Walker v. Texas Division, Sons of Confederate Veterans

In Texas, drivers have the option of personalizing their vehicles with a specialty license plate. Many of these are designed and submitted by private organizations. In 2015, there were 80 license plates to choose from, with messages that ranged from: support for the University of Oklahoma and the Louisiana State University; advertisements for Mighty Fine Burgers, Freebirds Burritos, Dr. Pepper soda, and Re/Max real estate; and the statement that the driver would “Rather be Golfing.” Some license plates display viewpoints that some government entities oppose as offensive, such as Texas Trophy Hunters Association, “Choose Life,” or “One State Under God” (featuring three crosses).  

In 2009, the Texas Division of the Sons of the Confederate Veterans (SCV) submitted an application for a license plate design featuring the Confederate battle flag and the name of its organization. When the Texas Department of Motor Vehicles Board rejected the design twice, the SCV sued the Board, and then lost in district court. The Fifth Circuit Court of Appeals reversed the decision and sided with SCV. The U.S. Supreme Court later agreed to hear the case.  

On February 17, 2015, Becket, represented by prominent Free Speech expert and law professor Eugene Volokh, filed a friend-of-the-court brief before the Supreme Court arguing that, although Becket does not agree with or support the use of the Confederate flag, allowing government restriction of highly offensive speech violates the First Amendment. Although Texas retained the right to final approval authority, the State never once exercised this right until the SCV submitted its design. When it comes to private speech in the public forum, such as non-profit organizations using bus or subway advertisement space, viewpoint neutrality has always been a constitutional requirement. Becket argues that the government should not have broad authority to discriminate against private speech, however controversial, because such power in the hands of the state is dangerous for free speech and the free expression of religion. 

The U.S. Supreme Court heard the case on March 23, 2015. On June 18, 2015, the Court ruled 5-4 that the specialty license program constituted government speech, and so the rule against viewpoint discrimination did not apply to the State. 

Importance to Religious Liberty: 

  • Free Speech—Freedom of speech and freedom of religion go hand in hand. We believe in order for a free democracy to be preserved, we must allow a wide variety of voices and opinions to coexist, even conflict. The government doesn’t get to decide what speech is permitted based on whether it is offensive.  
  • Public Square—Messages that offend should not be scrubbed from our public spaces. Allowing differing viewpoints in the public square ensures a diverse marketplace of ideas—including religious ideas that offend many—which is the bedrock of a free society.  

Friedrichs v. California Teachers Association

The state of California has been forcing religious objectors to speak. Religious groups like the Christian Educators Association International (CEAI) and members of the Seventh-day Adventist Church have been forced to either pay trade union dues or pay equivalent fees to one of the three union-approved “nonreligious, nonlabor” charities.

The end result is that religious objectors are forced by the state government to fund either the union or the predetermined set of charities. CEAI has sued the California Teachers Association (CTA) asserting that the state is using its power to coerce religious objectors to support speech they do not agree with.

Becket joined the fight at the Supreme Court with a friend-of-the-court brief arguing that government coercion of religious objectors should not be excused simply because the coercion is taking place through separate avenues such as the collective bargaining agreement. When someone funnels illicit funds through a third party it’s called money laundering, when the government tries to use one person to control another person it’s called coercion laundering. Jones Day and the Center for Individual Rights represented the religious groups.

Burwell v. Hobby Lobby

A family seeking the American Dream        

David and Barbara Green founded Hobby Lobby in a garage. From the beginning, it has been a family business—David worked an extra job to support his family, Barbara mailed out orders, and their children glued picture frames at the kitchen table in exchange for money to buy baseball cards. Hobby Lobby has since grown from one 300-square-foot store to more than 700 stores across the country, becoming one of the nation’s leading arts and crafts retailers. Their success story is a true example of the American dream.

The Greens are devout Christians who seek to honor God by “operating their company in a manner consistent with Biblical principles.” All stores are closed on Sundays and only operate 66 hours per week to allow employees to spend evenings and Sundays with their families.  The Greens start all full-time hourly workers at more than double the federal minimum wage because they believe in treating people well.

A mandate that violates the Green family’s faith

In 2011, the government’s HHS Mandate required the Greens to provide insurance coverage for potentially life-terminating drugs and devices, contrary to the family’s religious convictions—or pay millions of dollars in fines to the IRS.

