HotChalk v. Lutheran Church-Missouri Synod

Maintaining the faith 

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

Tech giant goes on fishing expedition 

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

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

Protecting religious organizations from government intrusion  

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

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

Importance to religious liberty 

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

Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission

Fulfilling the Catholic Church’s religious mission 

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

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

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

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

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

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

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

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

On April 18, 2023, the Wisconsin Supreme Court agreed to review the lower court’s decision. 

Importance to Religious Liberty: 

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

Diocese of Lubbock v. Guerrero

Promoting healing and protecting the vulnerable

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

Punished for transparency

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

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

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

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

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

Importance to Religious Liberty:

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

Caplan v. Town of Acton, Massachusetts

Would France let Notre Dame fall into ruin? Should India let the Taj Mahal crumble or England let Big Ben go into disrepair? ­Of course not. Historic structures enrich cities all over the world as reminders of our diverse and rich history.

The state of Massachusetts understands the importance of preserving historic landmarks. Through its Community Preservation Act, the state makes perseveration funds available to secular and religious structures alike, recognizing that both are significant to the history of the state and should be preserved. Since 2000, more than 8,000 projects have been performed on secular and religious buildings to preserve them for future generations and public use.

Yet a small group of residents in Acton, Massachusetts, are claiming that funds can be made available for all sorts of historic buildings – just not churches. The group claims that allowing churches to participate in this widely available program violates part of the Massachusetts Constitution known as the Anti-Aid Amendment. The Anti-Aid Amendment, like the Blaine Amendments adopted in numerous state constitutions during the 19th and 20th centuries, was adopted during a movement of anti-Catholic bigotry. To this day, state laws like these are used by anti-religion activists in attempts to prohibit state funds to anything remotely religious.

Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids.

The town of Acton went to court, represented by Anderson & Kreiger LLP. In 2016, two historic churches in Acton were protected. But the small group of residents appealed. In August 2017, Becket filed a friend-of-the-court brief defending the churches’ right to receive preservation funds on equal footing with secular structures. This case was heard in September 2017. In March 2018 the Supreme Judicial Court said that despite Trinity Lutheran, a church’s status as a church is an “important” factor weighing against a grant of preservation funds. The court’s ruling requires Massachusetts communities to discriminate, instructing them to hold churches to a higher standard than secular buildings in determining whether churches qualify to participate in historic preservation programs.

FFRF v. Morris County Board of Freeholders

At the Supreme Court, changes to the law are often slow and incremental. Sometimes these changes take place even when the Court decides not to take a case, as when one or more Justices write in a way that helps lower courts see the issues in a new light. This case, involving government grants for the preservation of historic buildings, including churches, is one such matter. Although the Court declined to hear the case, an opinion written by Justice Kavanaugh, and joined by Justices Alito and Gorsuch, reveals their commitment to equality for religion in the public square.

Historic buildings are an important part of our national heritage, from Independence Hall, to George Washington’s home in Mount Vernon, Virginia, to the Ebenezer Baptist Church where Martin Luther King served as pastor until his death. These buildings need frequent restoration to remain available to the public for future use. In 2002, Morris County created a historic preservation fund to help restore beautiful, historic buildings within the County. The program is a competitive grant program and requires applicants—both secular and religious—to establish the historic significance of the building, typically by showing they are on the state or national historic registry.  

In December 2015, the Wisconsin-based Freedom From Religion Foundation (FFRF) sued Morris County in New Jersey Superior Court, complaining that allowing churches to participate in the program violated the New Jersey Constitution. They claimed that Morris County can restore historic buildings—just not churches. Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, for example, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer  that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids. Similarly, in January 2017, the New Jersey court had ruled in Morris County’s favor and protected the right of religious historic buildings to participate in the program. But in April 2018, and despite the U.S. Supreme Court’s decision in Trinity Lutheran, the New Jersey Supreme Court reversed and ruled in FFRF’s favor, saying that under the New Jersey constitution the government cannot provide grants to preserve the architecture of historic churches. 

On September 19, 2018, Morris Country, represented by Becket, appealed to the U.S. Supreme Court, asking the Court to let Morris County continue treating all historic sites the same, without having to engage in religious discrimination. 

