Caruso School of Law Religious Liberty Clinic Report by Pepperdine University

Religious Liberty Clinic Report

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Hugh and Hazel Darling Foundation Religious Liberty Clinic A

Religious Liberty Clinic Report

In Spring 2022 Pepperdine Caruso School of Law launched the Hugh and Hazel Darling Foundation Religious Liberty Clinic under the Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics. This groundbreaking program provides second- and third-year students an opportunity to both learn the law of religious liberty and receive practical, hands-on experience working on religious liberty cases. The clinical work is supervised by a team of exceptional attorneys from the premier global law firm, Jones Day, including Noel Francisco, former solicitor general of the United States. As described below, the achievements of the clinic have continued to exceed our most ambitious expectations, and we continue to look forward to the clinic’s expansion.

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Structure of the Religious Liberty Clinic Students enrolled in the clinic participate in a weekly seminar with classes alternating in focus between legal doctrine and legal practice. Conversations on legal doctrine are extremely rigorous, encouraging students to grapple with competing arguments and thereby preparing them for practice in this highly contested area of the law. Discussion of legal practice thrusts students into the role of lawyer, ensuring that they are fully prepared to serve their clients. In addition to the weekly seminar, students are divided into teams of two. Each team of students is paired with two to three attorneys from Jones Day who supervise the students in the drafting of an amicus brief in a pending religious liberty case. Noel Francisco reviews the briefs drafted by each team, provides further feedback, and joins one of the clinic classes in order to offer general thoughts and guidance to our students. In total, the workload for the students is significant, and provides an immersive experience in legal practice that accelerates the legal skills of each student in this most important area of law. Religious Liberty Clinic Report

Student Experience The clinic limits enrollment to approximately eight students per semester in order to maintain an intimate and intensive environment. As a result, its impact has been transformative, as expressed by students in their evaluations of their experience. Some examples include: • “The religious liberty clinic is the best educational experience I’ve had at Pepperdine thus far. The small classroom setting allowed my colleagues and I to think deeply about religious liberty jurisprudence. I better understand the current religious liberty landscape and how we got here because of the clinic.” • “My time in the clinic was a confirmation of my desire to pursue religious liberty litigation. As someone who cares deeply about my own faith, I appreciated the opportunity to work alongside the great lawyers who are litigating to ensure the religious freedom of individuals across the country, and hone my appellate skills while doing so.” • “The Religious Liberty Clinic has been an invaluable opportunity to work on incredibly fascinating, important litigation. [It] has been a wonderful experience, allowing us to not only get amazing feedback on work but also to contribute to meaningful cases.” • “It’s an incredible feeling to actually work on these types of cases as a law student—it’s given me . . . a feeling of both pride and excitement.” • “This clinic has given me the opportunity to work with world-class attorneys and gain experience drafting briefs that I otherwise wouldn’t have. What’s more, the work the students do is having real world impact to advance and protect religious liberties for Americans of all faith backgrounds.” 4

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Student Work-Product Students in the clinic represented clients seeking to advance religious liberty claims through filing amicus briefs and through direct representation in court. In each case, our students give voice to important religious liberty arguments. In so doing, our clinic has filled an important void, not shying away from taking an aggressive stance when it comes to one of our most cherished civil rights. Following are short descriptions of representative briefs filed by the clinic. Religious Liberty Clinic Report

(Slip Opinion)

OCTOBER TERM, 2022

Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES Syllabus

GROFF v. DEJOY, POSTMASTER GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 22–174.

Argued April 18, 2023—Decided June 29, 2023

Petitioner Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. After Amazon deliveries began at that station as well, Groff remained unwilling to work Sundays, and USPS redistributed Groff’s Sunday deliveries to other USPS staff. Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned. Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” 42 U. S. C. §2000e(j). The District Court granted summary judgment to USPS. The Third Circuit affirmed based on this Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” 35 F. 4th 162, 174, n. 18 (quoting 432 U. S., at 84). The Third Circuit found the de minimis cost standard met here, concluding that exempting Groff from Sunday work had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” 35 F. 4th, at 175. Held: Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would re-

(Slip Opinion)

OCTOBER TERM, 2021

SUPREME COURT OF THE UNITED STATES Syllabus

KENNEDY v. BREMERTON SCHOOL DISTRICT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 21–418.

