Defending the Faithful
California Lawyer

Defending the Faithful

A one-of-a-kind law school clinic stands up for religious freedom.

September 2013

"Part of what we are doing is to make clear the difference between the freedom to practice one's religion and the practice itself." — James A. Sonne, Religious Liberty Clinic Photo by Jeff Singer

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By the time Pastor Sam Gallucci realized that he needed a good lawyer, his church's "Operation Embrace" had already drawn the ire of many of its Ventura neighbors. Gallucci started the outreach ministry during the 2008 financial crash to serve the area's growing homeless population. In short order the small, middle-class evangelical Missionary church, called Harbor Community Church, was transformed into a five-day-a-week survival station for the city's poorest citizens, providing food, showers, and clothing - as well as a heavy dose of Christian counsel.

Gallucci says that Operation Embrace has helped more than 200 destitute families leave the streets and find a better life. He also says that up until last fall, he received very few complaints from the surrounding homeowners. But after city authorities decided in 2012 to clear out a notorious homeless encampment some five miles way, the church saw a sharp rise in the number of street people crossing its threshold - from 60 or 70 a day to as many as 120. And suddenly, it wasn't so OK with the neighbors anymore.

But even as neighborhood resentments grew - reports included public drunkenness and urination, and even a physical assault - Gallucci stood his ground, insisting that the Harbor Church's services to the poor are bedrock religious observance. "This is how we express our faith," he said. "Our entire DNA as a church is to be a church for our forgotten neighbors. The things we do are as followers of Christ."

City officials never publicly questioned Gallucci's sincerity. But after receiving dozens of complaints, they asserted there was a clear distinction between regular church worship functions and services for the homeless, and that the latter required a zoning use permit. The same permitting requirement would apply to Boy Scout meetings, they said.

As with so many legal disputes in which religious observance is out of synch with the demands of the larger community, this one promised no quick or simple solution. But rather than take the case to a conventional lawyer, Gallucci decided instead to work with Stanford Law School, which had just started a first-of-its-kind Religious Liberty Clinic.

Since January, students there have gotten the chance to defend the rights of the faithful, including an imprisoned killer who, after embracing Judaism, demanded circumcision. In another case, two Seventh-Day Adventists brought retaliation charges against an employer who fired them for refusing to work on their Sabbath. The clinic also filed an amicus brief with the U.S. Supreme Court supporting a tiny Christian colony in Montana that refuses to pay into the state's workers compensation program on grounds it would violate communal beliefs.

The clinic's diverse clientele includes Sikh, Muslim, and Native American tribal practitioners. But one thing they all seem to have in common is the strong belief that God is on their side - which is not always such a blessing for the lawyers who represent them.

"There's a lot of managing expectations," observes Courtney Quiró³s, a second-year Stanford law student who worked on the Ventura case and agrees completely with Gallucci that Operation Embrace deserves First Amendment protection. However, she also recognizes that vindicating the rights of the religious in a community where people have mobilized against them is much easier said than done.

Gallucci, Quiró's says, is a "true believer."

The same might be said of her supervisor, James A. Sonne, founding director of the Religious Liberty Clinic. A practicing Roman Catholic, Sonne prominently displays in his Stanford office a photo of himself with Pope John Paul II. However, Sonne refuses to say directly whether he embraces the Church's positions on same-sex marriage or abortion. Besides, he insists, the clinic is not about advancing anyone's narrow religious agenda - least of all his own. "It's not like I have some secret that makes me better," he says. "I am not on some religious mission."

"Part of what we are doing as a clinic," he adds, "is to make clear the difference between the freedom to practice one's religion and the practice itself. In cases involving minority religions, the distinction can get lost due to politics and cultural bias."

Despite such declarations of even-handedness, questions about both the clinic's agenda and the source of its funding have not gone away. In fact, Sonne started the clinic with a $1.6 million grant from the Becket Fund for Religious Liberty, a nonprofit law firm in Washington, D.C., that secured the money from the John Templeton Foundation. The Becket Fund is perhaps best known for its role in fighting the mandate in the federal Affordable Care Act that employee health insurance cover contraceptives, bringing no fewer than eight high-profile lawsuits. The fund has also battled long and hard to keep the words "under God" in the Pledge of Allegiance. (See Neudow v. Rio Linda Unified Sch. Dist., 597 F.3d 1007 (9th Cir. 2010).)

