Diversity and Elimination of Bias CLE Credit Teleforum: Litigation For A Higher Cause

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Professional Responsibility & Legal Education Practice Group, was recorded on Monday, October 22, 2018, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. Today our teleforum is entitled Litigation for a Higher Cause, and it will fill the Diversity and Elimination of Bias CLE Credit currently in place in New York, California, and Minnesota. CLE will not be applied for in any other states. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Professor James A. Sonne, who is a Professor of Law and the Director of the Religious Liberty Clinic at Stanford Law School. We also have Walter Weber, who is Senior Counsel for American Center for Law and Justice. Without further ado, Walter, the floor is yours.

 

Walter Weber:  Thank you, sir. I'm going to start out just by identifying the premises for my presentation, which is that the role of the attorney is to guide or assist the client in dealing with legal questions, to advocate for favorable outcome of proceedings in court or some other agency action, and to resist efforts that are inimical to a client's interests. Now, the reason for this presentation is because there are going to be times in particular where the views of the client will entail obligations to higher considerations that may take priority over worldly concerns. In other words, the client's concern with eternal verities or ultimate destinations may conflict with what would be the most purely secular, worldly approach to a given concern.

 

      For example, you may be giving your client advice that would minimize legal consequences of an action, like being cooperative with police or being cooperative with the legal system, that may be incompatible with the client's view on what their obligation is. If they think -- the example I gave when I was talking to the CLE people in preparing this -- the example of the Baby Doe rescuers. These are people who are involved in demonstrations or obstructions at abortion clinics. And normally, you give your name to the police and they book you in, and so on and so forth, process you through the system. These people refused to give their name. The premise was that they were going to be in solidarity with the unborn children who were aborted, and since they didn't have identities, they weren't going to give their identities either.

 

      The police generally did not like that. The prosecutors didn't like it. The court systems didn't like that because they can't process people who don't have names. And what ended up happening is some of those people ended up spending a lot of time in jail without even having been convicted of a crime. So that'd just be an initial example of some case where the attorney's advice on how you can minimize your legal consequences is not going to be accepted by the client because they have what they view as a higher obligation to a cause.

 

      Another view, another area where this could come up would be in compromising on a position. If they feel that they are somehow obligated to compromise principles in a way to go along with some condition of an agreement or an outcome in a case, they may not be willing to do it. It's not a matter to them of simply, "Well, I'm going to pay less than what the amount would have been or settle a case by going halfway." If the principles are non-negotiable, they don't have that flexibility.

 

      Another example: suppose you have a situation where—as I think this happened in California—you have a court enjoining a religious ritual. That was, I believe, a sacrifice of chickens that was part of a Jewish religious observance practiced by some Jewish people. I guess it's not universal. But in any event, the court said, "This is a matter of animal cruelty. You can't do it." Well, what if a client in a case like that says, "Look, I'm religiously obligated to do this. My duties to God have to take precedence over my obligations to a worldly judge, so I'm going to go ahead and do this, even if it gets me contempt of court." If you're an attorney and you know in advance that's going to happen, are you in trouble? Do you run a risk of getting yourself held in contempt because you're somehow viewed as being responsible for your client? That's, I guess, a possibility. Normally, clients aren't going to be talking to you in advance about things they plan on doing that break the law, but if that comes up, and they're going to ask you, "Well, if I do this, what would be the consequence?", then you have to keep in mind that they may not be willing to just go with route that's going to minimize the consequences to them.

 

      Another case would be in the case of paying damages. If you have a civil case that's being settled, and they consider that the other party is running, essentially, an evil business that's an iniquitous operation, they do not want to have any money of theirs willingly go there, and so they're unwilling to pay. I remember hearing about a case in, I think it was California, where a gentleman was held in violation of an order that he not exercise his free speech rights on public sidewalks in the vicinity of an abortion business. And he ended up appealing and winning, but in the meantime, he paid -- I sorry, he refused to pay a fine. He refused to abide by the conditions, and he ended up having to sit in jail essentially for what would have been the entire sentence that he would have gotten if he had lost his appeal. So he, in his commitment to principle, what he felt his religious beliefs required him to do, ended up essentially paying the entire -- serving the entire time that he would have served had he been convicted.

 

      Another concrete example:  I was involved in a case years ago where there was an attempt to negotiate out a temporary injunction so that the court wouldn't have to decide what kind of injunction to issue in a civil suit against protesters. The clients initially agreed to the terms and then changed their minds. On reflection, they decided that in good conscience, they could not go along with it. Well, that was very unsettling, both to their local counsel and to the court, not to mention opposing counsel. But as a matter of constitutional law, the Supreme Court, I'm pretty sure, has recognized not only that you could -- well, recognized that you get to define your understanding of what your religious beliefs are, and that can't be second guessed by a secular court. And implicit in that also is the idea that you can change your mind. You can convert from one religion to another, you can change your understanding of what you believe your religion requires of you. Well, that put them in an awkward situation because now they had both the court and their local counsel mad at them for backing out of a deal.

