided by employers provide emergency contraception services for employees. In June 2014, the U.S. Supreme Court ruled in favor of Hobby Lobby. But now, he says, that argument is being employed by a humanitarian aid worker, Dr. Scott Warren, who is providing food, water, and shelter to illegal immigrants in Arizona in defiance of federal law on the same religious argument employed by Hobby Lobby.
“Religious liberty is, I think, in danger of getting the image of [that which] conservatives assert when in fact it’s something that is a basic human impulse across all ethnicities around the world,” Berg said. “As we become more diverse ethnically, we become more diverse religiously. I believe that part of the solution to our divisions and the fear that we have in our country about those on the other side is that committing ourselves to religious liberty for everyone is part of the answer to how we reduce the fear about our disagreements.”