Although Becket officials say that they have no agenda except the zealous defense of religious freedom, Rev. Barry W. Lynn of Americans United for Separation of Church and State says his group often finds itself on the opposite side of lawsuits from the Becket Fund. In one case, for example, the fund filed an amicus brief supporting a landlord who refused for personal religious reasons to rent an apartment to an unmarried couple; Lynn's group filed an amicus brief on the side of the renters, who won. (Smith v. Dep't of Fair Emp't & Housing Comm'n, 12 Cal. 4th 1143 (1996).)

"I am surprised that Stanford Law School would accept funding from an ideologically driven nonprofit," Lynn says. "I could imagine if the Red Cross wanted to give money to teach international relief law. That would make sense. But if an ideologically driven group wants to give money and the recipients say they are going to cover the waterfront, the truth is they will not."

Sonne counters that the Becket Fund represents clients of all faiths and that its legal cases "run the gamut." He also says - and Becket's executive director, Kristina Arriaga, confirms - that the three-year grant to the Religious Liberty Clinic came without strings attached.

Sonne is clearly a serious scholar. Even his conversion to Catholicism - which occurred while he was studying classics at Duke University - was "more head at first than heart," he says. Still, in conversation, the 41-year-old law professor comes across as remarkably easygoing. When asked about major influences in his life, he immediately mentions his late father, a Freudian psychoanalyst and "nominal Episcopalian" whose eccentricities and probing questions made him a big hit with Sonne's childhood friends in Moorestown, New Jersey.

After graduating from Harvard Law School in 1997, Sonne took a job with McGuireWoods in Virginia. There he practiced employment law, but he spent about one-third of his time working on First Amendment cases for religious schools. Four years into his career, he heard about a law school that had just opened up in Michigan. This was the Ave Maria School of Law, one of several schools bankrolled by the billionaire founder of Domino's Pizza, Tom Monaghan, on the condition that they operate under strict Catholic principles. "I'm a businessman," Monaghan observed in 2004. "I get to the bottom line. ... And the bottom line is to help people get to heaven."

When Sonne secured a faculty position at Ave Maria in 2001, it brought him into the most rarefied of conservative legal circles. Supreme Court Justice Antonin Scalia was an early consultant for the school's curriculum, Robert Bork was one of its first professors, and Supreme Court Justice Clarence Thomas gave Ave Maria's first annual lecture.

It was not the sort of place likely to attract an intellectual maverick. (The school is now based in a new town in Florida, also called Ave Maria, that Monaghan developed; there he tried to ban pornography, birth control, and other "activities offensive to traditional Christian principles.") Yet during Sonne's time at the Michigan campus, his writings often ran against the grain of Christian-right dogma. In a series of articles, Sonne warned against allowing private employees to use "conscience" claims to upend at-will employment contracts. He also argued that a 2003 bill cosponsored by then-Sen. Rick Santorum (R-Penn.), would force private employers to indulge employees' religious practices "in a radical way" and as a consequence "fundamentally disrupt" the workplace.

Asked to reflect on those positions now, Sonne shrugs. "Just because something is religious," he says, "doesn't mean it should always prevail."

As the only law school in the country with a clinic devoted exclusively to religious liberty disputes, Stanford is exposing its students to a practice area that has a rich and colorful history. Since the founding of the Republic, in fact, the courts have been trying to reconcile the aims of a tolerant society with the competing demands of various religious practices.

Between 1938 and 1946, for example, cases brought by the Jehovah's Witnesses to the U.S. Supreme Court resulted in 23 opinions - a statistic that prompted Justice Harlan Fiske Stone to quip that they should win a civil liberties award. One of these cases famously established the right of school children to refuse to recite the Pledge of Allegiance. (W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).) Decades later, the Jehovah's Witnesses also persuaded the high court to throw out a local law forbidding door-to-door proselytizing without a permit. (Watchtower Bible & Tract Soc. of New York v. Village of Stratton, 536 U.S. 150 (2002).) The Watchtower decision affirmed constitutional protections for unpopular religious minorities.

In another case, the Court overturned a city law targeting a religious group's practice of animal sacrifice. (Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993).) Writing for the majority, Justice Anthony Kennedy reached back to earlier precedent when he declared that "religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection."

However, religious interests do not always prevail. When several Native American tribes tried to stop the U.S. Forest Service from building a road on sacred land that included a burial site, the high court rejected their claim. (Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).) The Court held that construction of the road had "no tendency to coerce individuals into acting contrary to their religious beliefs." And in Employment Division v. Smith (494 U.S. 872 (1990)), the Court upheld Oregon's refusal to provide unemployment benefits to two men who were fired for using peyote, despite their protestations that they took the controlled substance for religious purposes.