The Green family has no moral objection to 16 of 20 contraceptives required in the mandate, and Hobby Lobby has continued its longstanding practice of covering these drugs and services for their employees. However, the Greens could not provide or pay for four drugs and devices like the morning-after pill and the week-after pill. Covering these services would violate their deeply held religious belief that life begins at the moment of conception.

Becket leads the Green family to a Supreme Court victory

The Green family respects the rights of all Americans. But they believed that Hobby Lobby could not stay true to its mission while providing services that go against their beliefs. All they asked was that the government allow them to continue running their family business—providing quality jobs for the employees and quality products for their customers—according to their faith.

With the help of Becket, the Green family went to court to defend their rights and won, proving you don’t leave your religion at the door when you open a family business. After a two-year legal battle, on June 30, 2014, the U.S. Supreme Court granted a landmark victory for religious liberty, ruling 5-4 in favor of David and Barbara Green and their family business.

To hear the in-depth story, listen to our Stream of Conscience Podcast episode about this case, Pills and Principles.

Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. Americans do not lose their religious beliefs when they open a family business.
  • 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.

EEOC v. Abercrombie & Fitch Stores

Meet Samantha Elauf   

Samantha Elauf is a fashion blogger who takes her faith seriously. When she was 17, she sought a job at her local mall’s Abercrombie & Fitch. She knew the company dress code prohibited hats but had previously hired a Jewish employee who wore a yarmulke, so she never imagined that her headscarf might be an issue.

The store manager who interviewed Samantha liked her and recommended that she be hired. But when the district manager learned about Samantha’s headscarf, he made the store manager lower Samantha’s scores so she would appear unqualified.

Blatant Discrimination

Abercrombie does have a policy that prohibits employees from wearing hats, but they’ve made religious accommodations numerous times in the past. But rather than acknowledge that their district manager erred in refusing to accommodate Samantha, Abercrombie claims she should not be protected by the Civil Rights Act—which prohibits employment discrimination on the grounds of race, national origin, sex, and religion—because she never “explicitly” confirmed in her interview that she wore the scarf for religious reasons. In short, Abercrombie refused to hire Samantha because of her Muslim faith, and now they want a free pass for discrimination.

But anti-discrimination laws have been on the books for over fifty years. These are the same laws championed by Martin Luther King, Jr. that protect our civil rights from discrimination to this day. Abercrombie blatantly denied Samantha Elauf a job on the basis of her religion, and that should not go unchallenged.

In 2011, a federal district court judge ruled in Samantha’s favor, but in October 2013, the Tenth Circuit Court of Appeals reversed. On October 2, 2014, the United States Supreme Court agreed to hear Samantha’s case.

Protecting Religious Diversity

Becket became involved in this lawsuit for the first time at the Supreme Court. Becket champions religious diversity and defends Samantha’s right to bring her religious identity into her workplace. Religious expression is invaluable and inseparable from the human experience. No American should be forced to leave their faith at the door when they enter the workplace, especially when their religious activity has no impact on their employer’s business. Society will only benefit from protecting religious diversity everywhere, even at the mall.

On December 11, 2014, Becket filed an amicus brief in this case. On February 25, 2015, the Supreme Court heard oral argument in this case.

On June 1, 2015, the Supreme Court ruled 8-1 in favor of religious job seekers. The Court held that a job seeker suing for religious discrimination only has to show that their need for a religious accommodation–such as wearing a headscarf–was a “motivating factor” in the employer’s decision not to hire. Even if the employer is not certain the applicant needs a religious accommodation, they can be liable if they suspect there is a need for religious accommodation and reject the job applicant for that reason. This Supreme Court ruling requires that employers be mindful of the potential religious needs of job applicants and not let the possible need for a religious accommodation influence their employment decisions.

The Solicitor General and Department of Justice represented Samantha.

 

Town of Greece v. Galloway

A diverse town practices a cherished tradition

In the town of Greece, New York, volunteers from any religious faith may commence legislative meetings with a prayer. The town has had a wide variety of volunteers—from Catholics, Protestants, and Jews, to leaders from the Bahá’í and Wiccan traditions. This 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 and the divine source of the people’s inalienable rights.

It is a practice as old as this nation, but thanks to a court decision, it soon became a forbidden practice.

