The Hugh and Hazel Darling Foundation Religious Liberty Clinic
The Religious Liberty Clinic is designed to provide students with practical, firsthand experience as well as support the provision of high-quality legal services to clients in religious liberties litigation. Working in pairs, students participate in amicus briefs, appeals, and advocacy to advance religious liberty.
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 event provided 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.
Students in the Clinic will attend a seminar-style class that will explore enduring questions relating to how civil governments treat the religious beliefs, expressions, and institutions of their citizens. The Clinic is led by Visiting Professor Eric Rassbach, Vice President and Senior Counsel at the Becket Fund for Religious Liberty, and the course will be co-taught by Professor Rassbach, Professor Daniel Chen, Counsel at the Becket Fund and Caruso Law Professor Michael Helfand.
Students will also work in litigation teams with attorneys from Jones Day and under the general supervision of Jones Day partner, and former Solicitor General of the United States, Noel Francisco. Each litigation team is assigned a case, typically either the direct representation of a client or representing a client in the filing of an amicus brief. Students will obtain extensive experience in litigating cutting-edge cases. That experience has helped prior Clinic students prepare for and obtain judicial clerkships and positions at prominent law firms around the country.
In advance of each semester, interested 2L and 3L students can apply to the clinic by sending the following to Linn Griffin (email@example.com): (1) resume and (2) short statement explaining interest in the clinic.
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 pathbreaking 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. Morrissey-Berru to 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.
Adjunct Professor and Supervising Attorney
Professor 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 in state and federal court. Daniel graduated from the University of California, Berkeley, School of Law in 2016, where he served as a supervising editor on the California Law Review and was elected to the Order of the Coif. Prior to law school, Daniel received his B.A. in Political Science with high distinction from the University of California, Berkeley.
Michael A. Helfand
Brenden Mann Foundation Chair in Law & Religion, Co-Director of the Nootbaar Institute for Law, Religion & Ethics, Florence Rogatz Visiting Professor of Law at Yale Law School
Professor Michael Helfand is an expert on religious law and religious liberty. A frequent author and lecturer, his work considers how U.S. law treats religious law, 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, Professor 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. Professor Helfand is a graduate of Yeshiva University and Yale Law School.
Work of the Clinic
Mendham Methodist Church v. Morris County, New Jersey. District of New Jersey Federal District Court. In April 2023, the Clinic filed its first direct-representation lawsuit in a case against Morris County, New Jersey, on behalf of a Methodist church and a Lutheran church that both formerly received historic preservation funds to support their centuries-old architecturally and historically significant church buildings but were in recent years denied access to the grant program solely based on the fact that they are houses of worship. A parallel case reached the United States Supreme Court in 2019 and several Justices indicated interest in the issue at that time. We have 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 Matthew Platkin have sought to intervene in the case to defend New Jersey’s discriminatory rule. The motion for summary judgment and the motions to intervene remain pending.
Cedar Park Assembly of God of Kirkland v. Kreidler. Ninth Circuit Court of Appeals. A Washington state law forces churches to cover elective abortions in their health insurance plans. As a result of Washington’s abortion mandate, the Cedar Park Assembly of God’s insurance carrier included abortion coverage directly in the church’s health plan. The church brought suit, but lost on the merits in the district court. On appeal at the Ninth Circuit, the Clinic filed an amicus brief on behalf of the Christian Legal Society and the Becket Fund for Religious Liberty in support of Cedar Park, arguing that Washington State’s abortion mandate violates the Free Exercise Clause under recent United States Supreme Court decisions and the Ninth Circuit’s en banc opinion in Fellowship of Christian Athletes v. San Jose Unified School District. This amicus brief continues the Clinic’s support for churches and religious institutions that refuse to be complicit in facilitating abortion because it directly contradicts their sincerely held religious beliefs about the sanctity of human life. Foothill Church v. Bonta, the other case where the Clinic supported a church challenging California’s abortion mandate, ended with a victory in California district court. The Clinic filed its amicus brief in November 2023. Oral argument will likely be held sometime in 2024, with a decision following later.
