New clinic seeks to protect religious freedom, promote student engagement
As announced on June 17, 2020, the University of Notre Dame Law School will seek to insure religious liberty for all with its new Religious Liberty Initiative, headed by new professor of law Stephanie Barclay. Professor Richard Garnett, the Director of the Church, State, and Society Program, sees this program as a continuation of Notre Dame’s previous work in this field, motivated by its Catholic tradition.
In an interview with the Rover, Professor Garnett emphasized Notre Dame’s longstanding commitment to religious liberty, citing scholars like Doug Kmiec, Charles Rice, John Finnis, Robert Rhodes, Tom Shaffer, and Gerry Bradley. He credited the “distinctively Catholic perspective” these faculty bring.
Ten years ago, former dean Nell Newton sought to apply an interdisciplinary approach to the issue of religious freedom. This led to the development of the Church, State, and Society program, which funds student fellowships to work on religious freedom cases, sponsors a religious freedom moot court, and hosts dozens of conferences and round table discussions on questions of law and religion.
In July 2019, Professor Marcus Cole—now the dean of the Law School—came to Notre Dame because of its distinctly Catholic mission. Previously the Law School dean at Stanford University, which houses its own religious liberty clinic, Dean Cole made it his first priority to broaden Notre Dame’s influence in this area of constitutional law. Professor Garnett stated that “in a sense, a religious freedom clinic at Notre Dame is going to have, no pun intended, more freedom to explore all the implications of religious freedom.”
The initiative has three distinct parts. First, it possesses a clinic that will offer students experiential, hands-on training in the skills needed to effectively litigate religious liberty cases. Second, it will seek to expand the scholarship of the established Program on Church, State, and Society. Third, as explained by Professor Garnett, the initiative will be “intentional about having Notre Dame Law School serve as a vehicle for bringing together experts and advocates on religious liberty from all over the country and the world to brainstorm what the challenges will be in the future and what the questions that need to be asked going forward are.”
Professor Garnett’s goal for this ambitious project is “to not only improve our understanding of religious liberty through scholarship and research, but also to provide wonderful educational opportunities to top law students who are interested in that topic and who want to learn while working in the trenches on cutting edge religious freedom cases.” Professor Garnett stated that “this initiative and this clinic will very soon be the flagship effort of its kind in the whole country.”
At the forefront of this flagship effort will be Professor Stephanie Barclay, who joined the Notre Dame faculty this year. Formerly an associate professor at BYU Law and an associate at the DC-based firm Covington & Burling, Barclay has also litigated religious freedom cases at the Becket Fund for Religious Liberty, the preeminent law firm defending religious liberty in the United States. In 2021, Professor Barclay will clerk for Supreme Court Justice Neil Gorsuch. Professor Garnett referred to her as “a rising star” in religious liberty scholarship.
Religious freedom is, Professor Barclay said in an interview with the Rover, important to every individual of any belief system or no belief system at all. This freedom, she said, can be compared to oxygen: “you cannot really live and flourish with human dignity without it, and you do not notice it until it is gone.”
Professor Barclay went on to say that religious liberty issues “often operate as a canary in the mineshaft.” When religious individuals speak up “about these government encroachments, they operate as an early warning signal when government is just perhaps impeding too much on our freedoms across the board, not just religious freedom.”
Professor Barclay also pointed out that “there is a lot of literature on how when you have robust religious protections for minority views and those who are unpopular or more vulnerable, then you have more peace in your society and less civil unrest. As a purely instrumental matter, we all want to live in a society where we can have more peace.”
There are real threats to religious liberty today, both domestically and abroad. Professor Barclay highlighted the Chinese Communist Party’s eradication of religious freedom as one such threat: “You think about China,” she noted, “where some citizens are incarcerated in prison camps for their Islamic faith or cathedrals are bulldozed and crucifixes are replaced with government symbols.”
“What is often behind that persecution is this idea that there is not the right to be wrong, that there should only be one correct view on sensitive issues about theology, sex, or marriage or whatever it is, that there is only one right view and the government gets to pick the right view and punish those who disagree,” Professor Barclay continued.
Professor Barclay said that religious liberty in America flourishes when people acknowledge that “I may think I am right, I may have very strong opinions, but I am not going to try and get the government to punish you because I think you are wrong.”
While we have become more aware of overtly discriminatory policies, the greater danger lies in what Professor Garnett has dubbed “the misuse of soft government power.” “Conditions on public funds, conditions on public employment, conditions on licensing and accreditation” all can be used to subtly chip away at strong, independent, religious institutions.
Lastly, Professors Barclay and Garnett both pointed out some misconceptions surrounding religious liberty. We often hear about cases such as Masterpiece Cakeshop; however, most cases revolve around religious minorities such as Native American burial grounds, discriminatory employment behaviors against Islamic women, or the ability of prisoners to be able to practice their faith freely, even while incarcerated. Professor Barclay’s first assignment with her students has been to identify unmet needs where Notre Dame could really make a difference.
Professor Barclay said: “As lawyers, we should all be concerned about the vulnerable, the unpopular, the overlooked in society and working wherever we are to make sure the rule of law still protects those people.”
Presuppositional to this initiative, Professors Barclay and Garnett said, is the Vatican’s Declaration on Religious Liberty, Dignitatis Humanae. When asked what he hopes to accomplish with his work in the new clinic, law student Hadyn Pettersen quoted the document, saying he hopes to “create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties, and also in order that society itself may profit by the moral qualities of justice and peace which have their origin in men’s faithfulness to God and to His holy will” (Dignitatis Humanae §6).
Pettersen expressed gratitude, recognizing this opportunity as “a chance for the students of America’s oldest Catholic law school to contribute to real matters—matters of Americans’ ability to worship and serve God—whether those issues arise in courtrooms, governors’ offices, or statehouses.”
In reference to the ongoing legal battle of the Little Sisters of the Poor, who continue to seek a religious exemption from the contraception mandate, Pettersen said that “as long as states continue to drag religious sisters to court, there’s meaningful work to be done.”
Fueled by the principles of human dignity grounded in the Catholic tradition, Notre Dame Law School’s new initiative seeks to be a force for good for the cause of religious liberty.
Sean is a junior from Texas studying political science with minors in constitutional Studies and theology. He can often be heard arguing with friends or enjoying the cultural masterpiece “The Office.” He can be reached at email@example.com