 

      These are all areas -- these are some of the areas -- there are others like managing a client for press purposes. Do you let them speak or not? Do they feel like they're sacrificing their duty to witness if they don't speak? On the other hand, are they compromising their ability to maintain control over the evidence in a case? How to attorneys deal with these situations? My initial response would be to say you have to have a good understanding of what the non-legal parameters are on the client's conduct. It really behooves the attorney to have a full discussion in advance so that you aren't surprised by something that develops along the way or caught in a misunderstanding where you thought the client was willing to do something, and it turns out that they're not willing to do it. You certainly don't want to make assurances on behalf of a client without clearing it with them. But I think that the more understanding you have of the client, the more you're going to be able to shape your advice and your legal strategizing in a particular case or other matter.

 

      One last thing I want to mention. In my own history of cases, I had a situation once where the client had not expected to get into civil litigation but was. And it turns out this client had some fairly disreputable things in his past. And I talked to him about it, and he decided that if he wanted to make this be the occasion for him—he was a very sincere religious believer—he wanted to make this to be the occasion for him to give a public witness. And so all the things which the other side theoretically could have dug out and used against him to try to impugn him, he outspokenly, publicly admitted to and said that this was what he was saved from by his conversion. It ended up being a total flip of what you might expect. Instead of the bad things from his past being ammo against him, it ended up being an occasion for him to make a very strong, personal statement about how his life had changed.

 

      Jim, I'm going to pass it over to you now.

 

Prof. James A. Sonne:  Thank you, Walter. And it's great to be with all of you. And thank you, Micah, for putting this together. From Walter's comments, I think you can see the many and varied situations where there are direct conflicts between a client's obligations according to their faith and various legal requirements or their interaction or demands of the legal system. I want to take the opportunity to step back a little bit and—even though most of the work that we do in our law clinic here at Stanford concerns conflicts between a client's faith and other obligations—and talk a little bit more about law and religion generally, and why it's important for a lawyer, regardless of the context, even if it's not a situation where there's a direct conflict, should understand the religious dimensions of their client's situation, how they are coming to the lawyer and why; what their goals are, and whether or not the system can meet those goals, and how a lawyer should handle that.

 

      The suggestion that it's critical for any lawyer, regardless of the context, to understand their client's religion comes from the work that we do in the clinic. We are a full-time law clinic here at Stanford. All we do is religious liberty cases. We teach students the practice and profession of law through these cases. We represent all faiths – Christians, Jews, Muslims, Buddhists, Hindus, Sikhs, Hare Krishnas – across the board. We represent them in agency situations. We represent them at trial and on appeal. It's a great way to, I think, promote religious liberty. But for our present purposes, I think there are a lot of examples from our work that really go to what it means to be a lawyer in service to your client, and why it's of critical importance that if it's important to understand your client's culture, and I certainly think it is, that should include religion. And so when you think about the various examples that Walter gave, it's crystal clear that there's a religious conflict. Maybe it's not so clear if you are representing a client in a landlord/tenant dispute or in some situation where you might not think that religion would play a role, and yet, it's really the lens through which the client sees the problem, and therefore it's important for you to appreciate.

 

      This appreciation for religion is something that I would think is particularly acute for the contemporary lawyer on sort of three levels: client, lawyer, and system. If you think about it from the client's perspective, as our culture becomes increasingly diverse on religious grounds, that there is increasing religious pluralism, and that's a fantastic thing to welcome people of different perspectives and faiths. You also, of course, have the rise of the "nones," the N-O-N-E-S, as well. So there's a lot going on in terms of religion and religious perspectives. And although we all have religious liberty, there's no question that the diversity of views on what religion means to people, even if they feel it very deeply but they see it differently, that's going to be an opportunity for the lawyer, or an obligation for the lawyer to understand where their clients are coming from. And also, even in addressing particular religious traditions, to understand that your client is still an individual, that even if they are of a particular faith, that doesn't necessarily mean that they ascribe to what the stereotypical or even actual understanding in that faith is, that they are your client.

 

      So there's the client perspective, and then, of course, there's the lawyer perspective. And if you look at the data, lawyers and those with post graduate degrees generally tend to be less religious than the general population. Therefore, the chances that a client will see things differently than the lawyer are enhanced, that the lawyer might not fully appreciate the religious perspective of the client is -- the chances of that are heightened. There also is sort of -- I would argue that there's, for the general church/state separation concept that we learn from, rightly or wrongly, through civics classes and all through law school, that there is this idea that there should be a separation. And I think lawyers often take that to heart, that these are issues that we shouldn't really discuss. And then, of course, you have this sort of overall -- the aphorism of you never discuss religion and politics in polite company, that there's sort of a hesitation that I see that lawyers have, not fully wanting to engage these issues, even though, for our clients, it's of critical importance.

 

      And then, that hesitation, I think, you also see in the legal system. Sure, there is some hostility to particular religious perspectives, but even more dominant, I would argue, is a sort of bureaucratic indifference, this sense of neutrality and equality above liberty and accommodation. So there's a real need for lawyers to appreciate their client's perspectives, to bridge not only their own -- from their own, perhaps, limited understanding of their clients and why religion is important to them, and then, of course, communicate that and serve your clients in that system. And that really includes an appreciation for all the dimensions of life that religion touches, not just in the religious liberty disputes that we deal with in our work. Certainly, our cases all involve some sort of conflict between religion and another obligation, but, certainly, that's just the tip of the iceberg that the need to be acutely aware of your client's faith perspective to the degree to which that's something that's in play, and it often is of critical importance.