On March 4, 2019, the Supreme Court declined to review the case, but Justices Kavanaugh, Alito, and Gorsuch issued an opinion that goes a long way toward steering lower courts in the right direction. The opinion suggested that it would be inappropriate for the Court to take another case like Trinity Lutheran so soon after it was decided. This policy gives the lower courts more time to work through new decisions on a particular issue before the Supreme Court considers what gaps or confusion remain in the law. But in a promising move for his first writing on religious liberty at the Court, Justice Kavanaugh made clear that excluding sites from a historic preservation program because they are religious creates “serious tension with this Court’s religious equality precedents.”

This is not the last time the Court will have a chance to definitively resolve the issue. Although the New Jersey Supreme Court’s bar against religious organizations remains in place, a church suing the State of New Jersey or one of its counties after being denied funds could point to Justice Kavanaugh’s opinion to support a claim of religious discrimination. And Justice Kavanaugh himself agreed that “[a]t some point” the high court will have to step back in. In the meantime, the lower courts are on warning: according to Justices Kavanaugh, Alito, and Gorsuch, excluding religious organizations from generally available government programs is “pure discrimination against religion.”

Importance to religious liberty

  • Public Square: Houses of worship that have historical significance should qualify for the same benefits as other historically significant sites.
  • Reinforcing precedent: In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that the state of Missouri couldn’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Moses v. Ruszkowski

New Mexico textbooks for kids

Every child has the right to a quality education. Accessing that right is already an uphill battle for students in New Mexico, especially for thousands of low-income and minority children. The problem is not new, and state legislators have been working to fix it. Over 100 years ago, before New Mexico even became a state, the territorial and state legislatures enacted laws to ensure that all children had equal access to quality textbooks, regardless of where they attend school. Ever since, the textbook law has benefited children, particularly thousands of low-income and minority students, many of whom live in rural areas with limited options for quality education. But now, their access to quality education is at risk because of anti-religious activists and a discriminatory state law.

A law designed to discriminate

In 2012, two anti-religious activists sued the state, arguing that the New Mexico textbook lending program violated the state constitution because it allows children from religious schools the same access to education materials as children in other schools. To defend their lawsuit, the anti-religious activists pointed to a discriminatory 19th century state law—designed to disadvantage New Mexico’s native Catholic citizens—called the Blaine Amendment. Across the country, Blaine Amendments have been used by anti-religious activists to keep religious organizations from participating in neutral, generally applicable, government programs on equal terms as everyone else. They have been used to try stopping children with disabilities from attending a school that meets their needs, to prevent schools from making their playgrounds safer, to keep food kitchens from helping the poor, and more.

Becket defends children seeking an education

Both the trial court and the New Mexico Court of Appeals protected the state textbook program, but the decision was appealed to the New Mexico Supreme Court. In 2015, based on the Blaine Amendment, the New Mexico Supreme Court ruled that the state’s textbook program was unconstitutional. By its plain language, New Mexico’s Blaine Amendment prohibits the use of state funds toward “sectarian” or “private” schools. At the time of enactment, however, essentially all private schools were religious, and the law’s intention and effect were to promote religious discrimination. In 2017, Becket appealed the New Mexico Supreme Court’s ruling to the U.S. Supreme Court. The Supreme Court has recognized that Blaine Amendments arose from anti-religious bigotry.

In June 2017, the U.S. Supreme Court issued a 7-2 ruling in Trinity Lutheran v. Comer, a similar case involving Missouri’s Blaine Amendment. The Trinity Lutheran ruling stated that a church school could not be excluded from a generally available public benefit simply because it was religious. Based on the Trinity Lutheran decision, the U.S. Supreme Court ordered the New Mexico Supreme Court to reconsider its decision on the textbook lending program. The New Mexico Supreme Court heard oral argument on May 7, 2018.

On December 13, 2018, the Court reversed its earlier ruling, acknowledging that Blaine Amendments are “tainted” by anti-Catholic sentiment, and concluding that New Mexico’s Blaine Amendment should be interpreted narrowly to avoid denying students state-approved textbooks and other learning materials simply because they attend a religiously affiliated school. The Court’s opinion rejects the activists’ arguments that the textbook lending program improperly aids religion stating, “The textbook loan program furthers New Mexico’s legitimate public interest in promoting education and eliminating illiteracy.” The textbook lending program was then reinstated.