Hunter v. Department of Education. Ninth Circuit Court of Appeals. This case involves a lawsuit against the Biden Administration’s Department of Education. The plaintiffs–students who attended religious colleges and universities–argued that allowing religious colleges to utilize a longstanding, statutorily enacted religious exemption to Title IX violated the Establishment Clause because it permitted those colleges to discriminate on the basis of sex, sexual orientation, and transgender status. The Department of Education prevailed at the district court, and the plaintiffs appealed. At the Ninth Circuit, the Clinic filed an amicus brief in support of the Department of Education, arguing that Kennedy v. Bremerton School District, a recent Supreme Court case, revolutionized Establishment Clause doctrine and that under the Court’s new “historical practices” interpretation, Plaintiffs failed to state a viable Establishment Clause claim. As a result, religious colleges and universities should be able to continue claiming Title IX’s religious exemption. A contrary ruling would mean that religious colleges and universities cannot access federal funding for their programs without surrendering their religious beliefs. The Clinic filed its amicus brief in November 2023. Oral argument will be held sometime in 2024, with a decision following in the months afterwards.
Barnett v. Short. Eighth Circuit Court of Appeals. In this case, a Christian prisoner held in a Missouri county jail requested a Bible for his personal devotion, but a jail official responded, “Feel free to quote the constitution all you want to . . . [but] you will not receive anything more.” The prisoner was denied access to a Bible for an entire month. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The Clinic will file an amicus brief on behalf of Prof. Johnson in November 2023.
Landor v. Louisiana. Fifth Circuit Court of Appeals (panel and en banc). In this case, a Rastafarian prisoner had his religiously-mandated hair forcibly cut off, causing the Court to say that it “emphatically condemn[ed] the treatment that Landor endured.” Nevertheless, the Court held that Landor could not seek damages for the behavior the Court condemned. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The Clinic filed one amicus brief at the panel stage in the Fifth Circuit, and then another at the en banc stage in October 2023. A decision on whether the Fifth Circuit will grant en banc review in Landor is expected in the coming months.
Spencer v. Chiumento. Second Circuit Court of Appeals. After the United States Supreme Court struck down New York’s severe restrictions on gun ownership last June, the New York Legislature enacted a series of new gun restrictions, which were immediately challenged in court. One of those challenges involves a Christian church and pastor that would like to have permitted firearms in church for purposes of defending against a violent attack on their house of worship. However, New York’s new gun laws designate houses of worship as “sensitive” locations where guns may not be borne, even (in some cases) by security guards. The Clinic filed an amicus brief supporting the church’s claim, on behalf of a Jewish synagogue in Monsey, New York. The brief argues that it is illegal to discriminate against houses of worship when New York allows guns to be borne in many secular locations where many people gather, such as department stores and restaurants. The brief will also point out that it is especially problematic to deprive Jewish worshippers of the right to defend themselves given the rising tide of antisemitic violence and attacks on synagogues. The brief was filed in March 2023, and the case was argued later that month. In December 2023, the Second Circuit issued its opinion, holding that New York’s laws wrongfully discriminated against houses of worship.
Fuqua v. Raak. Ninth Circuit Court of Appeals. In this case, the Arizona prison system refused to allow a prisoner to observe his Sabbath. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The case is set to be argued in December 2023.
Pleasant View Baptist Church v. Beshear. Sixth Circuit Court of Appeals (en banc). This case involved a lawsuit against Kentucky Governor Andy Beshear for COVID lockdown orders that prohibited in-person learning at elementary and secondary schools. The panel ruled against the Plaintiffs on multiple grounds, including on Plaintiffs’ freedom of assembly claim, by finding that any constitutional rights were not “clearly established” at the time Plaintiffs brought their lawsuit. As a result, the court held that government officials could not be held personally liable for any unconstitutional actions. The Clinic filed a brief on behalf of John Inazu, the nation’s foremost scholar on the Assembly Clause, who also has close ties to Pepperdine University, having participated in the Dean’s Speaker Series with Dean Caron. The Clinic’s amicus brief on behalf of Inazu argued that the panel erred in its freedom of assembly analysis and that rehearing en banc was warranted to correct that legal error. The brief was filed in September 2023. In October 2023, the Sixth Circuit denied rehearing en banc.