 

      And this goes beyond, perhaps, these conscience conflicts that Walter described and goes just to general human relations, social conventions, whether you shake someone's hand, what it means to be on time or not to a meeting, grooming, dress traditions, gender relations. All those things are informed by religion. Of course, moral understandings, marriage, children, education, what it means with the role of the state – all those things are informed by religion, as is just general ideas about what is evidence? What is, as Walter says, what's the risk to harm? What is the role of money in settling a case? Is it about money, or is it about principle? And even the idea of individualized as opposed to collective senses of religion, the way in which clients see themselves in the community. A lot of our clients view themselves as they have an obligation to their community, and consequently, those obligations have to -- they will inform how the lawyer handles the matter. So that's an important thing to keep in mind.

 

      So my overall push in thinking about this is to think broadly, that if we truly are representing our clients as full human beings, that it's really important for us as lawyers to appreciate where they're coming from, just as we would in any other context, to develop our advocacy for them in a way that anticipates these particular perspectives, and also bridges, to a decision maker, a court, an agency, what have you, if not hostile to them and their goals, may just simply not understand them. And it's of critical importance for the lawyer to be an effective bridge builder in that way. I'm happy to discuss a few more -- some examples from our work in the clinic, but maybe I'll kick it back to Walter to get some further thoughts on this.

 

Walter Weber:  Yeah, Jim, actually, what you said is -- I want to follow up on, if I could. One thing in particular that you mentioned, which I think you hit the tops of some icebergs. You mentioned personal contact rules. And I know that there's some religious traditions or schools of religious thought that limit, for example, physical contact between a man and a woman. Can a woman shake a man's hand in her religious tradition? There may even be restrictions on other kinds of contact. You'll know more about this that I will. My question is do you find that it's helpful to actually highlight those rather than downplay them so as to diffuse any misunderstandings, so that someone doesn't think, "Well, that person is rude," or, "That person's unfriendly," when, in fact, they're just trying to be observant?

 

Prof. James A. Sonne:  Yeah, I think it's a good question. It's something we often struggle with with our students because our students are coming to our clinic to learn the practice of law, and they have an interest in religious liberty, but most of them just have an interest in this cross-cultural dynamic and the important issues that our clients are facing. And yet, they don't necessarily have an automatic appreciation for these social conventions. We tend to highlight them, but we tend to -- we do moots and simulations with the students, certainly, ahead of time. But we encourage our students to have a humility, to ask questions, to flag it so that you want to do it in a way that doesn't put your client off or put them on the spot, but really appreciates where they're coming from.

 

      If you think about it, by analogy, if you're travelling in a foreign country and don't speak the language, often times you're a little embarrassed to try to speak the language. And yet, at least in my experience, you find that those efforts are appreciated, and that you actually have a sort of opportunity for humble -- if you approach it in a humble way. You're going to make mistakes, but that's better to try and perhaps come off as not fully understanding but seeking understanding, rather than, in a sense, reinforcing what the client already is concerned about, either based on the situation that they find themselves in in a conflict or the legal system in general. And therefore, you're just another piece of that opposition. Seeking to bridge that, I think, is an important thing to do.

 

Walter Weber:  Now, I can see where you certainly want to have the attorneys in training be aware and highlight these things so that they know what the rules are they're supposed to be using in dealing with the clients. What about the court system and the opposing counsel? Do you recommend -- I mean, you've got an ethical obligation to advocate for your client, try and get them in the best position. Do you go to the other side in advance and say, "I just need you to know, before we enter this negotiation, try to work out a mediated settlement or something like that, they're not being rude to you when they don't shake your hands. It's because they have this obligation." Do you highlight it so that they don't get misimpressions on the other side or in the adjudicative body?

 

Prof. James A. Sonne:  I'm not sure that -- that hasn't really come up. It's a really good question. And I think that's important, certainly, in communicating with your own client as to explain to them how this particular drama is going to unfold, and what their role is in it, and for them not to be alienated. We represented Sikh truck drivers who refused to remove any hair from their beards, or from their heads, for that matter, for drug testing. They're truck drivers, and the rule that the employer had was you had to do hair drug testing, which goes back further than other forms of drug testing. And it's understandable that you would want to test for truck driving.

 

      And our clients, though, as Sikhs, are committed to a belief in what they call kesh, which is this belief in unshorn hair. It's a deeply important thing for Sikhs to maintain unshorn hair. They offered their fingernails instead, which is an alternative that also goes back 30 days, and so that would have been feasible. And they were asked in the course of a mediation, "What would it be like -- what would be the consequences for cutting your hair?" And one of them wept at even the concept. Their response was, "We are Sikh." They didn't even -- it sort of didn't even register. It didn't have that sort of, well, this is a choice. It literally was -- it's impossible for them.