Becket defends legislative prayer as our Founders saw it

In August 2013, Becket filed a friend-of-the-court brief urging the U.S. Supreme Court to reverse a decision by the Second Court Circuit of Appeals and restore the Establishment Clause to its original, founding-era meaning.

The brief explains that the Founders understood establishment of religion as consisting of four key elements: (1) government financial support of the church, (2) government control of the doctrine and personnel of the church, (3) government coercion of religious beliefs and practices, and (4) government assignment of important civil functions to the church – all linked by an underlying concern about state coercion to participate in religious activity. Because legislative prayer does not meet any of these conditions, it is not an establishment of religion.

The brief also explains how the Founders “viewed legislative prayer as a natural outflow of their political philosophy of limited government and inalienable, God-given rights.” By hearing prayer before a government meeting, elected officials are reminded of the limits of their powers, as well as the source of the inalienable rights of those they are elected to serve.

A Supreme Court victory for religious freedom

Oral arguments were heard in November 2013. In May 2014, the Supreme Court reversed the Second Circuit’s opinion, protecting legislative prayer in a great victory for religious freedom. For the first time in decades, the Court addressed the constitutionality of legislative prayer and helpfully began clarifying how lower courts should interpret the First Amendment’s Establishment Clause.

Alliance Defending Freedom and Gibson, Dunn & Crutcher LLP were counsel in this case.

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.

McCullen v. Coakley

Meet Eleanor McCullen, who ministers to women in crisis

Since 2000, Eleanor McCullen has knitted baby hats and lovingly counseled women outside of abortion clinics near her home in Massachusetts. Driven by her faith, Eleanor aspires to see mothers become parents and to see families flourish by supporting an expectant mother’s decision to say yes to life. As a sidewalk counselor, Eleanor ensures struggling women she meets outside the clinic do not feel alone in their journey, and that, while it may not seem like it, they have a choice. She also directs expectant mothers to important resources such as housing, medical care, sonograms, and food supplies. She even hosts baby showers.

But starting in 2000, the State of Massachusetts passed a series of laws that threatened free speech—and Eleanor’s ability to give women the support they willingly accepted.

Massachusetts “buffer zone” restricts free speech

By 2007, Massachusetts had imposed a 35-foot buffer zone around every abortion clinic in the state. The law made it illegal for Eleanor to have conversations with women who wanted her help on the sidewalks in front of abortion clinics.  Instead, Eleanor was forced off the sidewalk, away from the clinic, and at times into the streets

The buffer zone not only restricted Eleanor’s freedom of speech, but also religious freedom. Eleanor is motivated by her faith to help women in need. A Catholic priest, who joined Eleanor in her lawsuit, wanted to provide religious counseling to women in need.  Another individual simply wanted to stand silently on the sidewalk and pray. Yet the Massachusetts’s law banned all of these peaceful activities. By stopping religious people from offering help to women in need, the law also harmed countless women by depriving them peaceful and often welcomed offers of help.  [There is a heartbreaking brief by women who WISH they’d had such help outside of abortion clinics.

In January 2008, Becket President Mark Rienzi co-counsel Michael DePrimo, and lawyers from Alliance Defending Freedom represented Eleanor in federal court. The court ruled against Eleanor in August 2008. In July 2009, Eleanor lost again on appeal at the U.S. Circuit Court of Appeals for the First Circuit. She appealed to the U.S. Supreme Court, which agreed to hear the case.

Supreme Court ruling protects free speech and religious liberty 

Central to the First Amendment is the right to a free and peaceful exchange of ideas, which requires an individual’s ability to have personal conversations and distribute literature in public places. Under the new law it would have been a crime punishable with jail time if Eleanor so much as uttered, “Good morning, Jesus loves you,” to a passerby.

In January 2014, Becket President Mark Rienzi argued the case before the Supreme Court. On June 26, 2014, the Supreme Court ruled unanimously that the Massachusetts buffer zone law violated the First Amendment because it overly interfered with people’s rights to converse and interact with others.

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.

EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School

“The church must be free to choose those who will guide it on its way.” – Chief Justice Roberts, Supreme Court Opinion

A church dispute

In 2007, Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan found itself in a surprising position: a commissioned minister and teacher was suing them. Cheryl Perich, a commissioned minister in the church, taught fourth grade, taught religion, and led worship services. The church school had dismissed her for insubordination, disruptive conduct, and threatening to sue the church—all in violation of church teachings. The Church and its denomination have long taught that disputes over fitness for ministry must be resolved within the denomination.

But in September 2007, Perich sued in federal court, joined by the Equal Employment Opportunity Commission (EEOC), claiming that the school retaliated against her for threatening to file a discrimination claim.

Can government force a church to retain a minister who violates church teachings?

The church argued that forcing it to retain Perich as a commissioned minister and teacher against its will was an unconstitutional restriction on its right to choose its own religious leaders – a concept known as “ministerial exception.” The federal trial court agreed, applying the ministerial exception, and ruled for the church in October 2008. But after Perich and the EEOC appealed the decision, the Sixth Circuit Court of Appeals ruled against the church in March 2010, ruling that Perich was not a minister but merely a teacher. Becket stepped in to represent Hosanna-Tabor as it appealed to the US. Supreme Court.

Because of the difference of opinion among the federal courts of appeals concerning which church employees count as ministers, the Supreme Court agreed to hear the case. Oral argument was held in October 2011.

At the Supreme Court, Perich and the EEOC escalated their arguments, arguing that there should be no ministerial exception at all and that any minister—including a priest, a rabbi, or a pastor of a congregation—should be able to sue the church that employs him. Becket’s arguments rejected this extreme perspective on church-state relations, instead explaining that the ministerial exception is a constitutionally protected right, one that avoids unnecessary entanglement between government and churches and allows religious groups the autonomy they need to operate freely.

Supreme Court rules 9-0: churches are free to choose their own leaders

On January 11, 2012, the Supreme Court ruled unanimously for Hosanna-Tabor, a decision the Wall Street Journal called one of the “most important religious liberty cases in a half century.” The decision adopted Becket’s arguments, saying that religious groups should be free from government interference when they choose their leaders.

The court rejected the government’s narrow view of religious liberty as “extreme,” “untenable,” and “remarkable.” The decision stated: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

For the in-depth story and more about this case, listen to our Stream of Conscience podcast episode, Synods and Statutes.

Importance to religious liberty:

  • Freedom of religious groups to choose their own leaders: This case set an important precedent, confirming the principle of “ministerial exception” that ensures religious groups have the right to choose their own leaders.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the government isn’t meddling in the internal religious affairs of a religious ministry, including a religious school.

Reed v. Town of Gilbert

Everyone is welcome at Good News Community Church.

Services are held Sundays. The Church encourages Christian fellowship through Bible study, religious song, and prayer. Its mission is outreach, inviting everyone into its community. As a fledgling congregation with limited financial means and no permanent location, the Church depends on sidewalk signs to spread word of events.

But in 2005, the town of Gilbert, Arizona, imposed strict regulations on the church’s signs, demanding they be no larger than six square feet and stand for no more than fourteen hours. Claiming safety and aesthetic concerns, the code threatens violators with fines and even jail time. Yet political, ideological, and other noncommercial signs can be up to thirty-two square feet in size and can stand for many months—sometimes indefinitely.

Represented by the Alliance Defending Freedom, Church Pastor Clyde Reed sued challenging the town’s discriminatory ordinance, but the Ninth Circuit ruled in the town’s favor, deeming political and ideological speech more valuable than the church’s religious speech.

Becket filed an amicus brief to the Supreme Court, supporting the Church and urging reversal of the Ninth Circuit’s ruling. Local governments should not be permitted to impose regulations that favor some kinds of speech, while discriminating against religious speech. The Supreme Court heard oral argument in this case in January 2015.

In June 2015, the Supreme Court ruled unanimously 9-0 in favor of Pastor Reed of Good News Community Church. The Court agreed with Becket’s argument, ruling that Gilbert’s sign ordinance violated the First Amendment because it showed no reason to justify discriminating against a church’s speech. This landmark ruling means that the government must treat religious speech the same as political speech and cities can’t treat churches as second-class citizens.

