Holt v. Payne

Muslim prisoner secures victory at the High Court 

Abdul Maalik Muhammad is an inmate in Arkansas state prison and a devout Muslim. In 2011, Muhammad sued the Arkansas Department of Corrections when he was denied his ability to maintain a half-inch beard in accordance with his Muslim beliefs. After losing his case in the lower court, Becket and Professor Douglas Laycock of University of Virginia Law School stepped in to represent him at the U.S. Supreme Court. In January 2015, the U.S. Supreme Court ruled 9-0 in Muhammad’s favor, agreeing with Becket that denying his request to grow a religious beard violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a Congressional act passed with bipartisan support in 2000. 

Arkansas continues its campaign against religious inmates 

After his victory at the Supreme Court, the Arkansas Department of Corrections then tried to bar Muhammad from wearing a religiously required cap (kufi) and attending Friday prayer services. Though his prison held up to five different services for different Christian denominations, it refused to hold more than one Quran-based Friday prayer service each week. This forced Muslims like Muhammad and his fellow plaintiffs Rodney Martin and Wayde Earl Stewart to pray alongside adherents of Nation of Islam and Nation of Gods and Earth, who they believe do not share their Islamic beliefs. Muhammad believes that for their Friday prayer service to be valid, it must be led by and limited to Muslim believers. The district court ruled that Muhammad and his fellow Muslim inmates were not sincere in their beliefs because some had occasionally attended mixed prayer services, while others chose to boycott and didn’t attend any services that violated their faith. 

Religious believers are protected behind bars 

Becket filed a friend-of-the-court at the Eighth Circuit brief identifying at least 20 other prison systems that allow inmates like Muhammad to wear their kufi throughout the prison and asking the Court to hold Arkansas to the rigorous standard the Supreme Court set last time around. Although prisoners lose many of their rights when they are imprisoned, they should not be forced to sacrifice their commitment to their faith.  

On November 2, 2023, the Eighth Circuit ruled in favor of Muhammad and his fellow plaintiffs, rebuking the district court for wrongly dismissing many of the plaintiffs’ arguments. The Eighth Circuit reaffirmed the religious liberty standards set by the U.S. Supreme Court and upheld by many other courts of appeals nationwide, and sent the case back down so that the court could apply the correct legal standard.  

Importance to religious liberty: 

  • Individual freedom: Individual religious freedom encompasses more than just thought or contemplation—it involves action. Individuals must be free to follow their religious convictions into practice, including when they are incarcerated.
     
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons 

Huntsman v. Corporation of the President of The Church of Jesus Christ of Latter-Day Saints

Revitalizing the spiritual home of the Church 

During the late 1840s, members of The Church of Jesus Christ of Latter-day Saints migrated to the American West to escape religious persecution in Ohio, Illinois, Missouri, and other states. Led by the Church’s second president, Brigham Young, these pioneers eventually settled in the Salt Lake Valley, where Young selected a plot of land to build a temple dedicated to God. Today, that site—known as Temple Square—serves as the spiritual seat of the Church’s worldwide leadership and is home to the iconic Salt Lake City Temple and renowned Tabernacle Choir. 

When the area south of Temple Square needed renovation in the early 2000s, Church leaders made a religious decision to invest in its revitalization. Through its then-president Gordon Hinckley, the Church announced that it was developing the property to protect the spiritual environment surrounding the Temple and to promote the economic vitality of the local community. Church leaders explained that the Church would not finance the project through direct tithing, the millennia-old, Scripture-based practice of voluntarily donating a portion of one’s income to the Church as an act of both financial support and trust in God. Instead, it would use earnings on invested funds that it had saved over the years.  

A church community attacked from within 

Over a decade after the Church decided to revitalize the area surrounding Temple Square, a businessman named James Huntsman—who has deep family ties and a long history of leadership roles within the Church—sued the Church to recoup millions of dollars in tithes. He argued that the Church had committed fraud by not describing with the utmost clarity that the reserve funds used to finance the development project originally came from tithing years before. The Church explained that all of its statements were true, since it in fact never solicited, let alone used, any direct tithes for the project. Moreover, its statements could not have possibly misled anyone, least of all someone as knowledgeable about Church affairs as Huntsman, who was well aware that all Church assets have their origin in tithing. Nevertheless, Huntsman claimed that the Church misrepresented that it would not use tithes for the project and demanded his tithing back.  

Protecting the Church from disgruntled donors 

In 2021, Huntsman filed a lawsuit against the Church in federal court, attempting to recover at least five million dollars of his tithing donations. The district court ruled that all the Church’s statements about its use of tithes for the project were true. On appeal, the Ninth Circuit Court of Appeals overturned the district court’s decision, ruling that the Church had committed fraud when describing how it would fund the project.  

On September 20, 2023, the Church asked the Ninth Circuit to reconsider the case in front of a full panel of judges. Becket filed a friend-of-the-court brief in support of rehearing, arguing that the court’s decision poses a serious threat to religious institutions’ ability to carry out their missions. The brief explains that courts have no business second-guessing a church’s inherently spiritual decisions about how to use tithes, which itself is an inherently spiritual practice. The ruling thus threatens religious organizations by allowing disaffected members to sue anytime they disagree with how a Church, through the exercise of its spiritual judgement, chooses to carry out its mission.  

Importance to Religious Liberty: 

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.

Pleasant View Baptist Church v. Beshear

Faithful education in the Bluegrass State

Kentucky is home to an array of faith-based schools that exist to help students harness the skills they need to thrive and grow deeper in faith. Many of these schools operate as ministries of their churches, including Pleasant View Baptist School, Veritas Christian School, and Micah Christian School. As part of their mission to provide children with an education in their faith, these schools teach religion in the classroom and hold chapel services for their students. Throughout the COVID-19 pandemic, Kentucky’s faith-based schools were diligent in implementing significant and costly measures to stop the spread of the virus, including social distancing, temperature checks, and mask wearing. 

Governor Beshear targets faith-based schools 

Eight months after the initial outbreak of COVID-19 in the U.S., Kentucky Governor Andy Beshear issued two executive orders. The first required all elementary, middle, and high schools—including private religious schools—to stop in-person instruction and transition to virtual learning. In contrast, the second allowed other businesses, like daycares, preschools, colleges, factories, gyms, bowling allies, theaters, and casinos, to continue to operate in person so long as they followed public health guidance. 

This unequal treatment was particularly troubling for private religious schools. The Governor’s actions denied religious communities the ability to pass down their faith to the next generation of believers. It also kept religious schoolchildren from vital in person chapel services, religious instruction, and other communal events that cannot be translated to an on-line format. The Governor’s rules led to absurd results: a church could offer Sunday School classes on Sunday and open a daycare on Monday, but if it used the same classrooms—and the same public health measures—to operate a religious school, it could face criminal penalties and fines.  It also meant that kids could go to the movies and teachers go gambling, but neither could go to school. 

Worse, the Governor was a repeat offender. He had already been slapped down twice by federal courts for shuttering religious ministries while allow secular entities to continue operating. And just after his order came out, the Supreme Court barred the governor of New York from doing the same thing to Jewish synagogues and Catholic churches. Yet Governor Beshear issued his new order closing religious schools and kept enforcing it even after the Supreme Court’s ruling. 

Vindicating religious education in Kentucky 

On November 23, 2020, a group of churches, religious schools and individual parents filed a lawsuit against Governor Beshear, challenging his restrictions on faith-based education. They argue that the governor’s actions unlawfully treat religious activity worse than other activities that posed the same risk of spreading COVID-19.  

The district court ruled that the governor’s actions were protected by qualified immunity, a legal doctrine that can shield public officials from legal liability. On appeal, the Sixth Circuit upheld the lower court’s ruling. In September of 2023, the coalition of churches, schools, and parents, asked the court to reconsider the case in front of a full panel of judges. Becket filed a friend-of-the-court brief in support of a rehearing, arguing that the court’s ruling violated its prior decisions and Supreme Court decisions.  

Importance to Religious Liberty: 

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened.  

St. Mary Catholic Parish v. Roy

Archdiocese of Denver Catholic Schools Fact Sheet

Supporting parents as the primary educators of their children 

Families who send their kids to Catholic preschools in the Archdiocese of Denver expect them to receive a high-quality education and to be part of a faith-filled Catholic community. And that is exactly what the Catholic preschools at St. Mary’s and St. Bernadette’s parishes provide. For years, both of these Catholic preschools have assisted parents with the religious and educational upbringing of their children by providing excellent intellectual, moral, and spiritual formation.  

Both preschools work hard to make this formation available to families of all backgrounds and economic circumstances. At St. Bernadette’s, 86% of students qualify for the free and reduced-price school meals program and 64% of students are ESL (English as a Second Language) learners. At St. Mary’s, over a quarter of students receive tuition discounts or scholarships. 

“Universal” preschool, unless you are Catholic 

In 2022, Colorado’s Department of Early Childhood established a universal preschool program to provide all preschoolers with 15 hours of free education per week at a private or public school of their parents’ choice in the year before kindergarten. As the word “universal” would seem to indicate, the Department repeatedly emphasized that this program was intended for all Colorado families. After the Department announced the creation of this program, families in Catholic schools across Colorado were eager to participate. 

When implementing this program, however, the Department chose to deny preschool funding to parents who send their kids to Catholic schools. Rather than work with all licensed preschools in the State, the Department imposed funding restrictions that categorically excluded all Archdiocesan Catholic preschools from participating—excluding over 1,500 kids attending 36 different preschools simply because their parents chose a Catholic preschool. 

The Constitution forbids religious exclusion 

The government is punishing families who choose to send their kids to Catholic schools. The State didn’t have to create a program that provides free preschool tuition to families at all private and public schools. But what the government cannot do is use this program to discriminate against families based on their choice of a religious school. The Supreme Court has three times in the past six years affirmed that the government cannot exclude some people from public benefits because of their religious beliefs or exercise. Families should be free to choose to send their kids to a Catholic preschool without forfeiting a public benefit—especially one the government has described as “universal.”  

Importance to Religious Liberty: 

Education: Religious schools should be able to participate in publicly available programs, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

Crisitello v. St. Theresa School

Religious education in New Jersey

Religious schools are common in New Jersey, and reflect the wide diversity of the state, including Jewish, Catholic, Muslim, Lutheran, Presbyterian, Episcopalian, and Adventist schools, among many others. These schools strive to provide a top-notch education for children, including in matters of faith. To ensure that their religious ministry remains strong, religious schools in New Jersey often request that their staff respect and promote their faith’s teachings by following a personal code of conduct.  

A challenge to St. Theresa School’s educational ministry 

One such school is St. Theresa School, a Catholic school in Kenilworth, New Jersey, that is a ministry of the Archdiocese of Newark headed by Cardinal Joseph Tobin. Like all other schools in the Archdiocese St. Theresa requires all its staff to respect and promote the Church’s teachings. For this reason, all staff must sign an agreement to uphold the teachings of the Catholic Church in both their professional and private lives—serving as examples of the faith to both the students and the community alike. 

During the 2013 school year, a teacher named Victoria Crisitello voluntarily told St. Theresa that she was in violation of her contract and Church teaching. As a result, St. Theresa decided not to offer a new contract for the following school year. Soon after, Crisitello sued the school, alleging discrimination. Nine years of litigation ensued, culminating in an appeal to the New Jersey Supreme Court that was heard in April 2023. 

The law protects the ability of religious schools to follow their faith 

Religious institutions, especially religious schools that exist to instill religious beliefs, values, and conduct in their students, must have the ability to require that their employees conduct themselves in ways that uphold and advance their beliefs. That is especially so for Orthodox Jewish schools, which are crucial to the continuing existence of Orthodox Judaism. In its brief for Agudath Israel of America and at oral argument at the New Jersey Supreme Court, Becket has argued that the doctrine of church autonomy—which provides religious groups the power to decide matters of faith, doctrine, and internal governance—protects religious schools, including especially Orthodox Jewish schools, in making such decisions. Requiring a religious school of any faith to keep a teacher on staff who publicly violates religious teaching would undermine its ability to carry out its mission of educating future generations in the faith. 

Mark Roselli of Roselli Griegel Lozier & Lazzaro, PC in Hamilton acted as New Jersey co-counsel in the appeal.

Importance to Religious Liberty: 

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association. 

Burke v. Walsh

Religious couple opens their hearts to children in need

Mike and Kitty Burke are a Catholic couple from Massachusetts who have long wanted to become parents. Mike is an Iraq war veteran, Kitty is a former paraprofessional for special needs children, and together they run a small business and perform music for Mass. Unfortunately, the Burkes learned early on in their marriage that they would not be able to have children of their own. Mike and Kitty began exploring becoming foster parents through the state’s foster care program with the hope of caring for and eventually adopting children in need of a stable, loving home like theirs.

Children in foster care throughout Massachusetts are waiting for their forever family like the Burkes. The Massachusetts Department of Children and Families (DCF) currently does not have enough foster homes or facilities to meet the needs of the children in its care, leaving over 1,500 children without a family. The crisis has become so extreme that the state has resorted to housing children in hospitals for weeks on end—not because the children need medical attention, but because the Commonwealth has nowhere else to put them. Now more than ever, Massachusetts needs loving couples like the Burkes to foster children in need.

Massachusetts cuts foster kids off from loving, faithful homes

When Mike and Kitty applied to become foster parents in 2022, they underwent hours of training, which they completed successfully. Their instructor reported their positive contributions in the class to DCF, noting that the couple helped to enrich the training program for other parents. The Burkes also underwent extensive interviews and a home study. Throughout this process, Mike and Kitty emphasized their willingness to foster children from diverse backgrounds and with special needs. They expressed their openness to fostering sibling groups, as well, so that children in need could maintain those critical family ties. In all respects, the Burkes were an ideal foster family.

During their home interviews, however, the Burkes were troubled that much of the questions centered on their Catholic views on sexual orientation, marriage, and gender dysphoria. In response to these questions, the Burkes emphasized that they would love and accept any child, no matter the child’s future sexual orientation or struggles with gender identity. However, because Mike and Kitty said they would continue to hold to their religious beliefs about gender and human sexuality, Massachusetts denied them a license to foster any child because, as the reviewer put it, “their faith is not supportive and neither are they.”

The law protects religious families and the children they seek to serve

This sad conflict was entirely avoidable. Massachusetts wants to maximize foster families and rightly protect potential foster parents from religious discrimination. Instead, Massachusetts turned its policies into a ban on certain religious beliefs. This is as unconstitutional as it is unnecessary.

Massachusetts has put vulnerable children into hospital rooms and office spaces because it lacks enough loving foster families. Hundreds of children in the state’s foster care system need homes, and religious parents like Mike and Kitty Burke are ready to open their hearts and homes. Massachusetts cannot exclude religious couples like the Burkes from fostering because they are religious, nor can they punish qualified families for their deeply held religious beliefs. If this can happen to the Burkes, it can happen to loving, qualified foster families of diverse faiths across Massachusetts.

Federal law protects the ability of religious people and organizations to foster children in need without having to forfeit their beliefs. Because Massachusetts was unwilling to uphold law including in its own Foster Parent Bill of Rights—Becket is going to court to enforce them.

Importance to Religious Liberty:  

Individual freedom: The government discriminates against religious groups if it prevents them from providing services simply based on their religious beliefs.

Garrick v. Moody Bible Institute

A historic beacon of faith and hope 

Moody was founded in 1886 by prominent evangelist Dwight L. Moody, at the behest of Emma Dryer – a teacher who was instrumental in helping launch the school. Originally named the Chicago Evangelization Society, the purpose of the school was to train men and women from all walks of life to bring the Christian faith to all people. Today, Moody offers undergraduate, seminary, and missionary aviation training to equip students to proclaim the Gospel of Jesus Christ, to be Biblically grounded, and to engage the world through Gospel-centered teaching and living. Moody offers various degrees to develop the next generation of Christian leaders, including Biblical Studies, Biblical Languages, Biblical Preaching, Pastoral Studies, Theology, Worship Music, Children and Family Ministry, Ministry Leadership, and Communications. Moody offers full-time residential undergraduate students at Moody’s Chicago campus a full tuition grant to help minimize the cost of an undergraduate education, allowing graduates to serve wherever they are called.  

Moody graduates have served the most vulnerable members of society in the U.S. and around the world—all while sharing their faith. For example, Moody missionary aviators fly patients to hospitals in the Democratic Republic of the Congo and medical supplies to remote parts of Papua, Indonesia. A Moody Theological Seminary graduate operates a women’s shelter in Chicago to care for and minister to victims of sexual exploitation. Moody graduates feed the poor in Cambodia and care for refugees from Central and South America. Graduates have also recently traveled to war-torn Ukraine to bring hope and comfort to families driven from their homes and their country. And a statue honoring Moody alumnae Dr. Mary McLeod Bethune, an educator and civil rights activist, was recently erected in the U.S. Capitol’s Statutory Hall. 

In addition to its faith-centered in-person and online education, Moody educates and equips through its media ministries, Moody Radio and Moody Publishers. Moody relies on all aspects of its ministry to share the Gospel message around the world. Moody’s Communications Department and other faculty are foundational in equipping students with the knowledge and expertise to communicate faith and hope to the world.  

A threat to Moody’s 137-year-old ministry 

Every member of the Moody faculty plays a role in the formation of Moody’s students in foundational Biblical truths. Moody ensures that its ministry remains steadfast by asking all faculty to adhere to its religious beliefs. One of these beliefs is that men and women have unique, complementary roles in the local church. Moody believes that all people have equal dignity and value as lovingly created by God, and that Christian women and men can serve as leaders in faith and ministry. Consistent with its interpretation of Scripture, Moody also believes that the specific biblical church office of pastor (or “elder”) is reserved for men who meet the Bible’s stringent spiritual qualifications.

Despite knowing about and agreeing to adhere to these religious beliefs, a Moody faculty member began advocating against them. After her own admission that she did not share Moody’s beliefs and her inability to sincerely sign Moody’s annual doctrinal statement affirmation, the professor’s teaching contract was not renewed. In response, she is asking the government and the courts to take her side in a religious dispute and punish Moody for acting in accordance with its religious beliefs.  

Protecting a religious college’s religious mission 

Faith-based ministries like Moody are free to decide matters of faith and doctrine—including the qualifications for those who hold senior church offices, without judges or juries getting to second-guess those decisions. The law protects the ability of churches and religious organizations to live, teach, and govern in accordance with the teachings of their faith. This is especially important within the context of a religious school like Moody, which is charged with forming the next generations of pastors, leaders, and ministers. 

Further, several religions—including Catholics, Eastern Orthodox Christians, Protestants, Orthodox Jews, and Muslims—make specific distinctions between men and women in their doctrines of religious leadership and worship. The law protects against government intrusion and entanglement in such sensitive religious beliefs at the heart of so many houses of worship. 

Importance to Religious Liberty:  

Religious communities — The ability of individuals to gather freely together to worship and teach their religion is a cornerstone of religious liberty. U.S. law has always protected the rights of religious ministries, schools, and churches to be able to make their own rules and live out their own values free from government interference. 

Loper Bright Enterprises v. Raimondo

Supreme Court allows government power grab 

The framework of American government was built on the idea that different branches of government should check and balance each other. That structure was created to stop a concentration of power in any one branch that would eventually lead to abuses by the government. However, in its 1984 ruling Chevron v. National Resources Defense Council, the Supreme Court gave the executive branch enormous power over the branches of the federal government. The Court ruled that when a law passed by Congress is unclear, courts should trust executive branch agencies to interpret and apply the law in the first instance. This power, known as Chevron “deference”, has given federal officials license to wield executive authority in ways that go well beyond what Congress intended. For years, the Chevron decision has empowered federal government officials to target religious believers for special disfavor. 

Chevron punishes religious groups 

The Little Sisters of the Poor, a Catholic order of nuns that run homes for the elderly poor, are just one example of how Chevron has hurt religious groups. In 2011, the Department of Health and Human Services issued a federal mandate as part of the Affordable Care Act (ACA). This mandate, based on vague language in the ACA, required employers to provide contraceptives in their health insurance plans. Despite the many religious objections to the contraceptive mandate, HHS included an exceedingly narrow religious exemption—one that did not include groups like the Little Sisters of the Poor. The Little Sisters’ religious beliefs about the dignity of all human life meant that complying with the mandate was impossible.  

For a decade now, the Little Sisters have been in and out of court fighting to receive permanent protection from the contraceptive mandate. Even though they have secured multiple victories—including at the Supreme Court—they have been forced through years of court battles. The endless cycle of punishment for religious objectors exists because the Court’s decision in Chevron has empowered federal regulators to create new ways to punish unpopular religious groups and deny them exemptions. 

The Court should rebalance the branches of government 

Becket filed a friend-of-the-court brief on behalf of The Little Sisters of the Poor in support of Loper Bright, detailing the long history of how unchecked executive power has been a unique threat to religious groups. The brief urges the Court to adopt a rule that will check executive overreach at all levels of the legal system, ensuring that officials can no longer use their powers to run roughshod over religious believers. This will protect religious groups like the Little Sisters who will not be forced to endure years of litigation in federal courts. 

 

Importance to Religious Liberty:

Religious communities — The ability of individuals to gather freely together to worship and teach their religion is a cornerstone of religious liberty. U.S. law has always protected the rights of religious ministries, schools, and churches to be able to make their own rules and live out their own values free from government interference.

St. Dominic Academy v. Makin

Commitment to Catholic education   

Keith and Valori Radonis are organic farmers in rural Maine who want to send their children to schools that uphold their Catholic beliefs. Both Keith and Valori were raised in devout Catholic homes, and they believe it is their religious responsibility to help to plant, nurture, and cultivate the seed of faith in own their children. For years, Catholic schools in the Diocese of Portland—including St. Dominic Academy—played a vital role in assisting parents like the Radonises educate their children through the state’s tuition assistance program. This program allows parents like the Radonises who live in rural school districts to educate their children at private schools where there is no public school nearby.  

The Diocese of Portland’s schools have long offered outstanding academics, graduating high-achieving classes of students that excel on standardized tests and go on to elite colleges and universities. Inspired by Catholic Social Tradition, they also teach students to devote themselves to serving others from all walks of life. For example, students in the diocese have raised money for food kitchens, cared for the elderly at senior homes, joined mission trips to Mississippi to help rebuild homes devastated by hurricanes, sponsored donation drives for asylum seekers, hosted baby showers to aid local mothers, and raised money to support veterans and their families.  

Unfortunately, in 1982, Maine abruptly excluded faith-based schools like St. Dominic from the program  simply because they were religious. Maine still paid tuition for Maine students attending out-of-state boarding schools and public schools in Quebec, but not for Maine students who wanted to go to religious schools located in Maine. In the decades following, these schools were unable to partner with rural Maine families.  

Maine skirts the law to bar funding to religious education 

In 2021, three families brought a challenge to Maine’s religious education ban in Carson v. Makin. The Supreme Court took the case, and the following summer a six-Justice majority struck the state law down, paving the way for St. Dominic and many other faith-based schools to begin serving rural Maine families again. 

However, in the lead up to the Carson case at the Supreme Court, officials in Maine saw the writing on the wall. Anticipating that the Court would strike down Maine’s ban on religious schools, Maine passed a new law to keep the religious schools out covertly. Maine’s new law requires schools that receive tuition funds to allow all religious expression equally, which prevents schools like St. Dominic from carrying out their ministry of educating students in the Catholic faith. And it gives the Maine Human Rights Commission—not parents or the school—the final word on how the school teaches students to live out Catholic beliefs regarding marriage, gender, and family life. As a result, faith-based schools are still being excluded from the state program to help rural families. 

The law protects faith-based schools and the families they serve 

Maine is punishing schools like St. Dominic because of their commitment to providing a holistic education in accordance with their beliefs. It is also punishing rural families who want to use the tuition program to send their children to faith-based schools. The Supreme Court has consistently and recently affirmed that states cannot cut off generally available funding from faith-based schools and families because they are religious. Faith-based schools should have the ability to partner with parents who want the best education for their children.  

 

Importance to Religious Liberty: 

Education: Religious schools should be able to participate in publicly available programs, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

Mahmoud v. McKnight

Montgomery County’s Pride Storybooks 

In fall 2022, the Montgomery County Board of Education announced over 20 new “inclusivity” books for its pre-K through eighth grade classrooms. But rather than focusing on basic civility and kindness, these books champion pride parades, gender transitioning, and pronoun preferences for children. For example, one book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “[drag] queen,” “underwear,” “leather,” and the name of a celebrated LGBTQ activist and sex worker. Another encourages fifth graders to discuss what it means to be “non-binary.” Other books advocate a child-knows-best approach to gender transitioning, telling students that a decision to transition doesn’t have to “make sense” and that doctors only “guess” when identifying a newborn’s sex anyway. The teacher’s guide to another book about a playground same-sex romance invites schoolkids to share with classmates how they feel when they “don’t just ‘like’ but … ‘like like’” someone. The curriculum suppresses free speech and independent thinking by having teachers tell students they are “hurtful” if they question these controversial ideologies.  

When the Board first went public with its Pride Storybooks, it assured hundreds of concerned parents they would be notified when the books were read and could opt their children out. This meant parents troubled by the books’ blatant disregard for widely held religious beliefs and scientific perspectives would be respected. Upholding parental rights also meant that children would not be subjected to age-inappropriate instruction against their parents’ wishes. Indeed, in Maryland—as in most states across America—teaching family life and human sexuality requires parental notification and the ability to opt-out. Historically, the Board has respected that law, allowing parents to opt their children out of sex ed classes and controversial readings on related topics. The Board’s own “Guidelines” regarding religious diversity go even further. They guarantee that parents may seek opt-outs and alternative assignments for their children on a wide range of potential classroom activities, discussions, and reading assignments.

“Inclusion” as exclusion of parents 

Everything changed in March 2023, when the School Board issued a statement saying it would no longer notify parents or honor requests to opt-out. Immediately, parents of the more than 70,000 elementary schoolkids in Montgomery County were denied their right to decide when their elementary-aged children would be exposed to books promoting transgender and queer ideology. One Board member justified the decision by claiming that allowing opt-outs because these books “offend[] your religious rights or your family values or your core beliefs is just telling [your] kid, ‘Here’s another reason to hate another person.’”  

Soon after, a diverse coalition of religious parents including Muslims, Catholics, Protestants, Orthodox Christians, and others began to fight back. While coming from different faith backgrounds, these parents all believe the books are age-inappropriate, harmful to children, and portray notions of sex and gender that conflict with their religious beliefs and sound science. Though they have many different beliefs, these parents are united in protecting their right to direct their children’s religious and intellectual education on such sensitive matters regarding family life and human sexuality.   

The law protects parents’ right to guide their children’s education 

The Board cannot refuse parents who want to opt their children out of instruction that violates their religious beliefs on sensitive matters. The Board is unlawfully coming between parents and their kids and targeting them because of their religious beliefs about gender and sexuality.  That violates the Board’s own policies, Maryland law, and the U.S. Constitution. The Supreme Court has held that children are not wards of the state, and that parents have the right to make key decisions about the education of their children on such critical matters concerning family life and human sexuality. 

The district court heard oral argument on August 9, 2023. Soon after, the court ruled against the parents and left the mandate in place. On August 28, the parents appealed the decision to the Fourth Circuit Court of Appeals.  

Importance to Religious Liberty: 

Parental Rights: Parents have the right to direct the religious upbringing of their children. Teachings around family life and human sexuality lie at the heart of most religions. Becket defends the right of parents to opt their children out of one-sided indoctrination on such matters when it conflicts with their religious beliefs and sound principles of science. 

Loe v. Jett

An education that accommodates faith  

In 1985, Minnesota enacted the Post Secondary Enrollment Options Act (PSEO) to allow high school sophomores, juniors, and seniors to take college classes that would count for high school and college credit. The program covers the cost of tuition and required classroom materials like textbooks, allowing high school students to further their academic pursuits without taking on debt. This program has long served high schoolers in the state by promoting rigorous academic pursuits at both secular and religious colleges.  

Melinda and Mark Loe and Dawn Erickson are Christian parents in Minnesota who have used PSEO funds in the past to send their older children to schools that uphold their religious values. Two top-notch schools in the state—the University of Northwestern and Crown College—provided their children excellent opportunities to learn in a college environment that also provided a Christian community. Both families have high-school-aged children who also want to use PSEO funding to go to these schools, joining with fellow believers in receiving a quality, Christ-centered education.  

Minnesota targets religion in higher education 

In 2023, Minnesota governor Tim Walz signed a bill into law that amends the PSEO to exclude religious schools like Crown and Northwestern from participating because they require a statement of faith from all students who attend on-campus. The statements simply ask on-campus students—both undergraduates and PSEO students—if they will embrace the schools’ religious beliefs for the purpose of upholding a strong Christian community on campus. Minnesota’s sudden change to the law will immediately hurt students who want to attend these schools, which have served thousands of Minnesota high school students. 

Students should not lose the opportunity to earn college credit tuition-free just because they want to attend schools that share their religious beliefs. 

The law protects religious families and schools from Minnesota’s discriminatory ban 

Minnesota cannot deny religious parents the learning environments they want for their children because they are religious, nor can they exclude schools from participating in the program because they are religious. As the Supreme Court has consistently and recently affirmed, public benefits that are open to private secular organizations must be open to religious organizations as well. Barring religious universities like Northwestern and Crown from offering religious high school students the great opportunity of free college credit that’s available at secular schools is against the law.   

After Becket filed the lawsuit on behalf of religious parents and the two schools, Minnesota promised not to enforce the law while the case is ongoing.  

On July 7, 2023, the Minnesota Department of Education filed counterclaims against Northwestern and Crown. The state claimed that schools would be subject to the same constitutional requirements as the government if they accepted PSEO students, which would bar them from promoting their religious values. On November 6, 2023, a federal court heard oral argument in the case, where the schools will ask the court to dismiss the state’s counterclaims. 

Importance to Religious Liberty: 

Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

 

Photo credit: Fotofilm Studios LLC.

HotChalk v. Lutheran Church-Missouri Synod

Maintaining the faith 

Founded in 1847, the Lutheran Church-Missouri Synod (the Church) is the second-largest Lutheran denomination in the United States. As part of its religious mission, the Church has “ecclesiastical stewardship” over the Concordia University System, a group of Lutheran colleges and universities spread across the United States. Consistent with its religious polity (or organizational structure), the Church exercised its responsibility to ensure that leaders at Concordia University – Portland adhered to the Church’s Lutheran religious beliefs in operating the University, in part by making religiously-informed decisions regarding the appointment of the school’s new spiritual leader, its president.  

Tech giant goes on fishing expedition 

For numerous reasons, including financial difficulty, Concordia University – Portland closed its doors in 2020. In the aftermath of the closure, HotChalk, a multimillion-dollar technology firm that helped run the University’s online courses, sued the school and Church, demanding over 300 million dollars. The Church agreed to produce documents regarding the contract with HotChalk, and its related finances. HotChalk, however, also sought access to internal religious communications among Church leaders about religious doctrine, church governance, and the selection of religious leaders at Concordia. 

But this is not the first time HotChalk has found itself in hot water. In 2015, the U.S. Department of Education conducted an investigation into the company’s mismanagement of online student programs, resulting in a one-million-dollar settlement. 

Protecting religious organizations from government intrusion  

The First Amendment protects the right of religious groups to make internal religious decisions without threat of government interference. Forcing the Church to hand over private deliberations about matters of faith to courts would seriously interfere with the church’s ability to oversee its schools and ministry. As Becket’s amicus brief also argues, disrupting this balance would have damaging consequences for minority religious groups throughout Oregon.  

In the Jewish community, for example, rabbis frequently must make important determinations regarding what Jewish law requires. These decisions often entail sensitive internal deliberations about religious doctrine and Jewish law. The ability of religious minorities like Jews to speak freely without fearing intrusive, costly litigation is crucial to the survival of these communities and their religious beliefs.  

Importance to religious liberty 

Religious communities: Religious communities must be free to operate and minister without government interference, including by keeping internal church communications private, especially when it comes to matters of doctrine and theology. 

Bella Health and Wellness v. Weiser

Healthcare rooted in faith 

Founded by Catholic mother and daughter nurse practitioners Dede Chism and Abby Sinnett, the inspiration for Bella Health and Wellness came from a medical mission trip the pair took in the Andes Mountains of Peru. During that trip, Dede and Abby were moved to believe that everyone has a unique story and that every life deserves the utmost protection. After the trip, Dede and Abby discerned the call to open a life-affirming Catholic medical clinic for women in the Denver metropolitan area. Started as an OB-GYN practice, Bella Health and Wellness has since expanded its work in the Denver area to offer care to men and children as well. Today, Bella serves over 20,000 patients and averages approximately two hundred new patients a month.  

Like healthcare clinics across the nation, Bella’s OB-GYN practice often prescribes women progesterone, a naturally occurring hormone that is essential to the maintenance of a healthy pregnancy and to women at risk of miscarriage. In some cases, healthcare professionals have also used progesterone to maintain a pregnancy after a woman has either willingly or unwillingly taken the first pill in the two-step abortion-pill regimen. Consistent with its Catholic belief to protect human life, Bella offers progesterone to women who change their minds after taking the first abortion pill. Bella Health has seen firsthand the hormone successfully reverse the effects of a miscarriage caused by an abortion pill with no negative side effects. 

Colorado law targets life-affirming healthcare clinics 

In April 2023, Colorado made it illegal for life-affirming healthcare clinics like Bella Health to offer progesterone to women who have willingly or unwillingly taken the abortion pill, or even to advertise for such a service. Even though progesterone has been safely used for years to promote healthy pregnancies, the Colorado Legislature has categorically denied its use for abortion pill reversal. State legislators have labeled its use in this context to be “deceptive” and “unprofessional conduct,” while its use for all other purposes relating to pregnancy—including natural miscarriage—remains legal. If it continues to offer and advertise progesterone for this service, Bella Health faces up to $20,000 per violation and the loss of the medical licenses for its providers. Colorado is targeting life-affirming healthcare clinics like Bella Health simply because they provide every option available for the health of expecting mothers and their unborn children. It is also cruelly forcing women to undergo abortions they seek to avoid. 

The law protects Bella Health’s right to serve in accordance with its faith 

Bella Health has a religious duty to provide life-affirming medical care to every patient, including women at risk of miscarriage—regardless of whether that risk is posed naturally or by an abortion pill. Colorado cannot single out and attack clinics that provide all-encompassing care to pregnant women who seek out their help. The Supreme Court has consistently held that governments are barred from singling out religiously motivated practices from comparable secular practices simply because of their religious nature.  

On April 14, 2023, Becket filed a lawsuit in the U.S. District Court for the District of Colorado to stop the State from targeting religious healthcare clinics that offer women care in accordance with their faith. The district court quickly granted emergency relief to Bella Health, protecting them from Colorado’s targeting.   

During a hearing on April 24, Colorado government officials committed that the State will not enforce the law—promising instead to act as if the law “never existed” pending rulemaking by the state’s Medical, Nursing and Pharmacy licensing boards. In an April 28 order, the district court held that the State has “agreed to suspend any enforcement that would affect the plaintiffs” and “will not enforce the new Colorado law against any licensee” until three state boards implemented the regulations required by the law. 

The last of the three boards issued their regulations on September 21, 2023—doubling down on the legislature’s targeting of faith-based healthcare. The next day, Bella again asked the Court for injunctive relief against the law. The court held a hearing about Bella’s request on October 17. In an issued order on October 21, the district court preliminarily enjoined Colorado from enforcing the law, finding that Colorado likely violated Bella’s free exercise rights in three different ways. As a result of this order, Bella and its providers can continue, consistent with their religious beliefs, to offer healthcare to women who have changed their minds about abortion.   

Importance to Religious Liberty: 

Individual Freedom: Freedom of conscience is the human right to believe, express beliefs, and act according to the dictates of an individual’s conscience. Becket defends the right of all individuals to live according to their consciences without government coercion.

Vitagliano v. County of Westchester

A call to serve society’s most vulnerable

Debra Vitagliano is a devout Catholic and an occupational therapist. At a young age, she discerned her vocation to serve children with special needs after seeing a poster of a little girl using Lofstrand crutches. For over 40 years, Debra has lived out her vocation by working with children diagnosed with various physical and neurological disabilities, including severe disabilities that some seek to address by abortion.

Debra’s work with special needs children has led her to see the inherent worth of each person, no matter their level of functioning. Consistent with her Catholic faith, Debra opposes abortion and sees it as the deliberate termination of an innocent human life.

Two years ago, Debra began participating in a prayer vigil at the Planned Parenthood in White Plains, New York. As part of her vigil, Debra engaged in peaceful prayer and held signs about the impacts of abortion on both expecting mothers and fathers. During this time, Debra trained to volunteer as a counselor to abortion-vulnerable women. She views this ministry as a final attempt to turn pregnant women away from abortion and to save the lives of unborn children.

Westchester “buffer zone” restricts free speech

Just before Debra started sidewalk counseling, Westchester County passed a law restricting free speech around abortion clinics. The law established a 100-foot zone around abortion clinics and prohibited anyone from approaching within eight feet of a person in that zone to provide information or counseling unless given express consent. Enacted after the decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the law was passed to stop life-affirming advocates from peacefully engaging with women in their time of most need.

Debra is motivated by her faith to help vulnerable women approaching abortion clinics, but the Westchester law barred her and all others who seek to offer this help by threats of fine or imprisonment. It also deprived women of receiving peaceful and often welcomed offers to help.

Protecting free speech in the public square

The First Amendment protects the right to a free and peaceful exchange of ideas, which includes an individual’s ability to have personal conversations about matters of public concern in public places. Under the Westchester law, if Debra approached a woman to tell her that she is loved and that there are alternatives to abortion, Debra could have been criminally punished.

___________________________________________________________________________________________________

Importance to religious liberty

  • Free speech: Free speech includes the right to a free and peaceful exchange of ideas with others—including religious ideas. Freedom of speech and religious liberty go hand-in-hand; protecting one protects the other.
  • Individual freedom: Religious freedom includes the freedom to practice one’s faith in all areas of life, both public and private, free of government interference.

 

 

PHOTO CAPTION: Debra Vitagliano, sidewalk counseling outside a Westchester County abortion clinic on October 12, 2023.

Loffman v. California Department of Education

Donate to Support Becket’s Efforts in Loffman v. California Department of Education

Finding an education that accommodates unique needs and faith  

Every parent that has a child with disabilities must navigate a complex system of services and resources to find the right educational fit for that child. Chaya and Yoni Loffman, Fedora Nick and Morris Taxon, and Sarah and Ariel Perets are Jewish parents in California who have the obligation of providing their children with an education that reflects their religious values. These parents want to find schools that not only will equip their children with the tools necessary to flourish, but also with an education structured around the Jewish tradition.  

Shalhevet High School and Yavneh Hebrew Academy are top-notch Jewish schools in Los Angeles that provide what Jewish parents want most: a premier education that seamlessly integrates their shared Jewish faith. Shalhevet and Yavneh also desire to provide a safe and supportive environment that offers a distinctively Jewish education to children with disabilities.    

Religious children with disabilities left behind by California politicians 

The Individuals with Disabilities Education Act (IDEA) is a federal law ensuring that all children with disabilities in America can receive an education that is right for them. To accomplish this, IDEA provides grants to states in exchange for a free and appropriate public education that is tailored to each child’s unique needs. These grants pay for essential resources like assistive technology, staff training, special education programs, and other services. Like other states, California supplements federal IDEA funding with state special education funding. 

IDEA also provides for students to be placed in private schools that can meet their needs when public schools cannot offer a free and appropriate education. In California, however, legislators have excluded religious parents and schools from accessing federal and state special education funding and services. Even though private non-religious schools are eligible under California law, and even though a recent poll shows that only around a quarter of Californians think that the state’s public schools are doing a good job of helping children with disabilities, parents are unable to send their children to religious schools that will meet their needs.  

Additionally, religious schools are unable to receive the support necessary to fully welcome all students with disabilities into their communities. This leaves many religious families in California without the ability to give their children an education that is best for them. It also disproportionately affects lower-income families, as children from low-income households are more likely to have a disability than children living above the poverty line.  

The law protects children with disabilities from discrimination by Sacramento politicians 

California politicians cannot deny children with disabilities the safe and supportive learning environments they deserve because they are religious, nor can they exclude schools from participating in the program simply because they are religious. Parents of children with disabilities already face complex challenges in finding the right school for their children, and California is making it even more challenging for religious parents.  

As the Supreme Court has consistently and recently affirmed, public benefits that are open to private secular organizations must also be open to religious ones. Denying religious parents of children with disabilities the opportunity to send their children to religious schools clearly violates the law and must end. It also goes against what the state’s residents believe—according to a recent poll, nearly 60% of Californians think that children with disabilities should be able to use federal and state funding to go to religious schools, but the state’s elected representatives are making that impossible. 

The Orthodox Union, the nation’s largest Orthodox Jewish umbrella organization, representing nearly 1,000 congregations as well as more than 400 Jewish non-public K-12 schools across the United States, is supporting Becket’s effort to protect religious parents, their children and religious schools’ right to access special education funding in the state of California.  

Importance to Religious Liberty: 

Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

Seattle Pacific University v. Ferguson

About Seattle Pacific University

A Christian Liberal Arts University Engages the Culture

For over 130 years, Seattle Pacific University has welcomed students to join a diverse community of thoughtful scholarship and outward-focused Christian faith. Seattle Pacific holds fast to its mission to engage the culture and change the world. While SPU welcomes students from all (or no) faith backgrounds, it encourages every student to explore or grow deeper in Christian faith. This mission requires engaging in complex topics with personal and spiritual sensitivity. At Seattle Pacific, employees are asked to be committed to and embody this mission and belief. Yet that mission is now under threat.

A Political Test for a Religious Institution

In June 2022, The Washington Attorney General’s office launched a probe into Seattle Pacific University’s beliefs and policies on marriage and human sexuality. They demanded personal information about employees and years’ worth of sensitive employee documents. The University had no choice but to ask a federal court to protect its religious identity and mission.

Unfortunately, this is not the first time that the state has targeted Seattle Pacific because of its religious beliefs. In the 1980s, the state of Washington attempted to interfere in Seattle Pacific University’s faith-based hiring decisions. The university sought protection in court, and after eighteen months of litigation, the state backed down. Since then, the U.S. Supreme Court has only further protected the right of

religious institutions to make faith-based hiring decisions and resolve issues of doctrine and practice within their own religious communities, free from governmental interference.

Faced with an unconstitutional investigation, Seattle Pacific is again asking a federal court to protect the healthy separation of church and state and the University’s ability to make its own decisions about faith, employees, and leadership. If the University is subject to this kind of government scrutiny, the same thing can happen to religious schools of every faith. Fortunately, the law is clear on this point and has been for years: governments cannot tell religious institutions what to believe or who should lead them.

Government Attempt to Change Doctrine

On October 26, 2022, a Washington federal district court heard Seattle Pacific’s case. The court ruled against Seattle Pacific on purely procedural grounds, saying that the University should continue its claims in state court. Becket appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, where it asked the court to protect the school’s ability to educate students in accordance with its faith without government interference. Oral argument took place on November 16, 2023. 

 

Importance to Religious Liberty:

Church Autonomy: Seattle Pacific University is supported by a legacy of church autonomy cases, including Hosanna-Tabor and Our Lady of Guadalupe. These cases and other lower court decisions highlight the importance of a religious community being able to make its own decisions about what it believes, what it teaches, and who can lead it. Therefore, a victory for the University means that many diverse religious groups are free to decide for themselves what they believe and who leads them.

 

Photo Credit: Ian Dewar Photography

Groff v. DeJoy

SCOTUS guts religious rights 

For decades, many Americans have been forced to choose between their faith and their job because of the 1977 Supreme Court decision in Trans World Airlines v. Hardison. In that case, the Court ruled that one of the nation’s largest airlines did not have to provide a religious accommodation to an employee who could not work on his Sabbath day due to his religious beliefs. Although Title VII of the Civil Rights Act says that employers must reasonably accommodate employees’ religious beliefs and practices, the Court ruled that employers only need to prove a minimal burden on the operation of their business to deny employees accommodations.  

As legal scholars have pointed out, Hardison was the result of the Supreme Court’s outdated Establishment Clause thinking from its now-overturned decision in Lemon v. Kurtzman.  Lemon made the Hardison Court fear that even accommodating minority religious practices would be unconstitutional. In the years that followed, this legal standard has been used by large companies to discriminate against religious employees in ways that would be unthinkable to other protected groups under federal law.  

Hardison punishes religious minorities 

Over the years, Becket has defended multiple religious Americans—especially those of minority faiths—who were discriminated against by their employers under Hardison. Becket filed a friend-of-the-court brief at the Supreme Court in EEOC v. Abercombie, a case in which an Abercrombie & Fitch store refused to hire a Muslim woman because the district manager said her headscarf might conflict with the store’s dress code policy.  

In Patterson v. Walgreen Co., Becket represented Darrell Patterson, a dedicated Walgreens employee and devout Seventh-day Adventist who was fired from his position after he could not attend a training session on his Sabbath. Patterson asked the Supreme Court to hear his case, and while three Justices expressed the need to reconsider Hardison, the Court declined to review. In Dalberiste v. GLE Associates, Becket represented a devout Seventh-day Adventist who was also denied his religious rights soon after receiving a job offer. Mitche Dalberiste requested a scheduling accommodation for his Sabbath observance from his new employer, but instead of respecting his religious beliefs, the company rescinded his offer of employment. Again, the Court decided to delay reconsidering Hardison for a future case. 