 

      And so that sort of insensitivity -- you could say it's an insensitive question, but preparing them for that and saying, "Look, a lot of the language that's going to be used is -- doesn't necessarily match with how you see your own life and your faith." But just trying to bridge that as the lawyer so you have trust with your client, but also preparing them for the fact that they might hear things that strike them as completely inconsistent with who they are. And so that's an important thing to do.

 

      Certainly, in terms of communicating the importance of your client's religious perspective, I think, is really important to try and build on analogies to reach the decision maker in ways that just might not have occurred to them why this is something that's important. And it's, I think, particularly important when you're talking about religious accommodation because the immediate reaction, oftentimes, from this sort of neutrality perspective is that, "Oh, you're just asking for special treatment," when actually, what we're really advocating for our clients is, "No, we're not asking for special treatment. We're asking for full respect and accommodation." And if you think about that word being a warm word, being something that is welcoming in our diversity and our appreciation for the fact that religion is something that is deeply important to people. And we don't all see it the same way, that there's an obligation that we all have to give a little.

 

      But nevertheless, it's important to tell a story that resonates with the decision makers, so they appreciate that this isn't some special treatment, but rather is really a recognition of your client's conscience and who they truly are. And that's up to a line, of course. And some of the situations that you defined, Walter, I think it's what are those lines, and what is the line of conscientious objection, and all of that. And I think that that's always tricky, but particularly tricky when it's religion where everyone has an opinion. And that's fine, that's fine. But you have to anticipate that. You're going to have biases, whether legitimate or otherwise, that you're going up against in a lot of these disputes.

 

      And I would ask -- along those lines, Walter, I would ask you in terms of some of the examples that you gave, do you find that religion or spirituality is the central issue, or is something else going on? It seems to me that a lot of our work we do -- we generally do prison work, employment work, and land use. And oftentimes, the issue for our clients is a religious one, but obviously, for other side, they're not necessarily maybe seeing it. And sometimes for the decision maker or the other side, they simply see it as a sort of direct attack on their -- on the validity of their rule, or whatever it is that -- nothing wrong with drug testing, like I said. You should be doing it, but is there a way you can achieve a win/win? But in some of the more contentious areas, it seems to me that the stakes are a little higher, such that it really can become sort of -- you're talking about religious liberty, but you're really -- you're saying religious liberty, but you're really fighting another battle. Do you see that in the situations the that you've defined or otherwise?

 

Walter Weber:  Jim, you are right that I think that the main issue in the -- what the client's tangling with what is otherwise going to be expected or asked of them is more their application of their religious norms to particular moral questions. So it's not that, well, I'm Catholic, or I'm Muslim, or I'm Jewish, or Sikh, or whatever, it's my understanding of what my obligations are in this context are the following. And the risk, aside from the fact that you're not doing what they want, either the opposing side or the court, the risk is that they will view that as an implicit condemnation.

 

      Obviously, a judge should be above that. The fact that you consider an injunction they issued should not be viewed as a personal threat to their authority or to their morality. However, we are human beings, and if someone says, "Well, I don't do that because it's against my code," some people will interpret that as saying, "Well, you think you're better than me because I do do that, and I'm not as observant as you," especially if they're professing the same religion. "I'm not as observant as you," or, "You consider me to be a pig, or a heathen, or whatever it is," and that's something that I think you have to be aware of. And again, whatever you can do to diffuse it may be to have the clients themselves say, "I understand not everybody's going to view it this way, and I'm not saying that people who haven't come to this conclusion are bad people, but my obligation, my conscience, requires this."

 

      And in this country, one thing we do have, I think, is a very strong tradition of respect for conscience. Even if you don't agree with the person's conscience, we realize that obligation to conscience is an overriding kind of thing. In this country, we were defending our national livelihood against an imperial foreign body of the British Empire, the most powerful force in the world, and yet we allowed people to be conscientious objectors if they could not in good conscience take up arms. And that tradition has continued in a variety of contexts in this country. And nowadays you see some of the applications being more or less contentious, if it's something like a doctor not wanting to take part in capital punishment, or a nurse not wanting to take part in an abortion procedure. Those kinds of things, all, theoretically, should be plugged into that same tradition of conscience which goes back to the beginning of the country.

 

      Now, I wanted to hit the ball back to you, if I could, Jim. Another thing that you mentioned which I think merits more exploration is the idea of dress codes and attire. One of the things that -- I'm not a criminal lawyer, but I understand that it's really important how clients dress when they're in court. The image that they convey could be really important to -- the image they convey to the jury, to the judge, showing how serious they are, whether they're contrite, whether they're dangerous, whether they're unruly. And the client may say, "Well, I can't wear that because I have to wear this other thing," or, "I have to have this certain pendant," or, "I have to have a certain symbol displayed." And does that then present a problem where your client's religious observances are actually impeding their ability to present the most court effective image?