Heffernan v. City of Paterson

In 2006 New Jersey police officer Jeffrey Heffernan was spotted picking up a campaign sign for the candidate opposing the mayor of Paterson. Officer Heffernan didn’t live in the city and was picking up the sign for his bed-ridden mother. And in any case, the Constitution protects nonpolitical employees who decide to get involved in elections. None of that mattered to the chief of police, who demoted Officer Heffernan from detective to patrol officer as punishment for opposing the sitting mayor. Officer Heffernan sued the city, the mayor, and the police chief of Paterson, New Jersey for violating his freedom of speech and association. Becket joined his fight in a friend-of-the-court brief at the Supreme Court explaining how important it is to protect freedom of assembly, and citing scholars such as Washington University School of Law Professor John Inazu, who advocate that approach. Officer Heffernan was represented by Mark B. Frost & Associates, UCLA School of Law Supreme Court Clinic, and Munger, Tolles & Olson LLP.

 

Negusie v. Mukasey

Daniel Negusie, an Eritrean Christian, was imprisoned in inhumane conditions for his refusal to serve in his country’s military. While in prison, he was punished and threatened with death for his conversion to Christianity.  After two years of imprisonment, he was made a guard and threatened with more punishment if he did not carry out his duties as a guard.  However, Negusie disobeyed orders to inflict violent punishment on prisoners, allowed prisoners to take showers, and sneaked basic amenities to prisoners. After two more years, he was able to flee the prison and the country, hiding in a container on a ship bound for the United States.

However, upon arriving at a U.S. port, he was denied asylum because, as a prison guard, he “assisted or otherwise participated in the persecution of others.” The U.S. Board of Immigration Appeals agreed, saying “the fact that [Negusie] was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial.”

The case went before the Fifth Circuit Court in Louisiana and ultimately the Supreme Court, where Becket created and led a coalition of religious and human rights organizations which filed an amicus brief in his support. The brief argued that Mr. Negusie should not be punished for acting as a guard, since he was forced to do so as a part of his punishment. This was a crime committed against Negusie, not by Negusie. Becket argued that it is common for thug regimes to set believers against one another and alienate the religious from their consciences, a form of persecution the U.S. must condemn.

The Supreme Court sided with Becket and Mr. Negusie, ordering the lower court to rethink its decision.

Becket’s brief was co-signed by a range of human rights organizations that included the American Islamic Congress, the American Islamic Forum for Democracy, the Catholic Legal Immigration Network, Inc. (CLINIC), China Aid Association, the Dalit Freedom Network, the Hindu American Foundation, the Hudson Institute’s Center for Religious Freedom, Human Dignity International, the Institute for Global Engagement, The International Society for Krishna Consciousness, Jubilee Campaign, the National Council of the Churches of Christ in the USA, Open Doors USA, the Queens Federation of Churches, the Sikh American Legal Defense and Education Fund, and United Sikhs.

Negusie was represented by Mayor Brown LLP; Yale Law School Supreme Court Clinic.

 

Pleasant Grove v. Summum

The city of Pleasant Grove, Utah included a Ten Commandments monument —along with other monuments—in its city park. A small religious group wanted to include its own religious monument in the same park, but was denied the permission to do so. Defending the city’s right to exclude the additional monument, Becket’s amicus brief argued that the city park displays were government—not private—speech, which meant that the city could legitimately decide which monuments to include and which to exclude.

The U.S. Supreme Court agreed, and its majority opinion relied on similar reasoning: such government speech was not subject to scrutiny under the First Amendment’s Free Speech Clause.

American Center for Law and Justice and Akin Gump Strauss Hauer & Feld, LLP were counsel in this case.

Kelo v. City of New London

The Supreme Court held that the city’s use of eminent domain power to take private property for the purpose of furthering its economic development plan did not run afoul of the constitutional “public use” requirement. In her dissenting opinion, Justice O’Connor (joined by Chief Justice Rehnquist and Justices Scalia and Thomas) cited Becket’s amicus brief to highlight the uniquely burdensome effect an expansive view and overuse of eminent domain poses to houses of worship, church schools, and religious social service organizations like soup kitchens. The Institute for Justice was counsel in this case.