In 2023, the Supreme Court decided to review a case of a religious employee who was discriminated against by the U.S. Postal Service. Gerald Groff began working as a USPS carrier in 2012, and his religious beliefs require him to observe the Sunday Sabbath. After USPS began delivering packages on Sunday for Amazon, Groff offered to take extra shifts on weekdays and holidays to avoid working on his Sabbath. USPS initially granted him an accommodation, but then changed its mind and began scheduling Groff for Sunday work. Groff refused to violate his faith, and faced termination until he ultimately resigned in 2019. Groff’s case before the Supreme Court now has the potential to overturn Hardison, which would protect religious employees nationwide and bury this discriminatory legal standard for good. 

Religious Americans deserve protection in the workplace 

Becket filed a friend-of-the-court brief in Groff’s case, arguing that the Hardison decision was the result of outdated Establishment Clause thinking from the now-overturned decision in Lemon v. Kurtzman. The brief outlines the history of Lemon’s impact on Hardison and argues that because Lemon is now overturned, the court has the chance to set a better legal standard that protects religious employees as Congress intended.  

Becket argues that the new standard should resemble the one from the Americans with Disabilities Act (ADA), the only other federal law with the same language regarding workplace accommodations. Under the ADA, employers must reasonably accommodate a person’s disability unless the employer can show that the accommodation imposes a substantial hardship to business operations. Applying this same standard to religious accommodations would replace the minimal burden test under Hardison that has allowed businesses to discriminate against their employees for decades.  

Importance to Religious Liberty: 

Individual Freedom: Religious exercise encompasses more than just thought or worship—it involves visibly practicing faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs. 

Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1

Balancing government authority and religious freedom

In 1993, Congress passed RFRA with overwhelming bipartisan support in both houses. RFRA aimed to provide robust religious freedom protections for all people while balancing the important interests of the federal government. As President Bill Clinton said when he signed it into law, “What [RFRA] basically says it that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”

Since its passing, 23 states, including Indiana, have adopted their own versions of RFRA that resemble the federal law. For a RFRA claim to be successful in Indiana, a person must show that they have a sincere religious belief, and that the government has or will soon violate that belief. If these conditions are met, the responsibility is on the government to show that its restriction furthers an important government interest in the least restrictive way possible.

RFRA weaponized to combat Indiana abortion law

The Supreme Court’s decision in Dobbs returned abortion to the states, opening up a vigorous debate with religious voices on both sides. Unfortunately, in Indiana, a group of women have sought to use the Religious Freedom Restoration Act (RFRA) to short-circuit the debate and halt the law passed by the Indiana legislature. Several women have asserted a religious belief that they should have the right to abort their unborn children right up to the moment of birth, with no restrictions – a belief that they never asserted in the years before Dobbs, when Indiana restricted abortions after 20 weeks. Becket filed a friend-of-the-court brief to explain how RFRA works, and why it is not appropriate to use it in this way.

Lawsuit against Indiana flunks the RFRA test

Becket submitted a brief to explain how this RFRA case fails at every step. Under RFRA, beliefs must be both religious and sincere. But there was evidence that the women’s beliefs might be political or philosophical, rather than religious, or insincere, or both.

Second, the lawsuit is also based on hypothetical situations that are likely to never happen. Since Indiana already allows abortions to protect a mother’s life and health, it’s highly unlikely that any of the women would ever face a conflict between their religious beliefs in certain abortions and Indiana’s law. The RFRA test demands more than just speculation about how religious beliefs might be burdened.

Finally, Indiana’s Supreme Court has held that Indiana has a compelling interest in protecting the life of an unborn child. Indiana has no other, less restrictive alternative to further its interest in protecting that life.

Federal and state RFRAs have done tremendous good to help religious believers of all faiths. But this lawsuit flunks the RFRA test and should lose in court.

Importance to Religious Liberty:

  • Religious Freedom Restoration Act: Passed by a bipartisan coalition in 1993, this legislation protects religious groups by requiring the government to show a compelling interest and use the least restrictive means possible when its actions would pose a substantial burden on religious exercise.

Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission

Fulfilling the Catholic Church’s religious mission 

Catholic dioceses across the country organize their efforts to meet the needs of the disadvantaged within the local community through Catholic charities and other similar entities. Since 1917, Catholic Charities Bureau has fulfilled this mission for the Diocese of Superior in northern Wisconsin, providing a wide range of services to help the disabled, the elderly, and the poor throughout the Diocese. Catholic Charities Bureau’s mission, consistent with their Catholic faith, is to serve all those in need, regardless of their religious beliefs. Accordingly, each year Catholic Charities Bureau ministers to thousands of individuals and families in need by offering in-home healthcare, housing for the elderly and disabled, childcare services, employment opportunities, and other vital resources.  

Wisconsin court of appeals denies Catholic Charities Bureau’s religious mission 

Wisconsin’s unemployment insurance program provides financial assistance to those who have lost their job through no fault of their own. Under state law, certain nonprofit organizations in Wisconsin can opt out of the program, including those operated primarily for religious purposes.  

Catholic Charities Bureau requested an exemption from the state’s unemployment program so that they could enroll in the Wisconsin Bishops’ Church Unemployment Pay Program (CUPP), a more efficient unemployment compensation program that provides the same level of benefits as the State’s program. 

In ruling that Catholic Charities Bureau did not qualify for a religious exemption from the State’s unemployment compensation program, the Wisconsin court of appeals both misinterpreted state law and violated the First Amendment. The court of appeals’ decision essentially cuts Catholic Charities Bureau off from the Diocese of Superior, concluding that the clear religious purpose of the Catholic Church and the Diocese in setting up and running Catholic Charities Bureau is irrelevant. Instead, the court of appeals concluded that Catholic Charities Bureau—looked at in isolation—was engaged in merely “charitable” (not religious) activities. The court thus denied Catholic Charities Bureau the exemption, forcing them to remain in the state’s less efficient unemployment compensation program.  

State law and the U.S. Constitution confirm that Catholic Charities Bureau’s mission is religious 

The Wisconsin court of appeals’ decision is deeply problematic. By separating Catholic Charities Bureau from the Diocese, the court ignored the Catholic Church’s determination regarding how to structure their own religious ministry. By concluding that Catholic Charities Bureau’s activities are not religious because Catholic Charities Bureau serves all those in need and doesn’t proselytize, the court penalized faiths that make caring for those in need—regardless of their religious background—a religious obligation. And, by engaging in a standardless inquiry to determine “how religious” Catholic Charities Bureau and their subsidiary ministries are, the court of appeals entangled secular courts in deeply religious questions, violating the separation of church and state. 

This outcome was wholly avoidable. Wisconsin’s unemployment compensation statute, Wisconsin’s Constitution, and the U.S. Constitution all require that courts look to the undisputed religious purpose of the Diocese of Superior when determining whether Catholic Charities Bureau qualifies for a religious exemption from the State’s unemployment compensation program.   

On April 18, 2023, the Wisconsin Supreme Court agreed to review the lower court’s decision. Oral argument took place on September 11, 2023.

Importance to Religious Liberty: 

Religious Communities: Religious communities have a right to serve those in need according to the dictates of their faith. Unfortunately, religious institutions are often targeted if not in alliance with societal standards.

St. Joseph Parish v. Nessel

A Parish community dedicated to faith 

Since 1857, St. Joseph Catholic Church has served the local Catholic community of St Johns, Michigan, as the only Catholic parish in town. In 1924, St Joseph expanded and opened an elementary school—St. Joseph Catholic School—to provide children in the area with a Catholic education rooted in the teachings of the Church. Crucial to St. Joseph’s ability to pass on its religious mission to its students is the employment of teachers and staff who support and advance Catholic doctrine.  Like many Catholic parishes around the country, St. Joseph asks all staff—from kindergarten teachers to part-time bookkeepers—to be practicing Catholics and to uphold the tenets of the Catholic faith. In addition to staff requirements, every family that sends their child to St. Joseph is also expected to support the faith and mission of the school and its Catholic values.  

Michigan law redefines sex 

In July 2022, the Michigan Supreme Court reinterpreted a state civil rights statute’s definition of sex to include sexual orientation without any exemption for religious organizations like St. Joseph. In March 2023, the Michigan legislature wrote this into state law, expanding the civil rights law to expressly prohibit discrimination because of either sexual orientation or gender identity. Both the Michigan Civil Rights Commission and members of the Michigan legislature pointedly refused to include any religious accommodations, even though those exist in federal law and in the laws of most other states.

This new law would make it illegal for St Joseph to operate in accordance with the 2,000-year-old teachings of the Catholic Church on marriage and sexuality. This threatens the school’s right to hire staff who will faithfully pass on the faith to the next generation and to run the school in a way that follows Catholic teaching. Not only that, but because St. Joseph’s opens its doors to the public, it faces the risk of being sued for discrimination because of its sincere religious beliefs about gender and marriage. It is at risk when visitors use its bathrooms, play on its sports fields, or when the local Knights of Columbus hall hosts receptions.

The law protects St. Joseph from attacks on its religious mission 

The First Amendment of the U.S. Constitution protects the right of religious groups—including churches and their schools—to operate in accordance with their religious mission, free from government interference.  The U.S. Supreme Court has consistently articulated this principle, most recently in Our Lady of Guadalupe School v. Morrissey-Berru, where the Court held that religious institutions must have the freedom to make internal management decisions (like deciding who will teach and lead the religious community) free from government interference. Michigan’s redefinition of discrimination threatens St. Joseph’s right to create and maintain a parish and school environment that reflects its Catholic faith.  

Rogers v. HHS

A helping hand rooted in faith

Across the nation, there are more than 400,000 children in foster care and a severe shortage of loving homes. In South Carolina alone, there are over 3,500 children in the foster care system and the state works hard to find loving homes for each child. To find more homes, the state partners with a diverse array of agencies that provide children with loving homes. They recruit from and serve specific communities that come together to address this crisis. As in many states, some of these providers are faith-based organizations.

One such agency is Miracle Hill, a religious non-profit that provides foster care support services to licensed foster parents, helping them serve children in the foster care system. Miracle Hill’s legacy of service is over 80 years old.

An essential ministry under fire

When new federal regulations threatened the ability of states to partner with religious foster agencies, South Carolina Governor Henry McMaster worked with the federal Department of Health and Human Services to obtain a waiver that ensured that these ministries could continue to work with the state to place foster children in need.

The American Civil Liberties Union took to Twitter, asking people to help sue Governor McMaster for protecting religious freedom. A family who had never applied to the state to become foster parents then sued.

The law protects SC’s partnership with religious foster care ministries

The First Amendment protects South Carolina’s right to partner with faith-based ministries that serve children in need. In Fulton v. Philadelphia, the Supreme Court ruled unanimously that religious ministries aren’t required to lay their beliefs aside to participate in the public square.

Maddonna v. HHS is a similar case brought by Americans United at the district court of South Carolina. On September 29, 2023, the U.S. District Court for the District of South Carolina ruled that the state can protect faith-based foster care ministries that serve children in need in both cases. 

Importance to Religious Liberty:

  • Religious Freedom: The lawsuit claims that HHS, Governor McMaster, and other government officials are violating the Constitution’s Establishment and Equal Protection clauses. The lawsuit hoped to end the partnership with a religious agency and would create fewer choices for potential parents and fewer homes for children. Religious organizations must be free to act according to their faith, including when caring for children in need. The government cannot exclude religious groups by demanding they give up their religious beliefs to continue providing much needed social services
  • Public square: From its earliest days, America has been enriched by religious participation in the public square. Religious ministries, inspired by their beliefs, have often been the first ones to feed, clothe, and shelter their fellow Americans in need. We are all better off when Americans are empowered to live out their faith in a way that helps their fellow man.

Sisters of Life v. McDonald

A dedication to life 

Founded by Cardinal John O’Connor in 1991, the Sisters of Life surrender their lives to God when entering the order by professing vows of poverty, chastity, and obedience. They also vow to protect the sacredness of human life at every stage. Based in New York, the Sisters are a group of religious women who carry out this mission by caring for pregnant women and their unborn children. They provide pregnant women with housing, maternity clothes, baby formula, and other supplies for well after birth. They also connect pregnant women and their children to pro bono medical and legal services and a wide array of social services. The Sisters offer personal, holistic help rooted in a deep love for human life that sees all people as created in God’s image and likeness.  

The Sisters of Life profess: “We believe every person is valuable and sacred. We believe that every person’s life has deep meaning, purpose and worth. In fact, we give our lives for that truth.” The Sisters’ dedication to their neighbor is grounded in their unwavering Catholic faith which inspires them to build loving relationships with vulnerable women, attending to their emotional, spiritual, and temporal needs.  

Bullying laws target nuns 

After the decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, there have been increasing threats from state governments to stop the life-affirming work of crisis pregnancy centers.  In mid-June 2022—after the leak of the draft Dobbs opinion—the state of New York passed one such law that allows the government to probe the internal documents and policies of pro-life pregnancy centers, even forcing them to turn over information about the individual women who seek their help. At the signing of the law, Governor Hochul made her views on abortion clear, calling pro-life supporters “Neanderthals.” The state government is clearly targeting the religious viewpoints of the Sisters of Life and violating the First Amendment protections granted to the Sisters. 

The law protects Sisters and the women they help from harassment:

The Sisters of Life are free to decide matters of their central religious mission and support public initiatives like pregnancy care without fear that they will be forced to disclose private information. Likewise, the women they serve should not have to fear government investigation just because they seek help during a crisis pregnancy. The Supreme Court made clear in Our Lady of Guadalupe School v. Morrissey-Berru that the Constitution protects religious institutions from secular influence on matters of internal government. Handing over such internal documents would impede the Sisters’ ability to conduct their important ministry to women who need it the most.  

A duty to protect women 

The Sisters of Life made the difficult decision, after much discernment, to protect the women they serve by suing the State of New York. Their hope is for a quick resolution that will allow them to focus on the women and children in their community that need them now more than ever.  

Importance to Religious Liberty: 

Religious Communities: Religious orders have a right to serve those in need according to the dictates of their faith. Unfortunately, religious institutions are often targeted if not in alliance with societal standards.  

Free Speech: Religious people have a right to hold onto and profess their teachings without government interference.  

 

Photo Credit: Sisters of Life

YU Pride Alliance v. Yeshiva University

A uniquely Jewish institution 

For more than 135 years, Yeshiva University has been a place where students can immerse themselves in Jewish culture to study the Torah, learn Hebrew, and receive an education steeped in the Modern Orthodox tradition. The school gets its name from the word “yeshiva,” referring to a Jewish religious school dedicated to study of the Talmud. True to its name, all undergraduate men spend two to six hours each day intensely studying Torah. Undergraduate women take at least two Jewish studies courses every semester. Shabbat (the Jewish sabbath) is observed campus wide, as are the laws of kashrut (kosher food).  

As at most yeshivas and Jewish seminaries, there are sex-segregated classes, dorms, and even campuses. Students are strongly encouraged to dress and conduct themselves consistent with Torah values. Yeshiva’s strong religious environment pervades its campuses, accommodating and supporting the school’s reason for existing and the faith of its students.  

Putting a judicial thumb on the scale 

Yeshiva lives out its religious commitment by striving to bring Torah values to the modern secular world. In this pursuit, Yeshiva has long sought both to uphold Torah moral teachings and to welcome and protect its LGBTQ students. It has strong anti-discrimination policies and has held many public events over the past decade to explore what it means to be LGBTQ and Jewish, and how the University can demonstrate greater respect and understanding for LGBTQ students.   

In 2020, a group of students asked Yeshiva to officially recognize a new student club called “YU Pride Alliance.” Following extensive discussion with the students, Yeshiva’s administrators and Roshei Yeshiva (“senior rabbis”) introduced several changes on campus to better support LGBTQ students. But Yeshiva concluded that a club called “Pride Alliance”—as described by the students and understand by the culture at large—would not be consistent with its Torah values. Nevertheless, Yeshiva remains committed to ongoing dialogue regarding forums or clubs that would be consistent with Torah values.   

Unhappy with Yeshiva’s religious decision, the students sued. They now demand that a court force Yeshiva to endorse the Pride Alliance, regardless of its 3,000-year-old religious values. 

Protected by law 

Both the U.S. Constitution—as recently affirmed by the Supreme Court in Our Lady of Guadalupe—and New York City’s Human Rights Law protect Yeshiva University’s ability, as a private religious institution, to carry out its religious mission in keeping with its religious teachings. 

After the New York County Supreme Court denied Yeshiva University’s arguments and concluded that the school was not a “religious corporation” under city law and not protected by the U.S. Constitution, the Court entered a permanent injunction ordering Yeshiva to “immediately” violate its Torah values and approve the club. On behalf of Yeshiva University, Becket moved quickly to request relief from both the New York Appellate Division and the New York Court of Appeals (the state’s highest court), but both requests were rejected on August 25, 2022. Becket filed an emergency request to the United States Supreme Court on August 29, 2022, requesting that the Court intervene to stay the violation of Yeshiva’s First Amendment rights pending appeal.  

On September 9, Justice Sotomayor entered an emergency stay, protecting Yeshiva pending a full Court decision. In a 5-4 decision, the full Court lifted that stay, while also stating that “[i]f Yeshiva seek[s] and receive[s] neither expedited review nor interim relief from the New York courts, [it] may return to this Court.” At the same time, four justices dissented, saying that Yeshiva should have been granted immediate relief. And if Yeshiva comes back, they added, “Yeshiva would likely win.” Failure by the New York courts to grant relief, they said, would be “a shocking development that calls out for [SCOTUS] review.” The following Monday, the New York Appellate Division agreed to rehear its denial of Yeshiva’s stay request. After these two court rulings, Pride Alliance agreed to voluntarily stay the injunction against Yeshiva pending all appeals, including back up to the U.S. Supreme Court if necessary.  

With an agreed-to stay, the New York Appellate Division will review the merits of the ruling against Yeshiva. Briefing in the case will be completed by October 14 and oral argument will occur in November. A decision will follow.  

Faith Bible Chapel v. Gregory Tucker

Video: Welcome to Faith

A dedicated, faithful school 

Faith Christian Academy is a Christian school provided as a ministry of Faith Bible Chapel, a church in Arvada, Colorado. For years, the local community has repeatedly selected Faith Christian as the best school in the city, with the best teachers, best leadership, and best service to parents and students. Faith Christian provides a top-notch education, academically outperforming other schools and sending 90% of graduates to college. And for over 50 years, the school’s focus—like the church’s—is to prepare students to live out the Gospel in a sincere relationship with Jesus Christ. 

Faith Christian Academy strives to foster an intentionally Christian environment so that students grow both spiritually and academically, with Bible classes and weekly Chapel services required for all students as part of the regular curriculum. In addition, every educator must uphold and abide by Faith Christian’s Statement of Faith and teach all subjects from the church’s biblical perspective. When looking for new educators, the school looks not only for great teachers but, more importantly, for individuals who faithfully follow Jesus Christ.  

One of Faith Christian’s explicit core beliefs is that every person is created in the image of God. The school lives this out by opening its doors wide to students in its community who want a quality Christian education and partnering with local nonprofits to provide full scholarships to underprivileged students. Faith Christian also provides a variety of outreach programs within the local community and abroad. For instance, it partners with the Denver Dream Center, a nonprofit committed to helping the poor, to serve thousands of children by providing educational resources and one-on-one tutoring, and supports building safe neighborhoods through the Adopt-A-Block campaign. Every week, Faith also serves hot meals to those struggling in its local community, and recently partnered with the USDA’s Farmers-to-Families program to provide over 215,000 pounds of food to Arvada families. Globally, Faith has supported refugees fleeing the war in Afghanistan, raising tens of thousands of dollars and helping to place Afghan families within the Arvada community. 

Faith Christian students are personally involved in Faith’s ministry. Students have participated on school mission trips to construct homes in Costa Rica, provide clean water for communities in Senegal, and build a church in the Amazon jungles of Peru.  

Conflict on Church Teaching 

As school chaplain, Gregory Tucker was responsible for the students’ spiritual wellbeing and communicating Faith Christian’s Biblical worldview. He also taught Bible classes on topics such as Christian leadership and the foundations of the Christian faith. He held a position of religious leadership in the school and was entrusted to represent its faith wisely. One of his duties was leading weekly chapel services, which included planning religious teaching, coordinating worship, and often personally leading prayer. But during one of these services in 2018, Tucker allowed a chapel service on racial reconciliation to become too political. And after he failed to handle the situation in a way that restored trust with parents and students, Tucker left Faith Christian.  

Faith Christian bans racial discrimination, welcomes students from all backgrounds, and fosters an environment that discourages divisiveness while encouraging loving conflict resolution. But Tucker forgot to keep practicing what he’d been preaching, filing a federal lawsuit against the school and making outrageous claims of racism against his former students, an unusual charge against a student body taught to uphold the opposite.  Tucker’s lawsuit was flawed from the start: the First Amendment doesn’t allow religious leaders to settle religious disputes over chapel services in federal court, since using courts as leverage in religious disagreement hurts both church and state. 

To evade the First Amendment, Tucker began claiming that he wasn’t a religious leader. His lawyers described his chapel services as “pep rallies,” and his Bible courses—which he said were meant to ensure students “grow personally in devotion to Christ”—as merely “comparative religion” classes that treated all religions as the same. Tucker even claimed that he was primarily a science teacher, when 51 of the 53 courses he taught over his final eight years at Faith Christian were in the Bible department, and when half or more of his time every day was spent on his Chaplain duties.  

Video: The Ministerial Exception Explained

Protecting Church Autonomy 

Faith Bible argues that religious institutions have the right to hire leaders that share in its religious mission, both in word and deed. The constitutional principle known as the ministerial exception keeps the government from entangling itself in religious institutions like Faith Bible.  

A divided three-judge panel of the Tenth Circuit ruled that a jury would have to decide whether a “chaplain” was a minister under the First Amendment, the first court in the country to reach that conclusion. The panel’s ruling directly conflicts with rulings from the Supreme Court and numerous other federal appeals courts. Becket asked the full Tenth Circuit to rehear Faith Bible’s case en banc. Even though a diverse coalition of minority faith groups, religious school organizations representing thousands of schools, leading legal academics, and sixteen states filed briefs supporting Faith Bible’s request to rehear the case, the Tenth Circuit denied the request in November 2022. The Supreme Court declined to review the Tenth Circuit’s decision and the case is now continuing in district court.

Importance to Religious Liberty: 

  • Religious Communities—Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, a healthy separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association. 

303 Creative v. Elenis

An Artist’s Mission 

As both a Christian and graphic designer, Lorie Smith believes that God has called her to use her talents in a way that comports with her religious beliefs. Smith started her own graphic design business in 2012, to follow that mission.  

Smith started to expand her business and wished to add wedding websites to her portfolio. Even though she was happy to work with anyone, she could not in good faith design websites that celebrated same-sex marriage.  

For Smith, it was about the message, not any potential client’s personal characteristics. But because of Colorado’s Anti-Discrimination Act (CADA), she was prohibited from creating wedding videos. Smith filed a lawsuit in 2016, hoping to keep true to both her job and her religious beliefs. 

A case designed for the Supreme Court 

After unfavorable rulings at the district court and the Tenth Circuit Court of Appeals, Smith appealed her case to the United States Supreme Court. The Court agreed to hear her case on February 22, 2022.  

On June 2, 2022, Becket filed a friend-of-the-court brief in Smith’s case. While the counsel’s briefs to the Supreme Court point out that she should win her case under textbook Free Speech rules such as compelled speech, content discrimination, and viewpoint discrimination, Becket argued that the Court could also take a simpler route to deciding the case. 

Looking back at Anglo-American legal tradition, religious speech has always been considered “core speech” and as such, deserves special protection. When the Founders were drafting the Constitution, their experiences, and the experiences of their forebears, with the suppression of religious speech were at top of mind. The Founders thus wrote the First Amendment to protect speech concerning religion and political matters. Indeed, the idea of freedom of speech originated as freedom of religious speech, and outspoken religious dissenters paved the way for freedom of speech for everyone.  

To the Founders, the only reasons to limit religious speech were threats to peace or safety or encouragements of “licentiousness.” Since Smith’s religious speech doesn’t threaten to do any such things, her speech is protected under the First Amendment and must be allowed to continue. Colorado cannot penalize her for engaging in sincere religious speech. The First Amendment’s robust protections for religious speech demand no less. 

Oakwood Adventist Academy v. Alabama High School Athletic Association

A team of believers deeply rooted in faith

Oakwood Adventist Academy is a private Seventh-day Adventist school in Huntsville, Alabama. Founded as the Oakwood Industrial School in 1896, Oakwood is the oldest Black Seventh-day Adventist school in the U.S. Like many private religious schools, its students are passionate about their faith – and about their sports teams. In 2022, the hard work that the Oakwood Academy Mustangs had put into their basketball team paid off, and the team made it to the semi-finals, with a shot at the state title on the horizon. It was the best basketball season in the history of the school.  

But a problem emerged when the Mustangs learned of the schedule for the semi-finals: the Mustangs were slated to play at 4:30 on a Saturday, an hour before the end of the Sabbath. Seventh-day Adventists consider the Sabbath – from sundown on Friday to sundown on Saturday – holy. That means no working, and no playing competitive sports, and it is an obligation that Oakwood students and staff alike take very seriously.  

A simple solution 

Fortunately for the Mustangs, there seemed to be a simple solution to the problem. Another game was slated for 7:30 on the same day, well after sundown and the end of the Sabbath. Oakwood Academy reached out to the other teams, who all agreed to the switch. However, the Alabama High School Athletic Association (AHSAA), which is the state body charged with overseeing interscholastic sports in Alabama, denied Oakwood Academy’s request.  

Oakwood Academy asked AHSAA to adopt sensible religious accommodations to their scheduling policy. The First Amendment requires workable accommodations that allow teams like the Mustangs to participate on an equal basis in competitive sports, and the NCAA already accommodates Sabbath-observing schools like Oakwood Academy in national tournaments. These accommodations help ensure that unpopular or minority religious groups (such as Orthodox Jews or Seventh-day Adventists) are not excluded from the playing field or pressured to abandon their beliefs for a shot at the big game.

No American should ever be excluded from participating in sports on account of his or her faith. A simple schedule-shuffling accommodation is the least government bureaucrats can do to ensure that Americans are able to fully live out their faith, both on and off the court.  

On September 27, 2022, the Alabama High School Athletic Association adopted a new rule that will adjust game schedules to accommodate religious requests, ending the case and providing lasting protection for religious schools and their athletes.  

Importance to Religious Liberty:

  • Public Square — America has always freely permitted all, whatever their religious persuasion, equal access to public spaces. Sports – especially when it is overseen by government bodies – is no exception. Making sure all Americans have an equal chance to bat a home-run, score a touchdown, or kick a goal helps keep America strong and united, but it also makes sure that the very best athletes have the chance to compete against each other at the top of their game. 

Smith v. Ward

RLUIPA allows prisoners to seek God 

The peaceful expression of religion is an important aspect of human culture, and can provide important and unique benefits for prisoners and society alike. Studies have shown that allowing prisoners to connect with their faith helps with rehabilitation, ensures that they can reintegrate into society when released, and reduces recidivism. For decades, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has protected the religious freedom of inmates. It has enabled Jewish inmates to obey kosher diets, Catholics to access to important sacraments, and practitioners of many faiths to possess religious texts.

In 2015, the Supreme Court unanimously confirmed the importance of protecting prisoners’ religious exercise, holding in Holt v. Hobbs that Arkansas was required to accommodate a Muslim prisoner’s request for a half-inch beard. As the Supreme Court in Holt explained, RLUIPA is a crucial protection for religious prisoners, ensuring that religious exercise is not arbitrarily burdened by prison officials. Instead, prison officials must explain—with supporting evidence—why they cannot accommodate the sincere religious exercise of an inmate. This burden is especially demanding when most other prison systems safely provide the same accommodation. Unfortunately, some courts and prison systems did not get the Supreme Court’s message in Holt v. Hobbs.  

The Eleventh Circuit ignores Holt v. Hobbs 

In 2012, Lester Smith filed a lawsuit after his request to the Georgia Department of Corrections (GDOC) to grow a full-length beard was denied, a request that most prison systems would allow. As a devout Muslim, Mr. Smith believes that an untrimmed beard is required by his faith. But the Eleventh Circuit Court of Appeals ruled against Mr. Smith, claiming that it was enough for GDOC to say that it is more risk-averse than 39 other prison systems, and that allowing beards creates some additional risk. In essence, GDOC can write its own permission slip to violate Mr. Smith’s rights. 

In reaching its decision, the Eleventh Circuit relied on its 2015 decision in Knight v. Thompson, where Becket filed a friend-of-the-court brief. Knight was flatly inconsistent with both Holt v. Hobbs and the way that other courts around the country have interpreted RLUIPA. In Mr. Smith’s case, the Eleventh Circuit has doubled down on that wrong position. 

At the Supreme Court   

On April 28, 2022, Becket, along with Scott Ballenger and Sarah Shalf of the University of Virginia Appellate Litigation Clinic, filed a petition to the Supreme Court on behalf of Mr. Smith, asking the Court to protect this inmate’s religious expression under the rule of Holt v. Hobbs. The ruling in Holt taught us that a prison must offer enough proof that it cannot provide the same accommodation practices set by other institutions. If 39 other prison systems can allow untrimmed beards without incident, that is conclusive evidence that a longer beard is not detrimental to the safety and security of Georgia’s prisons. Courts also cannot blindly defer to prison officials’ preferences if religious accommodations are possible.  

The Supreme Court laid out a clear rule in Holt, saying that prisons should be inclined to withdraw existing accommodations if they are abused rather than denying them outright. But no such misbehavior is present here. Mr. Smith has the right to follow his sincere beliefs and grow his beard.  

On October 3, 2022, the Supreme Court declined to review the decision below in this case. 

Importance to Religious Liberty: 

  • Individual freedom: A fundamental part of human dignity is recognizing the human desire for religious faith.
  • RLUIPA: The federal Religious Land Use and Institutionalized Persons Act – passed, like the Religious Freedom Restoration Act (RFRA), with strong bipartisan support – protects the human dignity of prisoners by ensuring that their religious liberty is protected and bans discriminatory land-use rules that are often used to prevent disfavored groups from building houses of worship.  

Billard v. Diocese of Charlotte

The Diocese’s Dedication 

As an essential part of its mission to pass on the Catholic faith, the Diocese of Charlotte operates 19 schools across western North Carolina, including nine in the fast-growing Charlotte area. The Diocese’s schools are sought after for a reason: they not only provide an academically rigorous education in a diverse environment; they are also committed to teaching students the Catholic faith. To accomplish its religious mission, the Diocese asks all employees to conduct themselves in a manner consistent with the teachings of the Catholic Church. 

The Lawsuit  

Lonnie Billard taught English and Drama at Charlotte Catholic High School for 12 years before retiring and transferring to a substitute role. To teach at Charlotte Catholic, he signed a contract agreeing to uphold teachings of the Catholic Church. But in 2015, he entered a same-sex marriage in knowing violation of Catholic teaching and made public statements on social media advocating against Church teaching. When the school chose not to keep calling Billard as a substitute teacher, he partnered with the ACLU to sue the school and the Diocese for asking their teachers to support the school’s religious mission. 

Upholding a Religious Mission 

The Constitution and federal law protect the right of parents to direct the religious education of their children, and the right of religious institutions like the Diocese of Charlotte to select teachers who agree to uphold their religious mission. These rights have repeatedly been upheld by the Supreme Court, which has emphasized that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Religious organizations must be free to choose those who carry out their religious mission. This not only protects the fundamental freedoms of parents and religious schools to decide how to pass on their faith, but also protects the proper separation of church and state. 

On September 3, 2021, a federal district court in Charlotte, North Carolina, ruled against the Diocese of Charlotte. The Diocese filed its appeal to the U.S. Court of Appeals for the Fourth Circuit on April 18, 2022. Oral argument will take place in Richmond on September 20, 2023.

The Diocese of Charlotte is represented by Becket and Troutman Pepper. 

Importance for Religious Liberty: 

  • Freedom of religious groups from state intrusion on religious affairs: Churches and religious organizations have a right to live, teach, and organize themselves in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.  

Singh v. Berger

A Firm Faith Tradition 

For centuries, Sikhs have lived according to the teachings of the gurus, which instruct them to shun evil and seek self-mastery, to regard God’s creation as sacred, and to always defend the weak and helpless. Many devout Sikhs live out their religious duty to defend the defenseless by serving with distinction in militaries around the world while maintaining their articles of faith, including unshorn hair. But Sikhs who seek to serve in the U.S. Marine Corps find themselves forced to choose between their religious obligations and their calling to do good. 

Uniformity with Exceptions  

Aekash Singh, Jaskirat Singh, and Milaap Singh Chahal faced a horrible dilemma when they sought to join the Marine Corps: shave and abandon their religious beliefs or go home. Even though the recruits passed all the medical and physical tests required to join, the Marine Corps argues that they must shave their beards to begin basic training because having a “uniform appearance” is necessary during recruit training. But other Marines are allowed to grow out their beards for medical reasons, and the Army, Air Force, and United States Military Academy permit religious beards during initial training.  

 The Marine Corps has been relaxing its uniformity standard for years specifically to promote greater diversity, allowing more diverse hairstyles, updating its dress code to better accommodate women, and even loosening longstanding bans on tattoos. In addition, the Marine Corps has recently granted Marines—including those in bootcamp—more leeway to grow a beard to combat “razor bumps,” a painful medical condition that inflames the face and neck after a close shave. And the U.S. Army and the U.S. Air Force have long been able to accommodate Sikh servicemembers—beards and all—without compromising mission readiness or safety.  

A Longstanding Defense 

Fortunately, the Constitution and the Religious Freedom Restoration Act (RFRA) ban the federal government from restricting religious freedom unnecessarily. This means that denying religious accommodations by asserting a need for uniformity while granting lots of other secular exceptions is not only unfair but unlawful as well. Sikhs shouldn’t have to choose between their faith’s teachings that encourage their military service, and their religious understanding of God’s requirements for their physical appearance. Their lawsuit simply asks the government to provide them with religious accommodations equal to those granted to Marines for secular reasons. 

In August 2022, a D.C. district court ruled in Toor v. Berger that the three Marine recruits should not be protected with religious accommodations while the case is ongoing. Aekash Singh, Jaskirat Singh and Milaap Singh Chahal appealed the decision to the U.S. Court of Appeals for the District of Columbia, asking the court to allow them to enter basic training while keeping their articles of faith. On December 23, 2022, the D.C. Circuit Court ruled to protect the three Sikh recruits’ faith while their case continues. Judge Millett wrote for the court, saying that the Marines Corps has never explained “why the Corps cannot apply the same or similar [religious] accommodations that the Army, Navy, and Air Force, and Coast Guard provide.” 

Captain Toor, Aekash Singh, Jaskirat Singh and Milaap Chahal are represented by Becket, Winston & Strawn, and the Sikh Coalition. Jaskirat Singh is also represented by Baker Hostetler. 

Importance for Religious Liberty: 

  • Individual freedom: For generations, people have sought out the United States as a place where they could freely live out their individual beliefs. That freedom does not end where military service begins: the Constitution, federal law, and the traditions of the armed forces all recognize that American servicemembers serve their country best when their own religious freedoms are protected.  

 

Photo Credit: Sikh Coalition

Kennedy v. Bremerton School District

Fired for public prayer

For eight years, Coach Joseph Kennedy helped lead the football team at Bremerton High School, a public school in Washington. Win or lose, Kennedy would walk to the 50-yard-line after the game, kneel for a few seconds, and thank God in quiet prayer. Eventually, some players asked if they could join Coach Kennedy. He told them, “This is a free country,” and “You can do what you want.” The students soon noticed the tradition and would voluntarily join the coach on the field for an uplifting and unifying message, inviting players from opposing teams to listen in.

Despite receiving an outpouring of support for allowing Coach Kennedy to continue expressing his faith, the school district demanded Kennedy stop praying where anyone could see him because some onlookers might be offended and see it as an unacceptable school “endorsement” of religion. While the school district had no problem with Coach Kennedy inspiring his students, the school district soured on it altogether when it learned that Kennedy did so through prayer. Coach Kennedy refused the school’s censorship and was no longer welcome as part of the coaching staff.

Six years off the field and in court

Coach Kennedy filed a lawsuit against Bremerton School District in 2016 and asked to continue coaching while the case made its way through the court system. The request made it all the way to the United States Supreme Court, where it was ultimately denied and sent back down to the district court to further develop the case. In the decision, four Justices expressed serious concern about how the school district had interpreted the First Amendment.

After the lower courts again sided with the school district, the Supreme Court agreed to hear the case. Becket submitted a friend-of-the-court brief on behalf of the U.S. Conference of Catholic Bishops on March 2, 2022.

Public prayer is not a boogie man

The Ninth Circuit Court of Appeals ruled that the Constitution’s Establishment Clause required the school to ban Coach Kennedy from praying because permitting it would amount to government “endorsement” of religion. The school district’s lawyers have gone even further, labeling Coach Kennedy’s quiet prayers as “coercion” that the government must censor, because an onlooker might not feel comfortable seeing prayer in public.

But that’s not how the Constitution works. The First Amendment lets individual people—not the government—decide whether and how to pray. Becket’s friend-of-the-court brief at the Supreme Court explains a basic truth about public religious expression – it’s a normal and natural part of our culture and shared history as a country and is no more coercive than any other form of protected expression in the public square. Excluding religion—and only religion—from acceptable forms of public expression and inspiration says that something is inherently wrong and offensive about religion itself. The First Amendment takes that conclusion off the table. A coach doesn’t have to check his religion at the schoolhouse gates for fear that someone in the stands might feel offended.

On June 27, 2022, the United States Supreme Court ruled to protect Coach Kennedy, writing that Kennedy was pursued by the government “for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.” In its decision, the Court also decided to eliminate the Lemon test, a vague legal standard used to decide Establishment Clause cases. The Court confirmed that Lemon has long been dead, and that the Establishment Clause is understood through America’s history and tradition of religious pluralism. The opinion, authored by Justice Gorsuch, pointed to his recent concurrence in Shurtleff v. Boston, where he adopted Becket’s proposal for Lemon’s replacement: a standard rooted in the history and tradition of the Establishment Clause. 

Coach Kennedy was represented by First Liberty Institute, Paul Clement and Erin Murphy (now of Clement & Murphy PLLC), Spencer Fane LLP, and The Helsdon Law Firm, PLLC.  

Photo credit: First Liberty Institute

Fellowship of Christian Athletes v. San Jose Unified School District

Creating a safe environment for students to learn and grow

Teachers and administrators are entrusted with safeguarding our youth and modeling appropriate behavior—a particularly important responsibility during high school, when students are preparing to become adults. But at San Jose Unified School District in California, instead of fostering an environment that’s inclusive of diverse viewpoints, teachers and administrators targeted religious students for their beliefs and forced them to go to court to fight for a place in their campus community.

Targeted for their faith

While they were students at the district’s Pioneer High School, Elizabeth Sinclair and Charlotte Klarke served as co-presidents of Pioneer’s Fellowship of Christian Athletes (FCA) student club. FCA is a national organization which supports student-athletes committed to living out their faith on and off the playing field. The club held regular meetings open to all students, empowering them to share their faith, grow as athletes, serve their local community, and encourage one another through testimony, prayer, and Bible study.

FCA has had a presence in the San Jose Unified School District for over a decade. But in 2019, district officials derecognized FCA and forced the student group off campus after a Pioneer teacher attacked the group’s Christian beliefs in his classroom. The teacher targeted the club during class time, and then sent emails to the school principal describing FCA’s beliefs in vulgar language and advocating for FCA’s removal from campus. He even suggested that FCA’s beliefs and mere presence on campus should be treated as equivalent to sexual harassment. Why? All because FCA wanted to choose leaders who shared their Christian beliefs, which the teacher and the district said was illegal discrimination. Within two weeks, Pioneer FCA was kicked off campus by the district, and eventually all three FCA student clubs in the district were shut out. When students tried to get the FCA club reestablished on campus the next semester, their request was denied—while at the same time, the school recognized a Satanic Temple Club that formed for the purpose of protesting FCA.

Standing together in faith

FCA clubs welcome all students and believe that everyone should be treated with dignity and respect. At Pioneer, school officials even acknowledged that the club “does great things on campus” and is led by “great students.” But none of this mattered when district officials determined that the club couldn’t choose leaders who shared its faith. Across the district, numerous student groups require both leaders and members to support the purpose of the group. Groups like the National Honor Society can exclude students who don’t have a high enough GPA, and sports clubs are allowed to exclude students based on their sex. FCA’s request is even more modest. All students are welcome to attend FCA meetings. The club asks only that those who seek to lead FCA’s ministry affirm the club’s religious beliefs. Even so, district officials targeted FCA and labeled the club “discriminatory,” even while allowing numerous other student groups to choose leaders who align with their missions.

After discussions with the district failed, FCA and its student leaders asked a federal court to order the district to allow it equal access to meet on campus—just like other student clubs. As FCA explained, its request is eminently reasonable: all FCA asks is that those students who lead its ministry—directing Bible studies, leading worship, and determining the direction of the club’s ministry—agree with the very beliefs that animate the club’s mission and ministry. On August 29, 2022, the Ninth Circuit Court of Appeals agreed, ruling that FCA students must be treated fairly and equally and that the District could not discriminate against their religious leadership standards under the First Amendment to the U.S. Constitution and the Equal Access Act. 

The District responded by shutting down all other student groups for Fall 2022 and asking the full Ninth Circuit to reconsider its decision protecting FCA. On January 18, 2023, the Ninth Circuit agreed to rehear the case “en banc” (before a panel of eleven federal judges). Oral argument took place on March 23. On September 13, 2023, the en banc Ninth Circuit overturned the district court’s decision and upheld the ability of  FCA student clubs to freely gather on campus. 

Shurtleff v. City of Boston

Permit application to raise a Christian flag denied  

Outside of Boston’s City Hall, three flagpoles stand. The city ordinarily flies the United States flag on one pole, the Commonwealth of Massachusetts flag on another, and the third flagpole’s flag often varies. In order to celebrate Boston’s diversity, the city allows outside, private groups to hold flag-raising ceremonies and display a flag of their choosing on the third pole. These flags can celebrate other countries, cultures and causes.

Between 2005 and 2017, the city approved all 284 flag requests it received. The first denial came in 2017 when Camp Constitution, a religious volunteer organization, asked to raise a flag featuring a red Latin cross to commemorate Constitution Day. Boston decided it would not allow a “religious” flag out of “concern for the so-called separation of church and state.” The message was clear—no religious speech allowed.

Boston’s decision was wrong, but it’s not alone. Government officials have used similar reasoning to exclude religious speech from public spaces and even to deny disaster relief funds to churches and synagogues damaged by hurricanes.

Courts ignore the Constitution

Harold Shurtleff, cofounder of Camp Constitution, sued the City of Boston for its discriminatory permit denial. Applying an outdated interpretation of the Establishment Clause called the Lemon test, the U.S. Court of Appeals for the First Circuit concluded that Boston was correct to censor religious speech. Shurtleff then appealed to the United States Supreme Court. The Court granted review of the case and heard oral argument on January 18, 2022.

Understanding the Establishment Clause

On November 22, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that this mistake happened because Boston’s city officials (and the lower courts) misunderstand the Establishment Clause. Government officials who have an outdated understanding of the Establishment Clause often ban religious elements from the public square simply because they are religious.

This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.

The widespread misunderstanding of the Establishment Clause dates back to the 1970s, when courts started to rely on the Lemon test. This legal test is a vague standard that not only ignores history but also has created a mess of Establishment Clause jurisprudence. Becket asked the Supreme Court to formally overrule Lemon so that the hostile censorship against religion in the public square is stopped, once and for all.

During oral argument on January 18, 2022, Justice Kavanaugh cited Becket’s brief and pointed out the failings of the Lemon test.  

On May 2, 2022, the Supreme Court unanimously ruled. Because the City of Boston had a “lack of meaningful involvement in the selection of the flags or the crafting of their messages,” the flag raising was deemed “private, not government, speech.” 

While the Court refrained from disposing of the Lemon test during this decision, Justice Gorsuch said that Lemon came from a “bygone era” and “produced chaos” for the Establishment Clause. He also adopted Becket’s proposal for Lemon’s replacement– a standard rooted in the text, history, and traditions of the Establishment Clause. The next month, in the case Kennedy v. Bremerton School District, the Supreme Court formally announced the end of Lemon.  

 

Dr. A v. Hochul

Healthcare heroes on the frontlines

In March 2020, Americans gained new appreciation and admiration for doctors, nurses, and other healthcare workers who heroically put their own health and safety on the line day in and day out to help and heal their neighbors.

But now that the worst moments of the COVID-19 pandemic are behind us, doctors, nurses, and other healthcare workers in New York are being punished for abstaining from vaccination on religious grounds. In accordance with a state mandate, healthcare institutions across New York have been forced to fire healthcare workers who refused the COVID-19 vaccine—even when they wanted to keep them on the job, and even when firing them has forced them to close emergency rooms and reduce services.