 

Prof. James A. Sonne:  I can certainly see that as being a dilemma. And I think it's a dilemma that, in general -- if you think about what are the legal system's sort of expectations or background biases in terms of how a party should look, and how respect is shown to the authority of the court, et cetera, et cetera, so I think that's of particular importance to think through those challenges. How do you then bridge that? I tend to go more on the side of part of the -- at least, in religious liberty disputes, part of what we're about is seeking respect and an appreciation for our client as a human being and their full expression of who they are. And therefore, religious dress is part and parcel of that. I do think it's worth a conversation with a client in terms of their appreciation of the fact that life's not always fair, and that there may be judgments drawn against them, if not directly, then indirectly based on grooming and dress.

 

      But that, in my experience, the reason why we're there in the first place is to respect their dignity and authenticity, and consequently, although it's not my decision, I certainly would be perfectly comfortable and welcome them dressing and presenting themselves in the way that is consistent with their faith. And in many ways, like I say, for some clients, it's not a choice. And I think that's oftentimes, sort of in the Western understanding of religion, being something that you decide. That's not necessarily the case for a lot of our clients, that they see themselves and their religious identity as core to who they are, and consequently, there's almost sort of no choice in the matter. And I think that that's how we've addressed that.

 

      You raise an interesting point, if I could just go back real quick, about the sort of same religion, or the intra-religious, "I'm also this, but…"  -- we've had that experience a lot. A lot of times, if a religion is completely foreign to the judge or to the city council member, you actually can sometimes, as long as there's not this sort of side issue about what we're really talking about in terms of the substance -- I shouldn't even say side. But if you're really talking about recognizing the client's religious identity and their need for accommodation or some other legal remedy, that oftentimes, if it's completely foreign, particularly if it's perceived as innocuous, the courts -- in my experience, the decision makers are a little more flexible on that.

 

      But oftentimes, when you get into difficulty, at least in whether it's in some sort of oral presentation or otherwise, particularly with more political branches, agencies, city councils, that sort of thing, is when you're sort of touching a nerve on decision maker's own religion. So we actually had a homeless ministry case where our client viewed all the homeless residents of the city where they were as members of their congregation and welcomed them in for food, and for worship, and clothing, et cetera -- a variety of ministries that the church performed that the city viewed as a form of social service. And we actually had a member, I'm not sure if it was the Planning Commissioner of the city, say, "Well, I'm Christian, but we do that differently. We don't look it as doing anything to your church. We have another service that we provide them in a different area of the city," that sort of thing. So it's very interesting.

 

      We represent Messianic Jews, for example, in prison cases, and we'll have -- sometimes you'll have the rabbi chaplain say, "Well, Messianic Jews aren't Jewish." And you sort of -- there's nothing wrong with having one's own particular religious view of these things. Rabbis have religious liberty, too. But in terms of advocating for client, you do run into this sort of internal dispute about what it means to be a member of a particular faith.

 

      And it's also true that in the cases that you mentioned, Walter, as well as in ours, obviously, our clients are in situations of conflict. So by sort of -- by its very nature, the fact that they're in conflict means that in some way, they are not matching up with the majority norm, or the expected way of behaving, or the expected way of how one is to carry out their faith in balance with their other obligations. So that perception of them being difficult, or demanding, or what have you, is something that you're kind of -- it's sort of the nature of the thing. And consequently, all the more important for a lawyer to anticipate that and try and build a bridge as much as they can that if there's a way to get a solution that's a win/win, that recognizes legitimate interests of the other side while protecting your client's interests, I think, is a great opportunity for culturally sensitive lawyers in this way to serve.

 

Walter Weber:  I think one of the main Supreme Court cases on this is the Thomas v. Review Board. If I remember correctly, that's the case where there was a Jehovah's Witness who objected to making turrets that were going to be used in tanks, but he didn't object to making the steel which was then used to make the turrets. And some people said, "Well, this doesn't make any sense," and even, I think, had other Jehovah's Witnesses testify that they wouldn't find an objection to what he objected to.

 

      And the Supreme Court ultimately had to say, "Look, our job -- we're not supposed to decide whether he's right or wrong. Our job is to ask whether he's sincere in saying that this is what he understands his religion to require of him. And if he's drawn a line, it's not for us to say it's a good or a bad line. It's the line he's drawn, and he gets to stick to it." Then you just go ahead and apply your regular constitutional tests, or employment law tests, or whatever the test might be, to say does the opposing interest override this person's interest in adhering to their belief? But you don't say, "Well, no, you've got your religion wrong."

 

Prof. James A. Sonne:  Right. And that's where I think a lot of times, religious liberty disputes in particular are miscast as sort of a zero-sum game, or if this is something -- if this is a religious belief that we recognize, then all bets are off, and that the religious believer trumps everybody else. Religious liberty is not unlimited. There are balancing tests, and you figure out whether there's a compelling interest, or a hardship, or what have you, whatever the various test is. They're not perfect, but they try to approximate the respective interests. But what you don't do, as you pointed out, Walter, is you -- I think there's an obligation for the client to be sincere, that they're not committing a fraud or using religion in some way to achieve an objective that they don't fully -- that is not a matter of conscience, but rather is something they're being manipulative about.