Argued April 25, 2022—Decided June 27, 2022

Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer. Mr. Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. He also moved for a preliminary injunction requiring the District to reinstate him. The District Court denied that motion, and the Ninth Circuit affirmed. After the parties engaged in discovery, they filed cross-motions for summary judgment. The District Court found that the “ ‘sole reason’ ” for the District’s decision to suspend Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after three games in October 2015. 443 F. Supp. 3d 1223, 1231. The District Court granted summary judgment to the District and the Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges. 4 F. 4th 910, 911. Several dissenters argued that the panel applied a flawed understanding of the Establishment Clause reflected in Lemon v. Kurtzman, 403 U. S. 602, and that this Court has abandoned Lemon’s “ahistorical, atextual” approach to discerning Establishment Clause violations. 4 F. 4th, at 911, and n. 3. Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression. Pp. 11–32. (a) Mr. Kennedy contends that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. Where the Free Exercise Clause protects religious exercises, the Free Speech Clause provides overlapping protection for expressive religious

Groff v. DeJoy United States Supreme Court Groff v. DeJoy concerned the United States Postal Service’s decision to require its employees to start working on Sundays in accordance with its agreement to deliver packages for Amazon. In this case, a Christian postal worker sought redress for being fired due to his refusal to work on Sundays in alignment with his religious beliefs. The clinic filed an amicus brief in February on behalf of Orthodox Union, one of the nation’s largest Orthodox Jewish denominations. The brief explained the many problems that the previous legal standard presented for Orthodox Jews and urged the Court to recognize a more faith-friendly legal standard. In June 2023 the Supreme Court issued a unanimous opinion in favor of the plaintiff, creating a new, more favorable standard for religious claimants. In reaching its decision, the Supreme Court quoted the clinic’s amicus brief by name and cited cases found therein.

Kennedy v. Bremerton School District United States Supreme Court Kennedy v. Bremerton School District concerned a public high school football coach in Washington State who was fired because he prayed on the 50-yard line after games concluded. Our brief, filed on behalf of the American Legion, argued that the history and traditions of the First Amendment mean that while truly coercive prayer practices (e.g., pray-to-play) would be impermissible, private prayer is firmly within constitutional bounds, even if undertaken in a public place and in a public way. The brief was filed in March 2022, and the Supreme Court decided the case in June 2022 in favor of Coach Kennedy.

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Cite as: 594 U. S. ____ (2021)

GORSUCH, J., concurring

SUPREM E COURT OF THE UNI TED STATES AMOS MAST, ET AL. v. FILLMORE COUNTY, MINNESOTA, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MINNESOTA No. 20–7028. Decided July 2, 2021

JUSTICE GORSUCH, concurring in the decision to grant, vacate, and remand. The Swartzentruber Amish are religiously committed to living separately from the modern world. Maintaining that commitment is not easy. They grow their own food, tend their farms using pre-industrial equipment, and make their own clothes. In short, they lead lives of faith and self-reliance that have “not altered in fundamentals for centuries.” Wisconsin v. Yoder, 406 U. S. 205, 216–217 (1972). In this long-running litigation, officials in Fillmore County, Minnesota have insisted that the Amish must adopt certain modern technologies or risk jail, fines, and even losing their farms. Today, the Court grants the Amish’s petition for review, vacates the lower court’s decisions, and remands this case for further proceedings in light of our recent decision in Fulton v. Philadelphia, 593 U. S. ___ (2021). I support this decision and write to highlight a few issues the lower courts and administrative authorities may wish to consider on remand. * Each Amish community has its own body of religious rules, called an Ordnung. When a community must decide whether its faith permits a certain action—say, using the phone at a neighbor’s farm should a fire break out—it makes that decision collectively. Sometimes there are disagreements and communities fracture. Over time, this phenomenon has led to approximately 40 different affiliations

Mast v. Fillmore County Minnesota Court of Appeals Mast v. Fillmore County was a challenge by Old Order Amish farmers in rural Minnesota to a county ordinance requiring them to treat “gray water” using an electric septic tank rather than the traditional mulching system. This case was reviewed once by the United States Supreme Court, which reversed an earlier ruling against the Amish. Our amicus brief, filed on behalf of the National Committee for Amish Religious Freedom, argued that Fillmore County’s ordinance is part of a broader history of attacks on the Amish by local governments. Our brief explained that a cooperative approach by the government, rather than bans on Amish religious practices, have resulted in better outcomes for both the Amish and local governmental bodies. The brief was filed in January 2023. In July 2023 the Minnesota Court of Appeals issued a unanimous 3-0 decision in favor of the Old Order Amish.

Case 2:23-cv-02347-EP-JSA Document 1 Filed 04/28/23 Page 1 of 51 PageID: 1

Mendham Methodist Church v. Morris County, New Jersey

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

THE MENDHAM METHODIST CHURCH; and THE ZION LUTHERAN CHURCH LONG VALLEY, Plaintiffs, v. MORRIS COUNTY, NEW JERSEY; MORRIS COUNTY BOARD OF COUNTY COMMISSIONERS; MORRIS COUNTY HISTORIC PRESERVATION TRUST FUND REVIEW BOARD; and JOHN KRICKUS, in his official capacity as Commissioner Director for the Morris County Board of County Commissioners, Defendants.