Importance to religious liberty:

  • Education: Religious schools should be able to participate in publicly available programs without discrimination.
  • Dismantling discriminatory state laws: While anti-religious laws from the mid-19th century remain in place, people of all faiths are at risk of being discriminated against.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Oliver v. Hofmeister

A program to give children with learning disabilities better opportunities

In 2010, the State of Oklahoma enacted the Lindsey Nicole Scholarship Program for Children with Disabilities to give students with learning disabilities access to private education by granting scholarships based on the cost of their public education. The program allowed students to attend a school that could help them with their specific learning disabilities. The vast majority of the state’s 541 school districts immediately complied with the law by issuing scholarship checks to eligible students. But four school districts decided that complying with the law would somehow violate the state’s Blaine Amendment, an archaic provision in the state constitution that targets “sectarian” groups.

The U.S. Supreme Court has acknowledged that these provisions were “born of bigotry” in an era of widespread anti-Catholicism. Yet these four districts unilaterally asserted the Oklahoma Blaine Amendment to deny students the funds, arguing that it might aid religiously-affiliated schools. Conveniently, this allowed those school districts to keep the funds for themselves. After Becket sued to defend the students’ rights, the legislature learned of their plight and changed the law so the scholarships would issue directly from the State Board of Education, bypassing the renegade school districts.

A five-year battle with public school bureaucrats

Two of the school districts—Jenks and Union Public Schools—then turned around and sued the parents for accepting their scholarships. Becket defended the students’ rights again, this time all the way to the Oklahoma Supreme Court, which dismissed the lawsuit, chastising the school districts for going after their own students.

Despite that ruling, the school districts renewed the lawsuit, this time against the State Board of Education for granting the scholarships. In 2014, a lower court upheld the scholarship program, but only for students attending schools that were secular or religious “in name only.” Becket stepped in again, arguing what should have been obvious: when the state makes benefits generally available to its citizens, it can’t discriminate against some of them just because they are religious. Becket pointed out that this bizarre ruling would require the state to examine the beliefs of every religious school and decide which ones were too religious to accept the students’ scholarships.

Giving children with special needs equal access to public programs

In February 2016, the Oklahoma Supreme Court once again ruled in the students’ favor, finally upholding the Lindsey Nicole Scholarship Program for Children with Disabilities for good. Oklahoma children with learning disabilities are free to use their share of the state’s education funds for an education best suited to their individual needs.

The Oklahoma Supreme Court’s ruling reaffirms that the government is not allowed to create a Goldilocks scenario of deciding which religious beliefs are ”just right.” The First Amendment requires that public programs be administered neutrally, without regard to religious belief. Thanks to Becket, the students and their families are finally able to participate in Oklahoma’s scholarship program on equal footing with everyone else.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 

Neely v. Wyoming Ethics

The story of a small-town, Wyoming judge raises a big question: Is there room in our society for people to live according to different views of marriage?

Ruth Neely is a municipal judge and part-time circuit court magistrate from Pinedale, Wyoming. Shortly after Wyoming legalized same-sex marriage, a local reporter published an article stating that Judge Neely would be unable to perform same-sex weddings because of her religious beliefs. Based on the article, the Wyoming Commission on Judicial Conduct and Ethics launched an unprecedented investigation against her.

Even though Wyoming law does not require (or pay) judges to perform weddings at all, and she has never been asked to solemnize a same-sex wedding, and there are several other magistrates who would be happy to do so, the Commission recommended that Judge Neely be stripped of all her judicial duties and fined up to $40,000 because of her beliefs. Town residents, including members of the LGBT community, were incredulous. In Pinedale, Judge Neely is known as an exemplary, caring judge who has spent 21 years treating everyone fairly.