 

      But barring that, there should be a respect for the fact that we're talking about religion and spirituality, which is of deep importance to people. And like I said before, it's of deep importance, and yet, it's deeply varied. And that variety, the religious pluralism, is something that is a mark of freedom. Not that -- not everyone's going to see it the same way, and they should have the ability to talk to one another and persuade one another that their way of looking at it is the right way. But they should do so in freedom, and not be beholden to just the conventional definition of what another group or the majority might think of is legitimate or illegitimate in terms of religion. And to the extent that it affects the rights of others and implicates other public policy concerns, then you have a discussion, and you go to the balancing tests, but you don't preclude it up front simply because it doesn't match with what you might expect to see in terms of what a religion should be and how someone should act in that way.

 

Walter Weber:  Jim, let me bring up another topic. You mentioned conflicts between the religious belief and the laws or rules. A mundane example of that is religious holidays. What if you have some sort of court dates, or deposition schedules, or anything that's going to conflict with either a weekly religious observance or an annual religious holiday where they're not allowed to, say, go out in public, or do work, or whatever the particular thing might be. How do you handle that?

 

Prof. James A. Sonne:  You'd be surprised, or maybe not, but a lot of court rules already have that in place. And there are accommodations, certainly, in the law for that, generally, in terms of public obligation, certainly in public employment, to draw from. And we've generally been able to, once again, by analogy to your question about the dress and grooming, it's actually an opportunity to express the sincerity of your client's commitments that include the fact that, no, they're not going to be available on that day. And that's part and parcel why we're here in the first place.

 

      Now, I guess you may run into a problem if it's -- if it becomes, once again, unduly burdensome, to borrow the legal standard in the employment field, if it becomes a hardship or something like that. But generally, we've been able to -- and I think, oftentimes with the other side, they don't really want to go there and sort of double down and force your client to violate their conscience. And you've sort of -- are often times in a more direct way that's pretty obvious, so we've been -- it's been pretty workable for us with those types of conflicts.

 

Walter Weber:  Now, you mentioned that sometimes the more unusual religions have an easier time because there's no tension between what the government body or council member might view as the right understanding of that religion because it's so foreign. The flip side of that is that there's a decent chance that there will be prejudices that are incorporated when you're dealing with something that you're not familiar with. And the reason I'm mentioning that is because I've heard of cases, for example, in the wake of 9/11, a Sikh gets assaulted or killed because someone thought he was a Muslim. Or if you see -- if someone is wearing a particularly unusual and obvious form of Islamic dress, a person might say, "Oh, they're probably a terrorist." Do you have to deal with somehow diffusing -- I mean, you can't just say to your client, "Wear a business suit. Don't wear that," if they think they can't, religiously. But maybe you can inoculate against the potential prejudice by confronting it, again, openly. Say, "Members of the jury, you see the client looks this way. Here's what that means, and here's why they wear that way. And it doesn't necessarily mean anything beyond that." I mean, do you have a recipe for how you deal with those kinds of things?

 

Prof. James A. Sonne:  Well, I think every situation is different. But I do think that you're right to flag that, certainly, although most of the cases that we deal with are cultural disconnects and bureaucratic indifference. There's no question that anti-Muslim hostility -- the hostility against our Muslim clients certainly is something that we need to be particularly attentive to, even if it's indirect or not something that -- it might be neighbors or something like that rather than the legal system itself. But that's certainly something that is, I think, good to pay particular attention to in terms of what's the background cultural struggle. There's also -- so, consequently, I think, even though our Muslim brothers and sisters have the same exact rights that everyone else has, their religious liberty, and shouldn't have to apologize for that, and should have the opportunity to live out their conscience and their way of life the way they see fit, it certainly -- I think there's a need to ground their faith in an explanation of why this is important to them, and maybe take a little longer to communicate that.

 

      Like I say, it shouldn't necessarily be necessary to do that, but to talk about the fact that your Muslim client was born and raised here and is not a newcomer, and that Muslims have been around since the founding, and here are all the important things that they believe, that there should be just as much right to practice their faith and provide for their families and live out their faith in all the ways that they do. And let's agree that there are disagreements, just like any other context, and you talk with one another and persuade one another, but the law is a place where there should be mutual respect and the ability to practice without prejudice and to fulfill your conscience just as you see fit, just as you would in any other context.

 

      And that's particularly important in times of controversy or where you're facing external bigotry. And it's important for lawyers, as I say, if you're representing a Muslim client in a case that actually involves their faith, that's particularly important, but just as much as if you're representing a Muslim who -- in a landlord/tenant dispute, or any other seemingly mundane situation. They're going to carry with them some of those challenges that they face in other culture contexts, and a lawyer should be aware of those and seek to bring healing and to bridge those. That's really important.

 

      One other thing, too, in terms of the obscure. Native American clients also, I think, face some of this challenge, certainly in land use environmental areas. And it's important to articulate why it is that their beliefs are important, and why it is that -- is there a way that you can seek a resolution that's a win/win. So like I say, it all depends. It's all contextualized. There's a lot out there, but I think it's important for clients to preach it with humility, and to seek to build that trust, and to do what they can to, I think, bring to an issue that religious liberty really should be 85, 90 percent issue that folks can get around, if we appreciate it in a way that's wholistic, that's universal, respects the rights of everybody and understands that we're in this together, and we're trying to find solutions so that we can have a win/win that respects the rights of all.

