How schools like Harvard emerged as defenders of religious liberty

BOSTON — New Jersey first responder Alexander Smith stood against a damask-covered wall lined with 17th-century French paintings at the Museum of Fine Arts. Dressed in a tuxedo, he had come here to thank the Harvard Law students and faculty who supported him in his fight to keep a beard for religious reasons.

Smith, a devout Christian, works as an air mask technician for the Atlantic City, New Jersey, fire department, fitting masks and refilling air tanks for the firefighters. He’s also a pastor in his community and a police and fire department chaplain. In these roles, he believes he has a biblical obligation to keep a beard. But the city denied his request for a religious accommodation, citing “overwhelming safety concerns,” even though Smith said the beard would not interfere with his job.

Smith’s hope began to wane, he said. ”I wasn’t sure which direction to turn, if I should continue to fight or throw in a towel and give up the fight.”

But then he heard from two organizations: the First Liberty Institute, a Texas-based nonprofit defending religious liberty, and Harvard Law School’s Religious Freedom Clinic, a pro bono student program that offers representation and counsel to members of minority faiths on various religious liberty issues. “The hope that was seemingly lost was restored,” Smith told the audience of religious freedom scholars, advocates and students who gathered April 11 in the museum gallery for a gala recognizing the work of Harvard’s Religious Freedom Clinic.

A recent movement

Smith’s case is a fitting example of the ethos of the Harvard clinic, which is committed to bridge-building and helping students learn “what it means to serve and assist the needy and … provide access to justice,” said Josh McDaniel, the clinic’s director and an alum of Brigham Young University and UCLA Law School. “Religious freedom for all is essential to human dignity and flourishing, and it is imperative that we find ways to build bridges of understanding around the idea of religious freedom.”

While legal clinics have been around for some time — Harvard has 38 dedicated to various kinds of law — clinics dedicated to religious liberty are a recent development. The first clinic to specialize in clients in religious freedom cases, pioneered at Stanford in 2013, was followed by others at Notre Dame, Texas, Yale and Pepperdine universities, among others. Harvard’s clinic launched via Zoom in the fall of 2020, with just a handful of students scattered across the country.

Three years later, it’s now a 5-person shop that along with many more students has filed more than 20 amicus, or “friend of the court,” briefs and has four direct-representation cases in litigation or about to be filed, according to McDaniel. The group filed a brief defending the Western Apaches fighting to preserve their sacred land in Arizona, another in support of an Orthodox Jewish community that wants to meet on property that’s been sitting vacant for years, and one supporting a prisoner on death row who asked to pray with his pastor during his execution. In partnership with the ACLU of Nebraska, the clinic argued to protect Lakota religious beliefs of Native American school children regarding hair cutting.

“One can say it’s starting to look like a religious liberty clinic movement around the country,” said McDaniel, who clerked for two federal judges prior to his role at Harvard.

McDaniel’s sense of his life’s calling began to take shape early in his career. As an appellate litigator in California, his first case involved a small African American Baptist church. One day, after the oral argument, McDaniel, a member of The Church of Jesus Christ of Latter-day Saints, and his Jewish colleague joined members of the Baptist church on the courthouse steps in a prayer circle. After that ecumenical experience, “I sought out every religious freedom case I could find,” he told Deseret News. So when the opportunity arose to help start a religious freedom program at Harvard, he pursued it.

Last week, for the first time in person since its founding, Harvard’s religious liberty community celebrated its work with an all-day symposium on religious liberty followed by a gala. Rabbi Eli Goodman, the founder of the Chabad of the Beaches in Long Beach, Long Island, and the clinic’s client, offered an invocation, praising the group’s work to defend “fundamental freedoms that form the bedrock of our society.” Nury Turkel, commissioner of the U.S. Commission of International Religious Freedom and the first U.S.-educated Uyghur American lawyer, spoke about the threats of “digital authoritarianism” on democracy and religious freedom.

Turkel knows what persecution looks like firsthand — since coming to the United States in 1995, due to Chinese sanctions, he said he hasn’t seen his mother since his law school graduation and he couldn’t return home to attend his father’s funeral.

Why Harvard?