Judge Neely was forced to defend her religious beliefs in the Wyoming Supreme Court, represented by the Alliance Defending Freedom. In May 2016, Becket submitted a friend-of-the-court brief arguing that it would violate the Wyoming and federal constitutions to penalize Judge Neely because of her religious beliefs. In March 2017, the Wyoming Supreme Court unanimously rejected the government’s request for extreme sanctions, allowing Judge Neely to keep both of her judicial positions. But a bare majority of the Court, in a 3-2 vote, ruled that she cannot continue performing any marriage ceremonies unless she’s willing to violate her faith by personally performing same-sex ceremonies. The dissenting justices defended Judge Neely and got the big question right: “In our pluralistic society, the law should not be used to coerce ideological conformity. Rather, on deeply contested moral issues, the law should ‘create a society in which both sides can live their own values.’”

Becket stands ready to defend others like Judge Neely, who, despite government pressure to conform, courageously choose to follow their conscience.

Ingersoll v. Arlene’s Flowers

Meet Barronelle Stutzman, a floral artist and faithful Christian

For nearly forty years, Barronelle Stutzman has run Arlene’s Flowers, creating custom floral arrangements in the small town of Richland, Washington. As a Christian, she believes her creativity is a gift, and she uses that gift to honor God in her life’s work. As an artist, she enjoys helping her customers celebrate their life events and over the years has come to know many of them as friends.

For nine years Barronelle joyfully served long-time customer and friend Rob Ingersoll, designing custom arrangements for birthdays, Valentine’s Day and other holidays that he celebrated with his partner Curt Freed. In 2013 Rob asked Barronelle to do the flowers for his wedding. Although Barronelle has hired and served gay customers in the past with arrangements for other celebrations, she could not create something for a ceremony that violated her beliefs. She took Rob’s hands and told him with tears in her eyes that she values his friendship but could not participate in his wedding because of her faith. He told her he understood, and another florist quickly provided their wedding’s floral arrangements for free.

Washington Attorney General and ACLU sue Barronelle because of her beliefs

Barronelle was soon sued by the state’s Attorney General and the ACLU. In 2015, a state court ruled that Barronelle was personally liable for Rob Ingersoll’s $8 dollars in damages as well as his attorney’s fees, which means that she could lose her business, her home, and her life savings.

The Washington Supreme Court heard oral argument in Barronelle’s case in November 2016. Becket filed an amicus brief in February 2016 supporting Barronelle, who is represented by the Alliance Defending Freedom. Other groups supporting Barronelle include the National Hispanic Christian Leadership Conference, the Coalition of African American Pastors USA, the National Association of Evangelicals, the Cato Institute, 27 law professors, and 13 states. In February 2017, the Washington Supreme Court ruled against Barronelle.

Becket defends people of faith from government hostility 

In August 2017, Becket filed a friend-of-the-court brief asking the Supreme Court to hear the case in tandem with the Masterpiece Cakeshop case. In June 2018, the U.S. Supreme Court ruled in favor of Masterpiece Cakeshop, and remanded Barronelle’s case back to the Washington Supreme Court. In March 5, 2019, Becket filed a friend-of-the-court brief at the Washington Supreme Court, arguing that state acted with religious hostility against Barronelle, in violation of her First Amendment rights, and that the Masterpiece Cakeshop decision requires the government to allow religious individuals to freely practice their faith.

On June 6, 2019, the Washington Supreme Court ruled against Barronelle Stutzman. On September 11, 2019, Barronelle appealed to the U.S. Supreme Court.

Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. In this case, the government is forcing Barronelle to choose between her deeply held religious convictions and her livelihood.
  • Free speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. In this case, Barronelle’s artistic expressions were a form of speech, and the government should not force her to create something that violates her religious beliefs.

Duncan v. Nevada, Lopez v. Schwartz

Expanding educational opportunities for Nevada students

Like any other state, Nevada seeks to provide quality education to students of all incomes.

So in 2015, the state of Nevada established the Education Savings Account (ESA) program, which allocates money into a specified bank account for each child that, similar to a medical flexible spending account, parents can use only for education expenses such as tuition for private schools, books and tutoring.

The ESA program has allowed thousands of children to seek better educational opportunities, such as by seeking a private school education at a school of their choice.

Meet the activists who want the program gone

Yet not everyone is happy. The American Civil Liberties Union (ACLU) and the Americans United for the Separation of Church and State are suing to end Nevada’s ESA Program. Why? Because the program uses state funds toward services that may be religiously affiliated.