Christian Legal Society v. Martinez

In Christian Legal Society v. Martinez, a Christian student group was denied official recognition by a public law school because the group insisted that its voting members and leaders accept and adhere to a statement of faith.  UC Hastings College of Law, located in San Francisco, decided that the Christian Legal Society (CLS) policies violated the school nondiscrimination policy. CLS limited voting membership and leadership to Christians who agreed with the group’s statement of faith, including its teachings on sexual morality. Becket filed an friend-of-the-court brief with the Supreme Court on behalf of a coalition of Muslim, Christian, Jewish, and Sikh groups, arguing that religious groups have the constitutional right to determine the requirements of membership in their organizations. Mike McConnell, Christian Legal Society, Alliance Defending Freedom were counsel in this case.

In April 2010, the Supreme Court ruled in favor of UC Hastings, calling into question the associational rights of student groups across the nation. Four justices filed a strong dissent, calling the decision “deeply disappointing” and “serious setback for freedom of expression in this country.” That dissent relied in part on the arguments made by Becket.

Van Orden v. Perry

In an Establishment Clause challenge to a Ten Commandments display on the Texas State Capitol grounds, Becket’s amicus brief argued that such displays are constitutionally protected.  The Supreme Court ruled our way. Texas’s Office of the Attorney General and  Acting Solicitor General (Paul Clement) were counsel in this case.

Salazar v. Buono

In a case involving the constitutionality of a cross memorial in the Mojave Desert, Becket’s amicus brief argued that the court of appeals should be reversed, because the plaintiff lacked standing and that the cross did not violate the Establishment Clause. The Supreme Court agreed, with two Justices agreeing that the plaintiff lacked standing, and three Justices agreeing that the court of appeals misapplied the Establishment Clause.

The cross was erected on public land in 1934, and was undisturbed until the ACLU sued for its removal in 2001.  When a federal court ruled that the cross’s presence on federal land was unconstitutional, Congress intervened by passing legislation that directed the U.S. Department of the Interior to give the land where the cross was located to the VFW in exchange for a parcel of equal value.  In 2010, the Supreme Court approved Congress’ action; however, the cross was then stolen by vandals.  On April 25th, 2012, a federal judge approved a settlement agreement for the memorial cross to return to its place in the Mojave Desert.

The Solicitor General of the Department of Justice defended the cross.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal

In a case challenging the federal government’s restrictions on a controlled substance— hoasca tea —used in the ceremonies of a religious group, Becket’s amicus brief defended the constitutionality of the federal Religious Freedom Restoration Act that provides accommodations for religious organizations. The Supreme Court held that the government had not shown under RFRA’s standard a sufficiently compelling governmental interest to ban the substance for religious use by this group. Nancy Hollander was counsel to the religious group.

Elk Grove Unified School District v. Newdow

In March of 2000, atheist Michael Newdow sued on behalf of his daughter to strip the words “under God” from the Pledge recited by students in California public schools.Terence Cassidy represented the school district.

The Ninth Circuit Court of Appeals later agreed that public schools violate the First Amendment by leading their students in a voluntary recitation of the Pledge that includes the words “under God.” Although the Supreme Court initially agreed to give full review of the case, in June 2004, the Court opted to reverse the Ninth Circuit’s ruling on a technicality: Newdow lacked sufficient custody of his daughter to represent her in federal court.

Becket filed an amicus brief to the Supreme Court on behalf of the Knights of Columbus, demonstrating that the phrase “under God” is not only constitutionally permissible but philosophically laudable. The brief argues that historical references to the “Laws of Nature” and “Nature’s God” are not primarily religious. Instead, these phrases embrace our Founder’s political philosophy. When recited in the Pledge, the words “under God” reflect the principle that no government can undermine our rights because they come from a higher source than the state.

By adding “under God” to the Pledge of Allegiance in 1954, Congress starkly contrasted mutually exclusive conceptions of human rights envisioned by the United States and the U.S.S.R.

Although three Justices—Rehnquist, O’Connor, and Thomas—defended the constitutionality of the Pledge, it was disappointing to see the Court sidestep the merits of the case and rule instead on standing. As Becket’s Founder Seamus Hasson said, “You win some, you lose some, and some get rained out. It’s a shame the Court couldn’t unify around the same principle that has been unifying the rest of us since the Declaration of Independence: our rights are secure because they come from a higher authority than the state. Sooner or later, the Court will have to face up to that.”

Arizona Christian School Tuition Organization v. Winn

Arizona set up an innovative system that allows Arizonans to create scholarship pools for students attending private schools. These “school tuition organizations” (STOs) give what amounts to scholarships to students who qualify.