But how did a religious liberty program come to flourish at secular institutions like Harvard, or Stanford for that matter? Ruth Okediji, a Harvard law professor and a Christian, posed the question during her conversation with two judges during the gala at the Museum of Fine Arts, noting “This is not Notre Dame, it is not Catholic (University), it’s not even BYU.”

“Religious liberty is actually under a lot of assaults,” said John Bush, a judge on the United States Court of Appeals for the Sixth Circuit, and a Harvard Law alumni. “Maybe that’s the reason it’s perceived as a need.” In an increasingly diverse and pluralistic society, the need has never been greater. “It’s perceived now as more of a need than when you have a more homogenous society, where everyone just went to the same place of worship,” Bush said. “It was taken for granted at that point.”

Thomas Griffith, a retired judge who served on the D.C. Circuit and teaches a class each year at Harvard, noticed that Harvard Law School has become an increasingly welcoming place for conversations about faith. Last year, for instance, Harvard Law School hosted the Faith and Veritas conference, a gathering of Harvard’s Christian alumni, featuring Robert George, Mary Ann Glendon, David French and others. “When I tell my friends about it, they are gobsmacked — they can’t believe you pulled that off,” Griffith said to Okediji, who played a key role in organizing the conference.

It’s incumbent upon believers, Griffith said, to protect religious liberty and show that religion “is an act of reconciliation,” especially amid debates about the purpose of religious liberty and growing secularization. Griffith, a fellow of the Wheatley Institute at BYU, invoked the divine origins of our rights as stated in the Declaration of Independence. “We’ve been endowed by our creator with rights and the rights that recognize human dignity,” he said. “I can’t think of any right that’s more important than the right to worship the creator.”

Representing the whole person

For lawyers, regardless of their beliefs, respecting and recognizing the faith of their clients is key to their work. It can be off-putting and disheartening when a lawyer dismisses his client’s faith or urges them to put it aside, said Okediji. “As lawyers we represent the whole person … and if that whole person comes with faith, we have to have humility to honor and to recognize that’s a part of who they are,” she said.

Griffith cautioned young lawyers against becoming “bulldog” litigators who lose sight of humanity in pursuit of winning. “As I see it, the legal system is one of the highest expressions of our sense of dignity,” he said. It’s those lawyers who respect the dignity of the person who tend to succeed, he said.

A good lawyer builds community even when they’re litigating a case, Griffith said. “I think a lawyer is doing her best possible work when she’s using law to reinforce the community, to bring together those things that were separated into one community,” he said.

Amid today’s unforgiving culture, religion creates room for forgiveness, Bush said, and this allows people to change. But judges need to separate personal forgiveness from judicial decision-making and upholding the consequences of wrongdoing, he added. Griffith echoed the judge’s duty to put aside personal feelings regarding a case. “When you put that robe on, it’s Caesar all the way down — you are an agent of the state, you are administering justice the way American people have told you to administer justice.”

Religious liberty cases often offer students a new lens through which to examine their own religion, McDaniel told the audience. He recalled defending a Muslim prisoner, who asked for accommodation for Ramadan, to allow him to adjust his meal schedule to accommodate the fast. The jail refused to grant the request. The prisoner opted for saving his meals on a piece of paper until he was ready to break his fast.

For two students who worked on that case — one Muslim, another a Christian — the case was a transformative experience, McDaniel said. The Muslim student helped deliver a copy of the Quran to the prisoner, reconnecting with his own faith. The Christian student, who had never planned to represent prisoners before coming to law school, came to see his advocacy for the Muslim prisoner as a Christian mission. “He realized that actually what I’m doing as a lawyer is teaching me what it means to be a Christian,” McDaniel said.

The support of Harvard’s clinic has enabled Alexander Smith to continue to “fight the good fight,” he said. In April, the First Liberty and Harvard Religious Freedom Clinic filed a brief in a federal appeals court arguing that Smith should be allowed to have a religious beard, especially since it doesn’t interfere with his job of fitting masks on his colleagues. His prayer at the conclusion of the night resounded across the marble-accented gallery: He invoked the need for courage, wisdom, empathy and “humility to recognize the inherent dignity and worth of every individual.”