Lose your job or violate your conscience

On August 18, 2021, then-Governor Andrew Cuomo signed into law a vaccine mandate for the state’s heroic healthcare workers that allowed for religious exemptions along the lines of medical exemptions. But on August 26, 2021, Governor Kathy Hochul suddenly changed course and removed the religious exemption while maintaining the medical exemption.

The mandate went as far as to demand healthcare workers either get vaccinated or lose their jobs. And if they decided to follow their conscience, they would also lose their unemployment benefits as well.

As New York faces a severe shortage of medical professionals, Governor Hochul has made it clear that it was no mistake to omit a religious exemption from the state’s mandate. At the Christian Cultural Center in Brooklyn, Hochul mocked religious Americans with objections to the vaccine, saying “you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”

Seeking emergency relief

Shortly after the governor issued the mandate, Thomas More Society filed a lawsuit against Governor Hochul on behalf of 17 healthcare workers who have religious objections to the COVID-19 vaccine but are willing to undergo frequent testing and use protective clothing at all times onsite. Several of the healthcare workers have natural immunity from already contracting COVID due to their heroic work on the front lines of the pandemic.

In November of 2021, Becket joined Thomas More Society in filing an emergency application to the Supreme Court to end New York’s harmful vaccine mandate. Three Justices would have granted the application, which was ultimately denied. In February 2022, Becket and Thomas More asked the Supreme Court to hear the full case on the merits.

Becket’s and Thomas More’s brief points out that 47 other states, as well as the federal government, protect religious objectors by either not mandating vaccines or by allowing religious exemptions for those with objections to the COVID-19 vaccines.

The Supreme Court denied review on June 30, 2022, sending the case back down to the lower courts. Justices Thomas, Alito and Gorsuch dissented, indicating that they would have granted certiorari now.

Gutierrez v. Saenz

On June 16, 2020, a Texas death-row inmate was hours away from his execution when the United States Supreme Court halted the procedure. Ruben Gutierrez had asked Texas to provide access to a Christian chaplain in his last moments before death but had been refused by the prison administration. Gutierrez filed an emergency order before the Court, arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment should guarantee the free exercise of religion, even for those in prison and especially for those about to meet their Maker.  

Spiritual Comfort– for some or for none 

Texas has a long tradition of allowing chaplains in the death chamber. It all changed when Texas refused the request of spiritual comfort to Buddhist prisoner Patrick Henry Murphy, a right that had been afforded to other prisoners through state-employed chaplains. On March 28, 2019, the United States Supreme Court granted a stay in Mr. Murphy’s execution, noting that Texas’ actions were a “governmental discrimination against religion” and violated the Constitution. 

Unfortunately, instead of allowing different kinds of spiritual advisors in the death chamber, Texas responded to its Supreme Court loss in the Murphy case by eliminating all use of chaplains in the last moments of death. This went against years of tradition, where spiritual guidance had been safely given to the condemned for decades. Now, no Texas prisoner could receive that pastoral care before death. 

Need of Clergy for the Condemned 

However, federal law supports the idea that all people of all faiths should be able to practice their faith freely, a right that should not be refused once someone enters the prison cell. Mr. Gutierrez only requested the services of state-employed chaplains, the chaplains that have ministered to Texas state prisoners for decades. Texas denied the request due to what it said were safety concerns, but in the previous year, Texas told the Supreme Court that their chaplains could be trusted in the most difficult circumstances in the death chamber. 

After staying the execution in June 2020, the United States Supreme Court sent the case back down to the Texas district court and asked the lower court to figure out “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.” The lower court concluded that Texas had no compelling interest in preventing access to the clergy and on January 25, 2021, the United States Supreme Court reversed the Fifth Circuit’s decision that Texas could deny Mr. Gutierrez a chaplain. 

Importance to Religious Liberty:   

  • Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith. 
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons. 

 

Ramirez v. Collier

View: A HISTORY OF CLERGY PRESENCE IN THE EXECUTION CHAMBER

The right of the condemned to prayer before an execution long predates the formation of the United States, which inherited the tradition from England. Since before the colonial era, it was common for ministers to accompany the condemned to the gallows, where they would pray with, minister to, and touch those who are about to die. General George Washington honored such requests by deserters executed during the Revolution, and the United States also honored such requests by Nazi war criminals after the Nuremberg Trials. 

Today, condemned prisoners of all faiths often request such prayers in the death chamber from their clergy as a way to “get right with God” and safeguard their eternal destiny. And some religious traditions require such ministrations to those marked for death. The federal government and state governments have routinely allowed clergy to minister to the condemned in the death chamber—both by praying aloud and holding their hand. 

In 2019, the state of Alabama denied a Muslim prisoner the presence and prayer of an imam before his execution. When the Texas Department of Criminal Justice (TDCJ) attempted to do the same thing to a Buddhist prisoner just a few weeks later, the Supreme Court stepped in, ruling in Murphy v. Collier that Texas had to permit the prisoner’s Buddhist spiritual advisor to accompany him to the death chamber. Since then, the Supreme Court has similarly protected Christian prisoners in both Texas and Alabama. Despite these clear rulings and centuries of history, including its own traditional practices, TDCJ recently imposed two rules – one preventing clergy from praying aloud and one preventing clergy from touching the inmate – contrary to centuries of tradition. TDCJ said these long-accepted prayers would “disrupt the execution” despite any evidence that they had or would.  

Death row inmate John Henry Ramirez appealed to the Supreme Court seeking prayer and touch from his Southern Baptist pastor during his final moments. Becket filed a friend-of-the-court brief with prominent constitutional scholar and Stanford Law School Professor Michael McConnell and the Harvard Law School Religious Freedom Clinic. Becket’s brief describes the long history of audible clergy prayer and clergy touch and explains why that means Ramirez ought to prevail under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act.  

On November 1, 2021, the case was argued before the Supreme Court. In an 8-1 vote, on March 24, 2022, the Court ruled in favor of allowing clergy to audibly and physically pray with Ramirez. The Court cited Becket’s amicus brief on the long history of clerical prayer present at executions and agreed that prohibiting such practices substantially burdened the prisoner’s religious exercise and that Texas could not satisfy strict scrutiny.

Importance to Religious Liberty: 

  • Individual freedom: A fundamental part of human dignity is recognizing the human desire for religious faith.
  • RLUIPA: The federal Religious Land Use and Institutionalized Persons Act – passed, like the Religious Freedom Restoration Act (RFRA), with strong bipartisan support – protects the human dignity of prisoners by ensuring that their religious liberty is protected and bans discriminatory land-use rules that are often used to prevent disfavored groups from building houses of worship.  

Carson v. Makin

Giving Religious Education the Cold Shoulder

For students living in rural Maine communities—in one of the least densely populated parts of the United States—local public high schools are hard to come by. The State of Maine offers tuition assistance to families who send their children to private schools—any private schools except religious schools. In fact, students have used Maine student aid to attend elite New England prep schools such as Avon Old Farms, the Taft School, and Miss Porter’s. They are even entitled to use Maine student aid to attend private schools outside the country—as long as they aren’t religious. These otherwise qualified religious schools are left out and the children attending these schools receive no tuition assistance throughout their entire primary education, all because the schools have a religious mission.

Religious schools nationwide provide high-standard education with a spiritual foundation. These educational opportunities are sought after by parents who choose to send their children to religious schools so that their children receive both a first-rate education and they are able to pass the faith to the next generation.

The Supreme Court Steps In, and In Again

Unfortunately our country has a long history of excluding religious institutions from public programs, stemming from anti-Catholic laws in the nineteenth century. These laws, called Blaine Amendments, were adopted by several states and burdened religious ministries simply because of their faith-driven beliefs. In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that Montana could not exclude religious schools from a scholarship program based on Montana’s Blaine Amendment. The Court explained that the exclusion was “born of bigotry,” and Justice Alito elaborated on the dark history of Blaine Amendments. The decision also strengthened precedent set in Trinity Lutheran v. Comer that said a religious school could not be blocked from participating in a state recycling program.

Unfortunately, the State of Maine thinks that it can still exclude religious schools from its tuition assistance program. On February 4, 2021, families from Maine asked the United States Supreme Court to hear their case and end Maine’s discriminatory actions. The Court granted review and on September 10, 2021, Becket filed a friend-of-the-court brief that emphasized the importance of the First Amendment and the free exercise of religion, saying that Maine could not justify singling out children who wanted to attend religious schools.

On June 21, 2022, the Supreme Court ruled 6-3 that the state of Maine’s tuition assistance program was in violation of the Free Exercise clause, coming as a major victory for religious schools in Maine and throughout the country.

Importance to Religious Liberty:

  • Education:  Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

 

 

Synod of Bishops of the Russian Orthodox Church Outside of Russia v. Belya

ROCOR: A History of dealing with Big Government 

The Russian Orthodox Church Outside of Russia (ROCOR) began in the 1920s after a contingent of Russian Orthodox priests and bishops were forced out of Russia by the Bolshevik government. Following their exile, the bishops went to Western Europe and eventually to the United States. 

Over the past century, ROCOR has grown across the world, especially in the United States. Today, of their 400 parishes worldwide, 232 are within the U.S. Following the fall of the Soviet Union, ROCOR and the Moscow Patriarchate agreed to an act of communion in May 2007, reestablishing their canonical ties.  

An Internal Dispute 

Father Alexander Belya was a ROCOR priest for several years. He claims that in December 2018, ROCOR’s Synod of Bishops—the executive organ of the Church’s highest ecclesiastical body—elected him to be the Bishop of Miami. The Church maintains that Father Alexander was not elected. In response to Father Alexander’s claim, several ROCOR leaders wrote a letter to the Synod describing complaints about Father Alexander’s conduct as a priest that violated church laws. The letter also noted several irregularities under church law in the documents supposedly showing that Father Alexander was elected as Bishop of Miami and called on Metropolitan Hilarion to suspend Father Alexander from priestly duties and to open a Church investigation into the alleged election. Metropolitan Hilarion then suspended Father Alexander. Rather than submit to investigation or appeal the suspension within the Church, Father Alexander left ROCOR and sued the Church, Metropolitan Hilarion, and other Church leaders for defamation. He claims damages for the loss of income from members leaving his congregation, and for “severely impaired reputation and standing” within the ROCOR community.  

Defending Church Autonomy: 

Religious freedom has allowed ROCOR to thrive in the United States. This freedom includes protections from government interference in churches’ internal religious affairs—especially in their decisions related to the selection, discipline, or removal of clergy. But this right means little if a church can be sued for communicating these decisions to its members. After the Southern District of New York refused to dismiss Father Alexander’s suit, Becket stepped in and appealed to the Second Circuit Court of Appeals. On August 17, 2022, the Second Circuit ruled against the church, declining to protect ROCOR’s First Amendment rights. Becket plans to appeal the decision. The Church is also represented by Feerick Nugent MacCartney, PLLC. 

Importance for Religious Liberty: 

  • Freedom of religious groups to choose their own leaders: Churches and other religious groups have the right to select, discipline, and, if necessary, remove their leaders without government interference. Only the church—not a court—gets to say who the bishop is. This right is protected by a First Amendment principle called the “ministerial exception.”
  • Freedom of religious groups from state intrusion on religious affairs: Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.  

Hedican v. Walmart

Sabbath day observance, a pillar of faith 

Sabbath day observance is a crucial part of many faiths—a day ordained by God when one abstains from the distractions of daily life in order to devote time to family, community, and worshiping God. As their name indicates, this practice is particularly sacred to Seventh-day Adventists, who observe the Sabbath from Friday at sundown to Saturday at sundown. Many employers voluntarily make allowances for Sabbath day observance, recognizing its essential role in the wellbeing of their religious employees. 

In April of 2016, Ed Hedican was offered a position as an assistant manager at Walmart. When he accepted the position, he requested a religious accommodation so that he would not have to work on the Seventh-day Adventist Sabbath. Though he asked not to be scheduled from on his Sabbath, he was willing to work any other time of the week, including Saturday after sundown.  

A corporation’s disregard for religious rights 

In response to Mr. Hedican’s request, Walmart refused to provide religious accommodation for the Sabbath and rescinded his job offer. Although Mr. Hedican was qualified for the position, and eager to work with Walmart to achieve a compromise (volunteering to work any other day of the week, including nights, and 12-hour shifts), Walmart refused, suggesting he apply to an hourly position of lower pay and lower rank. Though it is the largest non-governmental employer in the United States, Walmart claimed that any accommodation made for Mr. Hedican’s Sabbath observance would burden impose “undue hardship” on the company. 

The average salary of a Walmart assistant manager is just over $50,000. In contrast, Walmart—the largest private employer in the United States—amassed over half a trillion dollars in revenue in 2020 alone, making any cost or inconvenience of religious accommodation in this instance negligible. Yet Walmart even declined to investigate whether costless accommodations were available, such as allowing assistant managers (there were eight at this particular store) to arrange voluntary shift swaps amongst themselves.  

Title VII of the Civil Rights Act protects employees from discrimination due to factors such as religion, race, and gender. Mr. Hedican submitted a charge of discrimination to the EEOC, explaining that Walmart was not reasonably accommodating his religious exercise, as is required by law.  

Correcting a harmful precedent 

In the EEOC’s subsequent suit against Walmart, the federal trial and appellate courts ruled for Walmart, relying heavily on an old Supreme Court precedent from 1977. In Trans World Airlines v. Hardison, the Court ruled that companies may refuse to provide religious accommodation for their employees if providing such an accommodation presents the company with even a minor inconvenience.   

The U.S. Court of Appeals for the Seventh Circuit interpreted that precedent to mean that even a chance that shift-swaps would burden Walmart’s rotation system, without concrete evidence, was enough to rule for Walmart. This rule enables corporations like Walmart, the largest employer in the U.S., to discriminate against religious employees if accommodating them would cause a burden as trivial as rearranging work shifts.  

On behalf of Mr. Hedican, Becket asked the Court to revisit the Trans World Airlines decision and its interpretation in the lower courts, and defend the constitutional right of every American, including shift workers like Mr. Hedican, to work according to their conscience and their faith.  

This case is important for all Americans who are faced with similar conflicts in the workplace, put to the choice between their faith and providing for their family even where reasonable accommodation is possible. People are more than punches in a timecard, and the law should assure that every American has the right to live and work according to their religious convictions.  

Importance to Religious Liberty:

Individual Freedom—Religious exercise encompasses more than just thought or worship—it involves visibly practicing the signs of one’s faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs.  

United States of America v. State of Texas

The Humanitarian Respite Center in McAllen, Texas, ministers to over 1,000 recent migrants each day. The Center was created in 2014 by Catholic Charities of the Rio Grande Valley, a ministry of the Roman Catholic Diocese of Brownsville. The Center has served more than 100,000 migrants to date and is the first stop for many migrant families after they cross the border and are released by law enforcement. At the Center, families dropped off by Border Patrol receive COVID tests and transportation to quarantine locations, if needed. Those without COVID enter the Center to receive basic necessities: medical attention, food, water, temporary shelter from the elements. Catholic Charities then transports them to hospitals, shelters, or on their way to reunite with family.   

Due to the ongoing COVID-19 pandemic, incoming migrants are tested for COVID-19 before entering the Center. Migrants who test positive are safely quarantined at nearby hotels. However, on July 28, 2021, Texas issued an Order forbidding non-governmental entities from transporting migrants anywhere in Texas. While supposedly intended to prevent COVID-19 transmission, the Order in practice would prevent the Humanitarian Respite Center from taking migrants from the Center to local bus stations, airports, hospitals, and more permanent shelters. And it would prevent the Center from safely transporting COVID positive migrants to quarantine locations. Instead, with the Center unable to take in any more migrants, Border Patrol would leave migrants—without ever testing them for COVID—at local McAllen bus stations, increasing the likelihood of COVID transmission in the community and leaving young women and children with no means of contacting transportation or procuring food and water.   

Concerned about the negative impact this order would have on the federal government’s operations, the Department of Justice filed a lawsuit on July 30, seeking to block enforcement of the order. On August 3, a federal judge in El Paso granted temporary relief, set to expire on August 13. On August 11, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that the order impeded the religious rights of Catholic Charities contrary to federal and state law. After a court hearing on August 13, the district court issued an injunction that protects Catholic Charities Rio Grande Valley from Governor Abbott’s order while the case continues in court. The court recognized the vital role of religious ministries, finding “sufficient evidence” that federal officials must rely on the transportation efforts of “NGO-partners” like Catholic Charities “in order to operate the immigration system successfully.” 

As Becket’s friend-of-the-court brief explains, both state and federal law protect the free exercise of religion – including the exercise of religious ministries like the Humanitarian Respite Center. Not only did the order potentially increase the spread of COVID-19, but it also – in violation of state laws protecting religious exercise – threatened the Center if it carried out its religious mission of serving the vulnerable.  

The case is currently pending in the U.S. District Court for the Western District of Texas, El Paso Division. 

Dobbs v. Jackson Women’s Health Organization

A Decade-Long War 

In 2013, the Little Sisters of the Poor rose to national recognition when they won their first victory over the contraceptive mandate at the Supreme Court. But their fight to serve the elderly poor without compromising their religious convictions didn’t start or end there. States like California and New York, as well as the federal government, have been relentless, insisting for over a decade that nuns (and other religious nonprofits) must pay for abortifacient drugs in their health plans or pay tens of millions of dollars in crippling fines.  

Among the most ludicrous aspects of the Little Sisters’ fight is that in over a decade, their aggressors have not been able to identify a single woman who will lose contraceptive coverage if the Little Sisters don’t pay for it. These fights are not really fights over nuns and their healthcare plan but rather over expanding and solidifying abortion rights.  

A Consequential Decision 

When the Supreme Court decided the landmark abortion case, Roe v. Wade in 1973, it reached beyond the Constitution to establish a right to abortion. That decision has haunted many areas of the law, including the First Amendment where many cases arise because of abortion advocates seeking to expose and punish religious Americans with moral objections to abortion and contraceptive drugs. These proxy wars have been fought on at least four battlefields with direct implications for religious liberty: contraceptive and abortion mandates, pharmacist regulations, pregnancy center regulations, and restrictions on sidewalk counselors. 

That’s how the Little Sisters of the Poor, and numerous other Becket clients, including Eleanor McCullen, a sidewalk counselor who went to the Supreme Court to fight for her right to speak to share her message of hope with women going into the abortion clinic; family pharmacies operated by people of faith like the Stormans family in Washington state and Luke Vander Bleek and Glenn Kosirog in Illinois that were forced to choose between selling the morning-after and week-after pills at their family-run pharmacies or lose their licenses; and Greater Baltimore Center for Pregnancy Concerns, which wanted to help vulnerable women without being forced to undermine its mission by displaying a sign that read “do not provide or make referrals for abortion or birth control services.” 

These are just a few examples of unnecessary and often painful battles waged in both the courtroom and in the court of public opinion from California to New York, in the hospice rooms of nuns caring for the elderly poor and on the campuses of Christian colleges that teach their students all human beings bear the image and likeness of God – the landscape of the fight has engulfed almost every sector of our society. 

It doesn’t have to be that way—other countries like France, England, and Germany—have experienced much less of this kind of abortion v. religious liberty conflict. But in the U.S., with abortion rights dictated by the Supreme Court, the conflicts have raged.

A Chance to end the unnecessary fights 

Next term, the Court can correct the damage done to religious liberty in a case with a direct challenge to Roe v. Wade – Dobbs v. Jackson Women’s Health Organization.  

In March of 2018, Mississippi passed the Gestational Age Act which restricts abortions after the 15th week of pregnancy. In response, the Jackson Women’s Health Organization filed a lawsuit against the State of Mississippi arguing that the law violated its rights under Roe v. Wade and Planned Parenthood v. Casey. After the State of Mississippi lost the case at both the district court and Fifth Circuit Court of Appeals, it appealed to the Supreme Court which agreed to hear the case in May 2021.  

On July 27, 2021, Becket filed a friend-of-the-court brief in Dobbs, arguing that the Court should replace the Roe framework, thereby relieving the heavy burden imposed on religious liberty by abortion proxy wars, and opening the door to more productive solutions to religious liberty conflicts related to abortion.  

On June 24, 2022, the U.S. Supreme Court ruled 6-3 in favor of the state of Mississippi, overturning Roe v. Wade. The decision puts the abortion debate back into the hands of the voters, lessens the battles between religious freedom and abortion, and better ensures Americans the right to live in accordance with their faith. 

Importance to Religious Liberty: 

The legal framework of Roe has haunted religious Americans ever since it was issued by the Supreme Court in 1973.  Fewer national proxy wars over religious liberty and abortion will result from returning the abortion debate back to the states. 

Americans for Prosperity Foundation v. Bonta

Does a California tax law violate the freedom of assembly? 

If you want to be a nonprofit organization in California, you must disclose your donors to the Attorney General. This disclosure ostensibly makes future law enforcement more “efficient.” But California’s requirement is a national outlier and invites harassment. Indeed, in the past, the California Attorney General’s Office has leaked sensitive information like a sieve, resulting in donor harassment.  Americans for Prosperity Foundation (AFP) did not submit to the disclosure requirement and, as a result, in 2013, California threatened to revoke AFP’s nonprofit status.  

There and back again: a journey through the courts 

AFP sued California in December 2014. It claimed that California’s mandatory donor disclosure requirement violates the right to “freedom of association”—a right protected by the U.S. Constitution, but with unclear basis in the Constitution’s text, history, or tradition. This confusion led the Ninth Circuit Court of Appeals to reverse AFP’s trial court victory. It claimed that, since nothing is “distinguishable” between associating for political campaigns (where disclosure ensures democratic accountability) and associating for any other charitable purpose, the law permitted California to demand disclosure of every nonprofits’ donors.   

AFP appealed the Ninth Circuit ruling to the U.S. Supreme Court, which granted AFP’s petition on January 8, 2021. Oral argument was held on April 26, 2021.  

An opportunity to set straight the meaning of “freedom of assembly” 

On March 1, 2021, Becket filed an amicus brief at the U.S. Supreme Court, and our argument about the freedom of assembly was mentioned during oral arguments by three of the Justices and extensively discussed by advocates for both AFP and California. Our brief urged the Court to use this case as an opportunity to correct the courts’ decades-long faulty interpretation of the Assembly Clause, which focuses primarily on protecting expression. This error at the core of the Ninth Circuit’s decision has led to decades of bad rulings against religious and other assemblies, and it restricts the Constitution’s protection for civil society. As our brief explains, assemblies should not be protected based on how “expressive” they are. Rather, the text, history, and tradition of the First Amendment’s Assembly Clause confirms that assemblies primarily exist for formative purposes—shaping people in beliefs and customs, regardless of their political expression or popularity.   

Our brief argued that the freedom of assembly is grounded in, and was historically understood to come from, the freedom to assemble for the purpose of worship. By looking to our long national tradition of how and why we protect religious assembly, the law can better protect the right to assemble generally, and the right to not give the government the tools to squelch private assemblies out of existence (or into submission). Properly applying that tradition dooms California’s donor disclosure requirement and shores up legal protections for civil society.  

On July 1, 2021, the U.S. Supreme Court ruled that the First Amendment protects collective action for “preserving political and cultural diversity” and that “[m]ere administrative convenience” is not enough to restrict First Amendment freedoms. Justice Thomas’ concurring opinion cited Becket’s amicus brief, noting that “[t]he text and history of the Assembly Clause” include “the right to associate anonymously.” 

Importance to Religious Liberty 

  • Freedom of assembly: The First Amendment includes “the right of the people peaceably to assemble.” Contrary to popular interpretations, which link freedom of assembly most closely to freedom of speech, the freedom of assembly is grounded in the freedom to assemble for formative purposes. Self-government depends upon shaping individuals to govern themselves, and that is what safeguarding space for civil society permits.  

Fernández Martínez v. Spain

Should Church or State Determine Who Teaches Religion?

In Spain, religious communities’ leadership determines who is allowed to teach children at religious schools about their faith. Mr. Fernández Martínez, a former (“laicized”) Catholic priest, was approved by the local bishop to teach Church beliefs for almost six years – but in 1997, the bishop declined to renew Fernández Martínez’s contract because he had publicly voiced his opposition to the Church’s position regarding priestly celibacy.

Fernández Martínez initiated a lawsuit, claiming his right to personal autonomy trumped the Church’s right to select teachers of the faith. The Constitutional Court of Spain rejected this argument. On appeal to the ECHR, the European Court’s Grand Chamber followed Becket’s amicus brief and recognized that churches must be free to decide who teaches their faith to the next generation without interference from the state. This decision was in line with decisions in earlier Becket cases Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Sindicatul “Pastorul cel Bun” v. Romania, demonstrating that religious autonomy is a truly global principle.

Importance to Religious Liberty:

  • Religious Communities: Religious communities have the right to choose their own leaders, and to decide who teaches their faith without interference from the state. Issues of doctrine like priestly celibacy or church leadership and teaching are matters for the church to decide – not government agents.

Pavez vs. Chile

Read in English

Libertad para elegir profesores calificados

Incluso en países sin separación constitucional entre iglesia y Estado, las organizaciones religiosas tienen derecho a elegir a sus maestros. Al ser un país predominantemente católico, Chile ofrece clases de religión sobre la fe católica en muchas de sus escuelas gubernamentales, sin embargo, al ser materia de libertad religiosa y autonomía, el obispo católico local debe tener la capacidad de certificar quién está calificado para impartir esas clases.

Rompimiento con la Iglesia

Sandra Pavez fue profesora de religión durante mucho tiempo en una escuela gubernamental en San Bernardo, Chile. En 2007, la Sra. Pavez le informó a la Diócesis de San Bernardo que estaba en una relación con una persona del mismo sexo. Debido a que este hecho viola el derecho canónico católico, que es el cuerpo legislativo que rige a la Iglesia Católica, la Diócesis revocó la certificación de la Sra. Pavez para enseñar la fe católica en su escuela. Sin embargo, la escuela retuvo a la Sra. Pavez como maestra e inmediatamente la promovió a Inspectora General, que es un cargo de mayor prestigio.

A pesar de esta promoción, la Sra. Pavez demandó a la Diócesis ante los tribunales chilenos, que reconocieron correctamente que la Diócesis tenía autoridad para determinar quién estaba capacitado para enseñar su fe, y que la Sra. Pavez había sido promovida en lugar de perjudicada por esa decisión. El 28 de octubre de 2008, la Sra. Pavez presentó una queja ante la Comisión Interamericana de Derechos Humanos, alegando que Chile había violado su derecho a la “no injerencia arbitraria en la vida privada”, constatada en la Convención Americana sobre Derechos Humanos. La Comisión falló a favor de la Sra. Pavez el 7 de diciembre de 2018, y Chile apeló ante la Corte Interamericana de Derechos Humanos, que aceptó el caso el 11 de setiembre del 2019, y fijó el caso para audiencia pública el 12 de mayo de 2021 en San José, Costa Rica.

Autonomía religiosa en el país y en el extranjero

Becket está presentando un escrito amicus curiae ante la Corte Interamericana de Derechos Humanos, argumentando que los grupos religiosos deben ser libres de tomar decisiones sobre quién puede enseñar su fe a la siguiente generación de creyentes. El escrito de Becket cita el artículo 12 de la Convención Americana sobre Derechos Humanos, el artículo 18 de la Declaración Universal de Derechos Humanos y otros tratados líderes en materia de derechos humanos, todos los cuales incluyen un lenguaje robusto que protege la libertad religiosa de las personas y las comunidades. El escrito de Becket, con un enfoque comparativo, muestra cuántos países latinoamericanos y europeos, así como los Estados Unidos y Canadá, han reconocido el principio de autonomía religiosa y han protegido el derecho de las organizaciones religiosas a elegir a sus líderes y a sus maestros. Y Becket también señala que los países que violan la autonomía religiosa tienden igualmente a violar otros derechos humanos, especialmente los derechos de las personas LGBTQ+.

La acción de Becket en este caso forma parte de una serie de casos similares en los que Becket ha participado en todo el mundo, incluso en tribunales internacionales tales como el Tribunal Europeo de Derechos Humanos y en los tribunales de los Estados Unidos. En el caso de Fernández Martínez vs. España, Becket presentó un escrito amicus curiae argumentando que el principio de autonomía religiosa protegía el derecho de la Iglesia Católica a no renovar el contrato del profesor de religión que se había unido a una campaña pública oponiéndose a sus creencias. En 2014, el Tribunal Europeo adoptó este enfoque, defendiendo la libertad de la Iglesia de elegir quién está calificado para enseñar la fe. Y en el caso de Sindicatul “Pastorul cel bun” vs. Rumania, Becket presentó un escrito similar argumentando que las iglesias, sinagogas y otras organizaciones religiosas tienen derecho a ordenar sus asuntos internos sin interferencia del gobierno. En 2013, el Tribunal Europeo confirmó el derecho de autonomía religiosa de la Iglesia Ortodoxa Rumana sobre el derecho de los sacerdotes disidentes a crear un sindicato o unión gremial.

En 2012 y 2020, Becket ganó casos similares en la Corte Suprema de los Estados Unidos en la Hosanna-Tabor Evangelical Lutheran Church & School vs. EEOC y en Our Lady of Guadalupe vs. Morrissey-Berru, en los que la Corte dictaminó que las escuelas religiosas tienen derecho a seleccionar a los maestros que enseñan sus creencias.

Tanto en la Corte Europea de Derechos Humanos como en la Corte Interamericana de Derechos Humanos, Becket ha abogado por que la misma norma se aplique internacionalmente, de modo que ningún grupo religioso pierda su capacidad de elegir a sus líderes y maestros, un derecho ampliamente reconocido en el derecho internacional de los derechos humanos.

Relevancia para la libertad religiosa:

  • Comunidades Religiosas — Los grupos religiosos deben estar plenamente facultados para seleccionar a sus sacerdotes, rabinos, ministros y otros maestros religiosos libres de interferencia gubernamental. La Corte Suprema ha reconocido este derecho en los Estados Unidos, pero es fundamental brindar esas mismas protecciones sólidas a la libertad religiosa a nivel internacional.

Pavez v. Chile

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Freedom to choose qualified teachers  

Even in countries without constitutional separation between church and state, religious organizations have the right to choose their teachers. As a predominantly Catholic country, Chile offers religion classes on the Catholic faith in many of its government schools, but as a matter of religious freedom and autonomy, the local Catholic bishop must be able to certify who is qualified to teach those classes.

Disunion with the Church

Sandra Pavez was a long-time religion teacher at a government school in San Bernardo, Chile. In 2007, Ms. Pavez told the Diocese of San Bernardo that she was in a same-sex relationship. Because this violated Catholic canon law, the governing body of laws of the Catholic Church, the Diocese revoked Ms. Pavez’s certification to teach the Catholic faith in her school. However, the school retained Ms. Pavez as a teacher and immediately promoted her to the more prestigious position of Inspector General.

Despite this promotion, Ms. Pavez sued the Diocese in the Chilean courts, which correctly recognized that the Diocese had authority to determine who was qualified to teach its faith, and that Ms. Pavez had been promoted rather than harmed by that decision. On October 28, 2008, Ms. Pavez filed a complaint with the Inter-American Commission on Human Rights, claiming that Chile had violated her right to “no arbitrary interference in private life,” found in the American Convention on Human Rights. The Commission ruled in favor of Ms. Pavez on December 7, 2018, and Chile appealed to the Inter-American Court of Human Rights, which accepted the case on September 11, 2019, and set the case for public hearing on May 12, 2021 in San José, Costa Rica.

Religious autonomy at home and abroad

Becket filed a friend-of-the-court brief at the Inter-American Court of Human Rights, arguing that religious groups must be free to make decisions about who may teach their faith to the next generation of believers. Becket’s brief cites Article 12 of the American Convention on Human Rights, Article 18 of the Universal Declaration of Human Rights, and other leading human rights treaties, which all include robust language protecting religious freedom for individuals and communities. Becket’s brief takes a comparative approach, demonstrating how many Latin American and European countries, as well as the United States and Canada, have recognized the principle of religious autonomy and protected the right of religious organizations to choose their leaders and teachers. And Becket also points out that countries that violate religious autonomy tend to violate other human rights as well, especially the rights of LGBTQ+ individuals.

On April 13, 2022, the Inter-American Court released its decision in favor of Ms. Pavez. The decision failed to grapple with the importance of religious autonomy, and it ignored the consensus of the international human rights community that religious groups have a right to decide who is qualified to teach their faith to the next generation without fear of government interference.

Becket’s action in this case is part of a series of similar cases Becket has participated in worldwide, including in international tribunals such as the European Court of Human Rights and in the United States courts. In the case of Fernández Martínez v. Spain, Becket filed an amicus brief arguing that the principle of religious autonomy protected the Catholic Church’s right to not renew the contract of religion teacher who had joined a public campaign opposing their beliefs. In 2014, the European Court adopted this approach, upholding the Church’s freedom to choose who is qualified to teach the faith. And in the case of Sindicatul “Pastorul cel bun” v. Romania, Becket filed a similar brief arguing that churches, synagogues, and other religious organizations have a right to order their internal affairs without government interference. In 2013, the European Court upheld the Romanian Orthodox Church’s right of religious autonomy over the right of dissident priests to create a trade union.

In 2012 and 2020, Becket won similar cases at the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe v. Morrissey-Berru, in which the Court ruled that religious schools have the right to select teachers of their faiths.

At both the European Court of Human Rights and the Inter-American Court of Human Rights, Becket has advocated for the same standard to apply internationally, so that no religious group will lose their ability to choose their leaders and teachers, a right which is broadly recognized in international human rights law.

Importance to Religious Liberty:

  • Religious Communities— Religious groups should be fully empowered to select their priests, rabbis, ministers and other religious teachers free from government interference. The Supreme Court has acknowledged this right in the United States, but the same robust protections are fundamental to religious freedom internationally.

 

Diocese of Albany v. Vullo

Pushing the envelope beyond the contraceptive mandate

In 2011, the United States Department of Health and Human Services ordered employers to cover controversial contraceptives and abortifacients in their health care plans or face crippling fines. Immediately challenges were mounted by religious universities, Christian businesses and, most famously, by the Little Sisters of the Poor—an order of Catholic nuns who dedicate their lives to serving the elderly poor. Three times the Supreme Court ruled in favor of the Little Sisters of the Poor, saying that if the government wanted to provide contraceptives and abortifacients, it could not force the nuns to help.

But in 2017, when the Little Sisters of the Poor were already two Supreme Court victories into their decade-long legal battle over the contraceptive mandate, the State of New York went a step further and required employers statewide to cover actual abortions in their health plans.

New York initially planned to respect conscience rights by exempting employers with religious objections. But facing pressure from abortion activists, New York narrowed the exemption to protect only religious entities whose purpose is to inculcate religious values and who primarily employ and serve coreligionists. This discriminatory rule punishes the many religious groups and ministries that provide critical community services and employ or serve people regardless of their faith.

Standing up for the right to stand aside

A coalition of religious groups from a variety of denominations—including Roman Catholic dioceses, an order of goat-herding Anglican nuns, Baptist and Lutheran churches, and Catholic ministries—sued New York, arguing that the law forced them to violate their deeply held religious beliefs about the sanctity of life.

Among the religious groups challenging New York’s abortion mandate are a group of the Carmelite Sisters who run the Teresian Nursing Home for the elderly and dying; the First Bible Baptist Church, which serves the community through its youth ministry, and a deaf ministry; the Sisterhood of St. Mary, an Anglican/Episcopal order of religious sisters who live a contemplative, monastic life; and subdivisions of Catholic Charities, which provide adoption and maternity services.

Each group is challenging New York’s abortion mandate because it believes that life begins at the moment of conception, and that to intentionally end the life of an unborn child is a grave moral sin. However, unless they receive protection in court, these orders, ministries, and churches will either have to violate their deepest religious convictions and provide abortions, or eliminate their employees’ health insurance altogether, which would subject them to crippling fines totaling millions of dollars per year. 

Seeking relief from the High Court

On April 23, 2021, represented by Becket and Jones Day, the coalition of religious organizations asked the U.S. Supreme Court to hear its case. The Supreme Court granted the petition, vacated the bad rulings from the New York state courts, and told the state courts to reconsider the case in light of Becket’s other landmark victory in Fulton v. City of Philadelphia. The case is now back before the New York Court of Appeals, the state’s highest court. The consequences of this case will be felt acutely—should the courts fail to protect the religious groups, they will be forced to fund abortions, which they consider a grave moral evil.  

Just like the Supreme Court found that the government must find a way to provide contraception that doesn’t involve the Little Sisters of the Poor, so too must the courts step in and protect these religious organizations from having to violate their deepest moral convictions by participating in abortions.  

Importance to Religious Liberty:

  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without the government discriminating among sincere religious.
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship.

Di Liscia v. Austin

Beards: a naval tradition and a religious obligation 

For most of the nearly 250-year-old history of the U.S. Navy, sailors were known for their beards – indeed, the Secretary of the Navy during the Civil War, Gideon Welles, sported a full, bushy beard. In the 1970s, Admiral Elmo Zumwalt, then Chief of Naval Operations, forbade discrimination or any violation of the “rights and privileges” of sailors who chose to wear beards – which helped sailors suffering from “razor bumps” (Pseudofolliculitis barbae), a painful infection aggravated by shaving.  

This policy also accommodated the needs of religious minorities such as Muslims, Sikhs, and Orthodox Jews, who often wear beards in accordance with the traditions and obligations of their faith. But in 1985, the Navy did an about-face and broadly banned beards, while granting limited exemptions for religious, morale, and medical purposes. In recent years, the Navy has begun to further narrow those exemptions, rejecting religious exemption requests and pressuring sailors to give up medical exemptions, instead of allowing them to keep their beards.  

An unnecessary conflict 

This has made America’s Navy a much less welcoming place for sailors like Edmund Di Liscia. Di Liscia, a devout Orthodox Jew, joined the U.S. Navy in 2018 and is currently at sea, serving on the USS Theodore Roosevelt. Di Liscia’s Jewish faith requires him to wear a beard as a sign of spiritual maturity, and an expression of obedience and fidelity to God. So in September 2020, he formally requested a religious exemption from the Navy’s shaving policy, but the Navy refused to accommodate his religious convictions. Fortunately, Di Liscia has been able to maintain his beard thanks to a temporary no-shave “chit”—a religious accommodation granted by a commanding officer that allowed him to keep his beard. 

The chits aren’t just granted for religious reasons. For example, while at sea, Di Liscia’s commanding officer granted a ship-wide no-shave chit to boost morale. However, temporary chits aren’t sufficient to protect the religious liberty of sailors like Di Liscia. Case in point, on April 14, 2021, the Navy decided—for no apparent reason—that Di Liscia’s chit was no longer valid, and he was told that he must shave his beard within 24 hours or face punishment. 

But the Navy’s unfair policy is an outlier. The Army and Air Force have both taken steps to allow religious minorities to serve with their beards intact. Other nations, like the United Kingdom and Israel, also allow their sailors to maintain beards, proving that religious minorities don’t have to be faced with the choice of serving their country or their Creator.  

Under federal law, the military is prohibited from suppressing an individual’s religious exercise without a compelling government interest. On April 15, 2021, Becket asked the District Court for the District of Columbia to stop the Navy from forcing Di Liscia to shave, and sued to protect three other Muslim sailors, Leo Katsareas, Dominque Braggs, and Mohammed Shoyeb, as well. They will show once and for all that the Navy only stands to gain by letting them exercise their religious faith.   

Just a few hours after Becket’s filing, the Court set an emergency hearing and issued an order temporarily protecting Di Liscia from being forced to shave. Soon after, the Navy confirmed that it would not force Di Liscia to shave in the short term, and Becket will continue pursuing a lasting accommodation so that Di Liscia, and other sailors like him, can freely live out their religious beliefs while serving their country. 

Importance to Religious Liberty: 

  • Individual Freedom: The government cannot burden the sincere religious beliefs of individuals by preventing them from exercising their faith. Because all individuals have a right to sincerely follow their faith, the government cannot discriminate against them by impeding their religious conduct or forbidding their obligatory religious practices. Instead, the government should find ways to respect their religious exercise.

Mahanoy Area School District v. B.L.

In 2017, a high school freshman named Brandi Levy learned that she did not make the public school’s varsity cheerleading team—and that she had not gotten the position she wanted on the school’s softball team, either. Frustrated, she posted an angry private message on a Saturday via the social media app Snapchat, which was intended to be seen only by her friends before the message automatically deleted the next day.  

However, one of the cheerleading coaches at her public school was shown a screenshot of the message. As a result, Levy was suspended from the junior varsity cheerleading team for her entire sophomore year. School officials claimed that her message, which contained profanity, violated the school’s good conduct rules for cheerleaders.    

After the school refused to reconsider its position, Levy’s parents sued on her behalf. Even though school officials admitted that the social media message was unlikely to cause any actual disruption on campus, they argued that public schools should be able to police student speech they deem disruptive (or even socially inappropriate) whenever and wherever it takes place. This includes speech—like Brandi Levy’s—made off campus, on the weekend, and sent privately to friends. 

The school’s proposed rule would not only discourage students from speaking for fear of punishment, it would also give a “heckler’s veto” to public school administrators or fellow students who want to suppress speech with which they disagree—even if the student’s speech is expressing deeply-held religious beliefs. After both the district court and U.S. Court of Appeals for the Third Circuit ruled in Levy’s favor, the public school sought review by the U.S. Supreme Court, asking the Court to give public school administrators an unprecedented level of supervision and control over students’ speech.  

“Allowing a public school to silence any speech it deems ‘divisive,’ ‘offensive’ or ‘disruptive’ is an extremely dangerous proposition,” said Nick Reaves, counsel at Becket. “It would permit schools to punish students for expressing their deeply-held religious beliefs—even if expressed in the privacy of their home or at a religious service or ceremony. Students are not creatures of the state, and their rights, and those of their parents, do not evaporate simply because their parents send them to public schools.” 

As Becket’s friend-of-the court brief explains, public school administrators have an unfortunate track record of discrimination against religious speech. Some have lumped religious speech together with obscenity and libel, while others have sought to punish students for, among other things, inviting their peers to a church play. Giving public schools even greater authority to police student speech will only increase the opportunities for such discrimination. It would also disproportionately harm minority students, as schools are less familiar with (and often less tolerant of) unusual or unpopular religious beliefs. 

On June 23, 2021, the Supreme Court affirmed that important constitutional protections, like the freedom of speech, do not evaporate when students attend public schools. As “nurseries of democracy,” public schools must respect the constitutional rights of their students, especially when students are speaking off-campus, on the weekend, to their friends. In his concurring opinion, Justice Alito further emphasized that religious speech, which lies “at the heart of the First Amendment,” enjoys significant constitutional protection and “is almost always beyond the regulatory authority of a public school.” 

Importance to Religious Liberty: 

  • Free speech: The freedom to speak is protected by the First Amendment to the Constitution. Government authorities do not have the ability to punish speech just because it is unpopular, controversial, or even unwise.  
  • Education: The Supreme Court has confirmed that Brandi Levy and students like her still have constitutional rights—even as minors attending high school. Parents, not public-school teachers, are responsible for the religious upbringing of their children. Giving government officials the ability to “veto” speech is detrimental to the healthy exchange of ideas and especially damaging to minorities with unpopular or unusual religious beliefs. 

Gateway City Church v. Newsom

U.S. Supreme Court ended California’s draconian worship ban

On February 5, 2021, the U.S. Supreme Court invalidated California’s complete ban on indoor worship. Previously, California had the most severe restrictions in the nation when it came to in-person worship, banning indoor worship altogether while allowing secular businesses like Hollywood film studios and big-box retailers to open. In South Bay II, the Supreme Court recognized that California’s total ban on worship violated freedom of religion.

In response to the Supreme Court decision, the very next day California lifted its ban on indoor worship, allowing churches to open with indoor worship at 25% of capacity.

Santa Clara County goes against U.S. Supreme Court

Churches across the state have opened for indoor worship, allowing churchgoers to gather together with proven safety precautions. But Santa Clara County refuses to comply with the Supreme Court’s decisions in South Bay II and Diocese of Brooklyn. Instead, the County has ordered all churches to remain closed through Lent and Easter, preventing people from gathering to worship together as their faiths demand.

Diocese of San José, with Becket’s help, files to support houses of worship

On February 24, 2021, Becket filed a friend-of-the-court brief on behalf of the Diocese of San José at the United States Supreme Court. Banning indoor worship is unconstitutional—and the Supreme Court has said so several times, but they repeated the message again on February 27, 2021, forcing Santa Clara County to drop its ban on worship and allowing the Diocese of San José to reopen churches for Lent and Easter worship.

Importance to Religious Liberty:  

Religious communities: Meeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to gather together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship.  

 

Apache Stronghold v. United States

Video: Apache sacred land threatened by mining in Arizona

A sacred site since time immemorial

Since before recorded history, Western Apaches have lived, worshipped on, and cared for Oak Flat and surrounding lands. Apaches believe that the Creator gives life to all things, including air, water, and the earth itself. Their religious and cultural identity is inextricably tied to the land, and Oak Flat has paramount significance for prayer and sacred ceremonies. Many of their most important religious practices must take place there, such as the coming-of-age Sunrise Ceremony for Apache women; sweat lodge ceremonies; gathering of sacred medicine plants, animals, and minerals; and the use of sacred waters. It is considered the direct corridor to Apache religion—recognized in the National Register of Historic Places and sometimes compared to Mount Sinai for Jews.

