Stroock & Stroock & Lavan and Davis, Wright & Tremaine jumped headlong into the issue of religion in schools when they filed amicus briefs for clients seeking to ban the distribution of Bibles in a Missouri elementary school.
In a mixed verdict, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously ruled in Roark v. South Iron R-1 School District, 08-1847, that the school district violated the U.S. Constitution by allowing Gideons International to distribute Bibles to fifth-graders during class.
But the court left the door open for the school to create a new system in which private organizations can distribute literature (including Bibles) on school grounds, provided it does not contain obscenity or enforcement of illegal activity and that administrators approve it in advance.
Lawyers supporting the families who challenged the school district wanted the court to go further, said Charles Moerdler, founder of the litigation department at Stroock. The firm helped write an amicus brief on behalf of the American Jewish Congress, a regular pro bono client, said Mr. Moerdler, who escaped Nazi Germany in 1939 at the age of five.
Stroock has done a lot of pro bono work on Jewish issues, including helping Holocaust survivors earn reparations.
"Stroock suffers my preoccupation with these issues," Mr. Moerdler joked. (The American Civil Liberties Union argued the case for the plaintiff families).
Mr. Moerdler said his side wanted the three-judge panel to pre-emptively declare the school's new system of welcoming all types of literature unconstitutional, arguing that it was the school district's way of circumventing the court's Bible ban.
"We wanted a declaration that you just can't do this stuff," Mr. Moerdler said. "It happens all across the Bible Belt."
The school district—represented by Liberty Counsel—cast the issue as one of equal access for religious and non-religious materials outside of class. It argued in its brief that the district court ruling under appeal in the case "improperly singles out one type of literature, Bibles, and strikes as unconstitutional a facially neutral policy simply because the Bible had been distributed in the past."
If the court had issued the declaratory judgment sought by his client, Mr. Moerdler said the school district would have opposed it, setting the stage for a court battle that could have made it to the U.S. Supreme Court.
The court hinted strongly that it would reject the school system's new open-forum plan, but said it would not do so ahead of time. Mr. Moerdler expects more litigation in the case to follow.
Also on the case was Davis, Wright & Tremaine, which represented Americans United for Separation of Church and State as an amicus party. Kristina Bennard, an associate at Davis, drafted the brief pro bono.
She began working with Americans United as a Mayer Brown associate in Washington, D.C., through her connection to Richard Katskee, a former Mayer Brown associate who is now assistant legal director at Americans United. The two kept in touch when Ms. Bennard moved to Davis in Seattle, and Mr. Katskee asked her to write the brief.
"I jumped at the chance," Ms. Bennard wrote in an e-mail. "It is an important case with an interesting constitutional question."
@|Zach Lowe is a reporter for The American Lawyer, a Law Journal affiliate.