Charter Day School v. Peltier. United States Supreme Court. This case involved an ACLU lawsuit against a North Carolina charter school that requires students to wear appropriate clothing corresponding to whether they are boys or girls. The ACLU challenge is based on the idea that this policy violates federal laws pertaining to gender equality. The defendant, Charter Day School, is defending in part based on the idea that it is a private entity, not a public entity, and therefore not subject to the federal laws in question. The ACLU says that because Charter Day School—a nonprofit corporation—contracts with the government to run a charter school, it is therefore a public entity and subject to these gender discrimination laws. Charter Day School lost at the Fourth Circuit Court of Appeals and sought review at the United States Supreme Court. The Clinic filed a brief on behalf of Catholic Charities of the Diocese of Arlington, Virginia, in support of Charter Day School. The amicus brief argued that although Charter Day School is not itself religious, the theory advanced by the ACLU would be devastating for nonprofit religious ministries like Catholic Charities that contract with governmental bodies to provide social services like homeless shelters, soup kitchens, and food banks; contracting should not be enough to turn a private entity into a public one. The amicus brief was filed in October 2022 and Petitioner Charter Day School cited to the Clinic’s brief twice, in its reply and supplemental briefs. In June 2023, the Supreme Court denied review.
Mast v. Fillmore County, Minnesota. Minnesota Court of Appeals. This was a challenge by Old Order Amish farmers in rural Minnesota to a county ordinance requiring them to treat “gray water” (sink water, not sewage) 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, the leading national Amish religious liberty organization, argued that Fillmore County's ordinance is part of a broader history of attacks on the Amish by local governments. Our brief explains 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.
Groff v. DeJoy. United States Supreme Court. This appeal concerned the United States Postal Service’s decision to require its employees to start working on Sundays in accordance with USPS’s agreement to deliver packages for Amazon. (U.S. Mail is not delivered on Sundays.) In this appeal, a Christian United States postal worker seeks redress for his firing due to his religious restriction on working on Sundays. The Clinic filed an amicus brief on behalf of Orthodox Union, one of the nation’s largest Orthodox Jewish denominational groups. 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. The brief was filed in February 2023. 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 to cases found in the Clinic’s amicus brief.
Walker v. Baldwin. Seventh Circuit Court of Appeals. A Rastafarian prisoner was denied the wearing of a religiously-mandated hairstyle. However, such hairstyles are commonly allowed in federal and state prison systems and have caused no security problems. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The amicus brief was filed in October 2022. The Seventh Circuit later decided the case on alternative grounds.
Palmer v. Liberty University. Fourth Circuit Court of Appeals. This case involved an age discrimination claim by a professor at Liberty University, a Christian university in Virginia, whose teaching contract was not renewed. Our brief, which was filed on behalf of a coalition of religious universities from a number of different faith traditions, including Pepperdine itself, argues that the professor's discrimination lawsuit cannot be allowed to proceed because it runs afoul of the First Amendment's ministerial exception and church autonomy doctrines. This brief was filed in May 2022 and the case was argued in January 2023. In June 2023, the Fourth Circuit affirmed the lower court’s dismissal on ADEA grounds and declined to reach the ministerial exception question. One judge concurred in the judgment and explained that the plaintiff was a minister and therefore her suit was barred.
Morris v. Centura Health. Colorado Court of Appeals. This case involved a test-case lawsuit brought by a doctor who was fired for seeking to provide assisted suicide in contravention of her religious hospital employer's commitment to abide by the Ethical and Religious Directives for Catholic Healthcare Services. The doctor seeks to force Catholic healthcare entities to allow their doctors to participate in assisted suicide/euthanasia. Our brief, filed on behalf of the Little Sisters of the Poor and the Catholic Benefits Association, argued that the First Amendment doctrine of church autonomy would not allow Colorado to force Catholic healthcare providers to participate in assisted suicide in defiance of Church teaching. This brief was filed in May 2022. The Court of Appeals later denied relief to Centura.
Foothill Church v. Bonta. Eastern District of California federal district court. This was a challenge by several Protestant churches to a California state abortion mandate that applies to employers. The churches have a religious objection to providing abortion within their employee healthcare plans. Our amicus brief, filed on behalf of the California Catholic Conference (which consists of the Catholic bishops of California) argued that California's abortion mandate cannot be reconciled with either the Supreme Court's 2021 decision in Fulton v. City of Philadelphia or the church autonomy doctrine. The brief was filed in April 2022. Although the district court had originally ruled against the churches, in August 2022 it reversed course based on the Fulton case, and in February 2023 it issued a permanent injunction against California’s abortion mandate.
Kennedy v. Bremerton School District. United States Supreme Court. This case 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.