Broken promises

Unfortunately, the U.S. government has a sordid history of destroying Apaches’ lives and land for the sake of mining interests. In the 1870s, the federal government forced the Apache people onto the San Carlos Apache Indian Reservation and authorized miners to take Apache land. And although Oak Flat has been expressly protected from mining since the Eisenhower administration, mining companies still covet Oak Flat for a large copper deposit 7,000 feet below the surface.

Mining companies have long lobbied Congress to give them control of the land. One sponsor of a land-transfer bill was even convicted of soliciting a bribe from a mining company in exchange for his support. For many years, Congress refused, protecting the site from exploitation the same way it would preserve a historic, centuries-old church, mosque or synagogue. But in 2014, a last-minute rider was attached to a must-pass defense bill, ordering the land to be transferred to a foreign-owned mining company, Resolution Copper. The government admits the mine will destroy Oak Flat forever—obliterating the sacred ground in a nearly 2-mile-wide, 1,100-foot-deep crater, and making the Apaches’ religious practices impossible.

Seeking Justice

Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies dedicated to preserving Oak Flat—sued the government in federal court. They argued that the destruction of their sacred site violates the Religious Freedom Restoration Act (RFRA) and an 1852 treaty promising that the United States would protect their land and “secure the permanent prosperity and happiness” of the Apaches. After the trial court declined to halt the land transfer, Becket filed an emergency appeal to the Ninth Circuit Court of Appeals. Just six hours before the government’s response was due, the government announced that it would withdraw the environmental impact statement that triggered the land transfer, delaying the transfer for several months. On June 24, 2022, the Ninth Circuit Court of Appeals refused to protect Oak Flat, saying that the land transfer to Resolution Copper did not substantially burden the Apaches’ religious exercise. In a dissenting opinion, Judge Marsha Berzon called the ruling “absurd,” “illogical,” “disingenuous,” and “incoheren[t].”  

In November 2022, the Ninth Circuit agreed to rehear the case “en banc”––meaning in front of a full panel of eleven judges. Oral argument took place on March 21, 2023.

In addition to Becket, Apache Stronghold is represented by attorneys Michael Nixon and Clifford Levenson. 

Importance to Religious Liberty:

  • Individual Freedom: The government cannot take actions that prevent or burden the expression or pursuit of religious beliefs. Because each human has an individual right to follow the unique dictates of his conscience, religious freedom cannot be confined to the four walls of a church building. Individuals should be free to pursue their faith at all times without fear of government discrimination or penalty.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.
  • Religious Freedom Restoration Act: Passed by a bipartisan coalition in 1993, this legislation protects religious groups by requiring the government to show a compelling interest and use the least restrictive means possible when its actions would pose a substantial burden on religious exercise.
Photo © Robin Silver Photography

Dunn v. Smith

Leveling down to avoid religious accommodations

Until recently, Alabama required that a clergy member be present at the execution of a prisoner. But in 2019, the Alabama Department of Corrections abruptly changed its policy to instead ban all clergy members from the execution chamber in response to a Supreme Court ruling in a Texas prisoner’s case, Murphy v. Collier.

In the Texas case, Patrick Murphy was awaiting death by lethal injection, and his final request was for his Buddhist minister to pray with him at his execution. The state of Texas denied his request, arguing that his Buddhist minister was a security risk, even though the state allowed Christian ministers and Muslim imams into the chamber and the minister was a frequent chaplain to Texas prisoners. On March 28, 2019—two and a half hours after Murphy was scheduled to die—the Supreme Court stepped in and said that Texas could not go forward with the execution unless it granted Murphy access to his Buddhist spiritual advisor.

As a result of the Supreme Court’s decision, Texas and Alabama made an ugly move to avoid accommodating minority religions. Both states changed their policies to ban all clergy members from the execution chamber.

Defending the comfort of clergy in the death chamber

Fast forward to 2021. Alabama prisoner, Willie B. Smith was scheduled to be executed for his crimes on February 11, 2021. Smith’s minister, Pastor Robert Paul Wiley, Jr., attested that during his time in prison, Smith repented of his sins and developed a strong personal faith. Pastor Wiley has spent years ministering to Smith in prison. Smith asked that Pastor Wiley be allowed to accompany him in the execution chamber but, in accordance with Alabama’s new discriminatory policy, his request was denied.

Smith sued the state of Alabama for his right to be accompanied by his pastor at the moment of death. The district court ruled against Smith, but the United States Court of Appeals for the Eleventh Circuit ruled in his favor. Alabama appealed to the Supreme Court on February 11, 2021, the morning of Smith’s scheduled execution.

Becket filed a friend-of-the-court brief in support of Smith, arguing that 13 out of 20 prisoners executed in the United States over the past year were allowed to have a clergy member of their choice present in the execution chamber. If the federal government and other states have been able to offer this religious accommodation, so too should Alabama. The brief also argued that the Constitution requires more than equal, bad treatment for all faiths. It requires that all Americans, including prisoners, be accommodated in their religious exercise whenever possible.

Late on the night of February 11, 2021 the Supreme Court declined to disturb the court of appeals ruling that Alabama must allow Smith to be accompanied by his pastor in the execution chamber. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, agreed with the Court’s decision, writing that “past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber.”

Importance to Religious Liberty:

  • Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith.
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons.

Young Israel of Tampa v. Hillsborough Area Regional Transit Authority (HART)

A cherished community celebration  

Young Israel of Tampa is an Orthodox Jewish synagogue serving the growing Jewish population of Tampa, Florida. For decades, Young Israel has hosted many events to share the Jewish faith with the community—such as Chanukah celebrations, Passover Seders, and more.  

For the last fourteen years, Young Israel has hosted a community celebration called “Chanukah on Ice.” This family-friendly event features ice-skating, food, music, a raffle, and the lighting of an ice-sculpted menorah—one of the central symbols of Chanukah.  

Censoring religious speech 

In 2020, Rabbi Rivkin, vice president of Young Israel, sought to advertise Chanukah on Ice on a nearby bus route operated by the Hillsboro Area Regional Transit Authority (HART). The proposed advertisement included an image of a menorah and invited community members to enjoy “ice skating to Jewish music around the flaming menorah.”  

HART, however, refused to run the ad, stating that it “does not allow religious affiliation advertising, as well as banning adult, alcohol, tobacco, and political ads.” When Rabbi Rivkin appealed to HART’s CEO, he was told that Young Israel should strike central religious image from the ad and delete all reference to the lighting of the menorah—deeply offensive changes that were not possible for Young Israel to make.   

Discriminating against religion—because it’s religion—is illegal.  

HART’s ad policy is unconstitutional because it expressly discriminates against religion, banning religious speech on government property. It is also bad policy. It tells religious organizations that they are unwelcome in the public square, and it reinforces that message by grouping religious ads with ads promoting alcohol, tobacco, illegal drugs, obscenity, nudity, profanity, politics, pornography, discrimination, and violence. The First Amendment gives special protection to religion; Tampa tells religion it is unfit for public consumption.  

But this isn’t just about transit advertisements. It’s about whether religious messages belong in the public square at all. If religious speech can be banned from public transit, no principle stops bureaucrats from banning religious speech in public parks. Indeed, one of HART’s officials indicated that not even Reverend Martin Luther King Jr. would be allowed to advertise his messages of hope and equality with HART.   

On February 5, 2021, Young Israel filed a lawsuit against HART in the United States District Court for the Middle District of Florida. On January 26, 2022, the federal district court granted summary judgment to Young Israel. The court found that HART’s ban on religious advertisements was both discriminatory and standardless. The court also ordered that HART should no longer be allowed to ban ads that primarily promote religious faith or religious organizations. HART appealed the district court’s decision. The Eleventh Circuit Court of Appeals heard argument on April 19, 2023.   

Young Israel is represented by Becket, along with the Jewish Coalition for Religious Liberty and Holtzman Vogel, PLLC.   

Importance to Religious Liberty: 

  • Free speech: Freedom of speech is not only an inherent human right, but also a fundamental building block of our society. The First Amendment protects the right of religious organizations to participate in the public square—without fear that they must surrender their religious identity as a condition of speaking.  
  • Public square: Religious organizations are crucial to maintaining a free society. Government policies that presume religion does not belong in public life get our best traditions, our bedrock principles, exactly backward.  

South Bay United Pentecostal Church v. Newsom; Harvest Rock Church v. Newsom

The most extreme restrictions in the nation

Since March 4, 2020, houses of worship in California have been subject to a series of draconian restrictions that, with a few brief respites over the summer, have banned all indoor worship for months at a time. During this period, California permitted secular businesses—from Hollywood film studios to liquor stores and big-box retailers to nail salons—to remain open, some with percentage-of-occupancy caps and others with only distancing and masking requirements.

For months, non-essential retail, big-box, and department stores could open their doors to hundreds of mingling shoppers seeking retail therapy, but houses of worship couldn’t admit a single worshiper, even while following social distancing and masking requirements.

Fighting for the right to worship

In response to this disparate treatment, South Bay United Pentecostal Church sued Governor Gavin Newsom in May 2020, challenging this total ban on in-person worship. South Bay’s case went all the to the Supreme Court in an emergency posture, but initially resulted in a loss for the church with four Justices noting that they would have enjoined California’s restrictions.

Meanwhile, across the country, numerous states had been working cooperatively with religious organizations to find ways to conduct indoor religious worship services while still combating the COVID-19 pandemic. In fact, by late November of 2020, California stood alone in its absolute prohibition on indoor religious worship. Every other state permitted some form of indoor worship, with most states imposing no restrictions at all.

In November 2020, both Harvest Rock and South Bay brought renewed challenges to Governor Newsom’s restrictive orders, this time with a new arrow in their quiver: the Supreme Court had recently ruled, in Roman Catholic Diocese of Brooklyn v. Cuomo, that New York could not simultaneously allow “non-essential” retail stores to operate with percentage-of-occupancy caps (potentially opening their doors to hundreds of shoppers) while imposing 10- or 25-person hard caps on religious worship, regardless of the size of the religious worship space. Citing this recent decision, the Supreme Court sent Harvest Rock’s case back to the lower courts, telling the courts to reconsider their decisions upholding California’s complete ban on indoor worship.

When Harvest Rock went back before the U.S. Court of Appeals for the Ninth Circuit, Becket filed a friend-of-the-court brief explaining why the Supreme Court’s decision in Diocese of Brooklyn should control the outcome in this case. The right to worship, protected by the First Amendment, should not be treated less favorably than secular conduct like shopping at retail stores. Becket’s brief also explained that almost all states had moved from fixed, numerical caps on religious worship to percentage-of-occupancy caps that account for the size of the worship space. But the Ninth Circuit declined the Supreme Court’s invitation to reconsider its decision and again upheld California’s worst-in-the-nation treatment of religious worship. The churches therefore again sought relief from the Supreme Court.

Throwing open the doors of churches

On January 29, 2020, Becket filed a friend-of-the-court brief in support of South Bay and Harvest Rock at the Supreme Court. On February 5, 2021, the Supreme Court ruled that California could not enforce its discriminatory indoor worship ban against South Bay Pentecostal Church, Harvest Rock Church, and other houses of worship. As a result, California changed its unconstitutional worship restrictions the very next day.

 

Importance to Religious Liberty: 

  • Religious Communities: Meeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to assemble together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship.

Roman Catholic Archbishop of Washington v. Bowser

A beacon of hope in dark times 

The Catholics of the D.C. area have served others since 1794. Just as it had during past crises, the Archdiocese of Washington rose to meet the challenges of the COVID-19 pandemic. In March, it voluntarily suspended worship services, but its charitable arm, Catholic Charities, worked ceaselessly, providing over 1 million meals as the crisis increased need, with a Catholic Charities in Columbia Heights now serving 650 people a week, up from the 40-person pre-pandemic weekly average. 

When the Archdiocese reopened churches in the summer, it instituted a series of stringent preventative measures to ensure its worship services were not virus spreading events. The Archdiocese’s plan – which was devised from the gold-standard recommendations of doctors at top universities and hospitals – was extremely effective, and although thousands of Masses have been celebrated since Catholic churches in the diocese have reopened their doors, they have not resulted in a single known COVID outbreak.  

No room for worshipers in the church?  

During the week of Thanksgiving, D.C. Mayor Muriel Bowser issued an executive order that lowered in-person attendance at church services to a hard cap of 50 people. When the new order went into effect on the day before Thanksgiving, it did not hamper the operations of restaurants, retail chains, public libraries, or many other establishments. However, it impacted the Archdiocese severely. Half of the Archdiocese’s churches in Washington, D.C., can accommodate 500 people, and the largest Catholic church in the United States, the Basilica of the National Shrine of the Immaculate Conception, is located in the District. These churches have more than enough room to hold hundreds of worshippers safely while following the social-distancing and disinfection protocols that have proven to be effective. And if the Basilica were a gym instead of a church, the executive order would allow it to bring in 600 people – but because it was a church, it is subjected to the same fifty-person cap that much smaller buildings were.  

However, when the Archdiocese repeatedly reached out to the Mayor to request a more reasonable regulation, it was rebuffed. With Christmas just around the corner, the Archdiocese brought the case to a federal court, in hopes of finding a more equitable treatment for the Archdiocese’s 655,000 parishioners in time for Christmas. In response to the litigation, the Mayor agreed to raise the cap for houses of worship to 250 people, and a federal judge later struck the arbitrary caps down, finding that they did not have “adequate consideration for constitutional rights.”

The Archdiocese of Washington is represented by Becket and Jones Day LLP.  

Importance to Religious Liberty: 

  • Individual freedom: individuals have the right to act in accordance to their religious convictions – and this includes the right to gather together and celebrate holy days and engage in communal worship and prayer without being singled out for unfair treatment or subjected to coercion by the government.  

Danville Christian Academy v. Beshear

Preserving public health while pursuing academic excellence  

Danville Christian Academy, located in Danville, Kentucky, is a Christian educational institution serving students from preschool through grade 12. The mission of Danville Christian is “to mold Christ-like scholars, leaders, and servants who will advance the Kingdom of God.” In order to do so, Danville Christian believes that “its students should be educated with a Christian worldview in a communal, in-person environment.” 

In response to COVID-19, Danville Christian Academy has gone to great lengths to ensure the health and safety of students and families, as well as the broader community, by following the recommendations of local and national health officials. Over the summer, the school spent over $20,000 implementing safety procedures and equipping its facilities for safe, in-person instruction. As a result of Danville Christian’s rigorous efforts, since reopening in August, only a handful of students and staff have tested positive for COVID-19, thus confirming that the school’s strict health and safety precautions have been working. 

Denying educational opportunities  

On November 18, 2020, eight months after the initial outbreak of COVID-19 in the United States, Kentucky Governor Andy Beshear issued two executive orders. The first required all elementary, middle, and high schools to cease in-person instruction and transition to virtual learning. In stark contrast, the second issued guidance permitting most other in-person activities and indoor gatherings to continue, with certain capacity restrictions. Those businesses permitted to remain open included daycares, preschools, colleges and universities, and even gyms, bowling allies, theaters, and gambling venues such as racetracks.  

As a result of this unequal treatment, retailers saw large Black Friday crowds and the University of Louisville has played football games in front of crowds numbering in the thousands. Meanwhile school-aged students, who are at a reduced risk of contracting and transmitting the COVID-19 virus, are kept from vital in-person instruction—despite the fact that all classes at Danville Christian would satisfy the same 25-person capacity restrictions imposed on certain other businesses. 

The result of the Governor’s unequal treatment of schools is even more troubling for private religious schools. The Governor’s actions deny religious communities the right to effectively pass down their faith to the next generation of believers. At Danville Christian, for instance, students are missing out on in-person chapel services, religious instruction, and other communal events that cannot be translated into an on-line format.  In July 2020, the Supreme Court emphasized the fundamental right of religious communities to pass on the faith to the next generation through religious education in its decision in Our Lady of Guadalupe v. Morrissey-Berru. The Court’s opinion specifically highlighted “the close connection that religious institutions draw between their central purpose and educating the young in the faith,” the very interest raised here. 

Vindicating the right to religious education  

On November 20, 2020, Danville Christian Academy filed a lawsuit against Governor Beshear, challenging his restrictions on religious education. The federal district court ruled in favor of Danville Christian, but Governor Beshear appealed to the U.S. Court of Appeals for the Sixth Circuit, which permitted enforcement of the Governor’s order.  

On November 30, 2020, Danville Christian Academy filed an emergency application with the Supreme Court to protect it from the Governor’s arbitrary closure of only primary and secondary schools, while permitting other larger group gatherings. Becket filed a friend-of-the-court brief in support of Danville Christian arguing that the Governor’s order must be subject to stringent judicial review because it interferes with the fundamental right of parents to direct the religious education of their children.

On December 17, 2020, the Supreme Court denied Danville Christian’s request for emergency relief, citing the “timing and impending expiration” of Kentucky’s school closing order. The Court’s opinion nevertheless noted the important First Amendment interests at stake, and highlighted the constitutionally protected parental rights raised in Becket’s brief.

Importance to Religious Liberty: 

  • Religious Communities: Religious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like Danville Christian Academy, which exist to transmit the Christian faith to the next generation, are constitutionally protected from government restrictions that deny them their fundamental right to provide religious education.  

Agudath Israel of America v. Cuomo

Can Governor Cuomo target New York City’s Jewish communities?

Governor Cuomo openly singled out Jewish synagogues like Agudath Israel’s for disfavored treatment,  claiming  that “because of their [Orthodox Jews’] religious practices, etc., we’re seeing a spread [of COVID-19]” and threatened to “close the [Orthodox Jewish religious] institutions down.” Although Governor Cuomo openly admitted the supposedly elevated rates of COVID-19 would not be considered serious in many other states, he drew restrictive “Red” lockdown zones around predominately Orthodox Jewish parts of New York City. These zones heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers. Far from being scientifically justifiable, Cuomo himself has admitted that his drastic actions were taken out of a concern for public opinion, not public health, saying the lockdown zones were “a fear driven response” and admitting “this is not a policy being written by a scalpel, this is a policy being cut by a hatchet.” As a result, a Brooklyn federal judge found that “the Governor of New York made remarkably clear that this Order was intended to target [Orthodox Jewish] institutions.”

Standing up for equal treatment

In response to this unfair treatment, Agudath Israel filed a lawsuit in federal court on October 8, arguing that the discriminatory nature of Cuomo’s “cluster action initiative” rendered it unconstitutional. After the district court denied an immediate injunction, Agudath appealed to the Court of Appeals for the Second Circuit for an emergency ruling protecting them while the case was being argued in the lower court. On November 9, 2020, the Second Circuit declined, in a 2-1 decision, to stop the restrictions before the case was argued, with Judge Park dissenting. However, recognizing the importance of the case, the Court fast-tracked that briefing and argument in the case. 

On November 16, 2020, Becket, along with co-counsel Troutman Pepper Hamilton Sanders LLP, asked the Supreme Court to issue an emergency injunction halting Governor Cuomo’s discriminatory regulations until the case was decided. Pointing to Cuomo’s own admissions of targeting Orthodox Jews, the fact that the governor’s lockdown zones restricted Orthodox Jewish communities more harshly than other communities with equivalent or higher rates of COVID-19 infection, and the Supreme Court’s robust precedent protecting religious groups from hostile discrimination, Becket asked the Supreme Court to lift the governor’s restrictive “religious gerrymander” until the case was decided in court. On November 25, the Supreme Court granted the injunction, finding that Governor Cuomo’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community,’” that there was no evidence that the houses of worship who brought the case had contributed to the spread of disease, and that the regulations violated the First Amendment by privileging secular activities over religious exercise.

The Court’s opinion made clear that “…even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On December 28, 2020 the United States Court of Appeals for the Second Circuit ruled 3-0 in favor of Agudath Israel, halting Governor Cuomo’s 10- and 25-person caps on religious worship while the case is pending.

Lebovits v. Cuomo

A long-standing Jewish tradition 

Opened in 2012, Bais Yaakov Ateres Miriam is an Orthodox Jewish girls’ school in Far Rockaway, New York City, that stands in a long tradition of Jewish schools founded to teach young women about their faith. The first Bais Yaakov school was founded in 1917 in Poland, to provide an alternative to secular education that did not support and educate young Jewish women on the history and traditions of their faith. Today, BYAM celebrates Jewish holidays, holds communal prayers, and engages in group projects and exegetical debates—activities that are central to the traditions of Orthodox Judaism.  

Yitzchok and Chana Lebovits moved to their current home precisely because they wanted to give their girls a great Jewish education at BYAM. But without the opportunity to embrace their unique cultural, linguistic and religious heritage—teaching and learning that can only properly be done in-person—the Lebovits girls and other young Jewish girls are deprived of an irreplaceable opportunity to learn and live out their faith. Yitzchok and Chana are being hindered in passing on their Jewish beliefs and practices on to their daughters.  

In March, BYAM voluntarily transitioned to remote learning to protect their neighbors and in compliance with the law. In the months that followed the school spent thousands of dollars equipping the entire school with Wi-Fi, purchasing additional laptops and tablets for teachers to use while offering remote instruction, and to pay for transportation for teachers who would normally use buses to get to school. Nevertheless, remote learning proved to be a poor substitute for in-person instruction. As the state began to reopen over the summer, BYAM looked forward to opening safely, responsibly and cooperatively.  

And it did just that. In the first month of school, BYAM handed out hundreds of masks and implemented many safety and hygiene protocols to ensure the safety of students and community members, including social distancing and daily temperature checks. The happy result of those comprehensive efforts has been zero cases of COVID-19 in the school. BYAM has thus become a safe haven for girls to gather and learn about their religious heritage.   

Cuomo and de Blasio crack down on Jews 

Unfortunately, the Orthodox Jewish community in New York City has been singled out by the government as the scapegoats for COVID-19 spread since the beginning of the pandemic. In April of 2020, Mayor de Blasio dispersed a Jewish funeral and then threatened them with law enforcement. During the subsequent summer – while Governor Cuomo and Mayor de Blasio praised nearby mass protests, Jewish families were ousted from Brooklyn parks by the New York Police Department acting at the behest of the Mayor.   

But, despite doing everything right, BYAM has been caught in New York Governor Andrew Cuomo’s crusade against Orthodox Jewish neighborhoods in Brooklyn. After months of scapegoating Jews for coronavirus infections in New York City, in late September/early October 2020 Cuomo and de Blasio announced a plan to target “microclusters” of COVID-infections in New York City by locking down Jewish neighborhoods and schools. On October 6 – just before three important Jewish holy days – Governor Cuomo issued an executive order that shut impending Jewish celebrations down, claiming that mildly elevated rates of positive coronavirus tests justified extraordinary emergency powers, while at the same time admitting that those elevated rates “would be a safe zone” in many other states.  

Remarkably, by Cuomo’s own admission, schools are not significant spreaders of COVID-19, and the new policy was not driven by science but was made from “fear.” 

Protecting the fundamental right of religious education

Remote learning has taken a serious toll on the educational opportunities for the Lebovits girls and other BYAM students. Teachers have reported alarming regression in reading skills, had to reteach prayers, and are requesting last year’s math textbooks. In many cases, students have tested a full year below grade level in both Hebrew and English reading.  

The government’s attempt to close BYAM is a direct threat to the future of the Jewish faith tradition that Bais Yaakov schools have been teaching for over a hundred years. By putting Jewish religious education on hold indefinitely, Governor Cuomo and Mayor de Blasio weren’t just halting educational growth, they were stifling the religious exercise of Jewish families, and depriving the Lebovits girls of part of their childhood. 

Becket and the Jewish Coalition for Religious Liberty represented the Lebovits family and BYAM in the federal District Court for the Northern District of New York, where the school asked the court to protect BYAM from future bigotry and to hold Cuomo and de Blasio accountable for violating their First Amendment rights. Shortly after Becket filed the lawsuit, Cuomo reversed his policy and allowed Bais Yaakov Ateres Miriam and other schools in its Far Rockaway neighborhood to open. The case was settled out of court.  

Importance to Religious Liberty: 

  • Religious Communities: Religious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like BYAM, which help preserve the Jewish faith and instill Jewish values in the next generation, are constitutionally protected from government restrictions that single them out for unfair treatment.  

Capitol Hill Baptist Church v. Bowser

Protecting the health and safety of our communities

Since March 2020, Americans have made great sacrifices to contain the COVID-19 pandemic. One of the most significant sacrifices has been the suspension of in-person worship. Across the country, churches like Capitol Hill Baptist Church voluntarily took necessary steps to protect the health and safety of their congregations and communities.

Since March, Americans have learned much about the virus and how to prevent its spread. In response, 42 states across the country have correctly loosened restrictions on in-person worship, allowing churches to responsibly resume their free exercise of faith, and imposing no capacity limit on outdoor services as long as worshipers wear masks and practice proper social distancing.

Religious worship held to a double standard

In March, Washington D.C., like so many other cities, imposed restrictions on public worship for the sake of public health. But, six months later, D.C. stands as an outlier amongst states and localities across the country because it continues to restrict in-person worship to no more than 100 people even if services are held outside and masking and proper social distancing are employed.

Meanwhile, the District has been a hotbed for protest, including gatherings of thousands (and even tens of thousands) of citizens to protest the death of George Floyd and advocate for racial justice. Mayor Muriel Bowser has not only encouraged, but participated in these protests, all the while keeping in place restrictions on in-person worship.

Capitol Hill Baptist Church’s religious convictions put weekly in-person gatherings of the entire congregation for worship front-and-center. For this faith community, virtual worship is not an option. Capitol Hill Baptist Church takes no issue with the demonstrators or their right to freely protest—in fact many congregation members have participated in peaceful, religious demonstrations—it simply asks that its First Amendment rights be similarly respected.

Even-handed application of the Constitution

In June 2020, Capitol Hill Baptist Church applied for a waiver from the City’s restrictive policy against large gatherings, with the intention of holding outdoor services with appropriate safety precautions. In September, the church reapplied for the waiver. In September 2020 the City denied the church’s application.

On September 22, 2020 Capitol Hill Baptist Church filed a lawsuit against Mayor Bowser asking that its constitutional right to freely exercise its faith be respected in same way as the protestors’ right to freedom of speech. On October 6, 2020 Becket filed a friend-of-the-court brief in support of Capitol Hill Baptist Church, arguing that the City must provide a compelling reason to maintain its 100-person limit on outdoor, masked, and socially distanced religious gatherings even though it’s a national outlier, and even though the restrictions are not being applied evenly. A federal district court ruled in the church’s favor on October 9, 2020, allowing the church to gather for worship in a safe, socially-distanced outdoor setting.

Importance to Religious Liberty:

  • Religious Communities—The First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When churches are given a special disability not felt by non-religious entities, the government is violating the Free Exercise Clause by burdening religious practice.

Demkovich v. St. Andrew the Apostle Parish

Walking with the Church

St. Andrew the Apostle Parish has been serving a Polish immigrant neighborhood in the city of Chicago for over 120 years. As part of the Archdiocese of Chicago, St. Andrew Parish is dedicated to ministering to all Catholics, including LGBTQ Catholics seeking to walk with the Church.

For over 25 years, the Archdiocesan Gay and Lesbian Outreach (AGLO) has been a community of accompaniment that seeks to meet LGBTQ people where they are. During the AIDS epidemic, AGLO worked closely with the Catholic Charities HIV/AIDS ministries and generously contributed its time, money, and prayer to help the afflicted and offer them hope in the face of a terrible disease. Today, AGLO offers weekly Mass and Sacraments, retreats and days of reflection, and prayer and discussion groups to help LGBTQ Catholics find a place of pastoral outreach in the Church.

Violating Church Teachings

Sandor Demkovich was hired by St. Andrew Parish in 2012. During his time with St. Andrew, Mr. Demkovich served as music director, choir director and organist. These positions are important roles within the religious life of the parish. As music director, Mr. Demkovich shared the Catholic faith with members of the parish through music—he helped select scripturally appropriate music for Masses and other important sacraments, played the organ during services, and helped lead the congregation in singing hymns.

As a minister of the faith and a representative of the parish, Mr. Demkovich was responsible for upholding the teachings of the faith in word and action. But in 2014, after working at the parish for two years, the parish was required to end Mr. Demkovich’s participation in its ministry because he entered into a same-sex marriage in violation of his agreement to bear witness to and promote the Church’s 2,000-year-old teachings, including those on marriage.

Ignoring the ministerial exception

In December 2016, Mr. Demkovich sued St. Andrew Parish and the Archdiocese of Chicago, claiming that he had been discriminated against because of his sexual orientation and subjected to a hostile work environment.

The district court allowed some of Mr. Demkovich’s claims against the Archdiocese to proceed, even though Mr. Demkovich admitted that the religious importance of his position at the parish made him a minister. In August 2020, a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit also ruled against the Archdiocese. The ruling conflicted with previous Seventh Circuit decisions, rulings of other federal circuits, and the Supreme Court’s just-issued decision in Our Lady of Guadalupe v. Morrissey-Berru, in which the Supreme Court affirmed the right of churches to select and supervise their leaders and ministers free from government interference. 

The Archdiocese of Chicago, represented by Becket, asked the entire 11-judge Seventh Circuit to reconsider the panel’s decision.  The court agreed, with one judge recused, and heard arguments on February 9, 2021.  

On July 9, 2021, the Seventh Circuit ruled 7-3 to reverse its previous decision and declare that the “ministerial exception” protects the entire ministerial relationship and not just the beginning or end.  

Plaintiff chose not to seek Supreme Court review, ending the case in favor of St. Andrew the Apostle Parish.

The Archdiocese of Chicago is also represented by its general counsel, Jim Geoly, who presented oral argument before the panel and the en banc court, and by Alex Marks at Burke, Warren, MacKay & Serritella, P.C. 

Importance to Religious Liberty:

Uzuegbunam v. Preczewski

Sharing his faith in Jesus

Chike Uzuegbunam, the son of Nigerian immigrant parents and a man of faith, was a student at Georgia Gwinnett College. As a junior in 2016, Chike began sharing a message about Jesus’ love in a plaza outside of the school’s library. “All I wanted to do was share with other students the faith that changed my life,” Chike said.

Threatened with arrest for sharing his faith

Although he wasn’t disturbing anyone, Chike was stopped by campus officials, who told him that he could only distribute literature in a designated “speech zone,” – two tiny areas making up less than 0.0015% of the campus. Chike complied with the policy and reserved a speech zone, but when he tried to speak again, he was silenced by campus police, who threatened to arrest him for “disturbing the peace” if he continued publicly sharing his faith.

Not only was Georgia Gwinnett’s policy – confining free expression to two tiny zones – ridiculous, it was also enforced in a discriminatory fashion. Chike was threatened with arrest for quietly talking with other students who were interested in his message, but university officials allowed other students to talk and play loud music in public areas without silencing them.

Threatened for sharing his faith and speaking his mind, Chike was determined that others—including his friend Joseph Bradford, who had planned to follow Chike’s example until Chike was silenced—should not have to go through the same experience. Chike filed a lawsuit against Georgia Gwinnett.

Holding the government accountable

As a public university, Georgia Gwinnett should have followed the Constitution and allowed Chike to speak. But Georgia Gwinnett’s lawyers still fought to defend their unconstitutional policy in court. Then, Georgia Gwinnett unexpectedly dropped its policy and argued that Chike’s case should be dismissed as “moot” because he had graduated—and that the court should never decide whether the college had violated the law.

Since large government bureaucracies like universities and prisons often use this tactic to avoid facing judgment, Chike was prepared. He had included a request for a small amount of money – “nominal damages”—so that the court could still give justice to Chike even if his case took years to resolve. But the district court still dismissed Chike’s case. The Eleventh Circuit affirmed, breaking with every other U.S. Court of Appeals to hold that, if he wanted justice, Chike should have asked for more money, in the form of “compensatory damages.”

Governments should not be allowed to evade accountability by changing their unconstitutional policies after the fact and then using technical loopholes (like whether the plaintiffs have asked for nominal vs. compensatory damages) to avoid facing justice for their past actions.

On September 29, 2020, Becket filed a friend-of-the-court brief arguing that governments should not be allowed to evade accountability by changing their unconstitutional policies after the fact and then using technical loopholes (like whether the plaintiffs have asked for nominal vs. compensatory damages) to avoid facing justice for their past actions. Becket, which frequently represents people seeking to practice their faith in prison, pointed out that in many cases, federal law forbids inmates from bringing the kind of compensatory damages claims that the Eleventh Circuit requires.

Now the Supreme Court will decide whether the government can get away with bad behavior just by pretending to get the picture, or whether Chike and others like him can receive justice when the government violates their fundamental rights.

Importance to Religious Liberty:

  • Free speech: Free speech is an important human right – and an important constitutional right as well. Unaccountable bureaucrats should not be able to stifle free speech, even – and especially – if the views expressed are unpopular, controversial, or simply disfavored by the government.
  • Public square: Religious exercise is an important part of being human, and as such it has a valuable place in the public square. Religious speech should be protected and cherished, the same as any other form of expression.
  • Education: Students like Chike Uzuegbunam don’t give up their rights when they attend a public college. Establishments of higher education are meant to be places of free and open inquiry, not government inquisition.

Woodring v. Jackson County

A multi-denominational coalition that serves its community and brings people together

The Brownstown Area Ministerial Association is a coalition of diverse Christian ministers in Jackson County, Indiana, that serves its community through prayer, fellowship, outreach, and direct aid. Twice each year, the Ministerial Association holds services to encourage Christian fellowship and raise funds for its direct aid program, which includes a community food pantry and direct aid for those who need temporary assistance with rent, mortgage, and utility bills.

In 2003, the Ministerial Association purchased, with broad community support, a nativity scene to display in front of the Jackson County Courthouse during the Christmas season. In addition to commemorating the Christmas season, over the years the nativity scene has become a staple in the local “Hometown Christmas celebration.” And the area around the display—replete with a Christmas tree, presents, and numerous other holiday fixtures—serves as a gathering place for the community, encouraging people to socialize and support nearby local businesses (the Chamber of Commerce is even a sponsor).

A longstanding tradition at risk

For almost two decades, the Brownstown nativity scene has been displayed without incident. But in 2018, the Freedom From Religion Foundation sent a letter to the county asking for the nativity to be removed because of its religious symbolism. Not long after, the ACLU of Indiana sued the county on behalf of an out-of-town individual who passed by the display and felt offended by it.

On April 29, 2020, the district court ruled against Jackson County, holding that the display violated the Establishment Clause. The County appealed to the Seventh Circuit.

Recognizing the role of religion in our nation’s traditions—past and present

 On August 5, 2020, Becket filed a friend-of-the-court brief on behalf of the Ministerial Association, owners of the nativity scene. The brief explains why the First Amendment permits the government to include religious symbols and practices in its annual holiday traditions—because they are a part of our nation’s rich religious history that has long been celebrated in Jackson County. Requiring governments to strip the religious elements from Christmas and to only celebrating the secular would not only deny the religious roots of the holiday, it would sanction government hostility to religion by favoring the non-religious over the religious.

In striking down the display, the district court applied the much criticized and now specifically rejected  Lemon test. But, as Becket’s brief explains, the Supreme Court held in American Legion v. American Humanist Association (June 20, 2019) that the Lemon test no longer applies to religious displays. Instead, the Establishment Clause must be interpreted to allow governments to celebrate our history and traditions—not to scrub the public square of religious imagery. Since American Legion, three courts of appeals have affirmed this principle (twice in Becket’s own cases); the Seventh Circuit will likely be the fourth.

Importance to Religious Liberty:

  • Public square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious. Instead, the government can and should recognize the important role of religion in our history and culture.

Katsareas v. United States Navy

How does an Australian living in Qatar decide to enlist in the United States military?  

When Leo Katsareas was a teenager in Australia, he found himself drawn to Islam as a path to Providence and a vehicle for protecting the inalienable rights of others and opposing all forms of oppression. At age sixteen, he converted and began living as a practicing Muslim. Later, as a young adult living abroad, Leo studied the American founding era, reading the texts of the Founding Fathers and the United States Constitution. He fell in love with America’s history, its principles, and particularly its commitment to freedom. He vowed to one day come to the United States and serve in the military.

Since then, Leo has done just that. After immigrating to the United States, he spent time working for the government, defending the American people and the freedom he loves by helping uncover and prevent significant terrorist threats both domestically and abroad. In 2016, he joined the United States military as he had promised, enlisting in the Navy. In his years of service, Leo has served on ships domestically and internationally becoming a Mass Communication Specialist in 2019. He works tirelessly for his adopted country while living out his Islamic faith.

 
A call to serve God and a call to serve Country  

A convert to Islam, Leo Katsareas believes that his faith requires him to wear a four-inch beard. This belief has led him to consistently seek accommodations from the Navy’s strict grooming policies. While on a ship in the Red Sea, MC3 Katsareas received a temporary “chit” — a note of permission — that allowed him to keep a beard. And at his last duty station, his commanding officers granted him a partial, quarter-inch accommodation, consistent with the exemptions given to those with medical needs. However, he was told that even this limited permission was not permanent, and he would need to reapply at any future stations of duty.

Grooming policies of the United States Military are designed to prevent safety threats and ensure that uniforms aren’t compromised. In the case of a fire on a ship, for example, Navy personnel might need to quickly don effective masks. MC3 Katsareas agrees that in a life or death situation, he may have to shave his beard and is willing to do so in the interests of his own safety and that of his fellow Sailors. However, he has been able to wear a mask with no issue, including during combat actions in 2016, where he was assigned to his ship’s firefighting party when it came under guided missile fire by Houthi insurgents in Yemen, as well as in other firefighting training situations. Additionally, in recent years the Army and Air Force have both updated their grooming policies in recent years to accommodate religious minorities. The Navy has failed to keep up.

Despite the absence of significant safety concerns that can’t be worked around, and despite broad religious accommodations granted by the other branches of the United States military, the Navy initially denied MC3 Katsareas’s recent request for a full accommodation that would allow him to grow a substantial beard in accordance with his Islamic faith. With Becket’s help, MC3 Katsareas launched an internal appeal of the Navy’s denial, seeking to defend the American freedom he fell in love with: the right to practice one’s religion in the public square, including while serving one’s country.

Protecting religious minorities from unjust exclusion 

In April 2020, the Navy denied Leo’s seventh request for an accommodation for a fist-length beard. In May 2020, Leo appealed the denial, represented by Becket. On July 15, 2020, the Navy reconsidered and granted Leo a temporary, revocable accommodation, informing him that he can maintain his full religiously motivated beard and remain in good standing with the United States Navy while in his current duty assignment. In doing so, the Navy acted in accordance with the accommodation policies of other branches of the military and the Religious Freedom Restoration Act (RFRA).

Passed by a bipartisan Congress and signed by President Clinton in 1993 with the support of an extensive coalition of religious and civil rights leaders, RFRA prohibits the military from suppressing an individual’s sincere religious exercise without a compelling government reason.

Becket has successfully defended members of the U.S. military seeking religious accommodations a number of times. In 2015, Becket filed suit alongside the Sikh Coalition and the law firm McDermott Will & Emery on behalf of Captain Simratpal “Simmer” Singh, a committed Sikh and long-time captain in the U.S. Army, in Singh v. Carter, securing him temporary protections for his religious beard and turban. Becket filed a similar suit in 2016 in Singh v. McConville, representing three Sikh servicemen in the Army also seeking to serve without abandoning the marks of their faith. In response to the court ruling in Singh v. Carter and the suit in Singh v. McConville, the Army issued new regulations in 2017 stating that Sikh soldiers would not be forced to abandon articles of their faith throughout their military careers, thus making the victory for religious minorities serving their country a permanent one. Despite the Army’s new regulations, West Point did not automatically accommodate the religious beliefs of its cadets. In August 2017, Becket filed a lawsuit on behalf of two Sikh cadets slated to attend West Point. In court, West Point admitted that it did not have a compelling reason to deny Sikhs the ability to serve, and issued new guidelines that would allow Sikh cadets to maintain their articles of faith while serving at the Academy.

The Navy ought to follow the example of the Army and Air Force and America’s founding principles in recognizing and accommodating the religious belief of its service members and protecting the place of religion in the public square for all Americans. Service to country need not prevent service to God.

Importance to Religious Liberty: 

Individual freedom: An individual’s religious exercise encompasses more than just belief or worship — it involves visibly practicing the signs of one’s faith. Religious freedom protects the rights of individuals to observe their faith at all times — including while defending the freedom of all Americans by serving in the armed forces.  

Public Square: Religion is natural to human beings and to human culture. Because of this, religious expression cannot be limited to the private sphere, but can, and should, have a place in the public square.  

RFRA: The government — and, consequently, the military — cannot burden religious exercise of individuals or groups to violate their deeply held beliefs without compelling interest or when there are reasonable alternatives. 

Dalberiste v. GLE Associates

A commitment to the Sabbath

Abstaining from work on a “Sabbath” ordained by God is a religious practice that is important to people of many faiths—but particularly to Seventh-day Adventists, as indicated by their name. For Mitche Dalberiste, an environmental technician, this means retreating from the distractions of everyday life to spend time with family, serve his community, and worship God.

In June 2016, Mr. Dalberiste was hired by GLE Associates for a job as an industrial hygiene technician. During the onboarding process when he called to discuss training and his work schedule, he disclosed to his supervisor that, as a practicing Seventh-day Adventist, his religious beliefs barred him from working from sundown Friday to sundown Saturday. Mr. Dalberiste requested a religious accommodation only from work on his Sabbath, and was willing to work during all other times of the week, including late nights and Sunday.

Denied employment for religious reasons

The next day, Mr. Dalberiste’s job offer was rescinded in response to his request for a religious accommodation, without any inquiry into whether an accommodation was practical or what weekend times Mr. Dalberiste could work. This loss was all the more abrupt because GLE Associates had never in the hiring process specified that its role was unavailable to someone only available for part of the weekend.

To someone reading federal law for the first time, GLE Associates’ decision seems unusual. Title VII of the Civil Rights Act bars employers of significant size—like GLE Associates—from discriminating on a number of bases, such as race, sex, and religious practice. The law specifies that these employers are required to “reasonably accommodate” religious practice, unless it would cause serious disruption (“undue hardship”) to the business. Yet GLE Associates did not even try to find an accommodation. Why?

A poor judgment

The answer is found in a 1977 Supreme Court decision. In Trans World Airlines v. Hardison, the Court concluded that employers may deny employees religious accommodation if the accommodation imposes so much as a minor strain on the employer. Under this standard, employers like GLE Associates are given the option to reject a religious accommodation over something as trivial as having to change work shifts.

This standard poses a serious burden to the free exercise of American workers, and mainly those Americans who practice minority faiths or hold different or unpopular beliefs. And the Department of Justice recently called for the Court to revisit this standard, stating that Hardison’s rule is both “incorrect” and “irreconcilable” with the Court’s more recent decision in EEOC v. Abercrombie & Fitch Stores, where Becket became involved to defend a Muslim woman denied a job due to her religious practice of wearing a headscarf.

The chance to right a wrong

In 2016, Mr. Dalberiste sued GLE Associates in Florida federal district court, seeking to defend his right to earn an honest livelihood while following his deeply held religious convictions. However, because of Hardison, the district court and appeals court were compelled to side with GLE Associates.

Along with its partners—the Seventh-day Adventist Church and Gene Schaerr of Schaerr | Jaffe—Becket asked the Supreme Court of the United States to correct its mistaken view in Hardison and restore religious liberty to its proper place in employment law. No American should have to choose between providing for his family and practicing a central tenet of its faith. The Supreme Court was asked to clarify that employers must reasonably accommodate sincere religious practice, just as they do other protected characteristics like disability. The Court denied review of Mr. Dalberiste’s case on April 5, 2021.

Importance to Religious Liberty:

  • Individual Freedom: Religious exercise encompasses more than just thought or worship—it involves visibly practicing faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs.

Wisconsin Churches Reopen

Houses of Worship are Essential

The Catholic Diocese of Madison has been committed to preserving the health and safety of its community members throughout the coronavirus pandemic, voluntarily suspending public masses before it was mandated by the state and generally cooperating with the directives of the local and state health officials from the beginning. They have not neglected their Christian duty either, heroically springing into action to provide remote schooling, care for the sick and dying in Catholic hospitals, and continue serving the hungry, uninsured and incarcerated.

On May 18, 2020, Madison/Dane County officials put out an order listing houses of worship as “essential services” and thus allowing them to resume holding in-person services at 25 percent capacity. The Diocese of Madison got straight to work to put together a plan for safely reopening with appropriate social distancing and hygiene protocol.

Dashed expectations

But just when members of the Catholic community thought that they would finally receive the spiritual solace and healing they’d been craving, Madison/Dane County pulled the rug out from under the Diocese. After the Diocese published its safe reopening plan, on May 22, 2020, Madison/Dane County put out a new order capping in-person worship services at 50 people. This new order meant that some Catholic churches in Madison would be limited to less than five percent capacity, while shopping malls, bars, restaurants, spas, gyms, salons, museums, movie theaters, community centers, bowling alleys, skating rinks, trampoline parks and more were free to open at 25 percent capacity.