The activist groups are using a 19th century state law with anti-Catholic roots called the Blaine Amendment, which prohibits the use of state funds toward “sectarian” schools. The law was originally enacted – and successfully used – to shut down an orphanage run by Catholic nuns. In the 1880s, forbidding “sectarianism” meant forbidding anything remotely Catholic, but now activist groups are using the term to single out any school that is “too religious.”

Both interpretations are in direct violation of the U.S. Constitution’s Equal Protection Clause.

Becket defends religious schools, and the students who choose them

It is not up to the state to block schoolchildren from religious influence. Every child has the right to seek a better education, whether it is at a religious school or not. Becket is standing up to this blatant discrimination against religious schools and the students who choose them, and is urging the dismissal of this case.

On October 28, 2015, Becket filed an amicus brief  in  Duncan v. Nevada  in Nevada state court, stating, “To claim that the ESA Program funds ‘sectarian’ purposes is simply a modern spin on the same discrimination that birthed the Blaine Amendments.”

On May 18, 2016, that court dismissed the challenge to the ESA program, ruling that Nevada’s Blaine Amendment could not be used to stop neutral programs that allow parents to choose how to use their education funds. In September 2016, the Nevada Supreme Court ruled that the ESA program did not violate the Blaine Amendment, because once the funds reach the parents’ hands they no longer constitute state money, but private funds to be put toward a child’s education. The Court’s decision means that once the State corrects the fund appropriation process, the program can move forward and benefit schoolchildren statewide.

In a related case, Lopez v. Schwartz, the district court granted temporary relief to the schools and students challenging Nevada’s ESA program. That case is now headed for the Nevada Supreme Court.

Nevada’s Office of the Attorney General and Bancroft, PLLC (Paul Clement) represented the state.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 

Gaddy v. Georgia Department of Revenue

In 2008 the state of Georgia created a scholarship program that allows children of low income families to attend a school, religious or secular, that best fit their needs. The scholarships are funded through voluntary donations from Georgia taxpayers, who could count the donations as tax credits.

But the program is now being threatened by a group that claims the scholarship program violates Georgia’s Blaine Amendment, an arcane anti-religious provision adopted in the mid-19th century and originally used to discriminate against a growing wave of Catholic immigrants in the U.S.

To this day, Blaine Amendments remain in dozens of state constitutions and prohibit the use of state funds at “sectarian” schools.  They have an ugly history. Beginning in the mid-nineteenth century, the U.S. endured a rash of anti-Catholic and anti-immigrant bigotry known as the “Know-Nothing” movement—decried at the time by Abraham Lincoln and in recent years throughout the courts. The movement unleashed a wave of religious discrimination in the form of Blaine Amendments, which were adopted in numerous state constitutions in the late 1800s and early 1900s and were designed to suppress Catholic schools in favor of Protestant-dominated public schools.

If this scholarship program ends, thousands of low-income children will be deprived of the education they need to succeed. And if the lawsuit succeeds, severe limitations would block the government from working with vital private charities, forbidding crucial service organizations from accepting even neutral government aid.

In December 2016, Becket filed a friend-of-the-court brief to defend the tax credit program and to condemn Georgia’s anti-religious Blaine Amendment, which is being used to prevent children from getting the best education for their needs. In January 2017, the Georgia Supreme Court heard oral argument, and in June 2017, ruled to protect low-income schoolchildren and their scholarship program. Georgia’s Office of the Attorney General was counsel in this case.

Odgaard v. Iowa

Meet the Odgaards

It was their home away from home.

Betty and Richard Odgaard are a small-town Mennonite couple. In 2002, they rescued a nearly century-old church that was going to be torn down to make room for a gas station. Instead, they converted the church into an art gallery to display Betty’s and other local artists’ work. Inside the Görtz Haus Gallery, the couple also ran a bistro and a small framing, flower, and gift shop.

The Odgaards also personally hosted weddings in the old sanctuary several times a year. For every wedding, Betty would meet with the bride multiple times, plan the celebration, and design the wedding flowers and decorations. Richard would prepare the sanctuary for the ceremony, handle the sound system, and assist the officiant and guests. Each wedding kept them at the gallery from morning until night to set up, facilitate, and clean up after the ceremony. Running the gallery wasn’t just a business; it was the Odgaards’ life’s work.