Immediately after this program was enacted, ACLU-supported taxpayers sued the state, arguing that the entire STO program was unconstitutional because many of the funds from STOs would (they claim) go towards scholarships for religious schools. Alliance Defending Freedom represented the Arizona Christian School Tuition Organization.

After 13 years of litigation, the case finally made its way to the Supreme Court. Becket wrote a widely-noted brief filed with the Supreme Court, arguing that under current doctrines of “standing,” state taxpayers like the Winn plaintiffs do not have the right to bring the lawsuit.

The Supreme Court ruled our way.

Locke v. Davey

The Supreme Court held that the State of Washington did not violate the First Amendment’s Free Exercise Clause by forbidding the use of state-funded scholarship money to receive degrees in devotional theology.

Chief Justice Rehnquist’s majority opinion took note of Becket’s brief, which highlighted the anti-Catholic bigotry behind state Blaine Amendments.  (State Blaine Amendments prohibit the use of state funds to support religious institutions such as parochial schools.)  The Court concluded that the relevant Washington state constitutional provision (which also forbade the use of tax funds to support ministers) was not sufficiently related to the Blaine Amendment so its anti-religious history was not implicated in this case. American Center for Law and Justice was counsel in this case.

McCreary County v. ACLU

In the same day the Supreme Court ruled in favor of the Ten Commandments display in Van Orden v. Perry, the Supreme Court ruled 5-4 against the Ten Commandments display in a Kentucky courthouse.

Becket filed an amicus brief in both cases arguing such displays are both culturally valuable and constitutionally permissible.

Liberty Counsel was counsel in this case.

 

 

 

Zelman v. Simmons-Harris

Does Ohio’s school voucher program violate the Establishment Clause?  Becket, and the Supreme Court, said “No.”

The Institute for Justice and Porter, Wright, Morris & Arthur were counsel in this case.

 

Cutter v. Wilkinson

Becket’s amicus brief defended the Religious Land Use and Institutionalized Persons Act (RLUIPA) and its provision protecting prisoners’ religious rights from an Establishment Clause challenge. David Goldberger defended the prisoners. The Supreme Court agreed that RLUIPA provision was constitutional.

Good News Club v. Milford Central School

Becket’s amicus brief defended the right of a Christian children’s club to use public school facilities that were available to non-religious groups.  The Supreme Court agreed. It upheld the club’s free speech right and found no Establishment Clause justification for curbing its religious speech. Thomas Marcelle represented the club.

Boy Scouts of America v. Dale

When the New Jersey Supreme Court held that a state public accommodations law required the Boy Scouts to readmit a gay leader, Becket filed a brief urging the U.S. Supreme Court to protect the First Amendment right of expressive association concerning religious institutions. The Supreme Court did just that, ruling that applying the public accommodation law violated the Boy Scout’s First Amendment right of expressive association. The Boy Scouts were represented by George Davidson of Hughes Hubbard & Reed.

Mitchell v. Helms

In a case challenging the constitutionality of a government school aid program as applied to parochial schools, the Supreme Court reversed the U.S. Court of Appeals for the Fifth Circuit, which had found that the program violated the Establishment Clause.

Justice Thomas’s plurality opinion (joined by Chief Justice Rehnquist and Justices Scalia and Kennedy) relied on the Becket Fund’s amicus brief, which described the anti-Catholic animus motivating state Blaine Amendments (forbidding state funds from supporting religious institutions).

In rejecting a method of analyzing an Establishment Clause challenge by asking whether the benefitted institution is “pervasively sectarian,” Justice Thomas’s opinion echoed the sentiments of Becket’s amicus brief: “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow” and “[t]his doctrine, born of bigotry, should be buried now.”

Michael McConnell was counsel in this case.

 

Agostini v. Felton

Becket filed an amicus brief urging the reversal of a U.S. Supreme Court 1985 ruling that prevented disadvantaged children in religious schools, but not those in public schools, from receiving federal education funds for supplemental instruction by public school teachers. The Supreme Court ruled in favor of religious freedom, reversed the 1985 ruling, and decided that allowing public school teachers to instruct on secular subjects at private religious schools did not violate the Establishment Clause. New York City Chief Corporation Counsel Paul Crotty represented the New York parochial school board and several students’ parents.