Following the May 22 order, the Madison/Dane County Health Department contacted Diocesan officials and parishes to inform them that overseers would be sent to churches and fines of up to $1000 would be imposed for every instance in which more than 50 people were gathered for Mass.

Constitutional consequences

On June 3, 2020, Becket, Sidley Austin LLP, and Troutman Sanders LLP sent a letter to County Executive Parisi and Mayor Rhodes-Conway explaining that the 50-person cap is unconstitutional and illegal. On June 5, 2020 Mayor Rhodes-Conway and County Executive Parisi released a new “Forward Dane” executive order returning houses of worship to equal footing with secular services at 25 percent capacity for in-person worship services.

Importance to Religious Liberty:

  • Religious communities—The First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When churches are given a special disability not felt by secular entities, the government is violating the Free Exercise Clause by burdening religious practice.

Minnesota Churches’ Challenge to COVID-19 Executive Order


Leaders in protecting public health  

Throughout the coronavirus pandemic, the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota have been leaders in protecting public health. They voluntarily suspended in-person services to prevent the spread of COVID-19 well before statewide stay-at-home orders came into effect. Since then, these faith communities have been ministering to their communities any way they can—serving meals to the homeless, donating medical supplies, accompanying the elderly, and raising money for those in need.

Aware of the deep spiritual, mental, and emotional loss that comes from being deprived of in-person worship, on May 7 the churches presented Governor Walz with proposed protocols for resuming in-person worship services in line with the recommendations of the World Health Organization and United States Centers for Disease Control and Prevention. On May 13, Governor Walz issued an executive order allowing retailers to open their doors to fifty percent capacity, businesses—from pet-grooming services to medical cannabis operations—to resume in-person work, and even announced a phased plan for reopening bars and restaurants. In-person worship, however, remained banned beyond ten people. No guidance or plans for reopening were announced.

This meant that while the Mall of America could open its doors to those seeking retail therapy, houses of worship were barred from providing spiritual healing to their congregations.

Retail therapy, but no spiritual healing

The Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota remain committed to mitigating the risk of spreading coronavirus in their congregations and communities by instituting rigorous social distancing and hygiene protocols to prevent the spread of coronavirus. But, if the state deems the risk low enough to reopen non-essential businesses, why should religious communities be forced to comply with a ten-person limit?

Acting in defense of religious liberty

After weeks of negotiation between the churches and the governor to try to achieve equal treatment for churches and houses of worship, on May 20, Becket sent a letter to Governor Walz on behalf of the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota explaining that continuing this discriminatory treatment of in-person worship violates federal and state law.

The letter announced that on May 26, 2020, in advance of Pentecost Sunday (May 31), the faith communities would resume holding in-person worship services and ministering to their congregations at one-third capacity whether or not Governor Walz amended his executive order. Governor Walz returned to the negotiating table after the Churches acted in defense of their free exercise, announcing on May 23 that he would clear the way for houses of worship of all faith traditions to open to larger groups starting May 27, 2020. 

Importance to Religious Liberty:

  • Religious communities—The First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When Churches are given a special disability not felt by secular entities, the government is violating the Free Exercise Clause by substantially burdening religious practice.

Spirit of Aloha Temple v. County of Maui

A sanctuary for spiritual growth

A Hindu organization called Spirit of Aloha Temple purchased land in Maui County, Hawaii, in 2007 for religious use. Years later, the Temple decided to expand its ministry by holding weddings on its property. Because the land was zoned for agricultural use, to construct the facilities it needed to host celebrations, the Temple had to apply for a special use permit from the county (a permit which secular entities are routinely granted).

Stifled by bureaucrats

Unfortunately, the Temple was denied the permit application by a commission of unelected government bureaucrats, who cited concerns such as increased traffic to the area around wedding celebrations. The Spirit of Aloha Temple sued, arguing that the permit denial restricted the practice of its faith and violated the RLUIPA. Passed by Congress in 2000, RLUIPA protects people of all faiths from zoning and land use laws being manipulated to squelch religious practices on a religious organization’s own land.

Protecting religious exercise on religious land

Here, a federal court undermined the independent check that RLUIPA provides against local bureaucrats. Rather than independently review the denial of the Temple’s land-use permit, the lower court deferred to the local bureaucrats when reviewing whether their decision was fair. Given that unwarranted deference, it is no surprise that the Temple’s RLUIPA claims were dismissed.

In March 2020, Becket filed a brief in support of the Temple at the Ninth Circuit Court of Appeals. Representing Becket on the brief was the Stanford Law School Religious Liberty Clinic, including faculty members Prof. Jim Sonne and Zeba Huq, and students Claire Greenberg and Nathaniel Bernstein. Comprehensively laying out RLUIPA’s text, history, and structure, Becket’s brief confirms that the government bureaucrats cannot both decide whether the Spirit of Aloha Temple can use their land to hold wedding services and then have their findings blindly followed when facing judicial review. Concluding otherwise would undermine the careful balance that Congress sought to ensure for people of all faiths by passing RLUIPA.

Importance to Religious Liberty:

  • Property rights—Practicing one’s faith almost always requires land use, but, unfortunately, this aspect of religious exercise is too often denied to groups who can’t afford to fight local zoning commissions or hostility. Becket fights to ensure the rights of minority faith groups to build houses of worship under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Sossamon v. Texas

Getting right with God

Harvey Sossamon was an inmate in a Texas. He wanted to cultivate his faith even while in prison, but he was denied access to the prison chapel for religious services even though other inmates were allowed access to the same space for secular uses such as marriage training sessions and sex education. Instead, the prison officials allowed worship services to be held only in multi-purpose spaces where there were no religious symbols to aid in worship.

This meant that, while he was able to practice his faith in multi-purpose spaces, he was unable to engage in essential aspects of Christian worship such as kneeling at the altar or praying at the foot of a cross.

Pursuing equal access

Sossamon sued the prison officials in their individual capacities, arguing that denying him access to the chapel unfairly burdened his religious exercise and is prohibited under the Religious Land Use and Institutionalized Persons Act (RLUIPA), an important civil rights law that protects the religious liberty of prisoners and patients.

Denied just recourse

The U.S. District Court for the Western District of Texas ruled against Sossamon, finding that he could not sue the officials in their individual capacity under RLUIPA. On appeal to the Fifth Circuit, Sossamon lost again. Sossamon appealed his case to the Supreme Court of the United States. At the Supreme Court, Becket filed an amicus brief that explained why it is so important for religious individuals to be able to sue government officials under the federal civil rights laws. The Supreme Court affirmed the Fifth Circuit’s decision on technical grounds, holding that Congress had not been specific enough in the wording of RLUIPA to override the State of Texas’s sovereign immunity. Justice Sotomayor dissented, discussing at length Becket’s kosher diet case Moussazadeh v. Texas Department of Criminal Justice.

Importance to Religious Liberty:
• Individual Freedom—In order for individuals to have the freedom to exercise their beliefs without government interference, individual government actors who take adverse action against religious liberty must be able to be held personally responsible.

Tanzin v. Tanvir

Targeted for their faith

Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari are three American Muslim men who were allegedly approached by FBI agents, who asked the men to serve as informants against fellow Muslims. However, their religious beliefs prevented the men from assisting the FBI in this way.

Abuse of power

After the three men declined to serve as informants for the FBI they were allegedly placed on the No Fly List—a record of individuals deemed to be terrorist threats to the United States and therefore not permitted to fly. According to their court filings, they were on this list for several years.

The three men sued the FBI agents, arguing that they had coercively abused the use of the No Fly List and, in doing so, had violated the Religious Freedom Restoration Act (RFRA) by burdening their religious exercise.

Just four days before the men got their day in court, the FBI said the men were free to fly, then asked the court to dismiss the case and leave the men without any legal recourse.

Just recourse for religious discrimination

The district court ruled that the men had no standing to sue because their names had been removed from the No Fly List. They appealed the case to the Second Circuit Court of Appeals, which rightly ruled in favor of the Muslim men, finding that they had the ability to vindicate their rights in court.

The FBI agents appealed to the Supreme Court, arguing that cannot be held liable for placing the men on the No Fly List.

Frequently, the government changes laws or reverses its behavior to avoid legal trouble. This is a dangerous precedent that allows the government to get away with egregious actions, then deny victims just recourse for the harms they’ve faced. Becket is arguing that to hold the government accountable for unjust actions, individual government actors must be able to be held liable for violating religious freedom under RFRA.

The Supreme Court agreed to review the Second Circuit’s decision in Tanzin v. Tanvir on November 22, 2019. On February 12, 2020, Becket filed a friend-of-the-court brief in support of broad protections under RFRA and allowing those whose rights are violated to seek money damages for RFRA claims. The Court heard oral arguments in the case on October 6, 2020 and ruled on December 10, 2020 that the men are entitled to sue for financial relief, saying that it is sometimes the only form of relief that can remedy government violations of religious freedom.

Importance to Religious Liberty:
• Individual Freedom— The government shouldn’t be able to get out of legal trouble by changing laws and policies when it knows it’s about to lose in court. In order for individuals to have the freedom to exercise their beliefs without government interference, individual government actors who take adverse action against religious liberty must be able to be held responsible.

Maxon v. Fuller Theological Seminary

Training ministers of the gospel

As one of the world’s leading Christian seminaries, Fuller Theological Seminary offers a vibrant multidenominational, multiethnic, and international Christian community where Christian students prepare to fulfill their vocations in a variety of ministry settings. For over 70 years, Fuller Theological Seminary has equipped Christian ministers and faith leaders through rigorous academic programs rooted deeply in Christian teaching, to answer God’s call to lead their own communities in the way of Jesus.

When students apply to Fuller Theological Seminary, they agree to adhere to a wide swath of biblically-based Christian ethics by giving written consent to abide by the seminary’s community standards as a continuing condition of enrollment. This collective agreement shapes the worldwide ethos of Fuller and includes upholding the belief that God created marriage to be the permanent covenant between only one man and one woman, and that sexual union must be reserved for that relationship. The seminary’s community standards are clear that students are to abstain from sexual conduct outside of this sacred marriage covenant.

The right to define ministry training

Joanna Maxon and Nathan Brittsan applied to Fuller Theological Seminary and agreed to Fuller’s community standards. Both individuals later admitted knowingly violating the standards by entering into same-sex marriages.

As with all students at Fuller, Ms. Maxon and Mr. Brittsan provided written consent to abide by the seminary’s community standards when they applied to the seminary, agreeing that they would follow them as a condition of participating in Fuller’s theological training with the rest of the student community. Their same-sex marriages were a direct and knowing violation of the standards to which they had agreed. Thus, after confirming the standards violations, Fuller regretfully dismissed them from the theology program and refunded their tuition for all classes that were left incomplete at the time of dismissal.

As a religious organization, Fuller Theological Seminary has the First Amendment right, and the religious duty, to uphold specific standards of ethics and morality for the members of its Christian community. This is a right that has been widely accepted and protected by courts for decades. Nevertheless, in November 2019, Ms. Maxon sued Fuller Theological Seminary in federal district court. Mr. Brittsan, who applied to Fuller but never matriculated, joined the lawsuit in January 2020.

Defending a healthy separation of church and state

Churches, seminaries, and other religious groups must be able to decide how to train their own religious leaders according to their own sincere determinations of their religious mission and the teachings of their faith. The government cannot entangle itself in these religious decisions by second-guessing or undermining how religious schools and organizations have decided to train their ministers and leaders. Permitting the government to force itself into the process of setting standards for scholars and ministers of faith is a clear violation of religious autonomy—a threat to the healthy separation of church and state.

The government cannot pressure religious groups into abandoning their beliefs. If Sikhs decide to abandon the turban and kirpan, Orthodox Jews choose to stop keeping Kosher, or Muslims want to reject wearing the hijab, then those must be decisions made freely by members of the faith—not under compulsion from lawsuits and courts. So too with Christian beliefs on the sacrament of marriage. Fuller filed a motion to dismiss the plaintiffs’ case in February 2020, and a hearing took place on August 4, 2020. On October 7, 2020, the federal district court dismissed the claims against Fuller, protecting the rights of religious educational institutions to uphold community standards. On November 3, 2020, Maxon and Brittsan appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

On December 13, 2021, the Ninth Circuit unanimously protected the right of Fuller Theological Seminary to freely direct its own religious community, a significant win for the rights of religious education institutions of all faiths.

Importance to Religious Liberty:

• Religious Communities—Religious groups must be able to select the members of their ministries according to their religious mission and sincere faith, free from government interference.
• Freedom of groups to train their own leaders—The Supreme Court’s decision in Hosanna-Tabor unanimously protected a church’s right to choose and maintain standards for its own leaders. That principle applies to the training of religious leaders as well. Both church and state are best served when the state isn’t controlling the internal leadership decisions of a religious institution.

St. Vincent Catholic Charities v. Ingham County Board of Commissioners

Whatever you do for the least of my brothers

St. Vincent Catholic Charities is driven by faith to minister to the community of Lansing, Michigan. As a Christian organization, St. Vincent believes in the biblical commandment that it must care for the orphan, widow, and refugee.

Accordingly, for more than 40 years, St. Vincent has been providing crucial services to all refugees who have resettled in Lansing. Volunteers and staff do everything they can to make refugees feel safe and welcome in their new, unfamiliar home—from picking refugees up at the airport and locating safe, affordable housing to providing cultural orientation, computer training, and job search services.

St. Vincent is the only government-designated agency that provides these services to refugees in Lansing, and is a federally recognized priority resettlement site for LGBTQ refugees—often serving those who fled their homeland due to persecution for their sexual orientation.

Caring for the stranger in our midst

No other agency in Lansing has the capacity, experience, and community access to provide the vital refugee resettlement services available through St. Vincent. Without St. Vincent, around one hundred refugees will arrive in Lansing each year without the tools necessary to thrive in the United States.

But in 2019, the Ingham County Board of Commissioners decided to exclude St. Vincent (and only St. Vincent) from a program that helps provide social services to refugees in Lansing, despite the fact that the Board has said repeatedly that St. Vincent provides excellent services. Further, the Board threatened to end its partnership with St. Vincent, thus putting crucial refugee health services at risk. The Board had done all this in explicit retaliation for St. Vincent’s ongoing lawsuit against the State of Michigan. In that case, St. Vincent challenged Michigan’s discriminatory policies regarding the provision of foster care and adoption services (Buck v. Gordon).

Discriminatory retaliation

The Ingham County Board of Commissioners’ actions violated the First Amendment. The U.S. Constitution prohibits both religious discrimination and retaliation by government officials against those who have the courage to defend their First Amendment rights in court. Ingham County Commissioners have even called St. Vincent “morally bankrupt” and made numerous false allegations about the agency at public meetings. The government cannot discriminate against an organization simply because it dislikes the agency’s sincere religious beliefs. The Board admitted that St. Vincent’s refugee services are excellent and that the only reason it wanted to break ties with St. Vincent is because it disagreed with the Catholic agency’s sincere religious beliefs at issue in a separate lawsuit. St. Vincent’s religious beliefs, and its refugee services, should not be threatened for the sake of scoring cheap political points.

On March 7, 2022, a Michigan district court ruled for St. Vincent, saying, “the Board has singled out St. Vincent, not for its compelling interest in advancing certain community programs, but to punish St. Vincent for its religious beliefs.” St. Vincent will soon receive a determination on what relief it will receive given the Board’s discrimination.

Importance to Religious Liberty:

  • Public Square – The government cannot target or discriminate against organizations or individuals because of their sincere religious beliefs, even if those beliefs are expressed publicly or protected through litigation.
  • Religious Communities – Religious institutions have the right to serve those in need according to the dictates of their faith. Unfortunately, the rights of many religious institutions are under attack, sometimes simply because they stand out from the rest of society.
  • Free Speech – Religious people are protected by the First Amendment from being punished for petitioning the government to redress their grievances, including being punished for filing lawsuits to protect their religious ministry.

 

Starkey v. Roncalli High School and Archdiocese of Indianapolis

Commitment to Catholic education

The Archdiocese of Indianapolis has been committed to learning, teaching, and sharing the Catholic faith in central and southern Indiana for over 175 years. In addition to providing tens of millions of dollars in vital social services, the Archdiocese operates a number of schools that provide a safe, high-quality education to thousands of low-income Indiana students. The results speak for themselves, with over 90% of all graduates going on to college, far outstripping public schools.

While Catholic schools provide a top-notch education, their central purpose is to transmit the Catholic faith to the next generation. Thus, it is crucial that educators in Catholic schools—especially administrators, teachers, and guidance counselors—respect and promote the Church’s teachings. For this reason, all educators at Roncalli sign an agreement to uphold the teachings of the Catholic Church in both their professional and private lives—serving as examples of the faith to both the students and the community alike.

A conflict of commitment

As Co-Director of Guidance at Roncalli High School, Lynn Starkey was responsible for communicating the Catholic faith to students and families, and advising students both practically and spiritually as they discerned their vocational path at and after Roncalli. In August of 2018, Starkey told Roncalli leadership that she was in, and intended to remain in, a same-sex marriage in violation of her contract and of Catholic teaching. When the time came to renew her contract, her fellow school leaders explained that they could not do so while she was living in opposition to Catholic teaching. Ms. Starkey sued both the school and the Archdiocese arguing that they had discriminated against her based on her sexual orientation.

Educating hearts and minds

Catholic education is designed to holistically form the student in heart, mind, and body. Accordingly, Catholic educators and guidance professionals are expected to go beyond simply teaching algebra, or helping students fill out college applications. They are charged with modeling a Christ-centered life and promoting the teachings of the Catholic Church in word and deed—in short, they are ministers of the faith to their students. If an educator chooses to live in a manner which demonstrates disagreement with Church teaching, that educator cannot properly communicate the faith to his or her students.

The First Amendment of the U.S. Constitution grants church schools like Roncalli the right to choose who teaches the faith to the next generation, free from government interference. The U.S. Supreme Court most recently articulated this doctrine, called the ministerial exception, in the unanimous 2012 decision Hosanna-Tabor, which protected a Lutheran church school’s right to choose its teachers. Becket is defending the school’s First Amendment right to choose faithful teachers under the ministerial exception.

Next Steps

After the lawsuit was filed, a federal district court ruled in favor of Roncalli and the Archdiocese, saying that when an employee is “tasked with guiding students as they mature and grow into adulthood,” “[o]ne may reasonably presume that a religious school would expect faith to play a role in that work.” Starkey appealed the lower court’s decision. The Seventh Circuit Court of Appeals heard oral argument on May 16, 2022. 

On July 28, 2022, the Seventh Circuit affirmed the ruling in favor of Roncalli and the Archdiocese. The court said Starkey “was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission.” Thus, the Constitution protected the school’s right to choose who would carry out that role.

Roncalli High School and the Archdiocese of Indianapolis are also represented by Wooton Hoy LLC.

Importance to Religious Liberty:

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.

Fitzgerald v. Roncalli High School and Archdiocese of Indianapolis

Commitment to Catholic education

The Archdiocese of Indianapolis has been committed to learning, teaching, and sharing the Catholic faith in central and southern Indiana for over 175 years. In addition to providing tens of millions of dollars in vital social services, the Archdiocese operates a number of schools that provide a safe, high-quality education to thousands of low-income Indiana students. The results speak for themselves, with over 90% of all graduates going on to college, far outstripping public schools.

While Catholic schools provide a top-notch education, their central purpose is to transmit the Catholic faith to the next generation. Thus, it is crucial that educators in Catholic schools—especially administrators, teachers, and guidance counselors—respect and promote the Church’s teachings. For this reason, all educators at Roncalli sign an agreement to uphold the teachings of the Catholic Church in both their professional and private lives—serving as examples of the faith to both the students and the community alike.

A conflict of commitment

As Co-Director of Guidance at Roncalli High School, Shelly Fitzgerald was responsible for communicating the Catholic faith to students and families, and advising students both practically and spiritually as they discerned their vocational path at and after Roncalli. In August of 2018, Fitzgerald told Roncalli leadership that she was in, and intended to remain in, a same-sex marriage in violation of her contract and of Catholic teaching. When the time came to renew her contract, her fellow school leaders explained that they could not do so while she was living in opposition to Catholic teaching. Ms. Fitzgerald sued both the school and the Archdiocese, arguing that they had discriminated against her based on her sexual orientation.

Educating hearts and minds

Catholic education is designed to holistically form the student in heart, mind, and body. Accordingly, Catholic educators and guidance professionals are expected to go beyond simply teaching algebra, or helping students fill out college applications. They are charged with modeling a Christ-centered life and promoting the teachings of the Catholic Church in word and deed—in short, they are ministers of the faith to their students. If an educator chooses to live in a manner which demonstrates disagreement with Church teaching, that educator cannot properly communicate the faith to his or her students.

The First Amendment of the U.S. Constitution grants church schools like Roncalli the right to choose who teaches the faith to the next generation, free from government interference, under a doctrine called the ministerial exception. The U.S. Supreme Court most recently articulated this doctrine in the unanimous 2012 decision Hosanna-Tabor, which protected a Lutheran church school’s right to choose its teachers. Becket is defending the church’s First Amendment right to choose faithful teachers under the ministerial exception.

On July 13, 2023, the U.S. Court of Appeals for the Seventh Circuit ruled in the case, protecting the school’s First Amendment right to make employment decisions that align with their religious mission. 

Roncalli High School and the Archdiocese of Indianapolis are also represented by Jay Mercer of Wooton Hoy, LLC. 

Importance to Religious Liberty:

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.

 

United States of America v. Scott Warren

The good Samaritans of the border

Every year thousands of migrants travel across the Sonoran Desert—one of the most extreme environments in North America—to the United States border in California, Arizona, New Mexico, and Texas. The journey is treacherous, and thousands of migrants die on the way from exposure, dehydration, and hyperthermia. In Arizona alone, thousands of human remains have been found over the past two decades.

In the border counties of Arizona, humanitarian groups have formed to respond to the deaths and try to prevent them by leaving food, water, and supplies in areas that migrants are known to pass through, by conducting search and rescue missions, and by recovering the remains of migrants who have passed away on the journey—giving them a dignified burial.

Dr. Scott Warren is a resident of Ajo, Arizona. Driven by his religious belief that “all life is sacred, and places are sacred as well,” Dr. Warren is an active volunteer with the humanitarian aid group No More Deaths—one such group that works to ensure the safety of migrants as they pass through the desert. With No More Deaths, Dr. Warren regularly conducts “missions” on which he places food, water, and other supplies at specific “water drop” sites which are well documented and maintained by No More Deaths.

No good deed goes unpunished

On June 1, 2017, Dr. Warren and his companions loaded up their vehicles with food, water, and supplies and set out into the desert early in the morning. After departing from the public road in order to reach his drop site, he was spotted by an officer, arrested, and charged with “Abandonment of Property” for leaving the supplies for migrants.

Dr. Warren and his companions always log the location and amount of supplies they leave and return to collect containers that are empty or unused. They are not discarding, or abandoning, the supplies left at drop sites; rather, they are giving them to those in need in hopes that they will save lives that may otherwise be lost. Further, the government allows ATVs, camping, and hunting in the same area where it forbids this humanitarian work.

Free to act on faith

The federal Religious Freedom Restoration Act, or RFRA, embodies a simple principle: that government may not burden or punish religious exercise out of policy convenience or whim, but only in the rare case that it is truly necessary to serve an interest of overriding importance. Since it was passed in 1993, RFRA has been especially important to protecting the rights of religious minorities. (See RFRA Info Central for more information.)

In leaving supplies for migrants, Dr. Warren was acting on his sincerely held belief that every human life is sacred and no person should be left to die in the wilderness for lack of food, water, or medical supplies. The government, in prosecuting Dr. Warren, was burdening his religious practice and discouraging others from engaging in the same humanitarian work according to their own religious beliefs.

On November 21, 2019, a federal court acquitted Dr. Warren of the charge of abandonment of property based on his RFRA defense, ruling that the government did not need to burden Dr. Warren’s religious exercise in order to “protect[] the pristine state of the wildlife refuge” or “secur[e] the border.” He was found guilty of a vehicle permit violation, which may be appealed. Dr. Scott Warren is represented by Kuykendall & Associates of Tucson, Arizona.

Importance to Religious Liberty

  • Individual Freedom: Americans have the right to believe, express beliefs, and act in accordance with the dictates of their conscience. Faith cannot and should not be confined to what we do within the four walls of our homes and churches; we must be free to act on those beliefs in our interactions with the broader world.

Archdiocese of Galveston-Houston v. HHS

Caring for the poor, the widow, and the immigrant

Following Catholic teaching, the Archdiocese of Galveston-Houston cares for the poor, the widowed, and the immigrant, providing critical, life-saving services through its ministries to hundreds of thousands of people in need every year. The Archdiocese and its vital ministries are driven by their Roman Catholic faith to care for those in need. The people they serve are of all creeds and backgrounds, including many living in poverty. In 2018, its ministries gave over 25,000 meals to seniors, provided over $10 million in disaster-recovery aid, and filed nearly 4,000 immigration petitions on behalf of refugees and immigrants.

A regulation standing in the way of helping children in need

Despite the Archdiocese’s many efforts to serve the underserved in its community, there is still a glaring crisis in the State of Texas. Thousands of vulnerable children wait to be placed in loving homes, but there are too few families to take all of them in. The Archdiocese would like to do more to help address the great need for foster families in its community. But a 2016 Department of Health and Human Services (HHS) regulation is preventing the Archdiocese from helping Texas foster kids, harming children who are still waiting for a home and family. The regulation requires religious foster care agencies to place children with same-sex couples even if doing so would go against their religious beliefs. This also contradicts a Texas law allowing agencies to refer couples to other agencies if they are unable to partner with them for religious reasons.

Many prospective foster families choose to work with faith-based organizations because of their shared beliefs and values. But some state and local governments are using this 2016 HHS regulation as justification for targeting religious agencies. Amid a nationwide foster care crisis, this regulation limits the number of agencies that can care for foster children in need, forcing organizations—like the Archdiocese—with the skills, resources, and desire to help to remain on the sidelines. The Archdiocese is seeking to grow, not limit, the number of foster families available to the orphans of Southeast Texas. Ending the regulation will strike a balance ensuring that all couples (including same-sex couples) can adopt, and all agencies (including Catholic agencies) can help broker foster and adoption placements. This is in the best interest of Texas’ foster children.

Payne-Elliott v. Archdiocese of Indianapolis

Commitment to Catholic education

The Archdiocese of Indianapolis has been committed to teaching the Catholic faith and serving central and southern Indiana for over 175 years. In addition to providing tens of millions of dollars in vital social services, the Archdiocese operates a number of schools that provide a safe, high-quality education to thousands of low-income Indiana students.

The purpose of these schools is not only to provide a top-notch education, but to transmit the Catholic faith to the next generation. Thus, it is of particular importance that educators in Catholic schools respect and promote the Church’s teachings. This is why, when they are hired, all educators in the Archdiocese sign an agreement to uphold the teachings of the Catholic Church in both their professional and private lives—serving as examples of the faith to both the students and the community alike.

A broken agreement

In 2017, Joshua Payne-Elliott, a teacher at Cathedral Catholic High School, entered a same-sex civil union in violation of his employment agreement and centuries of Catholic teaching. For almost two years, the Archdiocese engaged in discussion with Cathedral High School about the best course of action based on Catholic teaching. In the end, the Archdiocese informed Cathedral that if it wanted to remain affiliated with the Catholic Church, it could not continue employing teachers who lived in defiance of Church teaching.

Wishing to remain a Catholic school, Cathedral separated from Mr. Payne-Elliott. Mr. Payne-Elliott then sued the Archdiocese in state court, arguing that it unfairly interfered in his agreement with the school.

Defending church autonomy

The Supreme Court has long recognized that secular courts have no business interfering in matters of church discipline or internal church governance. As the Indiana Supreme Court put it a century ago, “No power save that of the church can rightfully declare who is a Catholic.” Accordingly, Becket is defending the Archdiocese, arguing that the government cannot punish the Archdiocese for telling a Catholic school what rules it needed to follow in order to remain a Catholic school.

On May 7, 2021, the Marion Superior Court of Indiana agreed and dismissed the case, ruling in favor of the Archdiocese. The Indiana Court of Appeals, however, reversed, permitting the lawsuit to proceed. Becket then asked the Indiana Supreme Court to step in.

On August 31, 2022, the Indiana Supreme Court unanimously protected the Archdiocese, explaining that the “Constitution encompasses the right of religious institutions to decide for themselves, free from state interference, matters of church government.” The decision protects the Archdiocese’s freedom to ensure students and families receive an authentic Catholic education.  

Importance to Religious Liberty:

  • Religious Communities—Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.

Diocese of Lubbock v. Guerrero

Promoting healing and protecting the vulnerable

This case was based on the January 2019 decision of Texas Catholic bishops to compile and release lists of clergy that, based on Catholic Church law and in accordance with internal church investigations, were credibly accused of sexually abusing “minors” as defined by Catholic law. The lists were part of an ongoing effort throughout the Church to speak with Catholics in a transparent manner about past sexual abuse, promote healing within the Catholic Church, and protect the vulnerable.

Punished for transparency

Among the names published by the Diocese of Lubbock was that of Deacon Jesus Guerrero, who was suspended in 2003 and permanently suspended from the diaconate in 2007 due to alleged sexual misconduct with a woman who has a history of mental and emotional issues.

Deacon Guerrero threatened to sue the Diocese of Lubbock for including him on the list. He claimed that his inclusion was defamatory, because the person he is accused of abusing was not under 18 years of age at the time of the alleged misconduct. The diocese explained that under Canon Law—the centuries-old body of law of the Catholic Church, which clergy are bound to follow—any person over the age of 18 who lacks the mental faculties of an adult (non sui compos) is considered a minor. Nevertheless, on March 22, 2019, Guerrero brought a million-dollar defamation lawsuit against the diocese.

Churches must be able to self-govern free from government interference

Guerrero’s suit asked that a civil court adjudicate whether the Catholic Church’s religious understanding of “minor” was reasonable, and, as applied to his conduct, true. At the Texas Court of Appeals, Becket filed an amicus brief on behalf of the Texas Catholic Conference of Bishops—all 22 bishops in the State of Texas—arguing that the government cannot tell churches how to resolve church controversies and cannot evaluate church standards of morality. Allowing courts to decide religious questions would open a Pandora’s box of lawsuits over internal church affairs, obliterating the healthy separation of church and state.

On December 6, 2019, Texas’s Seventh Circuit Court of Appeals rejected the Diocese of Lubbock’s appeal. Becket, representing the Diocese, appealed the case to the Supreme Court of Texas. Its appeal received the support of 34 members of the Texas Legislature, the Texas Attorney General’s Office, prominent legal scholars, and diverse religious organizations. On June 11, 2021, the Supreme Court of Texas dismissed the case, ruling in favor of the Diocese of Lubbock by a vote of 8-1.  The  Court recognized the full scope of the First Amendment’s freedom for religious institutions to shape their own faith and missions. Religious institutions, the Court said, are not only free to make “internal management decisions that are essential to the institution’s central mission.” They are also free to make any “publications that relate to a religious group’s right to shape its own faith and mission.”

Importance to Religious Liberty:

  • Religious communities—Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to autonomy and self-governance.

Chung v. Washington Interscholastic Activities Association

Meet the Chungs: Star athletes, faithful to their Sabbath

Joelle and Joseph Chung are siblings, avid tennis players, and active members of the Seventh-day Adventist Church in their hometown, Chehalis, Washington. As faithful Adventists, Joelle and Joseph observe the Sabbath, a biblically-ordained practice of devoting time to rest, prayer and collective worship, every week from Friday at sundown to Saturday at sundown. The Chung family take their faith very seriously. Joelle even missed her own high school graduation because it fell on a Saturday. Joelle and Joseph became tennis players because they knew that the sport was primarily played on the weekdays, so it would not interfere with their religious observance.

Joelle was a top athlete on her high school’s girls’ tennis team for four years before graduating in 2019. Joseph is a current high school student and is already a star player on the boys’ tennis team as a sophomore. The Chungs are talented and dedicated tennis players, but a discriminatory rule has kept them from playing the sport they love because of their beliefs.

Kept off the court for their faith

Every year the Washington Interscholastic Activities Association (WIAA), the organization authorized under Washington law to regulate high-school sports in Washington, holds a state-wide postseason tennis tournament. To advance to the State Championships, players must compete in two qualifying tournaments. Throughout Joelle’s high school tennis career, the WIAA required participants to certify that they would be able to participate in each level of the tournament to qualify for the championships, with exceptions for injuries, illness, and “unforeseen events.”

In her junior year, Joelle won the first qualifying tournament leading up to the State Championships but had to forfeit her spot to an alternate because the next round conflicted with the Sabbath. In 2019, her senior season, Joelle was undefeated and expected to win in the qualifying tournaments and advance to the State Championships. Yet the State Championships were scheduled on a Friday and Saturday. According to WIAA rules, she was disqualified from playing the entire postseason.

Hoping to reach a compromise, the Chung family contacted the WIAA months in advance, asking for a religious accommodation. The Chungs asked the WIAA to move the State Championships to a weekday or simply allow Joelle to participate in the qualifying tournaments and use an alternate for the championships, just like athletes with injuries or illness can. Of course, it was entirely hypothetical that a replacement would be needed, depending on whether Joelle advanced to the championships. The WIAA flatly denied their requests, forcing Joelle to give up her chances in the tournament.

Defending the right to play while keeping the faith

No student-athlete should be barred from experiencing the excitement of competition and the opportunity to advance to the top of their field because of discriminatory standards. With Becket’s help, the Chung family sued the WIAA, asking that the rule be changed so that all students, including students of faith, can fully participate. The boys’ state tennis postseason begins in October so, Becket asked the WIAA to change its discriminatory rule before then so that Joseph and other students whose faith compels them to keep the Sabbath on Saturday can participate on equal terms with other students.

On August 27, 2019 the WIAA added religious observance to the list of exceptions allowing a player to withdraw from competition without being penalized. But this rule change is only a partial victory because the WIAA continues to insist that it cannot adjust the schedule of the tournament to accommodate religious observance, even if one of the remaining contenders has a Sabbath conflict.

The Chungs moved for summary judgment in September 2020, but the court decided to send the case to trial. Because WIAA had already changed the rule excluding them from postseason play, our clients agreed to settle as long as WIAA would agree to keep in place its amended rule allowing Saturday Sabbath observers to play in the postseason up until they run into an actual Sabbath conflict. A settlement agreement was reached and approved by the court on September 3, 2021. On September 21, 2021, the court granted the parties’ motion to dismiss, formally ending the case.

Importance to Religious Liberty:

  • Individual Freedom—In a pluralistic society, organizations have an obligation to make reasonable accommodations to ensure Americans of all faiths can participate fully in society. No American should unnecessarily be forced to choose between participating in public life and living out their sincere religious beliefs. Organizations especially cannot make secular exceptions to their rules and regulations and then claim that religious exceptions cannot be allowed.

Belen Gonzales v. Mathis Independent School District

Brothers bound by a sacred promise 

When Pedro and Belen Gonzales’ eldest son, Cesar, was an infant, he contracted a very serious illness. Longing for his recovery, Pedro and Belen made a religious promise that if their son’s health improved, they would keep a strand of hair on the back of his head uncut as an expression of faith and gratitude. After Cesar recovered and their second son, Diego, was born, the family continued the practice as a deeply important and personal part of their religious faith. As they grew older, both boys continued to keep a small strand of their hair uncut, committed to living out their family’s sacred practice.  

From kindergarten through sixth grade, the local school district allowed the boys to keep their long hair—despite a dress code requiring boys to have short hair—because the school recognized that the religious promise was an important part of their identity. The boys were active in many afterschool activities, such as football, the robotics team, and student government.  

Forced to sever a core part of their identity 

In August 2017, as they were entering the seventh grade at Mathis Middle School, the Gonzales brothers were suddenly told that they would no longer be allowed to keep a strand of their hair uncut. The Gonzales family appealed the decision but were eventually denied by the school board. The boys were banned from all University Interscholastic League (UIL) interschool competition in sports and clubs, which meant they couldn’t play on the football team or travel with the robotics team. Cesar’s grades even began to suffer when he was excluded from band performances—a core part of the academic band grade.  

The Texas Association of School Boards instructs school districts that they “must accommodate requests for exceptions [from grooming codes] based on a student or parent’s sincerely held religious belief.” But the boys’ school district has refused to follow this recommendation. The school’s coaching staff even told Cesar, “All it takes is a quick snip of the scissors for you to get your football equipment.”  

Defending students’ freedom to express their faith 

On May 30, 2018, the Gonzales family sued the Mathis Independent School District on behalf of their sons, arguing that the school’s stubborn adherence to their grooming code imposed a burden on the family’s religious practice. 

On July 15, 2019, Becket sent a letter to Mathis Independent School District, urging the District to reach a settlement with the Gonzales family and allow the Gonzales boys to learn and play alongside their classmates.  

When the District refused, the federal court on September 5, 2019, granted the family’s request for a religious accommodation allowing participation in extracurriculars while the case proceeds. Finally, on May 25, 2021, the Mathis Independent School District entered a settlement agreement resolving the case. The District paid $20,000 to cover the family’s attorneys’ fees and promised to respect the Gonzales brothers’ religious practices for the duration of their enrollment. The Gonzales children can now fully participate in the life of the school while keeping their religious promise.  

The Gonzales family was represented by Texas attorney Frank Gonzales and Jamie Aycock, Kenneth Young, and Kelsee Foote of the international law firm Kirkland & Ellis. 

Importance to Religious Liberty: 

  • Education: No American should have to give up their faith when they go to school. The Constitution protects the free expression of sincerely held religious beliefs from arbitrary restrictions.  
  • Individual Freedom: Every individual has the right to live and act according to their conscience, both privately and publicly, free from government coercion. 

Our Lady of Guadalupe School v. Morrissey-Berru

Our Lady of Guadalupe fights for excellence 

Our Lady of Guadalupe School is a Transitional Kinder-8th grade Catholic school located in Hermosa Beach. A ministry of Our Lady of Guadalupe Parish, the school is committed to providing a faith-based education rooted in the Catholic tradition.  

In 2012, the school was struggling financially and on the verge of closing, with only one student in the graduating eighth grade class. In a bold turnaround effort, the school sought to improve by implementing a new reading and writing program to be taught by all teachers, a healthy diet program, and programs tailored for children with special needs.  

As a teacher at Our Lady of Guadalupe, Ms. Morrissey-Berru was responsible for providing a Catholic education, while implementing the school’s new programs, which were a top priority. However, Ms. Morrissey-Berru soon proved unwilling to follow the guidelines of any of the programs, and her students’ academic performance suffered as a result. Her recurring poor performance prompted complaints from fellow colleagues and parents.  Principal April Beuder decided to move Ms. Morrissey-Berru to a part-time teaching position, and in 2015 chose not to renew her contract. 

Catholic schools must be free to choose who teaches the faith 

As a Catholic school teacher, Ms. Morrissey-Berru held a crucial role of teaching the beliefs and mission of the Roman Catholic Church. She taught religion, led students in daily prayer, and prepared them for mass and other important liturgical activities such as feast days, Lenten services, and an annual performance of the Passion of the Christ. Every subject she taught was infused with Catholic values. The school also paid to have her trained as a certified Catechist. 

Under the ministerial exception, church schools like Our Lady of Guadalupe have the First Amendment right to choose who teaches the faith to the next generation, free from any government interference.

Morrissey-Berru sues Our Lady of Guadalupe 

After her contract term ended, Ms. Morrissey-Berru sued Our Lady of Guadalupe School for age discrimination. A federal judge sided with the school, following the U.S. Supreme Court’s 2012 unanimous Hosanna-Tabor decision protecting the First Amendment right of a Lutheran church school to choose its teachers. Ms. Morrissey-Berru then appealed to the U.S. Court of Appeals for the Ninth Circuit.  

In a two-page order, a three-judge panel of the Ninth Circuit reversed and sided with Ms. Morrissey-Berru. The panel recognized she had “significant religious responsibilities,” and was “committed to incorporate Catholic values and teachings into her curriculum,” yet, still ruled that Morrissey-Berru’s duties were not religious enough to invoke First Amendment protections. 

Nine other judges on the Ninth Circuit criticized the Morrissey-Berru panel’s decision in a dissenting opinion authored by Judge Ryan Nelson in a parallel case also handled by Becket, St. James School v. Biel. The dissenting judges called the alarm, stating that “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally.”  

Becket defended Our Lady of Guadalupe School, arguing that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith. The case was appealed to the Supreme Court on August 28, 2019. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in Our Lady of Guadalupe, and consolidated the case with another Becket case, St. James School v. Biel. The Court heard oral argument on May 11, 2020. Also representing Our Lady of Guadalupe were Linda Miller Savitt, John Manier, Stephanie Kantor of Ballard Rosenberg Golper & Savitt, LLP, and Margaret Graf of the Archdiocese of Los Angeles. 

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty: 

  • Freedom of religious groups from state intrusion on religious affairs: Religious groups should be fully empowered to select their priests, rabbis, ministers and other religious teachers free from government interference. The Supreme Court has acknowledged this right under the ministerial exception and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry. 

New York v. HHS

A doctor’s mission: hope and healing for everyone

Dr. Regina Frost has practiced medicine for 15 years, specializing in obstetrics and gynecology. She helps lead a network of female healthcare professionals called Women Physicians in Christ, a ministry of the Christian Medical & Dental Associations (CMDA) that is committed to supporting women physicians and dentists by integrating their personal, spiritual, and professional lives.  

CMDA is an organization of over 19,000 healthcare professionals, including Dr. Frost, who are committed to living out their faith in their practice of medicine. CMDA members serve everyone and seek to treat all of their patients like Christ would, providing all with compassionate care, healing, and hope. CMDA medical professionals take an oath to do no harm and would never deny routine or life-saving care to anyone. 

Their mission to heal takes CMDA doctors and nurses all over the globe. Within the U.S., CMDA members serve vulnerable populations including the homeless, prisoners living with HIV, and victims of opioid addiction, sex trafficking, and gang violence. Abroad, CMDA members serve in war zones, refugee clinics, and remote areas without quality healthcare. Several even contracted Ebola while providing treatment to patients during the deadly outbreak in Liberia. 

Religious healthcare professionals face an impossible choice  

Dr. Frost and other religious healthcare professionals are called to serve everyone with compassion. They only ask not to be forced to perform certain medical procedures that they believe would be inconsistent with their faith.  

In May 2019 the Department of Health and Human Services (HHS) issued a Conscience Rule, reinforcing an existing law which allows religious doctors, nurses and healthcare professionals to serve their patients without being forced to violate their conscience. Several states, including the State of New York, immediately sued to overturn that rule and are willing to drive religious healthcare professionals like Dr. Frost out of the medical field.  

No doctor should have to choose between giving up their faith and abandoning a vital medical mission. Indeed, recent polling from CMDA and USCCB confirms the importance of these conscience protections, both for religious healthcare professionals seeking to care for those most in need and for the clients they serve. But New York’s lawsuit needlessly threatens the health, safety, and lives of at-risk, underserved populations who voluntarily seek care from CMDA members across the nation and around the world. 

Becket defends religious healthcare professionals and the people they serve 

On June 25, 2019, Becket intervened to defend Dr. Frost and the Christian Medical & Dental Associations from New York’s lawsuit, arguing that healthcare professionals should not be forced to perform medical procedures that would require them to violate their beliefs. The Conscience Rule reaffirms what the First Amendment and dozens of federal statutes already guarantee: religious Americans—including doctors—do not have to compromise their faith to serve those in need. 

On November 6, 2019, a federal court ruled against the Conscience Rule, threatening the ability of religious doctors to serve communities without being forced to perform procedures against their beliefs. CMDA, Dr. Frost, and HHS appealed to the Second Circuit, and filed their opening briefs on April 27, 2020.

Dr. Frost’s participation in the case is solely in her personal capacity and not on behalf of her employer. 

Importance to Religious Liberty: 

  • Individual Freedom—Religious freedom protects the rights of individuals to live out their faith in all facets of their lives—including in their professions. This lawsuit threatens the ability of religious healthcare professionals to provide quality, compassionate healthcare, forcing them to choose between their conscience and their practice.  

Patterson v. Walgreens

“In a sense attacking my faith and my ability to worship and putting my family’s livelihood at stake was a deeper attack than any that I’ve ever experienced. It was deeper than my race or color, it goes to the very core, my very soul of who I am.”—Darrell Patterson 

Work six days, rest the seventh  

Growing up as a black man in the pre-civil rights south made Darrell Patterson no stranger to discrimination and hostility. But nothing compares to the pain he experienced when he was forced to choose between his job and his Seventh-day Adventist faith.   

Since childhood, Mr. Patterson has felt called to a strong devotion to God. As an adult, Mr. Patterson demonstrated his faithfulness by abstaining from work on the Sabbath day, a practice that is important to people of many faiths—but particularly for Seventh-day Adventists, as indicated by their name. For Mr. Patterson this means retreating from the distractions of everyday life to spend time with family, serve his community and worship God. Whether he is at home singing hymns or ministering to at-risk youth or the homeless, Mr. Patterson is faithful every Sabbath day.   