Their life’s work as an expression of their faith

Betty and Richard chose to keep the church’s religious elements as an expression of their Christian faith. Latin crosses still adorn the building, both inside and out. Stained glass windows depict Biblical images, and a scripture verse on the wall welcomes all visitors. Many of Betty’s paintings displayed in the gallery also express religious themes.

Through the years, the Odgaards gladly hired gay employees and served gay customers at the gallery’s shops and bistro. However, they could not participate in a wedding ceremony that violated their religious beliefs.

After over a decade, the Odgaards were forced to shut down the gallery when the Iowa Civil Rights Commission tried forcing them to personally host a same-sex wedding ceremony in violation of their religious beliefs. The state’s prosecution began after a same-sex couple sued the Odgaards, even though there were numerous nearby venues that are eager to host same-sex weddings.

An intense media campaign was launched against the Odgaards. They were subjected to hate mail, boycotts, personal attacks, and even death threats. Officials in the Civil Rights Commission showed open disdain for the Odgaards’ religious rights, and even denied them access to state court to defend their religious liberty claims. Shockingly, the state refused to dismiss its case against the Odgaards even after the two men—contrary to their prior sworn statements—admitted they had been married months before asking the Odgaards to host their ceremony.

Becket defends the Odgaards’ religious liberty

Becket defended the Odgaards in their lawsuit. Facing growing pressure from the state and potentially years of legal proceedings, the Odgaards chose to remain true to their faith. They settled the charges brought against them, paying thousands of dollars to the couple, and agreed to stop hosting all weddings. Without this vital income, the Odgaards were forced to close the gallery.

While heartbroken to see their life’s work end this way, the Odgaards’ faith is stronger than ever, and they’re certain they did the right thing in staying true to their beliefs.

A local church later purchased the gallery as a house of worship, which would mean it can continue to express the Odgaards’ Christian faith—and this time, even the state of Iowa has to respect it.

Jenks v. Spry

Related to previous Oklahoma Blaine cases: Jenks v. Spry & Kimery v. Broken Arrow Public Schools 

Stephanie and Russell Spry’s disabled son will be able to get the best education from a school specially designed for his needs.  After a five-year battle with school bureaucrats from a handful of public schools, the Oklahoma Supreme Court ruled that the Lindsey Nicole Scholarship Program for Children with Disabilities is constitutional and that religious organizations and individuals have the right to access generally available state aid on equal footing with everyone else.

The State of Oklahoma enacted the program in August 2010 to give students with learning disabilities scholarships based on the cost of their education to help them attend  a private school of their choice that could help them with their specific learning disability. The vast majority of the state’s 541 school districts immediately complied with the law by issuing scholarship checks to eligible students. But four school districts decided on their own that complying with the law would somehow violate the state’s Blaine Amendment, an archaic provision in the state constitution that targets “sectarian” groups.

Although the U.S. Supreme Court has acknowledged that these provisions were “born of bigotry” in an era of widespread anti-Catholicism, these four districts unilaterally asserted the Oklahoma Blaine Amendment to deny students their state aid on the purported ground that allowing them to direct their own education might aid religiously-affiliated schools. Conveniently, of course, this allowed those school districts to keep the funds for themselves. After Becket sued to defend the students’ rights, the legislature learned of their plight and changed the law so the scholarships would issue directly from the State Board of Education, bypassing the renegade school districts.

Adding insult to injury, two of the school districts—Jenks and Union Public Schools—turned around and sued the Sprys, along with parents of three other children with learning disabilities, for accepting their scholarships! Again Becket defended the students’ rights, this time all the way to the Oklahoma Supreme Court, which eventually dismissed the lawsuit, chastising the school districts for going after their own students.

Despite the ruling from the high court, the school districts recruited allies to again renew the lawsuit, this time against the State Board of Education. In 2014, a lower court upheld the scholarship program, but only for students attending schools that were secular or religious “in name only.” On appeal, Becket again represented the student and their families, arguing that this bizarre ruling would have required the state to examine the beliefs of every religious school and decide which ones were too religious to accept the students’ scholarships. We made what should be an obvious point: when the state makes benefits generally available to its citizens, it can’t discriminate against some of them just because they are religious.

