[Editor’s Note: Stephanie Barclay directs Notre Dame Law School’s Religious Liberty Initiative, which involves promoting religious liberty scholarship, hosting events for thought leaders in this space, and launching a new Religious Liberty Clinic. Her research focuses on the role our different democratic institutions play in protecting minority rights, particularly at the intersection of free speech and religious exercise. Before becoming a professor, Barclay litigated First Amendment cases full-time at The Becket Fund for Religious Liberty. She spoke to Charles Camosy.]
Camosy: Tell us about yourself and your background and how it led you to Notre Dame Law School’s Religious Liberty Initiative.
Barclay: Thank you — I feel very fortunate to have a career that I enjoy so much, and I was led to Notre Dame Law School’s Religious Initiative by following a long path studded with interesting experiences.
During a summer opportunity in Europe as a law student, I first received a taste for religious liberty law while advising religious organizations in Romania. There, I witnessed the real suffering people endure when they are denied religious liberty. The freedoms we enjoy here in the United States are like oxygen. And when these freedoms are missing, the oppression of the human spirit is suffocating. I saw how religious freedom enables people to live their life in a meaningful and authentic way, allowing them to flourish and maintain their dignity.
From those early experiences to joining Notre Dame there has been a lot of hard work, late nights, and travel, working with great people at the Becket Fund, at BYU as an Associate Professor, and during my first job out of law school at Covington & Burling in Washington, D.C.
I’m grateful now to be part of something at Notre Dame where the cases we’re involved in have far-reaching implications across the globe, and they impact real people’s lives here at home.
Can you say more about the Initiative and your involvement with it? What are some of the cases that you’ve been involved in?
I joined Notre Dame Law School in 2020, both as a law faculty member and to direct the Law School’s new Religious Liberty Initiative. The mission of the Notre Dame Religious Liberty Initiative is to promote human flourishing by serving as a source of advocacy, counsel, scholarship, training, fellowship, and hope in defense of the fundamental human right of religious liberty for people of all faiths.
In the last semester, our Religious Liberty Initiative filed amicus briefs supporting religious liberty protections for Oak Flat, an Indigenous sacred site in Arizona being threatened with destruction. My students have also helped write briefs filed in the Northern District of New York, the Second Circuit Court of Appeals, the Ninth Circuit Court of Appeals and the U.S. Supreme Court, defending the rights of Muslims, Evangelicals and Orthodox Jews. This type of work highlights the best of our religious liberty traditions and commitment to pluralism, where people of different faiths are willing to not just tolerate each other, but advocate for each other.
You just had your first annual “Religious Liberty Summit.” What kind of event was this?
We brought together some of the world’s foremost thought leaders to discuss these critical topics of religious freedom over two days on June 28-29, 2021. There were panels and talks given by scholars, advocates, journalists, and religious leaders from all around the world with multiple faiths and backgrounds
We were very excited to present Commissioner Nury Turkel of the U.S. Commission on International Religious Freedom with our inaugural Notre Dame Prize for Religious Liberty. Commissioner Turkel is a Uyghur American advocating tirelessly on behalf of the Muslim Uyghur population who live under tremendous oppression by the Chinese Communist Party. Some of the reports from that part of the world are horrifying and the importance of Commissioner Turkel’s work cannot be overstated.
Cardinal Timothy Dolan, the Archbishop of New York, delivered the keynote. Religious freedom, a topic very near and dear to His Eminence and one he has written on and spoken about extensively. There were panel discussions about overcoming the polarization of religious liberty, international threats, and what every religious group should know when working with the media. We assembled a great panel on that topic with reporters from the New York Times, The Atlantic, and NPR.
We gathered on campus at Notre Dame, but the general public will be able to view the keynote and several other sessions on Notre Dame’s Law School YouTube channel.
Your scholarship was cited three times in the recent Fulton v. Philadelphia case. That’s big time! What was it like to read your scholarship in the decision? How did those articles inform legal analysis in the case?
It was both exciting and very humbling. I can think of no more important audience for a law professor’s work than the U.S. Supreme Court, so it is meaningful to think that it might provide insights that are helpful even in small ways.
In my Boston College Law Review piece with Professor Mark Rienzi, we address the claim that providing religious exemptions created a “constitutional anomaly,” and unfair special treatment for religious people to ignore laws that others must obey. This argument was made both by Scalia in Smith and increasingly by other scholars and government officials who oppose religious freedom. We argue that from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenges offered as a default remedy elsewhere in constitutional adjudication. Indeed, this form of constitutional remedy elsewhere has been described as modest, and the type of remedy that can protect constitutional rights while simultaneously being maximally respectful of rule of law norms. The article highlights how courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise.
In my subsequent Notre Dame Law Review piece, I engage in a vigorous historical debate about what the historical evidence has to say regarding the historical grounding of judicial religious exemptions. The conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise—a sea change in the American approach to judicial review when compared to the English common law. My article pushes back on that assumption by taking a broader perspective. When one views judicial decisions through the lens of equitable interpretation, one finds historical evidence of widespread judicially created exemptions that have been hiding in plain sight. Indeed, the judiciary’s ability to modify statutes to cohere with higher law principles like constitutional rights was widely accepted in the early republic.
Though the judiciary did not always use modern language of exemptions, this was functionally what judges were doing on a large scale throughout the country and across a host of personal rights. The mode of analysis courts used to create these equitable exemptions also provides an important historical antecedent for modern strict scrutiny analysis. Thus, contrary to the conventional view, judicially created religious exemptions are well within our constitutional traditions of judicial review, and may have more historical support than the Court’s current approach.
Can you say something about the current cultural moment for religious liberty? My own sense is that we’re at a critical juncture – especially when, for so many who hold power in the culture, religious belief is something deeply foreign to their experience.
That’s a very big question. And I agree that we are living through a critical time for religious liberty, both in the United States and globally. We are all quite connected. Education, honest discussion, and transparency among politicians, the media, religious organizations, technology leaders, corporations, and everyday Americans all need to be part of a path forward.
You may be correct that religious conviction is foreign to many of our leaders, but peace and civility should be at the forefront of their minds, and religious liberty is a key driver of those civic virtues.
We often take religious liberty rights for granted here in the United States, but I think these rights are like oxygen and foundational to realizing human flourishing for people of all faiths or no faith at all. Religious liberty helps foster civic accountability, charitable works, and peaceful discourse in society. It can also act as a canary in the mine shaft, sounding an early alarm when governments start to impinge too much on freedom across the board. For these and many other reasons, the protection of religious liberty is critical.