In 2005, during his interview for a position at an Orlando Walgreens call center, Mr. Patterson made it clear that he wouldn’t be able to work from Friday sundown to Saturday sundown, and he was hired without a problem. For several years, Mr. Patterson loved his job and enjoyed interacting with new hires. He saw his work as an extension of his ministry and treated his colleagues with compassion. He was always available to work all other days of the week, including Sundays, and his colleagues were always more than happy to switch shifts with him on the rare occasion he was scheduled to work on a Saturday.   

Employees shouldn’t be punished for their company’s mistakes  

In 2011, Mr. Patterson’s supervisors scheduled him to work on a Saturday for an extra training session after Walgreens executives made an error that broke Alabama’s pharmacy laws. The training was only two hours long and could have been done Friday, Sunday, or Monday, but Walgreens scheduled Mr. Patterson to do it on Saturday. Unable to work on a Saturday, Mr. Patterson followed protocol and attempted to switch schedules with a colleague, but because it was last minute, he was unsuccessful. Mr. Patterson conducted the training on Monday, ahead of the deadline. But Walgreens swiftly fired Mr. Patterson anyway.  

This attack on both his ability to worship and his family’s livelihood was unlike any other discrimination he had faced before. In 2014, Mr. Patterson sued Walgreens in Florida federal district court, which ruled in favor of Walgreens. On appeal, the U.S. Court of Appeals for the Eleventh Circuit also sided with the company. Both courts claimed that Walgreens had done enough to accommodate Mr. Patterson’s religious beliefs. In 2018, Mr. Patterson brought his case to the U.S. Supreme Court to defend his right to earn an honest livelihood while following his deeply held religious convictions.   

All Americans must be free to practice their faith in the workplace 

Keeping holy days like Christmas, Yom Kippur, or a Sabbath like Mr. Patterson’s is a core religious practice for Americans of many different faith backgrounds. But because of a mistake made by Walgreens executives, Mr. Patterson was forced to choose between providing for his family and practicing a central tenet of his faith—a decision no American should have to make. The Supreme Court should step in to protect Mr. Patterson’s rights and clarify that employers must reasonably accommodate sincere religious practice, just as they do other protected characteristics like disability.  

Along with its partners the Seventh-day Adventist Church and Gene Schaerr of Schaerr | Jaffe, Becket is defending Mr. Patterson and the right of Americans of all faiths to live and work according to their religious beliefs, including the fundamental practice of observing the Sabbath. The Supreme Court denied review in Patterson v. Walgreens on February 24, 2020.

Importance to religious liberty: 

  • Individual Freedom: Religious exercise encompasses more than just thought or worship—it involves visibly practicing the signs of one’s faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs.

Buck v. Gordon

Faith-Based Foster Care Fact Sheet

A national foster care crisis

Our nation is facing a national foster care crisis. Thousands of vulnerable children are waiting for their forever family, but there are not enough families willing to foster and adopt.

There are over 13,000 foster children in Michigan alone. Each year, over 600 Michigan children “age out” of the foster system, meaning that at the age of 18 they are on their own, never having found a family to provide stability, love and support or a permanent place to call home. No one addresses this issue more effectively than faith-based agencies. That’s why the State of Michigan depends on private agencies like St. Vincent Catholic Charities to recruit and support foster and adoptive families.

The ACLU and the Attorney General of Michigan try to end ties with faith-based agencies

St. Vincent is particularly good at finding homes for sibling groups, older children, and children with special needs. In 2017, St. Vincent recruited more new adoptive families than nearly 90 percent of the other agencies in its service area. St. Vincent also helped Melissa and Chad Buck adopt five children with special needs and continues to provide them with loving support and resources.

Yet in March 2019, the Attorney General of Michigan announced a new policy to try to end the state’s vital partnership with faith-based agencies like St. Vincent. The state claims this action is necessary to protect same-sex couples, but no same-sex couple has ever been unable to foster or adopt because of St. Vincent’s religious beliefs, and St. Vincent refers any couples it cannot serve to other agencies who can. The state’s actions will only lead to fewer agencies to help all parents and harm to thousands of children who are in desperate need of loving homes.

Becket defends foster children, families, and St. Vincent Catholic Charities

On April 15, 2019, Becket filed a lawsuit representing a former foster child, the parents of five adopted children with special needs, and St. Vincent Catholic Charities, asking the court to allow faith-based agencies to continue what they do best: uniting children with loving families. Oral argument was heard on August 22, 2019. On September 26, 2019, the district court ordered the State of Michigan to continue working with St. Vincent while this case continues, ruling that “the State’s real goal is not to promote non-discriminatory child placements, but to stamp out St. Vincent’s religious belief and replace it with the State’s own.”

On January 26, 2022, in light of the Supreme Court decision in Fulton, the State of Michigan entered a settlement agreement allowing St. Vincent Catholic Charities to continue its vital ministry.

Importance to religious liberty

  • Individual freedom: The government discriminates against religious groups if it prevents them from providing services simply based on their religious beliefs.
  • Public square: Faith-based organizations have the same right as secular organizations to operate in the public square. Religion in the public square is not a threat, but rather a natural expression of a natural human impulse.
  • Free Speech: The government can’t coerce religious organizations to speak a government-approved message. It cannot force them to choose between closing their doors and engaging in speech and actions contrary to their religious teaching.

Patrick Henry Murphy v. Bryan Collier, Executive Director, Texas Department of Criminal Justice

On the evening of March 28, Patrick Murphy was awaiting death by lethal injection. His final request for his Buddhist minister to pray with him at his execution, and help lead him into the afterlife in which he believes, had been denied. Yet at 9:20 pm—two and a half hours after Murphy was scheduled to die—the Supreme Court of the United States stepped in. The Court said that Texas could not go forward with the execution unless and until it granted Murphy the right to a reverend of his own faith at his side.

It was a shock—especially given that just weeks before, the Supreme Court refused to stop the execution of Muslim prisoner Domineque Ray when he was denied an imam at his own moment of death.

The story of what changed—and how Becket helped win the rights of the condemned to the comfort of clergy—comes down to the power of arguments based on principle.

Texas denies religious rights at death 

For the past six years, Patrick Murphy has practiced his Buddhist faith in prison with the help of spiritual advisor Rev. Hui-Yong Shih. Mr. Murphy believes that the presence of his spiritual advisor in the moments before his execution is necessary to assist him to maintain the focus required to be reborn in the Pure Land after death.

Despite Texas permitting Rev. Shih to visit Mr. Murphy in prison for over six years, and despite official prison approval of Rev. Shih as a prison spiritual advisor, the State of Texas refused Mr. Murphy’s request to have Rev. Shih present with him in the execution chamber. Texas made the surprising argument that a Buddhist minister was a security risk to the prison. And this was despite the fact that Texas already permitted Christian ministers and Muslim imams to be present in the execution chamber.

An eleventh-hour voice of reason 

Death penalty appeals are harried, and provoke strong feelings and emotions from all sides. In order to help prevent this from clouding the key religious liberty issues at stake, Becket filed a friend-of-the-court brief at the Supreme Court. This brief pointed the way toward a clear path that could protect the religious liberty of Mr. Murphy, while cutting through the competing arguments and ideological differences that are usually involved in a death penalty appeal.

Becket’s brief made the point that principles of religious liberty—and the very tangible religious liberty interest of Mr. Murphy—should not be ignored simply because the Court might not approve of the delay tactics that often accompany a Supreme Court death penalty appeal. Instead, the Court could protect religious liberty and find other ways to make their dislike of last-minute stay applications known.

More specifically, Becket marshaled key legal and historical sources to explain why a prisoner facing imminent execution has the constitutional right to turn to his minister for crucial support:

“The guidance of the soul at the moment of execution—the moment at which the knife falls—has for centuries been well recognized as a crucial moment of religious exercise calling for a minister’s guidance. This Court should recognize that our Constitution and civil rights laws support a right to that guidance.”

Becket asked that the Court order the State of Texas to grant Murphy access to his Buddhist minister in the execution chamber, which is exactly what the Supreme Court did.

The Supreme Court took action 

Almost two and a half hours after the scheduled start of Murphy’s execution by the State of Texas, the United States Supreme Court issued an order halting Murphy’s execution. The Court ruled that Texas could not proceed with the execution “unless the State permits Murphy’s Buddhist spiritual advisor… to accompany Murphy in the execution chamber,” exactly following Becket’s recommendation.

Justice Kavanaugh wrote separately, reinforcing the fact that “governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution.”

What changed?  

But what about the Muslim prisoner who was denied the same source of comfort at the moment of his death just a month earlier? One factor is clear: Becket’s involvement in the case brought new legal arguments to the table—arguments that were not made in the prior appeal to the Supreme Court. The Supreme Court, without the benefit of these arguments, was not presented with the full picture. Becket relied on cases that support the Free Exercise of religion, and prevent discrimination against people with different religious beliefs as a result. But the arguments previously made in support of the Muslim prisoner were more limited, and focused instead on different legal protections. This change was crucial to the protection of religious liberty in principle and in practice.

Importance to Religious Liberty

  • Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith.
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons.

Department of Commerce v. New York

People of faith should have a chance to defend their rights 

When religious individuals sue a state or local government for discrimination, they can collect evidence in and outside of the courtroom to prove their case. They can question officials under oath, request government documents, and use every resource available to defend their religious liberty. This legal process known as “discovery” is vital for religious individuals who need to prove wrongdoing by government officials.

Yet when religious individuals sue a federal agency, under a federal statute called the Administrative Procedure Act, they may be limited to using the agency’s own internally compiled evidence to prove that the agency engaged in discrimination. Without the normal process of discovery, and confined to the agency’s own records, the court is left to take the federal agency’s word that it did not violate anyone’s religious liberty. Although Department of Commerce v. New York does not involve religious claims, it presents this same issue—whether individuals suing a federal agency for discrimination are allowed to present evidence other than the agency’s own records. And this issue has the potential to affect people of all faiths, since federal agencies are often indifferent, even hostile, toward religious freedom.

Proving religious discrimination by government agencies 

Becket has defended many religious groups from government actions and policies that were proven during discovery to have been based on intentional religious targeting. For example, in Fulton v. City of Philadelphia,a Philadelphia policy barred a Catholic foster agency the city had partnered with for decades from placing any more children with families. In discovery, the city demonstrated its actions were motivated by religious hostility toward the agency’s Catholic beliefs, by saying it’s “not 100 years ago” and that “times have changed.” In another case, BLinC v. University of Iowa, a public university applied a policy claiming to protect students from discrimination, but in discovery it was revealed that school officials used the policy to illegally target and deregister religious student groups that required their leaders to sign their statement of faith.

All Americans must be able to defend their rights, through legal processes that give them a fair chance to prove a federal agency’s wrongdoing. On March 6, 2019, Becket filed a friend-of-the-court brief urging the U.S. Supreme Court to consider the implications its ruling in Department of Commerce v. New York would have on religious liberty.

In June 2019, the Supreme Court rejected the government’s attempt to limit the evidence the Court could consider in deciding the challengers’ claims against the federal agency. Additionally, Justice Thomas, in a separate dissent, agreed with Becket’s brief that “claim[s] of religious discrimination under the Free Exercise Clause” should be analyzed differently from ordinary challenges to federal agency action.

Importance to Religious Liberty: 

  • Individual Freedom: The Free Exercise Clause of the First Amendment and other federal laws guarantee the right to freely practice one’s faith, and to defend that right fully in court. This includes access to legal processes to prove wrongdoing by the government, and especially federal agencies, which are historically less attentive to religious liberty than other government branches. 

Ricks v. Idaho Board of Contractors

One man’s religious convictions 

George Ricks is a 59-year-old father of four who has worked in construction his entire career. A long-time student of the Bible, George believes it is wrong to provide his Social Security number as a condition of obtaining work. 

In 2014, he tried to become an independent contractor. But in Idaho, where George lives, it is a misdemeanor to work as a contractor without first registering with the state, and registering requires providing a social security number. George was willing to provide any other form of identification, including his birth certificate, but he has a sincere religious objection to using his Social Security number to secure employment. The Idaho Board of Contractors—which makes exceptions for others, and which could obtain Ricks’s Social Security number in other ways if it really needed to—refused to accommodate his religious beliefs and denied his registration. 

No social security number, no job 

The Board’s denial was motivated by money. A federal law dictates that the Board of Contractors will receive extra funding if it collects contractors’ Social Security numbers. The law’s intent is to help the government track down delinquent fathers—something no one could ever accuse George of being, as he has spent his entire adult life providing for his four children. 

Yet the Board’s refusal to register George cost him the ability to find full-time work and provide fully for his family. Government regulations shouldn’t force someone unnecessarily to choose between being employed and practicing their religion. But in Ricks’s case, that is exactly what’s happening. Idaho’s forced choice between faith and work is entirely avoidable: the other licensing laws already grant accommodations to foreign residents who don’t have Social Security numbers; and if Idaho really needs Ricks’s government-issued number, it can consult its own records or ask the federal government to provide it. 

Becket defends free exercise 

Needless bureaucracy should never take precedence over the free exercise of religious beliefs. The Board of Contractors should stop forcing George to choose between his religious beliefs and his ability to provide for his family. In January 2019, Becket stepped up to represent George in his lawsuit against the Idaho Board of Contractors. After the Idaho Supreme Court refused to hear his case, Becket filed a petition in the Supreme Court of the United States on July 10, 2019, asking the Court to hold that the Free Exercise Clause requires Idaho to accommodate George’s religious beliefs. On June 28, 2021, the United States Supreme Court denied certiorari for the case.

Importance to religious liberty

  • Free exercise: Individuals should be free to hold and act on their deeply held convictions, not just in their homes or places of worship, but in their places of employment and the public square.
  • Religious beliefs and employment: When a government regulation bars someone from pursuing employment because of their religious beliefs, the government must prove that there is no other way for it to achieve its goals without banning a private person’s freedom of religion.

Sterlinski v. Catholic Bishop of Chicago

A diverse Catholic community, singing since 1893

St. Stanislaus Bishop and Martyr Parish was founded over a century ago in Chicago by Polish families who desired a church community to call home. Today the modest church is dedicated to conveying its Catholic message to a diverse congregation by celebrating Mass in three different languages—English, Spanish, and Polish. One way it does that is through music.

In 1992, the church hired Stanislaw Sterlinski as its musical director. His responsibilities included performing music and leading the choir and congregation in singing during Mass and other liturgical celebrations such as weddings and funerals. The Catholic Church has always placed great importance in the role of music in religious worship, as whoever stands before the congregation in song expresses the Catholic message—both visually and audibly. Nor is that at all unusual: from Catholic Gregorian chant, to the Psalms of David sung in the synagogue, to the Vedic hymns sung by priests at Hindu weddings, music has held religious significance for millennia.

After the church ended Mr. Sterlinski’s employment, he sued the church in federal district court in Illinois. Although Mr. Sterlinski agrees that the government cannot dictate who a church selects to represent its faith, he argues that the church was wrong to say he did anything “religiously meaningful” because he viewed himself as only “robotically play[ing] notes.”

Churches—not the courts—gets to choose ministers

In a previous Becket case, EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, the U.S. Supreme Court unanimously protected the right of a Lutheran school to select its religion teacher, free from government interference. The 2012 ruling set an important precedent confirming the First Amendment’s “ministerial exception,” which ensures that the church—not the state—gets to choose its leaders.

But Mr. Sterlinski’s lawsuit demands courts to become entangled in church affairs by second-guessing the church’s sincere determination that helping lead worship is religiously significant. In July 2018, the federal district court followed Supreme Court precedent and protected the church. The case was then appealed to the U.S. Court of Appeals for the Seventh Circuit.

The Seventh Circuit’s second chance at bolstering Supreme Court precedent

Becket filed a friend-of-the-court brief in a similar case in the Seventh Circuit, which in 2018 protected a Jewish day school’s right to select its Hebrew teacher without government interference. Becket also previously won unanimous victories in the Second and Third Circuit courts protecting the right of a Catholic school to choose its principal and of a Baptist church to choose its pastor, respectively. Becket is currently defending a Catholic school’s right to choose its religion teacher in a similar case before the Ninth Circuit.

On February 21, 2019, Becket and the Jewish Coalition for Religious Liberty filed a friend-of-the-court brief in the Seventh Circuit, arguing that St. Stanislaus Church has the undisputed right to choose who its ministers are, free from governmental second-guessing. On August 8, 2019 the U.S. Court of Appeals for the Seventh Circuit agreed with Becket, unanimously ruling in favor of St. Stanislaus Church. The Court also expressly rejected a bad recent Ninth Circuit decision, Biel v. St. James School, agreeing with Becket’s arguments about that case.

Importance to religious liberty:

  • Freedom of religious groups from state intrusion on religious affairs: Religious groups should be fully empowered to select the ministers who lead their congregations. The Supreme Court unanimously acknowledged that right in its 2012 Hosanna-Tabor decision concerning the “ministerial exception” and all courts should follow that precedent. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry.

St. James School v. Biel

A Catholic parish school since 1918

St. James Catholic School is a K-8 school in Torrance, California, dedicated to educating students while developing their life in the Roman Catholic faith. It is the parish school for St. James Roman Catholic Church. Since its founding in 1918, the school has lived out the parish’s motto “to continue the praise of God.” Parents choose St. James because they know their children will receive a quality academic education rooted in the Catholic faith and infused with Catholic teaching and practice.

As the only fifth-grade teacher at St. James Catholic School, Ms. Biel was the person charged with promoting, teaching, and fostering Catholic identity in the fifth graders at St. James. She carried out this mission by teaching a religion class on the Catholic faith each week; leading students in prayer daily, including the Our Father and Hail Mary prayers; taking them to and supervising them during Mass; and infusing the entire curriculum with the Catholic faith and values. After the school found Ms. Biel’s classroom performance to be below the school’s standards, they worked with her for months to improve. When she did not show signs of improvement, the school decided not to renew her one-year contract.

Ninth Circuit defies U.S. Supreme Court’s unanimous Hosanna-Tabor decision

In 2015, Ms. Biel sued St. James School in federal district court. In January 2017, the district court ruled for St. James based on the U.S. Supreme Court’s unanimous decision in the 2012 Hosanna-Tabor case. In Hosanna-Tabor, the U.S. Supreme Court protected the First Amendment right of a Lutheran school to choose who teaches the faith to the next generation, free from government interference. The Supreme Court decision recognized that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith.

Ms. Biel appealed to the U.S. Court of Appeals for the Ninth Circuit. On December 17, 2018, a divided panel of the Ninth Circuit reversed the district court’s ruling. The Ninth Circuit ruling contradicts Supreme Court precedent, claiming that though Ms. Biel had the same important religious role as the Lutheran teacher in Hosanna Tabor, St. James Catholic School did not have the same right as a Lutheran school to choose who teaches their faith.  

On January 22, 2019, Becket filed its en banc petition for the full Ninth Circuit Court to hear the case on behalf of St. James. On June 25, 2019, the Ninth Circuit denied en banc review. Nine judges joined a dissenting opinion authored by Judge Nelson. In the opinion, the dissenting judges stated that the Ninth Circuit is exhibiting “the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”

On September 16, 2019, Becket asked the Supreme Court to review the Ninth Circuit’s decision and defend the right of St. James School to choose the teachers best able to pass on its faith teachings to the next generation. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in St. James School, and consolidated the case with a similar Becket case, Our Lady of Guadalupe v. Morrissey-Berru. The Court heard oral argument on May 11, 2020. Also representing St. James Catholic School were Jack Sholkoff of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Margaret Graf of the Archdiocese of Los Angeles.

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty

  • Freedom of religious groups from state intrusion on religious affairs: Religious institutions should be fully empowered to select their priests, rabbis, ministers and other religious teachers. The Supreme Court has acknowledged that right and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry.

Speaker v. Fields

Centuries-old tradition under attack in Pennsylvania

For centuries, state and federal legislatures have started their sessions with prayer. The prayers are sometimes led by legislative chaplains, other times by legislative members or guests who represent faith groups from across the state.

In 2016, a group of secular atheists, many of whom publicly mock prayer and religion, requested to serve as chaplains and deliver non-religious “invocations” in the Pennsylvania State House. The Pennsylvania House speaker denied their request on the grounds that their beliefs were not religious. In August 2016, the atheists sued the Speaker of the Pennsylvania House in federal court, claiming that it violated the Establishment Clause to bar a non-religious person from offering prayer.

Legislative prayer reminds us that our rights come from something higher than government

Legislative prayer is a tradition that goes back to our nation’s founding. Both houses of the First Congress hired chaplains who, just a couple of years later, likely prayed on the days Congress debated the Bill of Rights. The Supreme Court has held that such prayers, recognized by the Framers and existing for decades without leading to an establishment of religion, do not violate the Establishment Clause. Moreover, legislative prayer supports the Constitution by reminding us of the source of our rights: a power higher than the government.

Acknowledging the important place legislative prayer holds does not require government to give atheistic non-prayer the same platform. The prayer simply accommodates religious believers in what is already a secular process. The Pennsylvania State House that requires guest speakers for invocations be members of the legislature or members of a church or religious organization. This makes sense. Everyone has beliefs, but not all beliefs are religious. The purpose of the chaplaincy is to provide religious support. To allow militant and other secular atheists to occupy the chaplaincy undermines the purpose of the position in the first place. The group of atheists suing the Pennsylvania State House do not appeal to a higher power, and on top of that, they are known for mocking and ridiculing religion.

What’s at stake includes more than legislative prayer. Since our nation’s founding, religion has had a special distinction in the law as a right that cannot be overruled by government. Giving non-religious beliefs the same platform and distinction as religious beliefs would undermine more than just religion—it would weaken the legal foundation of our religious liberty.

Becket steps in

In August 2018, the district court decided in favor of the atheists, ruling that the Pennsylvania State House legislative prayer policy violates the Constitution. The Speaker of the Pennsylvania House appealed the case to the Court of Appeals for the Third Circuit. Becket filed a friend-of-the-court brief on behalf of several chaplains, and on August 23, 2019 the Third Circuit ruled in favor of the Speaker of the House, writing, “we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking.”

IMPORTANCE TO RELIGIOUS LIBERTY

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.
  • Legislative prayer: Contrary to thinking that legislative prayer violated the Establishment Clause, our nation’s founders in fact explicitly understood legislative prayer to be a reminder of the source of our rights: a power higher than the government. In 2014, the U.S. Supreme Court ruled that legislative prayer was constitutional in Town of Greece v. Galloway.

Gundy v. United States

In Gundy v. the United States the U.S. Supreme Court had the opportunity to decide whether Congress violated the “nondelegation doctrine” by giving to the U.S. Attorney General Congress’s constitutionally-assigned task of defining the scope of criminal liability. The nondelegation doctrine is an important principle for maintaining our government’s three-branch structure of checks and balances, and it is particularly important for protecting religious liberty.

The “nondelegation doctrine” is part of our checks and balances

The “nondelegation doctrine” says that Congress cannot vaguely delegate its powers to administrative agencies. Doing so undermines the purpose of our governmental structure. Our nation’s founders divided our government into three branches—legislative, executive, and judicial—so that these branches would “check” and “balance” each other. Without those checks and balances, one branch of government can grow in power to the point of eclipsing the others—exactly what our founders wanted to prevent.

Without the nondelegation doctrine—religious liberty is at risk

Allowing Congress to delegate its constitutionally-assigned powers to the Executive Branch increases the already far-too-extensive powers of the administrative state. On top of that, historically, administrative agencies are less attentive to safeguarding religious liberty than Congress. Once an agency has trampled on a religious group’s rights, it can be a long and difficult process to win them back, especially for minority groups. Pastor Soto, for example, a Native American and member of the Lipan Apache tribe, spent ten years fighting in court to get back sacred eagle feathers confiscated by an undercover federal agent from the United States Fish and Wildlife Services. The Federal Emergency Management Agency (FEMA) unconstitutionally denied funding to severely damaged houses of worship simply because they are religious, even as the houses of worship are providing assistance to others impacted by the same natural disasters. And the HHS Mandate cases Burwell v. Hobby Lobby and the Little Sisters of the Poor clearly demonstrated the disastrous consequences of Congress delegating broad powers to an administrative agency—Congress did not impose a contraceptive mandate, HHS bureaucrats did.

In June 2018, Becket filed a friend-of-the-court brief in Gundy v. United States highlighting the specific importance of the nondelegation doctrine to religious liberty. Without the nondelegation doctrine, religious groups—particularly minority ones—are at risk of losing their rights.

The U.S. Supreme Court heard oral arguments in Gundy v. United States on October 2, 2018. On June 20, 2019 the court ruled against Gundy, deciding that the delegation of powers in Gundy’s case did not violate the nondelegation doctrine. Gundy is represented by Sarah Baumgartel of the Federal Defenders of New York, Inc.

Importance to religious liberty

  • Religious communities: The “nondelegation doctrine” is particularly important for protecting religious liberty of religious communities, especially minority ones. Administrative agencies are historically less attentive to religious liberty rights than Congress.

InterVarsity Christian Fellowship v. University of Iowa

A faith community for students, focused on fellowship and service

For 25 years, the InterVarsity Graduate Christian Fellowship student group has been part of campus life at the University of Iowa, a campus that features over 500 student groups. As a Christian group, InterVarsity fulfills its mission by providing a community where students can grow in their faith while pursuing their academic education. The student group hosts weekly Bible studies, monthly meetings that include prayer and worship, and discussions on important religious and social issues on campus. It also serves the local, state, and global communities by hosting and participating in community service initiatives, including Oxfam and the C.R.O.P. Hunger Walk to combat global poverty. Intervarsity has been the top fundraiser for the C.R.O.P. Walk six times in the last decade. The University of Iowa has previously recognized the student group for its outstanding service to the student body.

InterVarsity encourages and welcomes all students to be members, and as a Christian group, it reasonably asks that group leaders share its Christian faith. In this respect, InterVarsity is no different from the many other student groups on campus that ask their leaders to adhere to certain requirements. For instance, fraternities have only male leaders and members; female sports clubs have only female leaders and members; and political and ideological groups can require their leaders to agree with their mission.

Banned from campus

On June 1, 2018, following the end of the school year, the University of Iowa sent a notice to InterVarsity, threatening the student group with deregistration. Why? For the first time in 25 years, the University deemed the Christian group’s reasonable requirement that its leaders share its faith to be “noncompliant” with university non-discrimination policies. The University gave InterVarsity two weeks to change its constitution.

No group, especially a religious group, can expect its mission to survive without leaders who share and further its mission—religious or not. When InterVarsity explained that the group’s very existence depended on leaders who share its faith mission, the University doubled down, insisting that the student group could not even “encourage” leaders to believe in and live by its religious mission. Shortly after, University officials deregistered the student group, effectively eliminating it from campus.

A sweeping, discriminatory assault on student rights

In July 2018, the University of Iowa officially deregistered InterVarsity, along with 38 other student groups —including the Sikh Awareness Club, the Chinese Student Christian Fellowship, the Imam Mahdi Organization, Geneva Campus Ministry, and the Latter-day Saint Student Association. Yet, despite the University’s insistence that it must scrub the campus of groups with “non-compliant” leadership requirements, sports clubs, fraternities and sororities, and political and ideological groups can require their leaders (and members) to share their mission or their unique identity. The University’s inconsistency is more than puzzling—it is discriminatory.

On August 6, 2018, Becket, on behalf of InterVarsity student group, sued the University of Iowa in the U.S. District Court for the Southern District of Iowa, defending InterVarsity’s right to require its leaders to believe in and live its religious mission. The University of Iowa is a public university and an extension of the government. It has no right to interfere with the way religious groups, including student groups, choose the leaders who represent and further their faith teachings.

As result of the lawsuit, the University agreed to temporarily reinstate InterVarsity, as well as all other religious groups that had been deregistered, including Sikh, Muslim, and other Christian organizations. But the reinstatement only lasted while litigation against the University was ongoing, and the University continued to argue that it had authority to kick out religious groups like InterVarsity.

On September 30, 2019, a federal district court found that the University had violated the First Amendment’s protections for free speech, free association, and free exercise of religion. The court also ruled that the individual University officials who discriminated against InterVarsity had violated clearly established law, and so were personally liable for their actions. The University appealed to the Eighth Circuit. On July 16, 2021, the appellate court unanimously upheld the lower court ruling and said that “[w]hat the University did here was clearly unconstitutional” and “turned a blind eye to decades of First Amendment jurisprudence.”

Importance to religious liberty:

  • Education: There is a nation-wide trend of curbing free speech—especially religious speech—on college campuses. But students do not forfeit their First Amendment rights to freedom of speech, freedom of religious exercise, and freedom of association when studying at a public university.
  • Public square: Religion is a natural part of human culture and should not be scrubbed from the public square. This includes public university campuses, which are reflections of the students who attend them, including students with religious beliefs.
  • Religious communities: Becket’s 2012 Supreme Court case Hosanna-Tabor guarantees the right of religious groups to select their own leaders without government interference or entanglement.

Barker v. Conroy

A tradition dating back to the nation’s founding

Since 1789, the U.S. House of Representatives has included the traditional office of chaplain. Besides offering pastoral care to the members of the House—including presiding over memorials and funerals—the chaplain opens legislative sessions with a prayer. The practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority: the people’s inalienable rights did not come from government or its officials, but from a divine source that superseded government. Today, members of Congress are welcome to invite others to give the opening prayer with the chaplain’s permission, and people of many diverse faiths have done so over the years, including Christians, Hindus, Jains, Jews, and Muslims.

Anti-religion activist seeks to dismantle tradition

In February 2015, Dan Barker, co-president of the Freedom From Religion Foundation (best known for his anti-religious beliefs and his Foundation’s lawsuits that ridicule religion and religious people), attempted to disrupt over 200 years of tradition and requested to open a legislative session with a “non-prayer.” FFRF is a group that seeks to scrub public life of all references to religion, and Barker is a self-avowed atheist who has worked for years to dismantle religion and its presence in the public square, frequently through ridiculing religion and religious people. When the House chaplain rejected Barker’s request, Barker sued the House in district court in May 2016 arguing that he had the right to begin a legislative session with a non-prayer under the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). He also claimed that the House’s practice of opening with prayer violated the Establishment Clause of the First Amendment.

The courts agree with Becket: Legislative prayer is constitutional

In May 2014, the U.S. Supreme Court ruled that legislative prayer is constitutional in Town of Greece v. Galloway, a case where Becket filed a friend-of-the-court brief defending legislative prayer. This landmark case set a precedent for lower courts, and in October 2017, the district court properly ruled against Barker. Barker then appealed the Establishment Clause claim to the U.S. Court of Appeals for the D.C. Circuit. Thomas Hungar, general counsel of the U.S. House of Representatives defended.

In July 2018, Becket filed a friend-of-the-court brief, explaining the clear constitutionality of legislative prayer as decided by the U.S. Supreme Court. The brief also explains that the Establishment Clause is not triggered every time the government acknowledges or supports religion. Religious practices—like legislative prayer—that existed at our nation’s founding and were accepted by the drafters of the Establishment Clause do not violate the Establishment Clause. The Founders were concerned about eliminating religious coercion by the state, not about stripping religion from public life. Merely being exposed to other’s religious practices does not amount to coercion. This important distinction is critical to understanding the First Amendment and the founding generation’s understanding of the special role religion plays in our history, traditions, and culture.

The D.C. Circuit heard oral argument in October 2018. On April 19, 2019, the court unanimously ruled that the House of Representatives does not violate the Establishment Clause by requiring its opening prayer to be a religious prayer. The court’s ruling reinforces that the Establishment Clause must be interpreted in line with its historical meaning and that the founders would not have considered the longstanding tradition of legislative prayer to be an establishment of religion. It also affirms the legitimate place of religion in public life.

Importance to religious liberty

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.

Su v. Stephen Wise Temple

A synagogue’s work at risk

Stephen S. Wise Temple is one of the largest and most prominent Reform Jewish synagogues in Southern California, serving its congregation through worship, community service, and education. But the Temple’s work was put at risk when the State of California claimed it could interfere with the synagogue’s internal decisions about its ministers.

In September 2013, the State of California sued the Temple in state court over whether the Temple gives certain ministers—here, preschool teachers—long enough lunch breaks. Represented by Horvitz Levy, the Temple stood up for its rights, arguing that California has no right to second guess the Temple’s decisions about how its ministers should carry out its religious mission.

The Supreme Court has confirmed autonomy for houses of worship

In March 2016, the trial court agreed with the Temple, basing its decision on the landmark U.S. Supreme Court case Hosanna-Tabor v. EEOC, which Becket won on behalf of a Lutheran elementary school in 2012. In Hosanna-Tabor, the Court unanimously recognized a principle of the First Amendment known as the ministerial exception, which states that the government should not interfere with religious institutions’ decisions about the employment of their ministers – including teachers in religious schools.

The State of California appealed the trial court’s decision, arguing that the ministerial exception does not apply to the Temple in this case. In July 2018, Becket – joined by the Church Of God In Christ denomination, one of the largest African-American denominations in the United States – filed a friend-of-the-court brief at the California Court of Appeals for the Fourth Appellate District. On March 8, 2019, the Court of Appeals ruled against the Temple, and on June 19, 2019, the California Supreme Court denied further review.

Houses of worship have the right to make their own decisions when it comes to choosing how their religious ministers will conduct religious ministry. Thus, the Temple, not the government, gets to determine how ministry should be performed by the ministers who teach Jewish religious values and traditions to young children.

Importance to religious liberty:

  • Freedom of religious groups to choose how their ministers will minister: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t evaluating the internal religious affairs of a religious ministry.

Whole Woman’s Health v. Texas Catholic Conference of Bishops

No good deed goes unpunished

The Catholic Church has long been known for its pro-life stance. In line with these beliefs, Catholic churches in Texas have worked with hospitals and families for many years to provide burial for unborn remains. When the State of Texas passed a law requiring all hospitals and abortion clinics to bury or cremate all unborn remains, the Texas Catholic Conference of Bishops offered support—as an act of ministry, the bishops publicly offered to donate free space in Catholic cemeteries across the state for this purpose.

In December 2016, Whole Woman’s Health, a group that runs abortion facilities in Texas, sued the State to stop the fetal remains law. Even though the Texas Catholic Conference of Bishops was not part of the lawsuit, in March 2018 Whole Woman’s Health retaliated against the bishops for publicly supporting the fetal remains law. Whole Woman’s Health served them with a subpoena demanding that the bishops hand over all communications about abortion. The bishops handed over more than 4,000 pages of communications, but the bishops stood their ground when it came to private religious deliberations among the bishops, refusing to hand them over.

Church theology is not a public affair

Churches should be free to lend tangible support to public initiatives without fear that they will be forced to hand over private, internal communications, especially on matters of doctrine and theology. The Texas Catholic Conference of Bishops had already handed over thousands of communications with outside groups. Handing over their private, internal religious deliberations between the bishops regarding matters of faith would seriously interfere with the Church’s ability to conduct its ministries – not to mention that handing them over to advocacy groups who believe differently than the Church does on matters like abortion would be damaging.

Despite this, on June 17, 2018, a trial judge ordered the bishops to hand over their internal communications about abortion to Whole Woman’s Health. The bishops appealed to the Fifth Circuit Court of Appeals for emergency protection from the order. On June 18, 2018, the Fifth Circuit suspended the trial court’s order, protecting the bishops until the case could be fully considered. Simultaneous briefs were filed at the Fifth Circuit on June 25, 2018.

Fifth Circuit Court protects bishops from “Hobson’s choice”

On July 15, 2018, the Fifth Circuit granted the bishops permanent protection from the order. The Court found that the bishops’ claims “go to the heart of the constitutional protection of religious belief and practice as well as citizens’ right to advocate sensitive policies in the public square.” The Court also stated that the abortion facilities’ efforts against the bishops “looks like an act of intimidation,” placing the bishops’ conference in a “‘Hobson’s choice’ of retreating from the public square or defending its position.” On July 30, Whole Woman’s Health asked the full Fifth Circuit to rehear the case. On August 16, 2018, the en banc Fifth Circuit rejected Whole Woman’s Health’s petition for rehearing.

In November 2018, Whole Woman’s Health asked the U.S. Supreme Court to reverse the Fifth Circuit’s decision. On January 11, 2019, Becket filed a brief opposing that request. On February 19, 2019, the U.S. Supreme Court rejected Whole Woman’s Health’s appeal, putting an end to the abortion group’s intrusion efforts.

The Texas Catholic Conference of Bishops was represented by Becket and by Steven Levatino of Levatino | Pace PLLC in Austin, Texas.

Importance to religious liberty

  • Religious communities: Religious communities must be free to operate and minister without government interference, including by keeping internal church communications private, especially when it comes to matters of doctrine and theology.
  • Public square: Churches should be free to support public initiatives that affect their religious beliefs without being forced to forfeit their privacy.

Knick v. Township of Scott, Pennsylvania

Government cannot take private property without “just compensation”

Rose Mary Knick lives on 90 acres of farmland in the Township of Scott, Pennsylvania, which her family has owned for nearly 50 years. In April 2013, Township officials entered and searched Ms. Knick’s private property without a warrant, saw a few stones that appeared to be grave markers, and claimed that Ms. Knick’s private property was considered a cemetery, and therefore must be made accessible to the public. Ms. Knick challenged the Township, since, by requiring her property to be open to the public, it had violated the Fifth Amendment’s Takings Clause, which forbids that “private property be taken for public use, without just compensation.”

The district court dismissed her case—not because Ms. Knick was wrong, but because, under an old Supreme Court precedent called Williamson County, Ms. Knick had to complete a lengthy bureaucratic process before she could assert her constitutional rights in court. Ms. Knick continued appealing her case all the way to the Supreme Court.

Takings Clause interpretation leaves houses of worship vulnerable

The Williamson County rule is bad enough when applied in takings cases like Ms. Knick’s. But some courts have extended the rule to apply also to claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a bipartisan congressional law passed to protect property rights for houses of worship and minimize the unfair delays, expenses, and hurdles they often suffer at the hands of zoning officials. Houses of worship are particularly vulnerable to this kind of abuse, and RLUIPA has played a critical role in ensuring that religious groups are not discriminated against as they find a space to gather for worship and religious exercise.

Becket has stood up for churches, a Jewish synagogue, a Sikh temple, a Buddhist temple, a mosque and even a Hawaiian agricultural Christian community that have faced zoning discrimination. But application of the Williamson County rule to RLUIPA cases undermines RLUIPA’s protection of religious groups, particularly minority faiths, allowing local governments hostile to religious groups to simply strangle it with red tape.

Becket steps in to protect RLUIPA standards

In October 2017, Ms. Knick appealed to the U.S. Supreme Court in order to protect herself and others from the harmful Williamson County rule and ensure that Takings Clause cases are brought to court without years of bureaucratic delay. In March 2018, the Supreme Court agreed to hear her case. On June 5, 2018, Becket filed a friend-of-the-court brief with the Supreme Court, pointing out how some lower courts have expanded the Williamson County rule to RLUIPA cases and arguing that this application undermines RLUIPA and unjustly harms religious groups. When their property rights are violated, houses of worship should be free to challenge the government under RLUIPA instead of spending time and money they do not have on a burdensome bureaucratic process.

Oral argument took place on October 3, 2018. On June 21, 2019 the Supreme Court ruled in favor of Ms. Knick. Chief Justice Roberts announced that the precedent from Williamson County was overruled in part, writing, “Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” Ms. Knick is represented by Pacific Legal Foundation.

 

Importance to religious liberty

  • Property rights: Houses of worship and religious organizations are particularly vulnerable when it comes to property rights. When their rights are violated, they should be free to challenge the government without spending time and money they do not have on a burdensome bureaucratic process.

Sharonell Fulton, et al. v. City of Philadelphia

Faith-Based Foster Care Fact Sheet

Free To Foster: Read about heroic foster families

A history of heroic service in the City of Brotherly Love

Sharonell Fulton and Toni Simms-Busch each have decades of experience in the foster care system. Sharonell has fostered 40 children, and Toni spent years working as a foster care social worker and child advocate before fostering and adopting herself. These two Catholic women chose to partner with Catholic Social Services because they wanted to work with a faith-affirming agency and were impressed by its excellent reputation.

The Catholic Church pioneered foster care in Philadelphia over 200 years ago when it founded an agency to help mothers, children, and families in need. Inspired and motivated by its religious identity, Catholic Social Services has been providing critical foster care services to children ever since. It is one of the most successful foster agencies in the city and has a great reputation. Catholic Social Services’ faith (and its ability to recruit foster families who are inspired by their own faith) is a big part of its success. It’s also proved excellent at supporting and retaining foster families. Catholic Social Services’ caseworkers build strong relationships with both foster kids and their families, and are available any time—day or night. When Sharonell took in new foster kids on Christmas Eve, Catholic Social Services’ caseworkers delivered wrapped presents to her door.

But because of the city’s discriminatory actions, loving foster families that partner with Catholic Social Services (like Sharonell and Toni) were stuck on the sidelines—their homes sitting empty—even though the government has admitted that there were kids in immediate need of their love and support.

Making room for diversity

When someone wants to become a foster parent, the first step is to contact a private foster agency (there are 30 in Philadelphia) and complete a home study. Home studies are deeply personal and require the agency to send someone into the family’s home to assess things like the strength of their personal relationships, their physical and mental health, and their relationships with their children. Only once this is completed can an agency partner with the foster family to help care for a child in need.

As part of the Catholic Church, Catholic Social Services cannot partner with and endorse same-sex or unmarried couples. Instead, it will help that couple to find a match from among the 29 other nearby foster agencies that can provide the same endorsement and partner with that couple to serve kids in need. Three of these other agencies are even recognized for their excellence in serving the LGBTQ community.

Agencies help foster families find a better match all the time (like, for example, if a family lives too far away, or the agency has a long waiting list, or a couple is seeking to foster kids with special needs). But this wasn’t enough for city officials, who demanded that if a same-sex couple ever approached Catholic Social Services (none had), the agency had to endorse their relationship and partner with them.

Catholic Social Services’ religious beliefs and traditions aren’t a policy or set of guidelines it can change. The agency walks with the Catholic Church in its teachings about marriage and family as well as its commitment to serving the local community—and all parts of the human family—as best it can. As a majority of the Supreme Court Justices acknowledged, Catholic Social Services is “an arm of [the Catholic Church].” Its Catholic convictions are why the agency is committed to serving all children in need—regardless of their race, religion, or sexual orientation.

Sidelining all-stars while kids are left hanging

In Philadelphia, there are dozens of private agencies that partner with LGBTQ foster parents. And same-sex couples have been fostering kids in Philadelphia for years with their help. Nothing about this case would change that. Instead, Catholic Social Services wants to continue serving vulnerable kids and foster families without compromising its beliefs (as it has done successfully for the last 200 years) alongside a diverse network of other agencies also serving the Philadelphia community. Catholic Social Services has loving families ready to care for kids today, but the government is keeping them on the sidelines.

Foster moms asked the Supreme Court to protect the agency that affirms their religious identity

In May 2018, Becket stepped in to represent children, families, and Catholic Social Services in their lawsuit against Philadelphia’s government. In June 2018, Becket asked a federal court to end the government’s discriminatory actions and let Catholic Social Services serve foster kids and families. In July 2018, the district court denied the request, and Becket immediately appealed to the Third Circuit Court of Appeals.

In April 2019, the Third Circuit ruled against Sharonell Fulton, Toni Simms-Busch, and Catholic Social Services in a controversial decision that split with several other appeals courts. Becket then asked the Supreme Court to take up their case and protect the freedom of faith-affirming foster agencies nationwide to maintain their deeply held beliefs while serving those most in need. On February 24, 2020, the Supreme Court agreed to hear this case. Oral argument took place on November 4, 2020 and on June 17, 2021, the U.S. Supreme Court unanimously ruled in favor of “exemplary” foster mothers Sharonell Fulton and Toni Simms-Busch, allowing these foster care heroes to continue serving children in need in partnership with the Catholic foster ministry that has been serving Philadelphia for over 200 years. As the Supreme Court unanimously confirmed, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Importance to religious liberty

  • Religious Freedom: Religious organizations must be free to act according to their faith, including when caring for children in need. The government cannot exclude religious groups by demanding they give up their religious beliefs in order to continue providing much needed social services.
  • Public Square: Faith-affirming organizations serve their neighbors and provide benefits to the community when they are able to operate in the public square. Religion in the public square is not a threat, but rather the expression of a natural human impulse.

Lee v. Sixth Mount Zion Baptist Church

A small African-American church serving the people of Pittsburgh

Sixth Mount Zion Baptist Church is a small, historic African American church in Pittsburgh. Founded in 1899, its current worship services host about 100 people. The community served by Sixth Mount Zion is one of Pittsburgh’s poorest: one-third of the households in its neighborhood are headed by single moms, one quarter of the houses sit vacant, and one person is unemployed for every three that have a job. To support its community, Sixth Mount Zion hosts a number of ministries to the poor, including a monthly food-bank.

A pastor leads the church’s ministries into decline

In December 2012, the membership of Sixth Mount Zion called Reverend William David Lee to be its pastor. As the church’s pastor, Reverend Lee was expected to be the “only leader of the flock.” This meant leading the spiritual life of the church, including leading worship services, educating the congregation, and conducting weddings, baptisms, and funerals.

