- Moot Court Competition on Law and Religion in Venice, Italy
- Student Reflections: Hear From the Students Who Participated
Christina Jones, Francesca Genova, Paul Quast, and Felicia Caponigri represented NDLS at the competition.
Christina Jones, Francesca Genova, Felicia Caponigri, and Paul Quast
I really had no exposure to the intersection of religion and law outside of the context of straight-forward Title VII employment discrimination. That was my portion of the argument, but I got very intimately acquainted with the Religious Freedom Restoration Act and decisions like Hobby Lobby that recognize the religious rights of organizations and corporations. We got to tackle the issue of whether claims of religious exercise by any employer can justify discrimination against an employee. As we struggled to draw the lines, my teammates and I had to embrace the complexity of the issue, and debate which policy we should be advocating. These are big issues the courts will have to address, and it was thrilling to be on the cutting edge of the law devising arguments. It forced me to think about these issues much more deeply than I had ever done.
This was more than just a typical moot court with challenging legal questions, though; it involved a comparative aspect that really enriched the experience. We got to listen to four European teams argue from the same set of facts in front of the mock European Court of Human Rights. It was stunning just how different the sets of arguments proceeded. For one thing, the interplay between judges and attorneys was astonishingly different -- the oralists delivered their remarks uninterrupted, then were given a few questions at the end, time to prepare answers, and the opportunity to address the questions. This is a marked difference from the constant interruption from the bench Americans are accustomed to in oral argument. But we also noticed a lack of reliance of case law as precedent, and more reliance on the European Convention itself and policy arguments.
I have a much clearer understanding of how the ECHR operates as a result of the tournament. It literally came to life. The outcome of the case and a discussion with a European judge also revealed how little I knew about the European Convention. Going into the tournament, I thought this was a slam dunk case for the employee, given the rights to privacy and religion. I learned, however, that the court is much more likely to rule under the freedom of expression provisions than the rights to religion. It really changed my perspective of European conceptions of religion, and made me realize that there are alternatives to our American jurisprudence on this topic.
Outside the subject of religion, it was enjoyable and informative to speak informally with the European law students about their educational experiences and career prospects.
This was a one-of-a-kind event was incredibly worthwhile, and one of those experiences that marked my law school career.
Teams from the United Kingdom, Belgium, Italy and the United States argued the same fact pattern before the two courts. Students arguing before the European Court focused on the rights to privacy and religion in the European Convention on Human Rights, as well as the margin of appreciation that the European Court gives Member States in deciding these issues. U.S. Supreme Court arguments concerned the relation of Title VII with the Religious Freedom Restoration Act, relying on the recent Hobby Lobby decision as a reference point. European students experienced firsthand the showmanship of American oral arguments, while American students were able to witness the more reserved European approach, in which judges present questions only at the end of a person’s recited oral statements.
The conference concluded with a comparison of the two courts. The seminal use of European Court jurisprudence in Lawrence v. Texas has led to an increased American interest in it. American religious and policy organizations growingly have become third party interveners at the European Court in this decision’s wake, having recognized the possibility for the U.S. Supreme Court to acknowledge European Court case law again in the future.
The Founding Fathers looked to Venice, a republic for more than a millennium, for inspiration in crafting a new government. It was an honor to continue the tradition of discussing governance concerns in such an influential location. I am very grateful to the Program on Church, State & Society for this experience.
The Venice Law and Religion Moot Court competition was a fantastic opportunity to further develop my appreciation for religious liberty law and to compare the American legal system to that of Europe. Though I had studied American religious liberty law before, I had not had the opportunity to focus on a narrow set of issues in a group the way I did when we were drafting our brief and preparing for oral argument. In framing our argument we were forced to encounter every challenge that could be leveled against us--thinking of the best answers to the hardest questions. Throughout this process we had the opportunity to teach and challenge each other on many fundamental issues. These discussions led me to challenge many of my previously held views on the place of religion in law.
Arguing before the mock Supreme Court was an incredible experience. The justices spoke with such authority on the subject it made me question all of the preparation that we had done. The bench asked twenty full minutes of difficult, nonstop questions, and through it all I had the knowledge that I was representing American-style advocacy to people from all over Europe. It was quite a rush.
The comparative aspect of the competition was also extremely valuable. To begin, it taught me just how different the two styles of advocacy are. As I watched the European arguments, I continually wished that the American arguments similarly involved us getting up and reading a brief. Even more educational was the stark difference in legal issues covered by the parties before the European court. Where the American lawyers argued about the multitude of religious liberty issues raised by the facts, the European advocates focused primarily on the issues of privacy and deference to national governments. It seemed to be an open question at the end whether the freedom of religion really mattered before the European court, or whether the freedom of association could resolve the case.
Overall, the competition was a great cultural learning experience for all of us and I'm proud of how we represented Notre Dame.
The Venice International Moot Court presented me with the unique opportunity to listen as European law students presented legal arguments in front of a mock European Court of Human Rights before I took part in my own team’s argument before the mock United States Supreme Court. In the course of the European argument, and Italian Professor Silvio Ferrari’s presentation of the case, it became clear that certain concerns for religion were common to both the European and American legal systems and their corresponding cultures. The dividing line between the private sphere and the public sphere, and what is secular and what is religious, is shifting. We all share the concern that in deciding where to finally draw a legal boundary between these two spheres, we might lose something important and valuable in the process. The common objective we all have is to build an evenhanded society, where the inclusion of religion, and not the exclusion of religion and faith, leads to equality.
While the European legal scholars addressed these big-picture legal concerns by posing broad questions, which the European law students answered in well-prepared speeches before the court, the American legal scholars and judges posed detailed hypotheticals to all in the audience. Students who argued before the mock United States Supreme Court were forced to answer these hypotheticals, thinking on their feet in real-time about the role religion should play in society. By adding more detailed facts to each hypothetical in his own introduction to the case before the argument, American law Professor Brett Scharffs highlighted how the manner in which we define religion depends on whether we see religion as valuable, ordinary, suspect, or dangerous to civil society. Professor Scharffs highlighted how- in answering whether a closely held corporation with an ethical code reflecting its owners’ religious beliefs was right to terminate one of its employees who criticized creationism outside of work- we must engage with questions of Church autonomy, whether for-profit corporations are free exercise agents, the free speech of employees, and especially our social attitudes towards religion.
As a student of American law I found myself drawn to the detailed questions the American judges asked during the argument- how does the Court have jurisdiction to decide the case? Does Title VII apply here to protect the employee? I also found myself, however, wanting to lean for legal support on the broader questions posed and the answers given in front of the mock European Court of Human Rights that I had heard argued. For example, that private life, life outside of work, is an untouchable sphere (or legally should be) and that American law should incorporate a European understanding of corporate ethos based on religion.
Participating in the Venice International Moot Court highlighted for me how the European and American cultures inform legal arguments and terminology. The experience has encouraged me to try to define a legal boundary between secular and religion, and public and private, by drawing on both cultures: using both European and American perspectives to include religion in our common civil society.