Yale Law School students and professors will serve as representatives for the Freedom From Religion Foundation in an upcoming Supreme Court case, marking the first time members of the school’s Supreme Court Advocacy Clinic have represented a named party.
The case will address whether the FFRF can sue the White House Office of Faith-Based and Community Initiatives for allegedly supporting religious organizations with general federal funds rather than funds specifically designated for the office, an act that could be deemed unconstitutional. Members of the clinic filed a merits brief on behalf of FFRF last week, and one of their supervisors will deliver oral argument before the Court on Feb. 28.
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The Supreme Court Advocacy Clinic, which was started in the fall of 2006, is a class that gives students the opportunity to work on pending Supreme Court cases.
The FFRF aims to end alleged First Amendment violations perpetrated by the federal offices of Faith-Based and Community Initiatives at the White House and governmental departments. Citing three specific instances where they claim the federal government exhibited preferential treatment toward religious organizations over secular groups, the FFRF brought the suit in June of 2004. Defeated at district court, they then appealed to a 7th Circuit Court, which reversed that decision. The federal government appealed to the Supreme Court in the case, Hein v. Freedom From Religion Foundation.
The government claims that giving legal standing to the FFRF would unleash a torrent of Establishment Clause litigation, costing the taxpayers money and straining the court system with frivolous lawsuits. The Establishment Clause of the First Amendment prevents Congress from passing legislation “respecting an establishment of religion.”
The clinic’s brief counters the government’s argument, noting that the FFRF meets existing limitations on legal standing that require taxpayers seeking redress to trace specific expenditures to unconstitutional activity.
In defending the right to stand, the brief claims that the FFRF can cite concrete injury, trace the injury to an unconstitutional activity and reasonably believe its complaints would be redressed through a favorable decision.
According to FFRF co-President Annie Laurie Gaylor, the FFRF received multiple offers for representation as the case moved to the Supreme Court. Ultimately, she said, Yale “won us over.”
“They’re our knights in shining armor,” she said.
Andrew Pincus ’77, co-director of the clinic and partner at law firm Mayer, Brown, Rowe and Maw, said the clinic was inspired by a similar program at Stanford University Law School. Admission to the clinic, which is composed of 12 students, was based on competitive application.
Pincus, a former assistant to the Solicitor General who will deliver oral argument in the case, said the clinic gives students the chance to do some “real lawyering.” At the same time, teaching there has deepened his own knowledge of Supreme Court advocacy, he said.
Clinic member Terri-Lei O’Malley LAW ’07 praised the program, although she said the clinic was far more demanding than any other course she had taken.
“It has taken over my life,” she said.
Nevertheless, O’Malley said, the opportunity to work on cases before the Supreme Court was well worth the effort required.
“There is nothing quite like being able to answer the questions the Justices are asking,” she said. “It’s just remarkable.”
The students plan to travel to Washington to hear oral arguments at the end of February.