Three months after taking over the church’s leadership, Rev. Lee insisted that the church sign a contract giving him a 20-year term in office. When church members expressed concern, he assured them that they could still fire him if they believed he wasn’t leading the church in the right direction.

But two years after Reverend Lee became pastor, it became apparent that church life had changed under Lee’s religious leadership—for the worse. A joint board of church deacons and trustees found that membership had plummeted 61 percent, Sunday worship attendance had dropped 32 percent, and tithing and offerings had decreased 39 percent, while church expenses had increased 200 percent. Concerned for the church’s future, the church membership voted to have Rev. Lee step down from the pulpit in January 2015.

Becket defends Sixth Mount Zion’s right to choose its leader

In September 2015, Rev. Lee sued Sixth Mount Zion and eleven of the church’s lay leaders in federal court for $2.6 million.  In August 2017, the court rejected Rev. Lee’s lawsuit. Relying on Hosanna-Tabor, the court ruled that judges cannot second-guess a church’s decision about the quality of its pastor’s religious leadership.

In September 2017, Rev Lee appealed the federal court’s decision to the Third Circuit Court of Appeals. Becket filed its response brief on behalf of Sixth Mount Zion in April 2018. Oral argument took place in July 2018 (audio here).

In September 2018, the Third Circuit ruled 3-0 for the church, stating that the First Amendment prevents courts from deciding questions of spiritual leadership. The Third Circuit’s ruling bolsters the right of all houses of worship to select their leaders—a right called the “ministerial exception”—stating that “While the amount of church contributions and members is a matter of arithmetic, assessing Lee’s role … requires a determination of what constitutes adequate spiritual leadership.” That raises “questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause.”

Importance to religious liberty:

  • Freedom of groups to choose their own leaders: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent protecting a church’s right to choose its own leaders. Both church and state are better off when the state isn’t evaluating the internal religious decisions of a religious ministry.

Trump v. Hawaii

In 2017, President Donald Trump issued a series of executive orders banning entry for citizens of certain Muslim-majority countries. Becket filed an amicus brief when one of the orders came before the Supreme Court last year in Trump v. International Refugee Assistance Project. In January 2018, Becket filed a friend-of-the-court brief in Trump v. Hawaii, arguing that the federal courts should rely on the Free Exercise Clause, not the Establishment Clause, to resolve claims of religious targeting of Muslims. 

The notorious Lemon test is an ahistorical Establishment Clause test that asks judges to evaluate the state of mind of lawmakers rather than analyzing whether the government is creating an establishment of religion. Becket argues in its brief that when analyzing claims that the government is targeting particular religious people for disfavor, courts should use the Free Exercise Clause of the First Amendment to decide the claims instead.

On June 26, the Supreme Court ruled on separate grounds, holding that the Establishment Clause did not apply with the same force to foreign nationals seeking entry to the United States. 

Importance to religious liberty: 

  • The Free Exercise Clause: The Free Exercise Clause protects religious people from government targeting because of their religious beliefs.  
  • Establishment Clause: The ahistorical Lemon test depends heavily on speculations about the state of mind of a single government official —this case should instead be evaluated under the Free Exercise Clause. 

Freedom From Religion Foundation v. Lehigh County

Seals and flags reflect our nation’s history and culture

Images of historic significance are common on the seals and flags of states, counties, and towns across America. New Mexico’s flag has a single image: the sacred sun symbol of the Zia Native American tribe. Louisiana’s flag has a symbol of a pelican with a bleeding heart that feeds its hatchlings, a symbol long used to illustrate how Christians are nourished by the Eucharist and reflecting the early French Catholic influence in the Louisiana Territory. Utah’s flag and seal have images recalling the Mormon pioneers. And many seals and flags in the American southwest have images of friars and mission churches reflecting the early influence of Spanish Catholics in that region.

Militant atheists try to scrub history from Lehigh County’s seal

Lehigh County, Pennsylvania’s seal includes a collection of images that reflect its history and culture. These images include cement silos, textiles, and a farm, symbolizing significant aspects of the County’s early economy; the Liberty Bell and a red heart, symbolizing its role in the American Revolution and its sense of patriotism; a lamp with books, representing its schools; and a cross, recalling the early Christians who settled Lehigh County in pursuit of religious freedom.

The county’s seal has existed for over 70 years without controversy. But in 2016, militant atheists from the Wisconsin-based Freedom From Religion Foundation (FFRF) sued, demanding that the federal court in Pennsylvania scrub the cross from the county’s seal. They claim that including the cross among the dozen symbols on the seal establishes the Christian religion as the official county religion, and so it must be removed.

Lehigh County fought back—not to endorse one religion over another or religion over nonreligion—but simply to preserve a small reminder that the religious minorities who settled Lehigh County played an important role in its history that is worth remembering, just as it is worth remembering Lehigh County’s early role in the American Revolution, its early economic influences, and its patriotism and schools. Memorializing history is not unlawful just because aspects of it happen to be religious.

Defending religious symbols in the public square

In September 2017, a federal district judge issued an opinion noting that Lehigh County’s seal complies with the actual text of the First Amendment and with the intent of the founding fathers, who wanted to protect citizens from having to worship against their will or pay for churches they didn’t like, but never intended to strip every reference to religion from the public square. The court thought the case should be “cut and dry” for the county. But instead of applying the actual text and meaning of the First Amendment, the court felt bound by an old Supreme Court case, Lemon v. Kurtzman, which requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion. Thanks to Lemon, the courts are flooded with cases challenging “In God We Trust” on our coins, the phrase “Under God” in the pledge of allegiance, prayers in public meetings, and the countless religious images on state and federal buildings, flags, seals, and war memorials.

Even the Supreme Court seems to agree that enough is enough. In recent years it has moved away from the Lemon test, ruling that manifestations of religion in government and in the public square that were acceptable at our nation’s founding are still acceptable today and that recognizing the role of religion among our nation’s peoples, history, and culture does not violate the Constitution.

The case reached the Third Circuit Court of Appeals, to decide whether Lehigh County included the cross to force Christianity on its citizens or whether the cross is simply a reminder, among a dozen others, of one significant aspect of the county’s history. The Third Circuit placed the case on hold while the Supreme Court considered a challenge to a historic war memorial in the form of a cross on public land in Bladensburg, Maryland. On June 20, 2019, the Supreme Court ruled 7-2 in favor of the Bladensburg cross.

On August 8, 2019, following the Supreme Court’s precedent, the Third Circuit Court of Appeals ruled 3-0 that Lehigh County can maintain the Latin cross in its seal as a symbol significant to the county’s history. The court recognized that “Lemon does not apply” to religiously expressive imagery in the public square in light of the Bladensburg decision, and that requiring “the cross’s extirpation” could be hostile, not neutral, toward religion.

Becket has also defended a World War II religious memorial in a Montana ski resort, a historic Pensacola park cross monument, and a 9/11 Ground Zero cross artifact, among others.

Importance to Religious Liberty:

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.     

InterVarsity Christian Fellowship v. Wayne State University

Community and service for 75 years

The InterVarsity student group on Wayne State campus began in the 1940s as one of the first InterVarsity chapters in the United States, instituted as a place for students to come together and share their faith. Over the years, it has hosted campus discussions on issues like human trafficking, helped clean up blighted neighborhoods in Detroit, and volunteered at the campus food pantry. Most of all, InterVarsity has created a thriving community of students who come together for Bible study, worship, friendship and support during their college careers. This is particularly important at Wayne State, since it is a commuter campus and many students can struggle to find a place where they belong.

Kicked off campus for their religious beliefs

In 2017, InterVarsity applied to renew its student organization status, a renewal the students thought would be automatic. Instead, the Dean of Students’ office told them that their chapter constitution was unacceptable. According to Wayne State, InterVarsity did not meet the necessary requirements because its expectation that its leaders embrace its faith was “discriminatory.” But asking leaders to share its faith was a matter of basic integrity and was an absolute necessity to remaining a Christian group. And it had never been an issue in the prior 75 years on campus. Further, student membership is open to all, and all are invited to group events. Yet in October 2017, Wayne State abruptly derecognized the group and canceled all its existing meeting reservations.

Meanwhile, the university recognizes more than 400 student groups, and allows them to select their leaders. The Secular Student Alliance can require leaders to be secularists, Students for Life can require its members to be pro-life, and more than a dozen fraternities and sororities can limit membership to one sex. These requirements are normal and acceptable, yet the school blatantly discriminated against InterVarsity by barring it from having the same ability to select leaders who share and live by its mission.

InterVarsity stands up to religious discrimination

With Becket’s help, on March 6, 2018, the student group sued Wayne State University to protect their right to be treated like other groups and select leaders who share its faith and mission. By specifically targeting religious groups, Wayne State is violating its own policy against religious discrimination—in addition to the First Amendment.

After Becket took Wayne State, as well as Michigan Governor Richard Snyder and Attorney General Bill Schuette, to court, the school relented and reinstated InterVarsity on campus. Now, the university is asking a federal court to give it the power to kick the group off campus at a later time. In June 2018, Becket filed two briefs seeking a permanent fix to the school’s discriminatory policy, which allows more than 90 student groups to choose leaders who agree with them – but not InterVarsity. In July 2018, InterVarsity dropped its lawsuit against Michigan Governor Richard Snyder and Attorney General Bill Schuette after they acknowledged that Michigan universities must respect the rights of religious student groups to choose their own leaders.

The parties filed motions for summary judgment in October 2020. Becket filed its reply brief, asking the court to permanently forbid Wayne State from kicking IVCF off campus and award IVCF proper damages, on December 3, 2020. Oral argument in the case was heard in March of 2021, and on April 5, 2021, a federal court ruled in favor of InterVarsity, protecting its status as a campus club and holding Wayne State University officials responsible for violating InterVarsity’s First Amendment Rights.

Importance to religious liberty

  • Education: There is a nation-wide trend of curbing free speech—especially religious speech—on college campuses. But students do not forfeit their First Amendment rights to freedom of speech, freedom of religious exercise, and freedom of association when studying at a public university.
  • Public square: Religion is a natural part of human culture and should not be scrubbed from the public square. This includes public university campuses, which are reflections of the students who attend them, including students with religious beliefs.
  • Religious communities: Becket’s 2012 Supreme Court case Hosanna-Tabor guarantees the right of religious groups to select their own leaders without government interference or entanglement.

Pacific Lutheran University v. SEIU Local 925

Pacific Lutheran University is a private university in Tacoma, Washington offering undergraduate and graduate studies in a liberal arts environment. It is committed to “diversity, justice, and sustainability,” and at the same time, fosters a proud Lutheran tradition.

But Pacific Lutheran had to fight to maintain autonomy as a religious university. In 2013, the Service Employees International Union (SEIU) tried to unionize non-tenured professors at the University, even though until then religious universities had been exempt from unionization in order to preserve church-state separation. SEIU claimed that Pacific Lutheran was not “sufficiently religious” to qualify for the exemption and therefore was subject to labor laws enforced by the National Labor Relations Board (NLRB).

Represented by Gordon Thomas Honeywell LLP, Pacific Lutheran appealed an initial regulatory decision against it to the NLRB, emphasizing its status as a religious university, and that as a religious university it is up to Pacific Lutheran to make decisions about employees’ status based on its religious mission. Otherwise Pacific Lutheran risked losing its independent authority to guide practices for its adjunct professors, which is crucial to promoting faith-based values. In a religious university like Pacific Lutheran, teachers are expected to reflect their institution’s faith, and the law must reflect — and protect — that reality.

Becket filed a friend-of-the-court brief in support of Pacific Lutheran arguing that the First Amendment principle of church autonomy as recognized in cases like Becket’s Supreme Court case Hosanna-Tabor meant that the NLRB could not oversee unionization contests within religious universities.

Despite these arguments, the NLRB ruled against Pacific Lutheran saying that adjunct professors do not overtly perform a religious function and therefore fall under NLRB jurisdiction. The decision also claimed that an institution must prove its religious affiliation, and the religious roles played by employees, before asserting the exemption. This decision was tantamount to a complete reversal of the Board’s former policy, which provided broad latitude to churches and other religious employers.

After the NLRB issued its decision—which is binding nationwide—SEIU withdrew its unionization petition, meaning that the NLRB’s change in policy narrowing the religious exemption could not be tested in a higher court. Since then, unionization efforts have begun at a number of religious (primarily Catholic) universities across the country.

Janus v. American Federation of State, County, and Municipal Employees

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued his union—the American Federation of State, County and Municipal Employees. Janus argued that mandatory union fees forced him to subsidize the union in taking negotiating positions against the government with which he disagreed. After losing in the district court in September 2016 and again at the Seventh Circuit Court of Appeals in March 2017, Janus appealed to the U.S. Supreme Court. In December 2017, Becket filed a friend-of-the-court brief emphasizing that government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom. On June 27, 2018, the Supreme Court ruled for Janus when it clarified that mandatory fees are a form of government coercion that violate workers’ rights.

Pay no attention to the government behind the curtain

Pay no attention to the government behind the curtain! At least that’s what supporters of mandatory union fees for government workers wanted in Janus v. AFSCME. Unions can be protective forces for government workers—but not when they use the force of the government to exact mandatory fees from government employees, to support speech with which the employees disagree.

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued the American Federation of State, County and Municipal Employees in federal court, claiming that mandatory union fees force him to subsidize the union in taking positions against the government with which he disagrees. Janus asked the district court to protect his First Amendment rights and make public sector unions earn the trust of government employees, rather than using government power to force them to support union speech with mandatory fees. In September 2016, the district court ruled against Janus. On appeal in March 2017, the Seventh Circuit Court of Appeals again ruled against Janus. Janus appealed to the U.S. Supreme Court, which agreed to hear his case.

Becket argues that mandatory fees threaten religious liberty

In December 2017, Becket filed an amicus brief in support of Janus, arguing that the government is engaging in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will by using unions to hide the coercion.

Our brief showed that this issue has far reaching consequences, especially for religious liberty. For instance, the government uses private accrediting agencies as gatekeepers for federal funding like Pell Grants. Accreditors should not be allowed to use their funding authority to suppress religious speech any more than the government itself could. There are many other situations where the government relies on private entities to provide government benefits or to perform government services. When acting on the government’s behalf, these organizations should be required to respect constitutional rights the same way the government is. Just like “money laundering” (passing illegitimate funds through a legitimate business) cannot remove the taint of criminally obtained funds, “coercion laundering” (allowing a private party to force someone to do something the government could not force them to) cannot remove the taint of unconstitutional coercion.

U.S. Supreme Court: Mandatory union fees are form of government coercion

On February 26, 2018, the U.S. Supreme Court heard Janus’ case. On June 27, 2018, the U.S. Supreme Court ruled in favor of Janus in a 5-4 decision, striking down mandatory union fees for government workers. The ruling clarified that mandatory fees are a form of government coercion that violates workers’ rights.

This ruling has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices. Janus was represented by Liberty Justice Center and National Right to Work Legal Defense Foundation.

Janus was represented by Winston & Strawn, Liberty Justice Center, National Right to Work Legal Defense Foundation.

Importance to religious liberty

  • Individual freedom: When acting on the government’s behalf, private entities should be required to respect constitutional rights the same way the government is. Government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom.
  • Free speech: The government engages in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will just because it is using unions to hide the coercion.
  • Education: The U.S. Supreme Court’s ruling in Janus v. AFSCME has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices.

First Resort, Inc. v. Herrera

A mission to care for women 

Support Circle is a non-profit clinic and counseling center dedicated to providing support for women facing unplanned pregnancies. At no cost to the women they serve, Support Circle has for decades provided pregnancy tests, ultrasounds, medical care, emotional support, and career counseling to women in the San Francisco Bay Area. Through the many services they offer, Support Circle seeks the well-being of each woman and child that comes to them for help. But because of their belief that abortion is harmful both to women and their unborn children, Support Circle does not offer or refer for abortions. This pro-life viewpoint has resulted in San Francisco trying to stop women in need from even finding out about Support Circle in the first place.  

City ordinance restricts speech—and women’s options 

 In 2011, the City of San Francisco introduced an ordinance that prohibits “limited services pregnancy centers” from making false or misleading statements about the services they offer. But there is hypocrisy built into the ordinance: Support Circle is considered a “limited service” pregnancy center because it does not provide or make referrals for abortion, yet centers that do not offer or refer for other services—like ultrasounds or adoption—are not considered “limited service” centers. Essentially, San Francisco created a one-sided false advertising law, targeting pro-life pregnancy centers, but not abortion providers, for restrictions on their speech. 

Worse, the City says that centers are violating its new ordinance if search engines like Google display their website when the terms “San Francisco” and “abortion” are entered into the search engine together. But Support Circle counsels women considering abortion, and also offers post-abortion counseling, while making clear to all women it serves that it does not offer or refer for abortions. The end result of the city’s ordinance is that women looking for information about abortion on the internet won’t get a chance to see the options available through Support Circle. Instead, they’ll hear only one side of the story—the abortion providers’ side.  

Becket defends free speech for all 

Women facing an unplanned pregnancy have a right to know all their options. And pro-life pregnancy centers have the right to attempt to reach women in need using the same online marketing tools available to every other organization, without being targeted for their viewpoint. 

Thus, in 2012, Support Circle sued the city to stop this unnecessary and unconstitutional ordinance. After a loss at the Ninth Circuit Court of Appeals, in February 2018, Support Circle appealed its case to the Supreme Court. Becket joins Locke Lord in defending Support Circle’s right to provide necessary options to women in need without being silenced for its pro-life views. 

In June 2018, the Supreme Court declined to hear the case.

On January 16, 2018 Becket filed a friend-of-the-court brief on behalf of Support Circle at the U.S. Supreme Court in NIFLA v. Becerra, another case involving a government attempt to target pregnancy centers’ speech. On June 26, 2018, the Supreme Court ruled 5-4 to protect pro-life pregnancy centers’ right to serve women and children according to their religious mission.

Importance to religious liberty: 

  • Free speech: Governments cannot restrict speech because of the speaker’s beliefs. This principle is especially important for speech relating to deeply important and controversial moral and religious issues, like abortion. San Francisco’s law is a one-sided false advertising law that violates this principle and amounts to viewpoint discrimination.  

Chahal v. Seamands

The United States Military Academy at West Point will now accommodate Sikh soldiers, allowing them to wear their essential articles of faith, after two young men persisted for the right to serve their country without being forced to abandon their articles of faith. 

Called to serve their country 

Cadet Arjan Singh Ghotra has been preparing to serve in the U.S. Army since high school. He volunteered for both the Civil Air Patrol and the Virginia Defense Force, and won the Virginia Defense Force Medal for his service at age 17. When he became eligible in 2015, Cadet Ghotra enlisted in the Virginia Army National Guard. After completing one year in the National Guard he applied to, and was accepted at, West Point.   

Like Cadet Ghotra, Cadet Ugrian Singh Chahal knew at a young age that he wanted to serve his country through the military. Inspired by a family history of army service and the service members he met growing up near the Selfridge Air National Guard Base in Michigan, Cadet Chahal worked hard and, like Cadet Ghotra, gained admission to West Point in 2016. 

Denied the ability to serve both God and Country   

From World War I until 1981, the U.S. Army allowed observant Sikhs to serve honorably in the U.S. military while maintaining their articles of faith. But a 1981 policy change banned observant Sikhs from military service simply because they wore turbans and unshorn hair and beards—two of the articles of faith required by their religion.  

As observant Sikhs, Cadets Ghotra and Chahal asked for accommodations that would permit them to continue their service to their country at West Point without having to abandon their articles of faith. Their requests were denied. They were left with the heartbreaking choice: to serve their country or to follow their faith. 

Making room for faith in the ranks 

When Cadet Ghotra realized in March 2016 that he would not be able to participate in practice drills at West Point because of the prohibition on his articles of faith, he submitted his request for a religious accommodation. But because the Army refused to respond, Becket, the Sikh Coalition, and McDermott Will & Emery stepped in to challenge the Army’s policy.  

At a court hearing in August, the Army conceded that it had no legitimate grounds for denying Sikhs the full opportunity to serve their country at West Point and issued new guidelines allowing them to maintain their articles of faith while serving.   

Cadets Ghotra and Chahal are the first two fully-observant Sikh men to serve at West Point. 

Myrick v. Warren

Targeted for her religious beliefs

Religious liberty and LGBT rights don’t have to be in conflict. No one knows that better than Gayle Myrick.

Gayle Myrick was a well-respected magistrate in North Carolina for many years. As a magistrate she issued warrants, set bail, handled traffic fines, and—on rare occasions—performed wedding ceremonies.

Gayle loved helping others and treating everyone fairly. She always received top performance reviews and positive feedback. When same-sex marriage became legal, Gayle didn’t want to stop anyone from getting married. But she also knew that her religious beliefs prevented her from performing a same-sex wedding ceremony.

A commonsense solution

Since handling weddings was such a small portion of her work, Gayle’s immediate supervisor proposed a solution—simply shift Gayle’s schedule by a couple hours so that she was not on duty when the county offered weddings. The government frequently offered similar scheduling accommodations to other magistrates for a variety of reasons, from simple things like going fishing to larger issues like night classes or even drug rehab.

This was a reasonable solution: Every couple would still get married without any delay or embarrassment, and Gayle would get to keep her job.

Unfortunately, the state government rejected this solution and made clear Gayle had to choose: her faith or her job. Gayle was forced to resign, which meant she lost her retirement and the job she loved.

Becket defends dignity in our diverse society

With the help of Becket and North Carolina attorney Ellis Boyle, Gayle filed a claim of religious discrimination with the Equal Employment Opportunity Commission (EEOC) under a federal civil rights law that protects government workers. In March 2017, a federal judge said in a landmark ruling that the government broke the law when it refused to let Gayle shift her schedule, especially since other magistrates were allowed to shift their schedules all the time. The government also acknowledged it had treated Gayle unfairly, and in January 2018, agreed to pay a substantial amount to make her whole and give back the pay and retirement benefits that were unjustly taken from her. The state later passed a law making sure no magistrates would be targeted for their religious beliefs and no one would be denied a prompt marriage.

Faith and sexual orientation are deeply important to the identity of many people, and this case shows that these two things don’t have to be at odds with each other. From a Jewish worker’s need to keep the Sabbath, to a Muslim employee’s need to engage in daily prayer, there are thousands of examples of reasonable solutions in the workplace that protect the dignity of everyone. Our civil rights laws help us create a society where people with diverse views can live alongside each other without conflict.

Importance to religious liberty:

  • Individual freedom: The government cannot force religious individuals to violate their deeply held beliefs to further a government goal when there are other ways for the government to accomplish that goal, and when the government already accommodates exemptions for secular reasons.

National Institute of Family and Life Advocates v. Becerra

A mission to provide essential care

For over twenty years, the National Institute of Family and Life Advocates (NIFLA) has provided education and training to hundreds of pregnancy clinics across the country. Driven by faith, NIFLA provides essential legal resources and counsel to clinics that share their commitment to life-affirming support for vulnerable women and their families.

Free speech—unless the government favors the other side

In 2015, California enacted the FACT Act, joining a number of other state and local governments that have passed laws to target pregnancy centers that do not recommend or refer for abortion services. The FACT Act requires licensed pregnancy centers, which offer free services to pregnant women, to post in their waiting rooms a disclosure explaining that the state of California provides free or low-cost abortion and contraception services. This licensed disclosure must also include a phone number for a county office that refers women to clinics that provide abortion services. Under the law, other pregnancy centers, too, would have to post burdensome disclosures, not only on site but in all of their advertisements. The FACT Act thus would have forced NIFLA centers to advertise messaging that violates their deeply held beliefs and undermines their mission to offer life-affirming care to women and children.

NIFLA challenged the FACT Act in court. After losses in the district court in January 2016 and at the Ninth Circuit Court of Appeals in December 2016, NIFLA appealed to the U.S. Supreme Court, which agreed to hear the case. In January 2018, Becket filed a friend-of-the court brief on behalf of Support Circle, supporting NIFLA and defending their right to continue to serve women and children according to their religious mission.

Victory for free speech

The Supreme Court heard the case in March 2018. During oral argument, California admitted to the Court that some applications of the law were unconstitutional, and the Justices spent much of the argument focusing on the law’s obvious attempt to target pro-life clinics. On June 26, 2018, the Court ruled 5-4 protecting pregnancy centers’ right to serve women and children according to their religious mission. NIFLA was represented by Alliance Defending Freedom.

The ruling affirms that the First Amendment protects individuals that may hold viewpoints different from those of the government. On issues as deeply important as abortion, it is vital that the government does not silence one side of the debate.

Importance to religious liberty

  • Free speech: The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government does not silence one side of the debate.
  • Public square: Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.

Espinoza v. Montana Department of Revenue

A scholarship program for low-income Montana students 

Children in Montana have been stripped of their right to participate in a modest scholarship program simply because some of them might attend religious schools.

In 2015 the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit of up to $150 of contributions to privately-run scholarship programs. However, the Montana Department of Revenue refused to implement the program, and in an ensuing lawsuit, the Montana Supreme Court struck down the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids any aid—direct or indirect—from going to schools owned or operated by a “church, sect, or denomination.” Because some scholarships might be used at religious schools, the Montana Supreme Court said no students could have them.

Treating religious school students as second-class citizens

By denying religious schools’ right to participate in a widely available public program, the Montana Supreme Court ignored the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled religious groups cannot be barred from participation in widely available public programs simply because they are religious. And the Montana court can’t excuse away the underlying religious bigotry by barring all students the program’s benefit.

Institute for Justice, along with Holland & Hart LLP, represents three low-income Montana mothers who would like to participate in the program by using the scholarships to help send their children to religious private schools.

Becket supports equal treatment of religious schools in public programs

In January 2018, Becket filed a friend-of-the-court brief at the Montana Supreme Court in support of the parents, arguing that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs and that courts can’t strike down entire benefit programs just to keep religious kids from benefitting from them. Oral argument was held on April 6, 2018, at the Montana Supreme Court, which in December 2018, ruled against the scholarship program, striking down the entire program because some funds would go to kids who chose to use them at religious schools.

On March 13, 2019, the Montana parents appealed to the U.S. Supreme Court and the Supreme Court agreed to hear the Montana mothers’ case. Becket filed a friend-of-the-court brief arguing that the discriminatory history of the Blaine Amendments renders them unconstitutional, and that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs. Becket’s brief also argued that relying on Blaine Amendments to shut down entire programs only extends the religious bigotry that motivated the enactment. Oral argument took place January 22, 2020. On June 30, 2020, the Supreme Court decided that children in Montana cannot be stripped of their right to participate in a scholarship program simply because they attend religious schools. The Court also recognized that Blaine Amendments are “born of bigotry.” In a concurring opinion, Justice Alito addressed more thoroughly the history of discrimination behind the Blaine Amendments, repeatedly referring to Becket’s brief.  

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws:  So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools. 

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (WMATA)

A reminder of the reason for the season

Every Christmas season, the Archdiocese of Washington, D.C., conducts a holiday campaign called “Find the Perfect Gift” to remind people of the religious meaning of Christmas and to invite them to give to those in need. The campaign includes extensive advertising in public spaces as well as on social media. Buying advertisements on the Washington Metropolitan Area Transit Authority’s buses and Metro subway cars is one of the most effective way for the Archdiocese to spread its message of giving and hope to the DC metro area.

Religious speech censored on the metro

But in 2017, as the Christmas season approached, the Metro denied the Archdiocese request to purchase ad space because of the campaign’s religious message. Metro’s 2015 ad policy bans any ad Metro deems controversial, including political, advocacy, and religious advertising. WMATA’s guidelines disqualified the Archdiocese from using ad space simply because the ads are religious. Ads about the secular or commercial meaning of Christmas – such as department store sales – were permitted, whereas religious ads encouraging generosity and service during the holiday season were prohibited. Although a secular organization can post meeting times, addresses, or contact information on a Metro ad, religious groups, including a monastery, were banned from doing the same thing.

In November 2017, represented by former Solictor General Paul Clement of Kirkland & Ellis, the Archdiocese of Washington sued the Washington Metropolitan Area Transit Authority (WMATA) for banning religious speech. The district court denied a preliminary injunction and the Archdiocese appealed to the D.C. Circuit. In January 2018, Becket along with Arizona Senator Jeff Flake and the International Society for Krishna Consciousness, Inc. (ISKCON), filed a friend-of-the-court brief in the U.S. Court of Appeals for the D.C. Circuit defending the Archdiocese’s free exercise rights, arguing that the government does not get to arbitrarily exclude messages from the public square just because they are religious. Targeting and censoring religious messages violates the First Amendment.

Appeal to the Supreme Court

On July 31, 2018, the D.C. Circuit upheld the lower court’s ruling, stating that WMATA was justified in excluding religious advertising. The Archdiocese appealed the case to the United States Supreme Court on May 20, 2019.

Importance to religious liberty

  • Free speech: Freedom of speech is not only an inherent human right, but also a fundamental building block of our society. The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. This involves religious speech as well.
  • Public square: Religious organizations must be free to operate in the public square according to their beliefs.

Dumont v. Lyon

WEBSITE for Religious Adoption Cases

A Desperate Need 

There is a national foster care crisis: more and more vulnerable children are being placed in the foster care system, and there aren’t enough families to care for them. For the nearly 13,000 children in Michigan foster care, nothing is more important than finding a loving, permanent home. Each year, over 600 Michigan children “age out” of the foster system, meaning that at the age of 18 they are on their own, never having found a family to provide stability, love and support. With so many children in need, and a shortage of families willing to take them in, the State of Michigan relies on private agencies like St. Vincent Catholic Charities. Like other agencies, St. Vincent partners with the state to recruit and support foster and adoptive families. St. Vincent is particularly good at finding homes for sibling groups, older children, and children with special needs. In 2017, St. Vincent recruited more new adoptive families than nearly 90 percent of the other agencies in its service area.

ACLU would put children’s needs last 

In September 2017, the ACLU sued the State of Michigan to forbid the state from partnering with faith-based adoption agencies like St. Vincent, solely because of their religious beliefs about marriage. St. Vincent’s beliefs have never prevented a child from being placed in a loving home. Gay couples working with other agencies have been able to adopt children in St. Vincent’s care in the past. In fact, the ACLU’s clients live closer to four other foster and adoption agencies that would have helped them adopt. Instead of going to these agencies, they have spent years targeting St. Vincent and trying to shut down their programs. 

ACLU’s lawsuit is not about helping kids. It’s about scoring cheap political points at the expense of kids. The only thing that the ACLU’s lawsuit would accomplish is fewer homes for children, especially minority children and those with special needs.

Protecting children and families 

In March 2018, the Court granted Becket’s motion to intervene in the lawsuit on behalf of St. Vincent Catholic Charities, Shamber Flore and the Buck family. Becket asked the court to dismiss this unnecessary lawsuit, but in September 2018 the court decided the case should go forward.

On March 22, 2019, the Attorney General Michigan and the ACLU signed a settlement agreement to try to stop the state from working with faith-based adoption agencies, which could keep thousands of children from finding the loving homes they deserve.

Becket filed a new lawsuit defending St. Vincent and foster families in federal court on April 15, 2019. 

Importance to religious liberty 

  • Individual freedom: The government discriminates against religious groups if it prevents them from providing services simply based on their religious beliefs. 
  • Public square: Faith-based organizations have the same right as secular organizations to operate in the public square. Religion in the public square is not a threat, but rather a natural expression of a natural human impulse. 
  • Establishment Clause: A state does not violate the Establishment Clause when it partners with faith-based agencies to further the interests of a state initiative. In this case, private adoption agencies provide critical resources to address a state issue: the shortage of families willing and able to adopt children in the foster care system. 

BLinC v. University of Iowa

Students integrating faith and work

Business Leaders in Christ (BLinC) is a Christian student organization at the University of Iowa that hosts weekly discussion groups, where students pray, share Biblical messages, and spiritually strengthen one another. At the heart of BLinC’s identity is its mission to form future business leaders who will integrate their religious values such as integrity, service, and compassion into the workplace. BLinC regularly invites Christian business professionals to mentor students on how they can integrate the faith and their careers. As a part of its ministry, BLinC also successfully partners with a local non-profit, after-school program for mentoring at-risk youth. It has also teamed up with a Christ-centered education organization dedicated to teaching low-income children how to become excellent students and leaders in their communities.

As a Christian group, BLinC reasonably asks that group leaders share its Christian faith and beliefs. In this respect, BLinC is no different from the many other student groups on campus that ask their leaders to adhere to certain requirements. For instance, fraternities have only male leaders and members; female sports clubs have only female leaders and members; and political and ideological groups can require their leaders to agree with their mission.

University of Iowa targeted BLinC for its religious beliefs

But in October 2017, school officials at the University of Iowa targeted BLinC because of its religious beliefs. University officials claimed that, because BLinC requires its leaders to sign a Statement of Faith, agreeing that they believe and will follow BLinC’s religious beliefs, it is violating the school’s antidiscrimination policy. BLinC was told that to get back on campus, it would have to change its religious beliefs.

Yet, despite the University’s insistence that BLinC’s Statement of Faith violates school policy, the University supports the rights of other groups to select leaders who share and live by their mission. The University supports the rights of fraternities at the University of Iowa to admit only men. The Feminist Union can require its members to agree on issues of contraception and abortion. The group Students for Life requires its members to be pro-life. All of that is perfectly acceptable, making it more apparent that the school is discriminating against BLinC by barring it from having the same ability to select leaders as other groups.

Federal court to UI: Apply policy to all groups, or stop targeting religious groups

In December 2017, BLinC sued the University of Iowa in federal court to protect its right to select leaders who share its faith and mission. On January 23, 2018, the court ruled in favor of BLinC, reinstating it on campus and giving the University 90 days to either apply its policy as written, which would allow all groups to select leaders who embrace their mission, or stop all groups from selecting leaders based on their ideologies. When the University continued to apply its policy inconsistently, the district court extended its preliminary injunction to cover the life of the case on June 28, 2018.

On December 21, 2018, the United States filed a groundbreaking brief in support of BLINC. The United States explained that the university’s discrimination against BLinC for ‘fail[ing] to confirm to University orthodoxy’ not only harms “the free and open discourse” of the university, but also is “a textbook violation of BLinC’s First Amendment rights” to free association, free speech and the free exercise of religion.

Oral argument was heard in federal district court in Des Moines, Iowa on February 1, 2019. Before the hearing, the university revealed that it had placed virtually every religious student group on campus—and only religious groups—on probation pending the outcome of BLinC’s case. On February 6, 2019, the court ruled that the university must end its unequal treatment of religious student organizations, and allow BLinC permanently back on campus. The ruling states, “The Constitution does not tolerate the way [the university] chose to enforce the Human Rights Policy. Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny, which [the university] ha[s] failed to withstand.” The ruling is the first federal court decision granting equal access to a religious student group in almost a decade.

The Court, however, declined to hold the University officials personally responsible for their wrongdoing, concluding that the law was not clear at the time of their misconduct. BLinC appealed that portion of the Court’s ruling to the U.S. Court of Appeals for the Eighth Circuit. Oral argument was heard on September 22, 2020. On March 22, 2021, the court ruled that the University of Iowa’s unconstitutional conduct was so blatant and clear that university leadership should be held personally accountable for their unlawful actions.

IMPORTANCE TO RELIGIOUS LIBERTY

  • Education: There is a nation-wide trend of curbing free speech and free association—especially religious speech in religious groups—on college campuses. But students do not forfeit their First Amendment rights to freedom of speech, religion, and association by studying at a taxpayer-supported public university.
  • Public square: Religion is a natural part of human culture and should not be scrubbed from the public square. This includes public university campuses, which are reflections of the students who attend them and the taxpayers who support them, including religious students and taxpayers.
  • Religious communities: Becket’s 2012 Supreme Court case Hosanna-Tabor guarantees the right of religious groups to select their own leaders without government interference or entanglement.

Chabad of Key West v. FEMA

Houses of worship need not apply

Following a natural disaster, FEMA provides disaster aid grants to nonprofits like zoos, homeless shelters, and stamp clubs, but for many years, its policy made it clear that houses of worship need not apply. Despite FEMA’s recognition that synagogues, mosques, and churches are essential partners in the recovery process, FEMA’s policy denied houses of worship relief funds solely because they are religious.

This meant synagogues like the Chabad of Key West and the Chabad of the Space Coast, which suffered serious wind and water damage during hurricane Irma, were left out in the cold. Despite pitching in to help their neighbors in recovery efforts, the synagogues didn’t know how they were going to repair their own facilities.

Becket defends equal treatment

In November of 2017, Becket filed a lawsuit on behalf of the Chabad of Key West and the Chabad of Space Coast in federal district court in Florida, pointing out that FEMA’s discriminatory policy was a violation of the First Amendment, particularly in light of the Supreme Court’s ruling in Trinity Lutheran v. Comer, which protects the right of religious organizations to participate in widely available programs on equal footing with secular organizations.

In January of 2018, responding to pressure from litigation, FEMA changed its policy, putting an end to decades of discrimination against houses of worship. On February 9, 2018, Congress passed a bill and the President signed into law a bill that codified FEMA’s policy, ensuring that Chabad of Key West, Chabad of the Space Coast, and other houses of worship will be treated equally alongside other charitable organizations in the future. Since FEMA began treating the synagogues like all other disaster relief applicants, they were able to dismiss their lawsuit on February 13, 2018.

Becket also filed a similar lawsuit in Houston, Texas in Harvest Family Church v. FEMA.

Importance to religious liberty:

  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Little Sisters of the Poor v. Commonwealth of Pennsylvania

WEBSITE for Little Sisters Cases

Despite Supreme Court victory and new rule, Little Sisters are still in court

On October 6, 2017, Health & Human Services issued a new rule with an updated, broad religious exemption that finally protected religious non-profits like the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly poor. In its new rule, the government admitted that it broke the law by trying to force the Little Sisters and others to provide services like the week-after-pill in their health plans that violated their religious beliefs. That result should mean that the end is near for the Little Sisters’ lawsuit.

However, following the new mandate announcement, the state of Pennsylvania sued the federal government to take away the Little Sisters’ religious exemption. Pennsylvania admits that it already has and already uses many government programs to provide contraceptives to women who need them.  Pennsylvania never challenged the Obama Administration for creating much larger exceptions for secular corporations—exceptions that covered tens of millions more people than the religious exemption.  Pennsylvania does not even have its own contraceptive mandate at all.  And Pennsylvania’s lawsuit does not identify a single real person who previously had contraceptive coverage but will lose it because of the new Rule.

Despite all this, Pennsylvania is asking a judge to order that the Little Sisters must comply with the federal mandate (not a state mandate) or pay tens of millions of dollars in fines.

Becket challenges Pennsylvania’s attempt to take away Little Sisters’ religious rights

In November 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. The Pennsylvania court refused to let the Little Sisters intervene in the case, or even argue in court. A week later, the Pennsylvania court temporarily blocked the new rule that gave the Little Sisters a religious exemption. Becket immediately appealed both rulings. Oral argument was held on March 23, 2018 to decide whether the Sisters will be allowed to intervene in the case, and on April 24, 2018, the Little Sisters’ motion for intervention was granted. On January 14, 2019, the court ruled against them – a decision which the Little Sisters immediately appealed. The Third Circuit heard oral arguments in May 2019.

On July 12, 2019, the Third Circuit ruled against the Little Sisters. Becket has argued all along that the government has many ways to provide services to women who want them as well as protect the Little Sisters. Neither the federal government nor the state governments need nuns to help them give out contraceptives. On October 1, 2019, the Little Sisters of the Poor asked the Supreme Court to protect them from the HHS contraceptive mandate again and end their legal battle once and for all. On January 17, 2020 the Supreme Court agreed to review the Third Circuit’s decision in Little Sisters of the Poor v. Commonwealth of Pennsylvania. Oral argument took place on May 6, 2020.

On July 8, 2020 the Supreme Court ruled 7-2 in favor of the Little Sisters of the Poor, allowing them to continue serving the elderly poor and dying without threat of millions of dollars in fines. Writing for the Court, Justice Thomas said that “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. . . . But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” The Court held that the federal government was right to protect those beliefs.

Despite losing at the Supreme Court, Pennsylvania continues to ask the federal courts and HHS to change the rules.

Importance to religious liberty 

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without the government discriminating among sincere religious.
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship.

California v. Little Sisters of the Poor

WEBSITE for Little Sisters Cases

More information on the history of the HHS mandate and HHS cases can be found here. 

Despite Supreme Court victory and new rule, the Little Sisters are still in court 

In October 2017, Health & Human Services issued a new rule with an updated, broad religious exemption that finally protected religious non-profits like the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly poor. In its new rule, the government admitted that it broke the law by trying to force the Little Sisters and others to provide services like the week-after-pill in their health plans that violated their religious beliefs.  

But the Little Sisters are still in court. Following the new mandate announcement, the state of California sued the federal government to take away the Little Sisters’ religious exemption. California admits that it has many of its own programs to provide contraceptives to women who want them. California never filed suit over the much larger secular exemptions created by the Obama Administration for big corporations—exemptions that applied to tens of millions more people than the religious exemption. California’s own mandate does not even apply to the Little Sisters of the Poor. And California has not identified a single actual person who had contraceptive coverage but will lose it because of this new rule. Despite all this, California asked a judge to find that the Little Sisters should be forced to comply with the federal mandate (not a state mandate) or pay tens of millions of dollars of government fines. 

Becket is seeing the Little Sisters through their fight 

On November 21, 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. Becket has argued all along that the government has many ways to provide services to women who want them as well as protect the Little Sisters. Neither the federal government nor the state governments need nuns to help them give out contraceptives. 

On December 12, 2017, the Little Sisters argued in an Oakland, California district court for their right to participate in the case and receive protection from government fines. On December 29, 2017, the court granted their motion to intervene in the case. In January 2018, the Little Sisters appealed to the Ninth Circuit to overturn a federal judge’s decision to invalidate the new HHS rule protecting the Sisters. Becket’s brief, filed in April 2018, explained why the states have no right to challenge this regulation, and why the new regulation is required by law and the 2016 Supreme Court order in Zubik v. Burwell. 

Ninth Circuit gives CA the go-ahead to continue its fight against the Little Sisters 

Oral argument took place on October 19, 2018. On November 7, 2018 the government issued a new rule finalizing its exemption protecting religious ministries. On December 13, 2018, the Ninth Circuit ruled against HHS’s interim exemption and allowed California to continue its fight against the Little Sisters. The Ninth Circuit ruling did not address the final HHS rules. 

On January 11, 2019, Becket represented the Little Sisters at oral argument in federal court in Oakland, California to defend their religious exemption from the HHS mandate. On January 14, 2019, the court ruled against them – a decision which the Little Sisters immediately appealed. The Ninth Circuit heard oral arguments on June 6, 2019. On October 22, the Ninth Circuit ruled 2-1 against the Little Sisters, stating it would “welcome guidance from the Supreme Court.”

On July 8, 2020, the Supreme Court ruled 7-2 in favor of the Little Sisters in Little Sisters of the Poor v. Pennsylvania protecting the Little Sisters for the third time, and sent California v. Little Sisters of the Poor back to the Ninth Circuit to be decided in light of the Court’s decision.

Importance to Religious Liberty:

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without fear of government interference.
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship.

American Legion v. American Humanist Association

“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it.” –Eric Baxter, vice president and senior counsel at Becket

A beloved symbol of sacrifice and honor

Known locally as the Peace Cross, the Bladensburg memorial was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The memorial was designed by mothers who lost their sons in the war, and they modeled it after those memorialized in the celebrated poem “In Flanders Fields” that stood “row on row” to “mark [the] place” where their sons lay.

Today the Peace Cross stands among a number of other war memorials and, since 1961, it has been owned by the Maryland-National Capital Park and Planning Commission as a historic site.

Atheist activists attempt to tear down history

Yet in 2014 the American Humanist Association sued, arguing that the Peace Cross is a government establishment of religion. But the Constitution does not require religion to be stripped from our nation’s history and culture. The cross is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. Mere disagreement with something one sees should not be confused with a forbidden religious establishment.

In April 2016, Becket filed a friend-of-the-court brief with Sidley Austin LLP at the U.S. Court of Appeals at the Fourth Circuit defending the memorial, stating it “does not violate the Establishment Clause because it bears none of the historical hallmarks of an establishment of religion.” But in October 2017, the Fourth Circuit ruled against the memorial using the notorious Lemon test, a malleable three-part legal test that has been criticized harshly by many Supreme Court justices. The American Legion, represented by First Liberty Institute of Plano, Texas, and the Jones Day law firm, appealed to the Supreme Court.

Defending religion in the public square at the Supreme Court

In December 2018, Becket, represented by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell, filed a friend-of-the-court brief urging the Supreme Court to reverse the Fourth Circuit’s decision and scrap the Lemon test in favor of an approach that returns the Establishment Clause to its historical meaning. Oral arguments took place on February 27, 2019. During oral argument, Chief Justice Roberts raised the argument Becket had urged in brief suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.