 

Micah Wallen:  We can now go to audience questions. Let's now go to our first caller.

 

Eric Lipman:  Hi, and good afternoon. This is Eric Lipman of the Minnesota Lawyers Chapter, and I want to thank both Professor Sonne and Mr. Weber for a very fine and interesting presentation. My question is about Professor Minow's article which is included with the CLE materials. She notes at the end of that article that if there's a conflict between -- I guess she was pointing to the lawyer's particular religious obligations and the client's needs, that the lawyer should explore early and often the possibility of withdrawal, including the referral to other lawyers if there's such a conflict during the course of the representation.

 

      I wanted to ask the panelists their views about the practicality of that particular situation and option. And I say that because Minnesota's own antidiscrimination laws define public accommodation very broadly, presumably to include lawyers. Namely, that any business selling goods or services to the public is a public accommodation. And so what I was wondering is if a lawyer were to make Masterpiece Cakeshop or, in our own case here in Minnesota, Telescope Media type of arguments, which is, "My faith can't advocate for you in this way, but I'll help you find another provider, another lawyer, or another cake baker," that that lawyer could be in real trouble with the regulatory authorities if they made that kind of offer and suggestion that you should take your trade somewhere else. And I'll be glad to take my answer off the air. Thanks.

 

Prof. James A. Sonne:  Yeah, I guess with the withdrawal -- withdrawal is always an interesting concept because, although it's in the rules and they always make it sound easy, and that you can withdraw or seek to withdraw, and yet we know that there are consequences for your client. There are perhaps, as you mentioned, consequences for the idea that you're turning down a client based on substance, and that might have, I guess, public accommodations implications. I'm not an expert on that aspect of the issue or what Minnesota's rules are on that.

 

      I do think that, generally speaking, that to the degree to which we owe selfless representation, an obligation of selfless representation, to our clients, and that will include their religious perspectives, particularly in a religious liberty case. And in our case at our clinic, it's really important for us to put aside our own perspectives on faith questions in favor of our clients. But, of course, the area in which we're dealing with in terms of liberty of conscience, I would argue there's no conflict there because you're respecting the right of others to choose, just as you would want it for yourself. And so with selfless representation, I don't think as an issue -- you're not supporting, necessarily, the particular practice that's involved. You're supporting the freedom to pursue that practice. And, at least in my mind, there's a difference there.

 

      If it came to a situation where we were asked to represent someone whose views or whose goals were anathema to what we were -- to what our own consciences require, then I think, just as a matter of obligation to the client to give them the best advocacy we can, we'd decline, or I suppose, withdraw if it came to that, if it did not compromise them and their rights. Then we'd have to make that call. I think the situations tend to be fairly rare, and I think that they're ones that we should do our best to avoid because we represent our clients. We take on that representation, and we only know what we know because of that relationship of trust. And so I think the degree to which we would represent criminal defendants or other situations where we would be able to separate their rights in the process and the system from particularized moral wrongdoing, then I think that we should do our best to maintain that ethic, even in this area as well.

 

Walter Weber:  Yeah, this is Walter. The only thing I would add to that is that -- I mean, I was trying to think what in the world an example would be where you don't know ahead of time what it's going to be. Because normally, if it's coming to you saying, "Here's what I want you to handle," you're going to know if it's an issue you can handle or not. And at that point, tell them if -- two things I wanted to say. One is if it's a circumstance where your moral or religious obligations prevent you from advocating that way, and you're worried about Minnesota or some other state regulatory authority coming after you for that, I would refer you to the Eugene Volokh treatment of the subject, V-O-L-O-K-H, the professor out in California, wrote The First Amendment textbook. He has explained why he thinks the Model Rule, I think it's 8.4(g) of the ABA, would be unconstitutional if it required people to handle cases that were contrary to their, I guess, beliefs, or morals, or whatever. I don't know the details on it, but that would -- at a minimum, check that out.

 

      That said, suppose you have an example like female circumcision, which is a cultural practice in some areas and is considered anathema here. In fact, I think there was even a federal prosecution in either Michigan or some midwestern state on that. I would think that in the same way that you would advocate on behalf of a criminal defendant who was a drug dealer, or a pornographer, or a child abuser -- I mean, they're entitled to their rights even if you think what they've done is despicable. That doesn’t necessarily mean you can't represent them.

 

      However, you probably should tell the client ahead of time, "Listen, I'll give you my best shot, but you need to know you have a right to a zealous advocate, and I don't like what you've done. I may be conflicted. I may not be your best attorney. I'm willing to do it, but you may find that someone else will do a better job than I do." Kind of the reason -- why would you want Masterpiece Cakeshop to make your cake if he doesn't believe what you're doing is worth celebrating? You should not hide that from the client. You should tell them, if you are willing to do it, "I'm willing to do this, but I may not be your best advocate because I may be subconsciously conflicted on this."

 

Micah Wallen:  We have three questions lined up currently, and we can move to the next question.

