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Intellect

BYU law students help prepare amicus brief for U.S. Supreme Court

Brief, first by Law School's ICLRS, supported eventual winning side

  • BYU law students helped university's ICLRS prepare a "friend of the court" brief filed with the U.S. Supreme Court
  • First amicus brief filed by the ICLRS and first-known brief filed to the Court solely by a BYU entity
  • Brief was filed in support of Hosanna-Tabor Church; Court ruled unanimously in favor of Hosanna-Tabor on Jan. 11, 2012

When you’re a first-year law student, your goal in life is pretty simple: survive. Beyond that, everything is just gravy.
Helping prepare a brief that goes before the U.S. Supreme Court? That certainly qualifies.

Not only did a group of BYU law students recently have the rare chance to do just that, but they also got to play a role in what experts are calling the most significant religious freedom decision made by the Supreme Court in 20 years.

The students, led by faculty in BYU’s International Center for Law and Religious Studies (ICLRS), helped prepare a “friend of the court” brief in support of Hosanna-Tabor Evangelical Lutheran Church and School, which was before the Supreme Court on a religious liberty issue.

In its Jan. 11 decision, the Court unanimously ruled in favor of Hosanna-Tabor, saying that religious groups must be able to choose and dismiss their leaders without government interference.

“The students can now say, even before they graduate from law school, that they helped in a 9-0 decision of the Supreme Court,” said Robert Smith, managing director of the ICLRS. “Few lawyers get to participate in a Supreme Court decision, and it is rare indeed to participate in a 9-0 decision.”

BYU has worked with other institutions on amicus efforts in the past, but this brief is the first known amicus curiae (a brief from one who is not a party to the case) filed with the U.S. Supreme Court solely by a BYU entity.

BYU got involved when attorneys for Hosanna-Tabor invited the ICLRS, housed in the J. Reuben Clark Law School, to prepare an international comparative perspective brief. The invitation came from Hannah C. Smith, senior counsel for the Becket Fund, a non-profit law firm specializing in religious liberty cases.

Hannah Smith is an alum of BYU’s Law School and is one of the few people who have clerked twice for the Supreme Court, working for both Justice Clarence Thomas and Justice Samuel Alito, Jr.

The invitation for the brief came less than two months before the Court’s filing deadline; most law firms have about four months to prepare. With the challenging task ahead of them, the BYU law team of faculty and students got to work.

“We had eight externs working eight to 12 hours a day and they never once complained; they understood the opportunity in front of them,” Robert Smith said. “We went through a lot of Brick Oven Pizza, Café Rio and Chinese takeout.”

The group’s task was to compile a body of international laws that deal with churches’ rights on hiring and dismissing clergy. They were to do this in as many countries as possible – no easy task considering the difficulty in tracking down the laws and translating them into English.

Unlike the United States, many countries do not catalogue their laws online. To overcome this challenge, the BYU team reached out to some 70 legal scholars in Europe and other countries who Professor Cole Durham has worked with through the years as director of the ICLRS.

The students’ research resulted in hundreds of pages of information on religious freedom laws in more than 40 countries. The research supported the view that most European countries follow the traditional position of the U.S. and strongly protect the right of churches to select their own ministers.

With the research in place, directors at the ICLRS – including Elizabeth Sewell, Robert Smith, Gary Doxey, Brett Scharffs, David Kirkham, Donlu Taylor and Cole Durham – formulated and wrote the brief.

“Boiled down, our argument was essentially this: It would be a terrible irony if the U.S. government reversed its course and asserted greater control over the determination of a church’s minister,” Robert Smith said. “Our nation would be adopting a form of control over churches that had not been intended by our Founders and had been later rejected by European governments as well.”

In its decision in favor of Hosanna-Tabor, the Court said both the Establishment Clause and the Free Exercise Clause of the First Amendment bar the government from interfering with the hiring decisions of religious groups.

“We appreciated the unique perspective the Center's brief brought by showing how various foreign countries have looked at the issue,” Hannah Smith said. “And we particularly thank the law students involved for their research and long hours devoted to the cause of religious liberty.”

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