On June 20, 2019, the U.S. Supreme Court ruled 7–2 in favor of the Peace Cross, allowing it to remain standing. The Court’s opinion reversed the Fourth Circuit’s decision against the Peace Cross and stated that, for many, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” Becket’s friend-of-the-court brief was cited in concurring opinions by Justice Thomas and Justice Gorsuch.

In Kondrat’yev, et al v. City of Pensacola, Becket is also fighting a militant atheist lawsuit against a World War II-era cross in Pensacola, Florida, that has stood as a symbol of patriotism and fellowship for more than 75 years. On June 28, 2019 the Supreme Court sent the Pensacola case back to the Eleventh Circuit to be reconsidered in light of their Bladensburg decision. In February 2020 the Eleventh Circuit ruled that the cross is constitutional and should remain standing.

Importance to religious liberty: 

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.  

Grussgott v. Milwaukee Jewish Day School, Inc.

The Milwaukee Jewish Day School welcomes a broad diversity of Jewish students from the surrounding community. The school’s basic Jewish beliefs are broadly incorporated into its curriculum, with students attending daily prayer, studying Hebrew, observing Jewish holidays and the Sabbath, and studying the Torah. The Jewish faith drives the school’s mission, and the school’s teachers are an integral part of accomplishing that mission.

But one former teacher claimed the school is not “Jewish enough” to qualify for First Amendment protection from government meddling in the school’s internal religious decisions.  That protection—known as the “ministerial exception”  is the requirement that the government stay out of religious groups’ selection of their own religious leaders. (For a more detailed explanation, see this video.) The teacher taught Hebrew and Jewish studies, taught directly from the Torah, and led the students in daily regular prayer—but she claimed she was not a religious leader or part of the school’s religious mission.

In September 2016, the former teacher sued the school in a Wisconsin federal district court, claiming she had been unlawfully terminated. The court rightly rejected her arguments and ruled that a teacher like her, who regularly led prayer and taught religious studies, qualifies as a minister under the First Amendment’s ministerial exception—and that the school has the right to choose its own religious leaders. Displeased with the court’s decision, the teacher appealed to the U.S. Court of Appeals for the Seventh Circuit. Becket filed a friend-of-the-court brief in October 2017, urging the Seventh Circuit to protect religious schools of all faiths from government interference. In February 2018, the Seventh Circuit ruled in the school’s favor, adopting Becket’s position that the school was without question a religious institution protected by the ministerial exception. And as Becket further pointed out, the Court’s opinion concluded that the plaintiff’s “role as a teacher of [ ] faith to the next generation outweighed other considerations” and showed that she was covered by the ministerial exception. Becket’s amicus brief called for this result, emphasizing that the ministerial exception applied because the plaintiff’s “role required her to perform important religious functions for the school,” particularly because she “taught the tenets of the faith to the next generation.”  In November 2018, the U.S. Supreme Court declined to hear the appeal, leaving the decision in favor of the school in place.

The Seventh Circuit’s opinion in favor of Milwaukee Jewish Day School is significant, because it marks the first time that the Seventh Circuit has defined and confirmed the scope of ministerial exception since the U.S. Supreme Court’s landmark 9-0 decision in Hosanna-Tabor, where Becket defended a Lutheran church school’s right to choose its own teachers.

The school was represented by Kravit, Hovel & Krawczyk (Aaron Aizenberg).

Importance to religious liberty

  • Freedom of religious groups to choose their own leaders: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t meddling in the internal religious affairs of a religious ministry.

Masterpiece Cake Shop v. Colorado Civil Rights Commission

An artist’s livelihood at stake

Jack Phillips is a Christian and a baker. For almost 25 years he has run Masterpiece Cake Shop in Denver, creating artistic, custom-designed cakes for his customers. As a Christian and an artist, he believes his work should only promote messages that align with his religious beliefs.

In July 2012, a same-sex couple asked Phillips to bake a cake for their wedding. Phillips explained that he could not, in good conscience, participate in a wedding ceremony he disagreed with. Although the couple quickly received a cake from another bakery, they filed a complaint against Masterpiece with the Colorado Civil Rights Commission. In June 2014, the Commission ruled against Masterpiece.

Forced to violate his beliefs—or forfeit his business

The Commission’s ruling would have required Phillips to create whatever cakes customers requested, regardless of his religious views. Phillips appealed to the Colorado Court of Appeals, which again ruled against him in August 2015. Phillips appealed the decision to the U.S. Supreme Court, and in September 2017, the Court agreed to hear his case. Phillips was represented by Alliance Defending Freedom.

In September 2017, Becket filed a friend-of-the-court brief supporting Phillips and defending his right to decline to participate in wedding ceremonies that he religiously objects to. Becket separately asked the Court to hear his case in tandem with another religious wedding vendor case, Ingersoll v. Arlene’s Flowers.

Victory for free speech and religious liberty

In a diverse and pluralistic society, individuals of different faiths and backgrounds will disagree on many issues, and we must allow for these differences to flourish without the threat of government forcing a religious individual to violate his or her conscience. Weddings are important and sacred events to many Americans. Religious dissenters shouldn’t be forced to participate in a wedding ceremony they do not agree with.

On June 4, 2018, the U.S. Supreme Court ruled in favor of Masterpiece Cake Shop. The Justices ruled 7-2 that the Free Exercise Clause of the Constitution protects Jack Phillips from unfair treatment based on his religious beliefs.

Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace.
  • Free speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. In this case, Jack Phillips’ artistic expressions were a form of speech, and the government should not force him into expression that violates his religious beliefs.

Harvest Family Church v. Federal Emergency Management Agency

Pillars of hope and help for disaster-stricken communities

In the aftermath of Hurricane Harvey in 2017, houses of worship across Texas opened their doors and welcomed thousands of families forced to evacuate their homes. From housing and feeding evacuees to loading trucks with meals and hygiene supplies, local churches, synagogues, and mosques were pillars of safety, hope, and help when disaster struck.

Yet at the same time they were opening their doors to the community, they were picking up the pieces to their own devastated buildings. Houses of worship like Harvest Family Church and Hi-Way Tabernacle suffered unprecedented flooding, and churches along the Gulf Coast like Rockport First Assembly had their steeples blown off and windows blown out.

Becket defends churches from FEMA discrimination

FEMA has repeatedly praised churches and religious ministries for the valuable shelter and aid they provide to disaster-stricken communities, and regularly uses houses of worship as staging areas for relief efforts. Yet FEMA banned houses of worship from receiving recovery grants that are available to other similar private nonprofits, such as museums, zoos, and even community centers that provide services such as sewing classes and stamp-collecting clubs. This discriminatory policy stood in defiance of a 2017 Supreme Court ruling in Trinity Lutheran v. Comer, which protects the right of religious organizations to participate in widely available programs on equal footing with secular organizations.

In September of 2017, Becket filed a lawsuit on behalf of Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God. Because the churches were badly damaged and struggling to recover from the hurricane, Becket filed an emergency request for the court to quickly grant equal access to relief.

In December 2017, the district court ruled against the churches. That same day, the churches filed an emergency appeal to the Fifth Circuit, which granted an expedited appeal but not emergency protection.

Victory: Supreme Court urges a new FEMA policy

Becket then filed an emergency request with Justice Samuel Alito, the Supreme Court Justice who hears emergency petitions from the U.S. Court of Appeals for the Fifth Circuit, to grant emergency relief to avoid further delay in allowing the churches to apply for help. The Supreme Court responded by asking FEMA to explain its discrimination against houses of worship by January 10, 2018.

The pressure from the Court’s request allowed the churches to celebrate a complete victory for houses of worship nationwide: On January 3, FEMA quickly published a new policy and announced the change before the January 10 deadline. The new policy gave the churches what they needed, putting an end to FEMA’s decades of discrimination against houses of worship. Since FEMA would now treat houses of worship like all other non-profit disaster relief applicants, the churches dismissed their lawsuit shortly after.

FEMA also opened up a new application window for houses of worship that had previously been denied aid under its old policy, including two synagogues in Florida represented by Becket that also sued FEMA due to damage they sustained by Hurricane Irma.

Importance to religious liberty:

  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Freedom From Religion Foundation v. Trump

The Supreme Court ruled 9-0 that keeping government officials out of internal church decisions is vital to protecting a separation of church and state. That includes allowing houses of worship to choose what to teach during their worship services. But now an atheist group is trying to force the IRS into the business of editing sermons and punishing church beliefs. Becket is fighting back.  

Leaders should be free to preach about issues that matter 

Throughout American history, religious leaders of different faiths have helped speak up for those who could not speak for themselves. They encouraged their congregations to throw off British oppression, to support the abolition of slavery, and to protect civil rights. That tradition continues today. 

In 2012, the Reverend Charles Moodie and his family left New York to settle in Englewood, a Chicago neighborhood plagued with violence, drugs, and poverty. In his mission to help the underprivileged and drug addicted find redemption and the fellowship of a community, Reverend Moodie pastors Chicago City Life Center. Reverend Moodie preaches about social and political issues that affect the people of his congregation, including protecting the most vulnerable in society. 

In Wisconsin, two more pastors also assert their freedom to lead their congregations in the faith. Pastor Koua Vang preaches about political issues that impact his Hmong community, a group of people that has historically experienced injustice and oppression under communist regimes in Laos and Vietnam. Father Patrick Malone likewise preaches about the need for his congregation, Holy Cross Anglican Church, to seek justice in every aspect of life, including politics.  

But now their right to freely preach is facing a dangerous threat.  

Atheists demand the tax man’s censorship of sermons 

In 1954, Congress passed a law—popularly known as the Johnson Amendment—that bans certain nonprofits from teaching about politics or candidates. There’s no evidence that Congress intended to limit the historical tradition of pastors preaching from the pulpit, but the IRS claims that it can ban such preaching. While the IRS talks tough, it has never attempted to actually prevent a pastor from preaching during religious services. 

But now the atheist group Freedom From Religion Foundation (FFRF) wants to change that. It wants the IRS to punish pastors for their sermons by asking the court to enforce regulations that would revoke the churches’ tax-exempt status, involve the IRS in the churches’ finances, and levy fines against both the churches and their individual leaders. This is FFRF’s second attempt to enforce the Johnson Amendment; it tried three years ago, but then threw in the towel after Becket got involved. Now FFRF is back in court trying its same old arguments again.  

If enforced, the rule could silence Reverend Moodie and countless other ministers like him, restricting their ability to lead their churches. 

Defending religious leaders’ right to free speech 

In June 2017, Becket sought to intervene on behalf of Reverend Moodie, Pastor Vang, Father Malone, and Holy Cross Anglican to protect their right to preach free from IRS entanglement. Religious leaders – not the IRS or FFRF – should decide what to preach. In August 2017, Becket asked the court to reject FFRF’s suit outright as a violation of the separation of church and state.

In December 2017, FFRF dismissed their own lawsuit, giving up before the court had a chance to rule against them. By law, because this is now the second time that FFRF has given up on the same claim, FFRF’s dismissal means they have lost on the merits—and the pastors have permanently fended off FFRF.

Caplan v. Town of Acton, Massachusetts

Would France let Notre Dame fall into ruin? Should India let the Taj Mahal crumble or England let Big Ben go into disrepair? ­Of course not. Historic structures enrich cities all over the world as reminders of our diverse and rich history.

The state of Massachusetts understands the importance of preserving historic landmarks. Through its Community Preservation Act, the state makes perseveration funds available to secular and religious structures alike, recognizing that both are significant to the history of the state and should be preserved. Since 2000, more than 8,000 projects have been performed on secular and religious buildings to preserve them for future generations and public use.

Yet a small group of residents in Acton, Massachusetts, are claiming that funds can be made available for all sorts of historic buildings – just not churches. The group claims that allowing churches to participate in this widely available program violates part of the Massachusetts Constitution known as the Anti-Aid Amendment. The Anti-Aid Amendment, like the Blaine Amendments adopted in numerous state constitutions during the 19th and 20th centuries, was adopted during a movement of anti-Catholic bigotry. To this day, state laws like these are used by anti-religion activists in attempts to prohibit state funds to anything remotely religious.

Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids.

The town of Acton went to court, represented by Anderson & Kreiger LLP. In 2016, two historic churches in Acton were protected. But the small group of residents appealed. In August 2017, Becket filed a friend-of-the-court brief defending the churches’ right to receive preservation funds on equal footing with secular structures. This case was heard in September 2017. In March 2018 the Supreme Judicial Court said that despite Trinity Lutheran, a church’s status as a church is an “important” factor weighing against a grant of preservation funds. The court’s ruling requires Massachusetts communities to discriminate, instructing them to hold churches to a higher standard than secular buildings in determining whether churches qualify to participate in historic preservation programs.

FFRF v. Morris County Board of Freeholders

At the Supreme Court, changes to the law are often slow and incremental. Sometimes these changes take place even when the Court decides not to take a case, as when one or more Justices write in a way that helps lower courts see the issues in a new light. This case, involving government grants for the preservation of historic buildings, including churches, is one such matter. Although the Court declined to hear the case, an opinion written by Justice Kavanaugh, and joined by Justices Alito and Gorsuch, reveals their commitment to equality for religion in the public square.

Historic buildings are an important part of our national heritage, from Independence Hall, to George Washington’s home in Mount Vernon, Virginia, to the Ebenezer Baptist Church where Martin Luther King served as pastor until his death. These buildings need frequent restoration to remain available to the public for future use. In 2002, Morris County created a historic preservation fund to help restore beautiful, historic buildings within the County. The program is a competitive grant program and requires applicants—both secular and religious—to establish the historic significance of the building, typically by showing they are on the state or national historic registry.  

In December 2015, the Wisconsin-based Freedom From Religion Foundation (FFRF) sued Morris County in New Jersey Superior Court, complaining that allowing churches to participate in the program violated the New Jersey Constitution. They claimed that Morris County can restore historic buildings—just not churches. Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, for example, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer  that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids. Similarly, in January 2017, the New Jersey court had ruled in Morris County’s favor and protected the right of religious historic buildings to participate in the program. But in April 2018, and despite the U.S. Supreme Court’s decision in Trinity Lutheran, the New Jersey Supreme Court reversed and ruled in FFRF’s favor, saying that under the New Jersey constitution the government cannot provide grants to preserve the architecture of historic churches. 

On September 19, 2018, Morris Country, represented by Becket, appealed to the U.S. Supreme Court, asking the Court to let Morris County continue treating all historic sites the same, without having to engage in religious discrimination. 

On March 4, 2019, the Supreme Court declined to review the case, but Justices Kavanaugh, Alito, and Gorsuch issued an opinion that goes a long way toward steering lower courts in the right direction. The opinion suggested that it would be inappropriate for the Court to take another case like Trinity Lutheran so soon after it was decided. This policy gives the lower courts more time to work through new decisions on a particular issue before the Supreme Court considers what gaps or confusion remain in the law. But in a promising move for his first writing on religious liberty at the Court, Justice Kavanaugh made clear that excluding sites from a historic preservation program because they are religious creates “serious tension with this Court’s religious equality precedents.”

This is not the last time the Court will have a chance to definitively resolve the issue. Although the New Jersey Supreme Court’s bar against religious organizations remains in place, a church suing the State of New Jersey or one of its counties after being denied funds could point to Justice Kavanaugh’s opinion to support a claim of religious discrimination. And Justice Kavanaugh himself agreed that “[a]t some point” the high court will have to step back in. In the meantime, the lower courts are on warning: according to Justices Kavanaugh, Alito, and Gorsuch, excluding religious organizations from generally available government programs is “pure discrimination against religion.”

Importance to religious liberty

  • Public Square: Houses of worship that have historical significance should qualify for the same benefits as other historically significant sites.
  • Reinforcing precedent: In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that the state of Missouri couldn’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Kondrat’yev, et al v. City of Pensacola

A historic cross in a historic city 

The City of Pensacola has a rich history older than the U.S. itself. A key seaport connected to the Gulf of Mexico, it is named after the Native American people who lived there as early as the 1100s, and it was one of the first areas to be settled by Spanish explorers. Today, Pensacola is known as the “Cradle of Naval Aviation” and is home to many members of the military.    

On a scenic bayou within the City lies Bayview Park, a popular location for social and civic gatherings. The 28-acre park features a senior center, amphitheater, two dog parks, tennis courts, a bocce ball court, playground, several boat ramps and docks, walking trails, picnic areas, and a memorial to a local citizen who died in a waterskiing accident. Tucked in the northeast corner of the park is the Bayview cross, a monument first erected in 1941 by the Jaycees, a non-profit civic group, to unite the community just months before the U.S. entered World War II.  

A needless lawsuit 

For over 70 years, Pensacola citizens have held community events at the monument, such as sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings. More than a religious symbol, the Bayview cross has become part of the history of Pensacola and a reminder of the many diverse groups, religious and nonreligious alike, that make the City what it is. But in May 2016, four plaintiffs, represented by the American Humanist Association, filed a lawsuit in federal court to remove the cross. Two of the plaintiffs live in Canada; one has held his own ceremonies at the cross; the fourth lives seven miles away from the park. But they all claim that seeing the cross is offensive.  

Becket defends the cross 

 In June 2017, despite recognizing that the cross “is part of the rich history of Pensacola,” and that the cross “might well pass constitutional muster,” the federal court ruled that the cross has a “religious purpose” and must be removed. Becket immediately came to the City’s defense, arguing that that religion is a fundamental aspect of human culture and history, and the Constitution does not require the government to strip every religious symbol from the public square.

In September 2018, the Eleventh Circuit court of appeals ruled that it was “bound” by earlier precedent to rule against the cross. But two of the three judges said the earlier precedent was “wrong” and “needs to be reversed.” They urged the full Eleventh Circuit or Supreme Court to uphold the cross.

In September 2018 Pensacola appealed to the U.S. Supreme Court. On June 28, 2019 the Supreme Court sent the case back to the Eleventh Circuit to be reconsidered in light of American Legion v. American Humanist Association, a case in which the Supreme Court upheld the constitutionality of a World War I memorial in Bladensburg, Maryland. The court decided on February 19, 2020 that the cross is constitutional.

Importance to religious liberty 

  • Public Square: Because religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

Trump v. International Refugee Assistance Project

In March 2017, President Donald Trump issued an executive order banning entry for ninety days by citizens from six majority Muslim countries, raising serious religious freedom concerns. Plaintiffs brought lawsuits against the executive order, and the lawsuits have traveled all the way to the U.S. Supreme Court.

Becket has a long track record of defending people of all faiths, including Muslims. In 2015, Becket won the historic Supreme Court victory in Holt v. Hobbs, which protected the religious freedom rights of Muslim prisoners. We believe that to protect people of faith, particularly religious minorities like Muslims, Native Americans, and Sikhs, it is vital that legal precedent is set properly. But the ACLU and other groups in Trump v. International Refugee Assistance Project have litigated their case under the wrong part of the Constitution. They are challenging the travel ban using the notorious Lemon test – a widely discredited set of criteria that creates confusion – and weak law— for important religious freedom cases. The Lemon test is particularly disliked by the Supreme Court because it forces judges to psychoanalyze the intent of policymakers at the time they wrote the law.

Instead, when the government targets a religious group for punishment or mistreatment, courts should use the laws that are designed to deal with burdens on religious exercise, namely the Free Exercise Clause of the First Amendment. Unlike Lemon, these laws have objective tests designed to root out religious targeting and protect religious minorities.

It is only possible to get cases like this right if courts are using the correct legal standards. Deciding religious freedom cases using the correct laws is the best way to achieve a truly just outcome both for the Muslim plaintiffs and for all Americans who have First Amendment protections. 

In June 2017 the Supreme Court announced that it would hear Trump v. IRAP and Trump v. Hawaii as a consolidated case. After oral argument was scheduled for October 10, 2017, the executive order expired and the Court dismissed both cases as moot, vacating the lower courts’ decisions including any Lemon test analysis.

Moses v. Ruszkowski

New Mexico textbooks for kids

Every child has the right to a quality education. Accessing that right is already an uphill battle for students in New Mexico, especially for thousands of low-income and minority children. The problem is not new, and state legislators have been working to fix it. Over 100 years ago, before New Mexico even became a state, the territorial and state legislatures enacted laws to ensure that all children had equal access to quality textbooks, regardless of where they attend school. Ever since, the textbook law has benefited children, particularly thousands of low-income and minority students, many of whom live in rural areas with limited options for quality education. But now, their access to quality education is at risk because of anti-religious activists and a discriminatory state law.

A law designed to discriminate

In 2012, two anti-religious activists sued the state, arguing that the New Mexico textbook lending program violated the state constitution because it allows children from religious schools the same access to education materials as children in other schools. To defend their lawsuit, the anti-religious activists pointed to a discriminatory 19th century state law—designed to disadvantage New Mexico’s native Catholic citizens—called the Blaine Amendment. Across the country, Blaine Amendments have been used by anti-religious activists to keep religious organizations from participating in neutral, generally applicable, government programs on equal terms as everyone else. They have been used to try stopping children with disabilities from attending a school that meets their needs, to prevent schools from making their playgrounds safer, to keep food kitchens from helping the poor, and more.

Becket defends children seeking an education

Both the trial court and the New Mexico Court of Appeals protected the state textbook program, but the decision was appealed to the New Mexico Supreme Court. In 2015, based on the Blaine Amendment, the New Mexico Supreme Court ruled that the state’s textbook program was unconstitutional. By its plain language, New Mexico’s Blaine Amendment prohibits the use of state funds toward “sectarian” or “private” schools. At the time of enactment, however, essentially all private schools were religious, and the law’s intention and effect were to promote religious discrimination. In 2017, Becket appealed the New Mexico Supreme Court’s ruling to the U.S. Supreme Court. The Supreme Court has recognized that Blaine Amendments arose from anti-religious bigotry.

In June 2017, the U.S. Supreme Court issued a 7-2 ruling in Trinity Lutheran v. Comer, a similar case involving Missouri’s Blaine Amendment. The Trinity Lutheran ruling stated that a church school could not be excluded from a generally available public benefit simply because it was religious. Based on the Trinity Lutheran decision, the U.S. Supreme Court ordered the New Mexico Supreme Court to reconsider its decision on the textbook lending program. The New Mexico Supreme Court heard oral argument on May 7, 2018.

On December 13, 2018, the Court reversed its earlier ruling, acknowledging that Blaine Amendments are “tainted” by anti-Catholic sentiment, and concluding that New Mexico’s Blaine Amendment should be interpreted narrowly to avoid denying students state-approved textbooks and other learning materials simply because they attend a religiously affiliated school. The Court’s opinion rejects the activists’ arguments that the textbook lending program improperly aids religion stating, “The textbook loan program furthers New Mexico’s legitimate public interest in promoting education and eliminating illiteracy.” The textbook lending program was then reinstated.

Importance to religious liberty:

  • Education: Religious schools should be able to participate in publicly available programs without discrimination.
  • Dismantling discriminatory state laws: While anti-religious laws from the mid-19th century remain in place, people of all faiths are at risk of being discriminated against.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Bormuth v. County of Jackson, Michigan

A tradition dating back to the nation’s founding

In the County of Jackson, Michigan, Pagan activist Peter Bormuth tried to stop small-town county commissioners from continuing their tradition of voluntary prayer before their meetings.

The practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority: the people’s inalienable rights did not come from government or its officials, but from a divine source that superseded government.

In May 2017, Becket teamed up with leading religious liberty scholar and Stanford Law School Professor Michael McConnell to file a friend-of-the-court brief in the Sixth Circuit, arguing that the Founding Fathers would never have viewed legislator-led legislative prayer as creating an official state church, which the First Amendment prohibits.

What is an establishment of religion?

The job of the First Amendment’s Establishment Clause is to prevent the government from establishing a state church, but determining what establishes a state church has been notoriously difficult for courts.

In 1971, the Supreme Court created a three-part test that attempted to answer that question in the notorious Lemon v. Kurtzman case. The Lemon test was immediately a disaster. Its malleable approach ignored what the Founders considered to be an establishment of religion, invited anti-religious activists to file lawsuits against anything that looked vaguely religious, and led to unpredictable outcomes.

Justice Scalia famously compared the Lemon test to a zombie that frightened small-town America with arbitrary rulings and massive attorneys’ fees. Lemon’s reign toppled memorials to police officers, ended services to prisoners, and censored historic landmarks.

Three years ago, the Supreme Court finally put Lemon in its grave. In its Town of Greece v. Galloway ruling, the Court replaced Lemon’s subjective test with a command that any Establishment Clause test must start with an objective evaluation of our nation’s history. Town of Greece said that because legislative prayer was nothing like what the Founders considered to be an establishment of religion, and in fact was something the Founders approved and practiced, it didn’t violate the Establishment Clause.

The court rejects Lemon and takes the historical approach

Bormuth tried to resurrect the Lemon test and ignore the Town of Greece ruling in two ways: his arguments ignored the history that legislators have opened meetings with prayer since before the founding of the country, and it ignored that Town of Greece explicitly protected legislative prayer.

The full Sixth Circuit rejected both elements of Bormuth’s gambit—following Town of Greece, it ignored Lemon and took history seriously. And because the Sixth Circuit follows Town of Greece, its ruling directly conflicts with another legislative prayer case, Lund v. Rowan County, recently decided by the entire Fourth Circuit Court of Appeals.

On January 5, 2018 Bormuth petitioned the Supreme Court to hear his case but the petition was denied in June 2018. The Sixth Circuit denied rehearing the case on August 24, 2018.

Importance to Religious Liberty:

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.

Newdow v. United States of America (Second Circuit)

God is not a dirty word. The Founders believed this and courts have continually upheld their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government. The motto is based on the national anthem and first appeared on U.S. coins in 1864. So far, his lawsuits have all been rejected.

In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the national motto violates the Constitution’s Establishment Clause by “establishing a monotheistic religion.” Becket’s amicus brief countered those arguments, explaining that for the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state – and that honoring our nation’s religious heritage on our coinage is not one of them.

Newdow’s latest two lawsuits in his crusade against the word God are in the Sixth Circuit and Eighth Circuit courts of appeals. These lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. Becket’s briefs in the Sixth Circuit and Eighth Circuit explain to the courts that if Newdow succeeds here, church-state conflict will balloon, and we will see a lot more litigation against God around the country.

US Attorney’s Office, Southern District of New York is counsel in this case.

New Doe Child # 1 v. United States of America (Eighth Circuit)

“God” is not a dirty word

God is not a dirty word. The Founders believed this and courts have continually protected their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government in courts across the country. The motto is based on the national anthem and first appeared on U.S. coins in 1864. Newdow’s lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. So far, his lawsuits have all been rejected.

In 2017, Newdow filed two separate lawsuits in the Sixth and Eighth Circuit Courts of Appeals to erase “God” from the public square, demanding “In God We Trust” literally be scrubbed from all U.S. coins and bills. In each case, Newdow represented a group of atheists claiming that the national motto violates their practice of atheism under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The Department of Justice represented the government to defend the motto. Becket filed friend-of-the-court briefs defending the government’s use of “In God We Trust” in both cases.

“In God We Trust” does not violate the First Amendment

In April 2017, Becket’s brief in the Eighth Circuit countered Newdow’s argument that the motto establishes a religion. For the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state. As Becket’s brief pointed out, “Virginia’s earliest settlers attended twice-daily services on pain of losing daily rations, whipping, and six months of hard-labor imprisonment…” While that constituted an establishment of religion, “[t]he motto’s presence on currency, of course, does not involve church attendance, compulsory or otherwise.”

This is not the first time Becket, or the courts, have weighed in to protect the national motto. In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the motto violates the First Amendment by “establishing a monotheistic religion.” As Becket wrote in our friend-of-the-court brief in that case, it is not an establishment of religion simply to pay tribute to our nation’s religious heritage.

Court protects “In God We Trust”

On March 13, 2018, the Eighth Circuit Court of Appeals held oral argument in St. Paul, Minnesota. On August 28, 2018, the Court rejected the atheists’ attempt to strip the national motto from U.S. coins and bills and adopted Becket’s argument that recognizing our national heritage does not violate the First Amendment by establishing a religion.

On October 12, 2018, Newdow sought a rehearing by the full Eighth Circuit Court. On November 26, 2018, the Court shut down Newdow’s case when it denied the request.

Newdow then sought review from the Supreme Court, which denied his request on June 10, 2019, ending the case.

Importance to Religious Liberty:

  • Public square: Religion is a natural part of human culture and has a natural place in the public square. “God” is not a dirty word, and paying tribute to our nation’s heritage in a national motto does not violate the First Amendment. 

Fifth Avenue Presbyterian Church v. City of New York

The homeless in New York can always count on Fifth Avenue Presbyterian Church to find a place to rest.

For years, the church has welcomed homeless people to sleep on the steps and sidewalk of its property as part of its religious mission. The church also operates a homeless shelter inside its basement, but that space is limited to just ten elderly people. Thirty more homeless individuals regularly sleep outside the church doors. The church has a sign that says “This is God’s House, All are Welcome.” And they mean it.

But in 2001, city officials decided they could no longer tolerate the church’s policy. They roused the homeless people from their sleep and cleared the steps and street. Represented by Sidley Austin Brown & Wood, LLP, the church sued the city for violating their right to put their faith into practice by serving those less fortunate – as protected in our Constitution and by the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In January 2002, a judge ruled that the city could not remove the homeless on the steps of the church, but that they could remove homeless who were on the sidewalk, which the church also owned. Not taking no for an answer, the city appealed.

In March 2002, Becket filed an amicus brief on behalf a number of religious groups, including the Baptist Joint Committee on Public Affairs, the Christian Legal Society, the General Assembly of the Presbyterian Church (USA), the Council of Churches of the City of New York, the General Conference of Seventh-Day Adventists, the Interfaith Assembly on Homelessness and Housing, the Queens Federation of Churches, and the Rutgers Presbyterian Church.

In June 2006, the court protected the church, stating that providing homeless with outdoor sleeping space is sincere religious practice, which is protected by the Constitution.

New Doe Child # 1 v. The Congress of the United States (Sixth Circuit)

“God” is not a dirty word

God is not a dirty word. The Founders believed this and courts have continually upheld their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government. The motto is based on the national anthem and first appeared on U.S. coins in 1864. So far, his lawsuits have all been rejected.

Newdow’s latest two lawsuits in his crusade against the word God are in the Sixth Circuit and Eighth Circuit courts of appeals. In each case, he has led a group of atheists claiming that the national motto violates their practice of atheism under the Religious Freedom Restoration Act (RFRA) and the First Amendment. Becket filed a friend-of-the-court brief to defend the government’s use of “In God We Trust” in both cases.

Becket’s Sixth Circuit amicus brief, filed in February 2017, stated: “Plaintiffs want to have it both ways. They want to reject any notion of religious belief and transcendent truth and yet call it an ‘exercise of religion.’ Neither the English language nor the law can stretch that far.”

“In God We Trust” does not violate the First Amendment

In April 2017, Becket filed an amicus brief in the Eighth Circuit in St. Louis, Missouri. In that case, Newdow argued not only that the motto violates atheists’ religious freedom, but that it establishes a religion as well. Becket’s amicus brief countered those arguments, explaining that for the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state – and that honoring our nation’s religious heritage on our coinage is not one of them. The brief states, “Virginia’s earliest settlers attended twice-daily services on pain of losing daily rations, whipping, and six months of hard-labor imprisonment … . The motto’s presence on currency, of course, does not involve church attendance, compulsory or otherwise.”

These are not the first cases to consider the national motto, which has been upheld in court before. In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the national motto violates the Constitution’s Establishment Clause by “establishing a monotheistic religion.” Becket filed an amicus brief defending the motto, arguing that it is not an establishment of religion to simply pay tribute to our nation’s religious heritage.

Newdow’s lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. Becket’s briefs explain to the courts that if Newdow succeeds here, church-state conflict will balloon, and we will see a lot more litigation against God around the country.

Court protects “In God We Trust”

The Sixth Circuit heard oral argument in June 2017 in Cincinnati, Ohio. Newdow and the Department of Justice argued on each side. On May 29, 2018, a divided panel of the Sixth Circuit ruled 2-1 against the challenge to the national motto. On August 8, 2018, the Sixth Circuit denied en banc review.

Importance to Religious Liberty:

  • Public square: Religion is a natural part of human culture and has a natural place in the public square. “God” is not a dirty word, and paying tribute to our nation’s heritage in a national motto does not violate the First Amendment. 

Gagliardi v. The City of Boca Raton, Fla.

Searching for a house of worship

The Chabad of East Boca is an Orthodox Jewish synagogue in Florida that provides religious worship, outreach, and educational services. Like many other faith groups, it needed a house of worship for its congregation. After searching for years, the Chabad finally found the ideal location, took all the necessary steps to build, and—after a long series of public meetings—received unanimous city council approval to move forward in 2015. The approval came under a zoning law passed in 2008 that gave all houses of worship equal rights to build. But a small opposition group, led by a New York attorney, sued in federal court to stop the synagogue from being built.

Opposition fueled by anti-Semitism

Beginning in 2007, the Chabad experienced well-organized and well-financed hostility from a small group. Even after the building was unanimously approved in 2015, two landowners hired a New York attorney—notorious for her opposition to religious civil rights laws—and filed a lawsuit in federal court to prevent the synagogue’s construction. The lawsuit made the bizarre claim that allowing a house of worship equal access to build on private land violated the Constitution’s Establishment Clause.

The small group openly admitted that some other group’s opposition to the Chabad was driven by anti-Semitism. They claimed that allowing the synagogue to be built discriminated against them as Christians—even though the 2008 city ordinance they challenged granted equal access for all faith groups, local Christian congregations supported the synagogue, and they had never been prevented from building a church. They also claimed that building the 2-story synagogue would cause “inevitable” floods and prevent emergency vehicles from accessing the area, even though the area is already surrounded by 22-story condos and strip malls.

In addition to fighting the lawsuit, the Chabad also suffered a string of attacks in the last few years. A teenage member of the synagogue was physically assaulted on a public sidewalk and told to “go back to Auschwitz.” The ministry’s temporary home was also vandalized repeatedly: its glass mezuzahs containing sacred scripture were destroyed and stolen, and a glass synagogue door was smashed.

Winning the right to build

The Chabad twice urged a federal court to reject the lawsuit, and it won both times, first in July 2016 and then again in March 2016. The court went so far as to find that the plaintiffs “fail[ed] to allege any injury at all.” But in April 2017, the plaintiffs prolonged the case by appealing to the Eleventh Circuit. On May 7, 2018, the Eleventh Circuit granted the Chabad its third victory, protecting the Chabad’s right to build a synagogue.

The Chabad was represented by Becket and Kirkland & Ellis.

Importance to religious liberty

  • Property rights: Local governments must treat all houses of worship equally when it comes to property rights, zoning laws, and permit processes. A Jewish synagogue must be afforded the same access to building permits as a Christian church or any other house of worship.
  • Religious communities: Religious communities have the right to operate according to their religious beliefs even if the wider community around them disagrees with those beliefs.

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore

An honest commitment to care for women 

The Greater Baltimore Center for Pregnancy Concerns, which operates on Catholic Church-owned property, helps more than 1,200 women each year. The Center provides women with basic services like pregnancy tests, baby and maternity clothes, parenting books, diapers, bottles and formula, and sonograms—all free of charge. The Center also counsels more than 8,000 local women per year through its 24-hour helpline.

The Center’s staff and volunteers are motivated by their faith to help women and children during a vulnerable time in their lives. Displayed in each waiting room is a “Commitment of Care,” a document that explains the Center’s promises of nondiscrimination, honesty, and confidentiality, and also states that the Center “does not offer, recommend, or refer for abortion or birth control, but we are committed to offering accurate information about abortion procedures and risks.”

The government’s discriminatory double standard

In 2009, the City of Baltimore targeted the Center, demanding they display government signs about the services they do not offer. The city mandated that the Center display signs on the walls of their church-owned property stating that they “do not provide or make referrals for abortion or birth control services.” Yet, the only centers targeted by this discriminatory law were pro-life centers. The city of Baltimore did not require abortion clinics to display signs about services they do not offer, such as adoption or prenatal care.

The city claimed that the government-mandated abortion message did not alter the Center’s speech, because the Commitment of Care already notified women that the Center did not offer referrals for abortion. But this reasoning completely missed a crucial part of the First Amendment promise of free speech: that people, not the government, know best what they want to say and how they want to say it.

Defending free speech for all

In March 2010, the Center sued the mayor and city counsel of Baltimore in district court for the right to continue to serve and communicate with women who come to them for help, in a way that respects each woman’s choice and circumstances as well as the Center’s mission. The Center already accurately informs women about the help they provide in a way that is in line with their mission; that should be enough.

In January 2011, the Center won. But the government wouldn’t take no for an answer. On appeal at the U.S. Court of Appeals for the Fourth Circuit, the city again lost in January 2018. In its opinion, the Fourth Circuit explained that the city’s law essentially forced the Center to portray “abortion as one among a menu of morally equivalent choices”—a message “antithetical to the very moral, religious, and ideological reasons the Center exists.” The law therefore violated the First Amendment.

In March 2018, the city made a final appeal to the U.S. Supreme Court. On June 21, 2018, the U.S. Supreme Court rejected the city’s appeal, definitively protecting the Center’s free speech rights.

The Center was represented by Becket, by David Kinkopf and Steve Metzger from Gallagher, Evelius, and Jones LLP, and by Peter Basile from Ferguson, Schetelich & Ballew, P.A.

Importance to Religious Liberty

  • Free speech: The government cannot control the way an individual or organization speaks about its own beliefs. People, not the government, know best what they want to say and how they want to say it.

Belmont Abbey College v. Sebelius

Unconstitutional mandate threatens a Benedictine college

Founded by Benedictine monks, Belmont Abbey College celebrates a rich thousand-year-old monastic tradition of dedicated prayer and learning. Since 1876, the college has striven to carry out a clear mission: “That in all things God may be glorified.” But in 2011, Belmont Abbey’s right to live out its Catholic values was threatened by the federal government.

A new federal mandate by the Department of Health and Human Services (HHS) required the Catholic college to provide services such as the week-after pill in its insurance plans. The HHS mandate forced Belmont Abbey to either violate the Catholic values that drives its mission or pay massive fines to the IRS.

Becket defends religious groups from government interference

As a Catholic liberal arts college, Belmont Abbey upholds the teachings of the Catholic Church, including the respect for all human life. Participating in a system to provide services such as contraception, sterilization, and abortion pills would contradict the Catholic mission it seeks to advance.

Although the government exempted certain religious employers, the requirements were extremely narrow, limited only to religious employers who primarily serve and employ those of their same faith. Belmont Abbey had no choice but to go to court to defend its right to remain true to its Catholic convictions. With Becket’s help, Belmont Abbey challenged the HHS mandate in federal court in November 2011.

In September 2012, the US Court of Appeals for the DC Circuit, granted a motion for expedited appeal. In December, the court handed an intermediate victory to Belmont Abbey when it commanded HHS to act quickly to fix the HHS Mandate. But after the government’s new promised accommodation still infringed on the Catholic university’s beliefs, Becket refiled Belmont Abbey’s lawsuit in November 2013. In January 2014, the D.C. Circuit stayed the case pending decisions in similar cases before the same court.

After joining a class-action lawsuit, Belmont Abbey College voluntarily dismissed their own case in November 2014.

On October 6, 2017, Health & Human Services issued a new rule with an exemption that protects religious ministries, in compliance with the Supreme Court’s 2016 ruling and a Presidential Executive Order. In its new rule, the government admitted that it broke the law by trying to force religious groups to provide services in their health plans that violated their religious beliefs like the week-after pill. On November 7, 2018, the government finalized that rule, continuing to protect religious ministries.

Importance to religious liberty 

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without fear of government interference.
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship.

Wheaton College v. Azar

A college with a mission of faith

Wheaton College’s mission expresses its commitment to do all things “For Christ and His Kingdom.” Founded in 1860 by the prominent abolitionist Jonathan Blanchard, Wheaton’s history is marked by the stories of students and alumni whose faith drives them to affect the church and society for good.

An unconstitutional federal mandate 

In 2010, the federal government issued a mandate, regulated by the Department of Health and Human Services (HHS), that forced Wheaton College to include services like the week-after pill in its insurance plans, which violated its deeply held beliefs. Despite Wheaton’s expressed religious objections, the government refused to grant the College a religious exemption. In July 2012, Wheaton College sued the government to protect its right to operate according to its religious mission without the threat of government fines.

Wheaton College’s first lawsuit was delayed for over a year by the government’s promise of a religious accommodation—but the government still insisted that Wheaton College was not a “religious employer” and was ineligible for an exemption. In the meantime, though, Wheaton’s lawsuit forced the federal government to rewrite its one-year “safe harbor” condition to include Wheaton, giving the College another year to comply with the mandate or face crippling fines. As a result of the change, a federal judge for the U.S. District Court for the District of Columbia dismissed Wheaton College’s lawsuit as premature. In September 2012, the U.S. Court of Appeals for the D.C. Circuit granted a motion for expedited appeal, which later handed an intermediate victory to the religious colleges by ordering HHS to act quickly to fix the existing HHS mandate.

The government’s proposed “accommodation” turned out not to be much of a fix, and it still required Wheaton to choose between its belief in the sanctity of life or millions of dollars in government fines. So in December 2013, Becket refiled its lawsuit on behalf of Wheaton. In June 2014, the district court denied Wheaton’s request for relief. Wheaton appealed. In July 2014, while the case was on appeal, Wheaton received last minute protection from the Supreme Court against IRS fines. In July 2015, the Seventh Circuit Court of Appeals denied Wheaton College relief from the mandate. Finally, in May 2016, the Supreme Court decided the related case Zubik v. Burwell. The Supreme Court’s decision ordered the government to explore alternatives that would protect religious freedom. On October 6, 2017, the government issued a new rule with broader religious exemption, admitting that the mandate was illegal as applied to religious objectors, including Wheaton College.

A five-year fight ends in resounding victory

On February 22, 2018, Wheaton’s five-year legal battle finally came to an end when the district court ruled in Wheaton College’s favor, protecting the College from any current or future application of the mandate.

Importance to religious liberty:

  • Individual freedom: Government cannot force religious individuals or groups to violate their deeply held beliefs to further a government goal when there are other ways for the government to accomplish that goal.
  • Religious communities: Faith-based organizations, including schools, have the right to operate according to their religious mission free of government interference.
  • HHS mandate: For years, the federal government has refused or delayed relief from the HHS mandate to religious organizations. The 2018 victory for Wheaton is a critical step in securing robust religious liberty protections from the mandate for all religious non-profits. 

U.S. v. Sterling

Our nation’s military was practicing religious liberty even before our country recognized it’s inherently beneficial traits: solving religious conflicts and advancing the human right to freely seek God. If there is one lesson our military history has taught us it’s that religious diversity works.

A recent military court ruling threatens that heritage. A member of the Marine Corps, Monifa Sterling, was forced to take down a Bible verse from her desk despite other soldiers’ permission to decorate their workspaces. The court ruled that the verse, “No weapon formed against me shall prosper,” was not “religious” enough to be protected under the Religious Freedom Restoration Act. The ruling also noted that religion was “divisive” and “contentious” and government is allowed to censor it to avoid the risk that other Marines might be “exposed” to it.

But scripture is religious, and religion is not some sort of toxic cousin of profanity that deserves suppression instead of protection. The court’s ruling is very dangerous, particularly for minority religious groups with lesser-known faiths, who will more likely be targeted for “preemptive” censorship. The ruling also forgets the lesson of history: respectful religious pluralism enhances both individual rights and the military mission. To correct these errors, a diverse coalition of experts on military religious liberty joined the Becket’s amicus brief explaining why the lower court’s ruling must be overturned. The experts include military veterans, chaplains, and senior-level military commanders who have extensive personal and professional experience supporting soldiers’ free exercise of faith. They come from a variety of religions: Jewish, Catholic, Sikh, Southern Baptist, Muslim, Presbyterian, Mormon, Lutheran, Anglican, and Assemblies of God. Bancroft PLLC (Paul Clement), Liberty Institute, and Major John Stephens represented Ms. Sterling.

On August 10, 2016, the military’s highest court ruled against Monifa Sterling.

Trinity Lutheran Church v. Comer

The state of Missouri wants to make sure children run on safe playgrounds – unless they attend a religious school.

The Trinity Lutheran Church Learning Center is a Christian preschool that wanted to improve its playground surface, which consisted of gravel and grass. To facilitate the needed upgrades, the school applied to a state program in 2012 that provides grants to use recycled shredded tires for a softer and safer playground surface. Trinity Lutheran ranked fifth of 44 applicants based on overall quality of the intended project, the number of people who would benefit from the improved playground, and the quality of the school’s recycling education programs. However, despite the school’s high ranking, the state denied the grant solely because it was associated with a church.

The state used the Blaine Amendment, a 19th century anti-Catholic and bigoted law that prohibits religious organizations, such as a Florida prisoner ministry, a Catholic orphanage and several religious schools, from participating in public programs. Trinity Lutheran sued the state of Missouri in 2013 for this blatant discrimination. Becket, along with Stanford Professor Michael McConnell, submitted a friend-of-the-court brief defending Trinity Lutheran’s right to participate in the state’s tire recycling program on equal footing as all other applicants. Trinity Lutheran, represented by Alliance Defending Freedom, has fought all the way to the U.S. Supreme Court, which heard the case on April 19, 2017.

In June 2017, the U.S. Supreme Court