In response to those decisions, a nearly unanimous Congress in 1993 passed the Religious Freedom Restoration Act (RFRA) (Pub. L. No. 103-141), which required strict scrutiny of content-neutral laws that burden religious practices. Four years later the Supreme Court ruled that RFRA itself was largely unconstitutional (City of Boerne v. Flores, 521 U.S. 507 (1997)), but by then the law had already been cited hundreds of times in free exercise cases.

In 2000, Congress came back with the Religious Land Use and Institutionalized Persons Act (RLUIPA) (Pub. L. No. 106-274). Like the overturned RFRA law, it applied the strict scrutiny standard to laws that burden religious practice - only this time the focus was limited to land use issues and prisoners.

In April, a couple hundred Ventura residents squeezed into a large meeting room at City Hall for a public hearing where complaints about Operation Embrace were aired. The discussion was heated.

"I live in fear," said one neighbor of the Harbor Community Church who, in addition to training his family in the use of firearms, had recently acquired a second guard dog. "Is this how we are supposed to live?" he added. Most of the crowd shared similar concerns. Another woman complained that the "parade of shopping carts" homeless patrons pushed past her house had devalued her property. And still another resident asked: "How many signs does the city need before it prevents a tragedy?"

At least two city council members were on hand as well, their presence duly noted since the use permit issue will almost certainly be headed to the full council this year, which is an election year in Ventura. Will the city deny the Harbor Community Church a permit for its outreach program, even if it means facing a religious land use lawsuit in federal court? Sonne and two law students sat in to observe.

Three months later, the Planning Commission staff recommended that Gallucci's church receive a use permit for Operation Embrace subject to a number of conditions, including costly security measures. Citing the Bible (Matthew 25:3446) and RLUIPA, the Stanford clinic in turn registered about a dozen objections, nearly all on the ground that the proposed conditions pose an excessive burden on the congregation's religious practices. Then in late July, at yet another public hearing, some neighbors complained that the staff proposal was not restrictive enough. A vote by the Planning Commission could come as early as this month.

s emotional as the dispute has become in Ventura, it seems almost tame compared to the one now raging in a semirural area 40 minutes from the Palo Alto campus. There, Sonne and his students represent a congregation of Muslims who want to build a mosque, cemetery, and community center on a 15-acre lot.

Since 2007 when the South Valley Islamic Conference (SVIC) bought the land in unincorporated San Martin, the project, called Cordoba Center, has been tied up in red tape. Because cemetery proposals often involve groundwater issues, the approval process was difficult. But in August 2012, the Santa Clara County Planning Commission finally gave the project a green light - with significant restrictions: Rather than allowing the mosque to welcome all comers, the county limited the number who could gather there to 80 people (with allowances for up to 150 for one-day special events). The panel also cut back the scope of the facilities to be built at the site, from 10,000 square feet to about 7,800 square feet.

The SVIC and its supporters maintain that these limitations arbitrarily restrict the congregation's freedom of religion. "Catholics don't have those levels of restrictions on them," noted County Supervisor Dave Cortese.

For those who most strongly oppose the project, however, the restrictions didn't go far enough.

Both the SVIC and local residents appealed the Planning Commission's decision but got nowhere. Then a newly formed group calling itself the People's Coalition for Government Accountability filed a lawsuit under the California Environmental Quality Act (CEQA), claiming that the congregation should have been required to complete an environmental impact report (EIR) before the project was allowed to proceed. (People's Coalition for Gov't Accountability v. Cnty. of Santa Clara, No. 1-12-CV-236397 (Santa Clara Super. Ct. filed Nov. 20, 2012).) After that, the Religious Liberty Clinic stepped in.

Kerrel Murray, a Stanford law student who worked on the case, says the environmental challenge to the Cordoba Center is a pretext. CEQA is often used to derail the construction of religiously oriented projects, he says, and the clinic wants to ensure that doesn't happen in San Martin.

But the attorney for the plaintiffs group, Rachel Mansfield-Howlett, flatly denies that anti-Muslim sentiment is driving the opposition. The lawsuit, she says, is solely about environmental concerns. And under CEQA, Mansfield-Howlett says, her clients have an easy burden of proof, needing only to show that the center will have some kind of an environmental impact in order to halt the project until an EIR is prepared.

