BYU International Law Center Upholds Religious Freedom at Supreme Court Level
By Heather Whittle Wrigley, Church News and Events and Donlu Thayer, ICLRS managing editor
On March 28, 2011, the Supreme Court of the United States agreed to hear a case many viewed as the most important case in two decades.
At issue in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunities Commission was the “ministerial exception,” a First Amendment doctrine that, in part, says religious groups must be able to choose and dismiss their leaders without government interference.
If the court ruled with Hosanna-Tabor, the doctrine would be upheld. On the other hand, a ruling in favor of the EEOC could have significant ramifications for churches.
Before the court heard oral arguments on October 5, 2011, it had received 20 briefs in favor of Hosanna-Tabor—including one from the International Center for Law and Religion Studies (ICLRS) at Brigham Young University in Provo, Utah, USA.
On January 11, 2012, the court announced its decision—unanimous support for Hosanna-Tabor, and a statement by Chief Justice John Roberts that said the Constitution bars “the government from interfering with the decision of a religious group to fire one of its ministers.”
Race to the Case
Just six weeks before oral arguments were to be heard on October 5, 2011, BYU’s ICLRS was asked to compile a brief for the case that would show international laws’ support for churches’ rights to hire and dismiss clergy. (Law firms usually have about four months to prepare a brief.)
The center’s ability to mobilize an international network of foreign experts uniquely qualified it for just such a request. This brief was 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.
Headed by several administrators, a group of eight or so students began their work researching legal information from more than 40 countries to gather data for those who would write the actual brief.
They faced several challenges: Center director Cole Durham would be out of the country during that time; many of the center’s BYU law school students were leaving for summer assignments abroad; and much of the information the students would be researching would have to be translated into English.
The bulk of the student work fell upon the few remaining BYU law students and summer externs. Managing director Robert Smith created the assignments for the students and supervised the entire project.
Incoming BYU law student Jared Hatch attended a meeting about the project, and at the end of the hour was assigned to research religious autonomy laws in several European countries.
“I have been counseled that standing up for religious freedoms was something I needed to do,” he said. “This first opportunity helped me do that, and it helped me understand that Heavenly Father would guide me so I could have those opportunities.”
As a Church-affiliated school, BYU does not frequently interact with government on substantive issues. The Church focuses on administering the Church worldwide, but it reserves the right to add its voice to the public square by speaking out from time to time on important issues, particularly those with moral or ethical implications for society.
What followed, in the words of law student Brandon Bastian, was a crash course in “the climate of religious freedom in the world.” The team spent hundreds of hours poring over books, articles, e-mails, cases, and briefs from dozens of countries.
Students also solicited information through letters they sent to 70 international experts.
According to Brother Smith, one miraculous turn of events occurred when they contacted a colleague of Professor Durhams—Gerhardt Roburr—who had represented the LDS Church and the Catholic Church in similar cases.
Students were able to acquire a document he’d written summarizing how European nations had argued in similar cases. Externs Samuel and Cynthia Fröhlich, native German law students, were invaluable in translating that document, according to ICLRS administrators.
Students’ initial research totaled more than 215 pages, answered 11 questions about 24 countries, and listed 374 answers—all of which had to be properly cited.
In the end, though, their research showed that most European countries follow the traditional position of the United States and strongly protect the right of churches to select their own ministers.
“We were looking into all these nations—some Christian, some not—pulling quotes and articles, and realizing that there were people all over world, from different walks and faiths, who believe in upholding religious freedoms,” Brother Bastian said. “It was remarkable to be able to come up with all of that and to realize that it goes beyond our church or our country—that it’s part of the human experience.”
With the research in place, directors at the ICLRS—including Gary Doxey, Cole Durham, David Kirkham, Brett Scharffs, Elizabeth Sewell, Robert Smith, and Donlu Taylor—formulated and wrote the brief.
Defending Religious Freedoms
Following the court’s decision in favor of Hosanna-Tabor, legal expert Eric Rassbach, who coordinated the briefs for the petitioner, stated that it was crucial to have the level of support the center’s brief provided. The government chose to contest the constitutional basis of the ministerial exception, he said, and the resounding international affirmation of the principle—which the center’s brief displayed—became particularly significant.
Extern and researcher Paige Alsbury, a second-year law student at the University of Utah, said it was rewarding to see the First Amendment supported.
“People are becoming more secularized,” she said. “The highest court is upholding the separation of church and state and allowing that autonomy. Religious liberty is something that’s very important.”
Student Joseph Stewart agreed. “What amazed me the most was the high regard that religion occupies almost universally,” he wrote in an e-mail. “Even though religious freedom is not as prevalent as it should be, religious beliefs are certainly abundant. Probably the greatest thing I saw was the variety of briefs being submitted by the various religious groups and how they banded together to defend something that was held dear (and to some sacred).”