On February 16, 2016, the Oklahoma Supreme Court once again ruled in our favor, finally upholding the Lindsey Nicole Scholarship Program for Children with Disabilities. Now the Spry’s son and other Oklahoma children with learning disabilities are free to use their share of the state’s education funds for an education best suited to their individual needs. After five years of fighting, they can focus on their schooling, without fear that they will be denied the same opportunity as other students, just because of their religion.

The Oklahoma Supreme Court’s ruling reaffirms that the government is not allowed to create a Goldilocks scenario of deciding which religious beliefs are ”just right.” The First Amendment requires that public programs be administered neutrally, without regard to religious belief.

The road to this victory was long, but—with the help of Becket—the students and their families are finally able to participate in Oklahoma’s scholarship program on equal footing with everyone else.

Becket was co-counsel in this case along with Lester, Loving, & Davies, P.C. (Andrew Lester, Carrie Vaughn, D. Matt Hopkins).

Doe v. Acton-Boxborough Regional School District

For over a decade, the Becket Fund for Religious Liberty has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the 1st Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”

Big Sky Colony v. Montana Department of Labor and Industry

The Hutterites are a peaceful and industrious people who have lived every aspect of their lives in religious communities for almost 500 years—eating meals in a communal dining hall, educating their children in a communal school, wearing the same homemade clothing, and working together on a communal farm.

All Hutterite members take a vow of poverty, renounce private property, and hold all their possessions in common. They devote all of their time, labor, and energy to the community as an act of service and religious devotion. They also pledge to resolve any disputes among themselves without using secular courts. They have been successfully living by these religious principles for almost 500 years.

In 2009, however, powerful labor unions and construction lobbyists in Montana complained that Hutterites receive a supposed “competitive advantage” because they do not pay wages to their members, and therefore are not required to provide workers’ compensation insurance. In response, the state passed a new law forcing the Hutterites to provide workers’ compensation insurance for their members. The new law would force the community to violate its 500-year-old commitment to holding all possessions in common, working without expectation of compensation, and refusing to assert legal claims against each other.

The new law is also pointless, because the Hutterites already provide expensive, comprehensive medical care to all of their members, regardless of the reason for their illness or injury. Thus, the workers’ compensation requirement does nothing to protect the health of Hutterite workers; it only forces the community to violate its religious beliefs. Unfortunately, because Hutterites shun politics and do not vote, the legislature never consulted them before passing the new law, and was unaware that the law would serve no purpose.

When the colony discovered that they would be forced to violate their religious beliefs, they petitioned the Montana state courts for relief. A district court decided that the law violated the First Amendment because it was “drafted with such care to apply only to Hutterites,” and because it imposed “property rights concepts [that are] forbidden by the fundamental communal living and community of goods doctrine upon which the [community] is founded.” In a sharply divided 5-4 ruling, the Montana Supreme Court reversed that decision.

The Hutterites then asked Becket to appeal their case to the U.S. Supreme Court in 2013. The Supreme Court declined to hear the case, but Becket ultimately helped the Hutterites work out a solution with the Montana legislature. Today, the Hutterites continue to live in accordance with their religious beliefs without legal persecution.

Meredith v. Daniels

In 2011, Indiana enacted a school choice program called the Choice Scholarship Program. The law help families of lesser means send their children to private schools of their choice and avoid failing public schools. But teachers’ unions are fighting a furious rearguard action against it, using 19th Century anti-Catholic laws (called Blaine Amendments) to argue that the program violates the Indiana Constitution by providing “aid” to religious schools.

The plaintiffs lost in trial court and the Indiana Supreme Court agreed to hear the case.

In April 2012, Becket filed an amicus brief in the Indiana Supreme Court arguing that Indiana’s constitution should not be interpreted to shut down the Choice Scholarship Program. The Blaine Amendments were adopted in a time of anti-Catholic agitation, just before the notoriously anti-Catholic Know-Nothing Party came to power in the Indiana Legislature. The amendment was therefore custom-designed to promote Protestant “common schools” and keep out Catholics, Jews, and others. Because of its bigoted origins, the Blaine Amendment is tainted law and cannot be used to shut down the Choice Scholarship Program. Becket filed the brief with co-counsel Kevin Koons of Kroger, Gardis & Regas in Indianapolis.