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Case No. 2:23-cv-02347

Complaint for Declaratory and Injunctive Relief and Compensatory Damages

COMPLAINT Plaintiffs The Mendham Methodist Church and The Zion Lutheran Church Long Valley, by and through the undersigned counsel, for their Complaint against Defendants Morris County,

District of New Jersey Federal District Court In April 2023 the clinic filed its first directrepresentation lawsuit in a case against Morris County, New Jersey, on behalf of a Methodist church and a Lutheran church that had formerly received historic preservation funds but were in recent years denied access to the grant program solely because they were houses of worship. The clinic has filed for summary judgment, arguing that the New Jersey rule against providing equal treatment to houses of worship violates the Free Exercise Clause of the First Amendment. Both the Freedom From Religion Foundation and New Jersey attorney general have sought to intervene in the case to defend New Jersey’s rule. All the motions remain pending.

Religious Liberty Clinic Report

Religious Liberty Clinic Leadership The Religious Liberty Clinic is co-taught and supervised by a world-class team of lawyers and academics, training our students to become first-rate religious liberty advocates. ERIC RASSBACH, Visiting Professor and Executive Director Eric Rassbach has practiced at the Becket Fund since 2003, and with his extraordinary record in religious liberty litigation, he was the ideal candidate to help Pepperdine Caruso School of Law launch a religious liberty clinic. He has led or been a part of Becket litigation teams in each of the organization’s path-breaking victories at the United States Supreme Court, including Hosanna-Tabor, Hobby Lobby, Holt v. Hobbs, Zubik v. Burwell, Agudath Israel of America v. Cuomo, and Fulton v. Philadelphia. In 2020 professor Rassbach argued Our Lady of Guadalupe School v. MorrisseyBerru in the Supreme Court, garnering a 7 to 2 decision for his Catholic school clients. In addition, he has also briefed and argued cases in federal appeals courts and state supreme courts across the nation. Professor Rassbach is a graduate of Haverford College and Harvard Law School. DANIEL CHEN, Adjunct Professor and Supervising Attorney Daniel Chen joined the Becket Fund as counsel in 2020, where his work has included litigation in federal trial and appellate courts. Prior to joining Becket, Daniel was an associate at Gibson, Dunn & Crutcher in San Francisco, California, where he worked on commercial litigation. Chen graduated from the University of California, Berkeley, School of Law, where he served as a supervising editor on the California Law Review and was elected to the Order of the Coif. He received his BA in political science with high distinction from the University of California, Berkeley. MICHAEL A. HELFAND, Brenden Mann Foundation Chair in Law and Religion, Codirector of the Nootbaar Institute on Law, Religion, and Ethics at Pepperdine Caruso School of Law and Florence Rogatz Visiting Professor of Law at Yale Law School Michael Helfand is an expert on religion law and religious liberty. A frequent author and lecturer, his work considers how US law treats religion law and religious custom and practice. His academic articles have appeared in numerous law journals, including the Yale Law Journal, New York University Law Review, and Duke Law Journal. In addition, Helfand often provides commentary on clashes between law and religion, writing for various public audience publications, including the Wall Street Journal, the Los Angeles Times, USA Today, and the Forward. Helfand is a graduate of Yeshiva University and Yale Law School. 8

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Clinic in the News Supreme Court Cites Clinic’s Amicus Brief in Groff v. DeJoy An amicus brief filed by Pepperdine Caruso Law’s Hugh and Hazel Darling Foundation Religious Liberty Clinic on behalf of the Union of Orthodox Jewish Congregations of America (Orthodox Union) was cited by the US Supreme Court in Groff v. DeJoy. Students Isabel Conrath and Jackson Grasz, working with professor Eric Rassbach, drafted the brief. Conrath and Grasz collaborated with professor Michael Helfand and Nathan Diament, executive director of the Orthodox Union Advocacy Center. “Working on this amicus brief to urge the Court to afford religious employees greater protections in the workplace was a tremendous experience,” says Conrath. “It was an honor to contribute to the Court’s decision through my work on the Religious Liberty Clinic’s amicus brief,” says Grasz. “I am grateful for the clinic’s professors, partners, donors, and my fellow students, without whom this work would not have been possible.” The Court’s ruling clarifies that Title VII requires employers to provide religious accommodations in the workplace, unless doing so would impose a significant hardship or cost on their business. A previous ruling on this matter had provided a narrower interpretation of Title VII, which provided far less protection for religious employees.

Daily Journal Features Work of the Religious Liberty Clinic The Daily Journal, Los Angeles’s legal newspaper, featured the work of the Hugh and Hazel Darling Foundation Religious Liberty Clinic, highlighting the students who helped draft an amicus brief in the Supreme Court case Kennedy v. Bremerton. Expressing her experience in the clinic, third-year student Anne McCarthy stated “It has been a privilege getting to work with and learn from the attorneys at Jones Day . . . I am glad that we could do our part to protect a robust role for religious expression in the public square.” Her partner, third-year student Seth Shepherd expressed similar sentiments, “Working on this brief has been one of the highlights of my education at Pepperdine . . . I am proud that we have been able to make a difference on such an important case, and as someone set to become a Marine Corps judge advocate after graduation, I am particularly proud that the clinic is representing the American Legion.” Religious Liberty Clinic Report

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