Are the environmental concerns genuine? County Supervisor Cortese allows that some of the opposition is legitimate, but he adds that there has also been a strong undertone of racial bigotry, NIMBYism, and "disrespect for one of the world's major religions." This was evident, he recalls, at a Board of Supervisors meeting when one speaker got up and linked the Cordoba Center with the same radical Islamic ideologies that led to the 9/11 terrorist attacks: "It is just astounding that you are even considering this project," the man said. Also, at one point, a local group called the Gilroy-Morgan Hill Patriots invited the proprietor of a website called to talk about the dangers posed by Islam.

In July the SVIC sent a letter to the county board indicating it was abandoning the land use entitlements granted to it in October 2012, but without waiving any rights relating to future development of the property. As a consequence, the CEQA lawsuit may now be moot. Sonne stresses, though, that the congregation is as committed as ever to seeing the Cordoba Center built, and he promises that his clinic will stand by its client "every step of the way."

Which is of at least some comfort to SVIC spokesman Hamdy Abbass. "All we want is to establish our place of worship like anyone else," he says. "Hopefully, with the help of Stanford, we can."

Sonne and his students will certainly do their best. But win or lose, Sonne observes that learning to express the viewpoints of a misunderstood minority to a skeptical, if not hostile, audience is an invaluable experience. "Handling these types of cases prepares the students for their futures," he says, "no matter what they do."

Eric Berkowitz, a San Franciscobased attorney, is author of Sex and Punishment: Four Thousand Years of Judging Desire (Counterpoint, 2012).

A Bit of a Stretch

Stanford law professor James Sonne believes that lawyers who fight for the rights of the religious - especially if they're religious themselves - need to maintain a rigorous detachment. "Clients, courts, and people in the media often lose the distinction between the right to religious freedom and religion itself," he says. "The lawyer shouldn't do that," says Sonne, founder of the school's Religious Liberty Clinic.

Not everyone in this line of work, however, is quite so circumspect. Escondido attorney Dean Broyles is an evangelical Christian and proud graduate of the Regent University School of Law, founded in 1986 by Pat Robertson. Broyles says that defending religious freedom is the whole reason he went to law school, although more specifically what he's devoted to is fighting against what he sees as the persecution of Christians.

"It's OK to mock Christians," he laments, "call them names, marginalize them, and attack them personally." But, he adds, "imagine if the media all of a sudden started attacking Muslims. That would not happen today because it is politically correct to be kind to Muslims and treat them with kid gloves."

Currently, Broyles is in the process of winding down his law practice to devote all of his time to the National Center for Law and Policy, a nonprofit he founded in 2007. Under its banner, Broyles has filed amicus briefs on behalf of a group called Parents and Friends of Ex-Gays and Gays: one in support of the Defense of Marriage Act and California's Proposition 8 at the U.S. Supreme Court; and another at the Ninth Circuit in a challenge to a 2012 law barring the state's mental health providers from attempting to change the sexual orientation of gay minors.

But it's the suit he filed in February against the Encinitas Union School District for offering Ashtanga yoga classes to elementary school students that has brought him the most attention. (Sedlock v. Baird, No. 37-2013-00035910-CU-MC-CTL (San Diego Super. Ct. filed Feb. 20, 2013).) To Broyles and the evangelical Christian couple he represents, the yoga program is a subtle subterfuge - perpetrated by the international foundation funding the program and the school district itself - to indoctrinate children with a mixture of Hinduism, Taoism, Buddhism, and something called Western Metaphysics. "The program is not just stretching and touching toes," he says.

At a pretrial hearing in March, San Diego Superior Court Judge John Meyer disclosed to the attorneys that he had recently started doing yoga himself. "If you think there is something spiritual about what I do, that's news to me," he said.

Still, Broyles did not ask Meyer to recuse himself.

In the end, the judge found that yoga as it is taught in Encinitas schools is more deeply rooted in American than in Indian culture, and that references to Hinduism have largely been stripped away. For example, one seated pose in the curriculum, commonly known as the lotus position, is referred to in class as "crisscross applesauce." Broyles says he will appeal Meyer's ruling. "This is not the end of the road for this case or the last word regarding the fate of yoga in public education - this is only the beginning," he vowed in a written statement. Is crisscross applesauce just a stretch? Or is it a thinly disguised form of worship? Perhaps the only thing Broyles and the Encinitas school district can agree on is that the answer is ridiculously obvious. -E.B.

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