 

Kim Crockett:  Hi, this is Kim Crockett, also from Minnesota. You might be getting questions from Minnesota attorneys especially because we have the historically largest settlement of refugees in our state. The female genital mutilation case you were referring to was -- actually happened in Michigan with seven-year-olds from Minnesota, and DOJ is currently prosecuting it. This is the first time that has been prosecuted.

 

      I had sort of a general question of what you might have anticipated, given what you do. We have fairly settled cultural norms that fall within, really, a Judeo-Christian framework, and I think what we're going to see more and more is we'll be bumping up against that. Another issue in play right now, we had Somali employees from a contractor at Delta Airlines who are leaving work during their shift to pray. This also came up recently with a surgeon in the United Kingdom where she actually left the surgical theater to pray. There was also a conflict over her head scarf, so clash of cultures.

 

      And my general question for you, though I appreciate Judge Lipman's question about the professional responsibility side, was is there really a resolution here? At some point, do you hit a hard wall where our Judeo-Christian cultural norms simply can't be... upheld, would be the word. Do they fall, at some point, under the religious liberty argument up against, for example, requirements of Sharia?

 

Walter Weber:  My limited understanding of the employment law cases is that religion doesn't always win, and it's really going to depend on what's being asked. If you have someone who firmly believes that they can't work on Sundays, which is a stark Christian position -- how it's interpreted is a different question, but some -- and you have a job that requires people to be available on Sundays, either because they're running an ambulance squad or working in the ER, and you have to have someone there, I can see where a court and an employer can say, "You know, we'd love to accommodate you, but can't. We have to have someone who is willing to do this." And so there will be times when Christian beliefs or other beliefs will have to yield to the exigencies of the situation. That doesn't mean it's always going to lose, and we have to have the protections there. Yes, it's going to be -- no one wins all the time.

 

Prof. James A. Sonne:  Yeah, I would echo that, too. I mean, the law generally for an employment context is there's an undue hardship defense, and at least under federal law, it's pretty minimal. California has a pretty robust protection. We do a lot of litigation under that. I think that it is true that religion doesn't always win. But I think it's important to separate, once again, this sort of whatever broader disputes or disagreements, particular religious traditions may have with one another, and that sort of conversation that we recognize that there are limits just generally across the board, regardless of your religious perspective, that you have to run a society and run a business and do all those things that are legitimate arguments. Other people have rights, and those are implicated as well here.

 

      And so -- but those limits, we should be wary, at least I would think, based on what I've seen in terms of helping our clients, of drawing those lines in a way that would restrict the conscience of believers and non-believers alike, that I think that even if -- you mentioned Sharia. I read a law review article not long ago talking about that domestically, that the contexts in which Sharia arises tend to be in contracting, and wills, and fairly innocuous ways that we would respect for arbitration, or perhaps that we would respect for other faiths. And I think it's important to have a universal approach that respects religious liberty universally for all, and because I think you start drawing those lines, then you kind of restrict the basic principle. And to the degree at which there's disagreements, there should be, as I mentioned before, ones that are discussed and deliberated within the broader culture rather than within the realm of restricting the religious exercise.

 

Walter Weber:  This is Walter again. Following up with my own response, I gave the example of working on Sundays. It's going to be the rare employer that only works on Sundays. If you have someone who's got a religious obligation to doing a particular task on a particular day, there's generally going to be flexibility, and he could have other employees handle the shift so that you can accommodate. And I think that's the whole point of things like Title VII and Religious Accommodation Doctrine is to say make the effort. See if you can work it out. I mean, there may be times when you can't, but you don't just say, "Oh, sorry. This is an obstacle, and we're not even going to try to get around it, so therefore, the believer loses."

 

Prof. James A. Sonne:  Yeah, and if I could add to that, Walter, too, I think that what's the response the questioner -- what's then the response of the employer? It could be, "Oh, well, we're just going to favor this particular religious perspective over another." Or I'd say, more likely, it's going to be, "Well, then, no exceptions for anybody. We're out of the religious accommodation business altogether. We're going to treat everyone the same." And I don't think that that reflects our Founders' view of what religious liberty should be.

 

      It is a messy business in respecting the dignity of all and their ability to pursue their faith in a way that -- up to a limit. And what those limits are, of course, is a matter of discussion and deliberation, but I think we want to be careful, in my view, about the extreme -- the answer to the dilemma being, "Well, then, forget it all. We're not going to accommodate anyone because it's too expensive, or it's too difficult, or it's too indulgent." The tradition of accommodation of those who think differently than the majority is something that's a rich tradition. And we should do all we can, I think, to preserve it, and try and find, as Walter said, "Is there a way we can work it out?"

 

Micah Wallen:  All right. We have three questions lined up. Not sure we'll have time to get to all three, but we can do our best. Let's go to our next question.

 

Caller 3:  This might not be so relevant, but I'd just like to point out that the Jewish ritual with the chickens is not a sacrifice. The chickens are killed just like any food is killed, and they're given to charity. It isn’t a sacrifice. That's a misconception.

 

Walter Weber:  Thank you for that.

 

Micah Wallen:  On behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. And thank you all for joining us. We are adjourned.

 

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