“Apparently it isn’t enough that the teachers’ unions want to deny a future to the children of Indiana, they also want to take us back to the bad old days when anti-Catholics ran the Indiana public schools,” says Becket Deputy General Counsel Eric Rassbach. “Kids who attend religious schools should be able to apply for state scholarships on the same terms as everyone else, not sent to the back of the bus. These discriminatory laws must be stopped. If they don’t end in Indiana, a terrible precedent will be set for the entire nation.”

Indiana’s Office of the Attorney General defended the state’s program.

Norwood v. Gamble

Two Ohio residents were being forcibly evicted by Norwood City so that commercial developers could improve the land and generate more tax revenue.

Becket filed a friend-of-the-court brief to the Ohio Supreme Court urging that the Court reject the Kelo rule in interpreting the state takings clause. We argued that affirming the lower court’s bad decision would both declare open season on the taking of religious institutions of all faiths and functions (houses of worship, schools, hospitals and soup kitchens, to name just a few). Since religious institutions do not pay taxes, they are especially vulnerable to Kelo-style land grabs.  Allowing this taking to go forward would turn the Ohio Constitution’s prohibition against takings for private use on its head.

The Ohio Supreme Court agreed that economic motives alone cannot justify taking private property from its owners, and that cities must demonstrate they have a genuine public use for the land. This decision protects religious institutions throughout Ohio. Institute for Justice was counsel in this case.

Cambodian Buddhist Society of Connecticut, Inc. and Pong Me v. Town of Newton Planning and Zoning Commission

When the Cambodian Buddhist Society of Connecticut bought 10 acres of land to build the state’s first Buddhist Temple, they were unpleasantly surprised.

The Town of Newtown’s Planning & Zoning Commission denied them permission to build their proposed temple, citing the temple’s Asian architecture and the volume of cars and noise the temple could potentially cause.  Represented by Murtha Cullina LLP, the Cambodian Buddhist Society sued under RLUIPA and a Connecticut law guaranteeing religious freedom.

The case went all the way to the state supreme court, where Becket filed an amicus brief arguing that the Cambodian Buddhist Society was entitled to build its temple.  Sadly, the justices sided with Newtown, saying officials had acted on “neutral concerns” about public safety rather than religious bias.  Their decision was out of step with other state and federal courts, which recognize that RLUIPA and state religious freedom laws apply even when bias cannot be definitely proved.

Becket believes that the 500 million Buddhists around the world have a right to build proper facilities in which to practice their faith, whether they are in Cambodia or Connecticut. Apparently, the state of Connecticut disagrees.

 

Greater Bible Way Temple of Jackson v. City of Jackson

Greater Bible Way Temple is a large church with a commitment to serving the community of Jackson, Michigan. After several years of growth, it purchased some property across the street from its existing church in order to expand its ministries. Because of its religious commitment to the poor and needy of Jackson, it dedicated the land to providing low-cost housing to the disabled, elderly, and others in need. The Church understood from prior conversations with the city that the city was interested in seeing housing on that land; the land is zoned residential and is just a block from a large apartment complex. The church asked the city for a rezoning through a highly discretionary process, and the city denied the request. This prevented the church from proceeding with its ministry.

The Church sued the city of Jackson for violations of RLUIPA. Two lower courts agreed, finding that the city had imposed a substantial burden on the Church’s religious exercise. In a stunning decision, the Michigan Supreme Court reversed those decisions, ruling that not only was there no substantial burden, but that RLUIPA’s “substantial burden” provision does not even apply to rezoning actions. The Court even went so far as to say that the city’s interests in uniform zoning laws satisfied strict scrutiny, an extremely stringent legal test that requires the government to prove interests so strong that they could justify racial discrimination, content-based speech restrictions, and forced sterilization. The Michigan Supreme Court’s opinion does not explain how, under its rationale, a rezoning action could ever violate RLUIPA’s “substantial burden” provision.

Unfortunately, the U.S. Supreme Court elected not to hear the Becket Fund’s appeal.