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.  

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. 

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.

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.

 

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

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.

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.  

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

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. 

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.  

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 will take place at its Pasadena courthouse on March 21, 2023, at 10:00am PT.

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

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.  

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.

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:

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.

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).

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.

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.

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.

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.

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.

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.

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.     

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.

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.

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.

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.