Religious Liberty Appellate Clinic at St. Thomas

This spring we began a new Religious Liberty Appellate Clinic at St. Thomas, under my supervision, offering four to six 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. The clinic gives students an intensive experience in formulating, writing, and refining appellate arguments, with review by experienced advocates, and in the strategy of framing arguments by amici, who (as many readers know) typically present distinctive information or issues that may benefit the judges deciding the case.

We just submitted our first two briefs, in cases in the Sixth and Seventh Circuits, and I'm really proud of the work the first two students have done.

The first brief, drafted by student Julie Cayemberg, was filed in the Seventh Circuit in Freedom from Religion Foundation v. Lew, a challenge to 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.” 

The second brief, drafted by student 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.

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).