NDLS Students Reflect on Experience in Law and Religion Moot Court in Venice, Italy

The Notre Dame Law School’s Program on Church, State, and Society sponsored an opportunity for four students to travel to Italy over spring break to participate in the Fondazione Studium Generale Marcianum Moot Court Competition on Law and Religion in Venice. The competition brought together law students from the United States and Europe to argue a case on religious accommodation, and examine issues of religious freedom through a comparative lens.

The competition allowed students to examine how issues of religious freedom are addressed both similarly and differently, in the United States and European courts. Two scholars, Silvio Ferrari of the University of Milan and Brett Scharffs of Brigham Young University, offered an overview of the issues for the audience, and then the student teams argued the case before two moot courts, one simulating the United States Supreme Court and the other simulating the European Court of Human Rights.

“It was stunning just how different the sets of arguments proceeded,” said Jones, 2L. “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.”

The case involved a private firm that had dismissed an employee for making an anti-religious comment, which was in violation of the business’s code of conduct prohibiting anti-religious statements. In the European version, the domestic courts ruled in favor of the firm, and the employee brought a claim under Article 9 of the European Convention on Human Rights. In the American version, the employee sued for employment discrimination, arguing that he had been dismissed on account of his religious views. The employer in that case maintained that, even if Title VII applied, the Religious Freedom Restoration Act allowed for an accommodation in these circumstances.

“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,” said Quast, 3L. “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.”.

Genova, 3L, agreed, “European students experienced first hand 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 American judges were Mark Movsesian, St. John’s University School of Law, Judge Richard Sullivan, U.S. District Court of the Southern District of New York, and Professor William Kelley, Notre Dame Law School. The European judges were Louis-Leon Christians of the Catholic University of Louvain, Mark Hill of Cardiff University, and Renata Uitz of Central European University Budapest.

“It was clear that certain concerns for religion were common to both the European and American legal systems and their corresponding cultures,” said Caponigri, 3L. “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.”

This approach to the competition highlighted the fact that law and religion issues have gone international and it introduced students to the legal method of both American and European courts.

“The comparative aspect of the competition was extremely valuable. It was very educational to see the stark difference in legal issues covered by the parties before the European court,” Quast said. “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.”