Remembering Senator Orrin Hatch

Religious freedom was sewn into the very fabric of this country from the beginning, and protecting the right of conscience for every American is essential to the future of our republic.

We are honored to remember the life and legacy of a great man, United States Senator Orrin G. Hatch, a model of civil discourse, principled leadership and advancement of religious freedom for all at home and abroad, in and outside of his roles in government.   

Over the course of his Senate tenure, Senator Hatch earned his reputation as the most effective and bipartisan lawmaker of all time, shepherding more than 750 bills into law.  


Remembering Senator Orrin Hatch
April 26, 2022

America has lost a giant of religious liberty. Through principled bipartisanship and a commitment to protecting people of all faiths, Senator Hatch brought the country some of its greatest advancements in religious liberty since the First Amendment. His partnership with the late Senator Kennedy to pass the Religious Freedom Restoration Act—which received nearly unanimous approval in Congress and was signed into law by President Clinton—has provided civil rights protections to faithful Sikhs serving in the military, Native Americans engaging in centuries-old worship traditions, prisoners who turn to their faith while incarcerated, and nuns who care for the elderly sick and dying. Senator Hatch understood that religion is a natural part of human life, and that as Americans we should respect the right of others to peacefully live out their faith—even when we disagree. He was a hero of religious liberty. May he rest in peace.

Mark Rienzi, President of the Becket Fund for Religious Liberty

Notable & Quotable: I’m With Fidel

The Wall Street Journal, November 28, 2016

When I was 23 years old I refused to do something that at the time seemed very small. I refused to say a few words, “I’m with Fidel.” First I refused the sign on my desk at the postal office that said that, and after years of torture and watching many fellow fighters die, either in body or in spirit, I still refused to say those words.

California’s SB 1146 still discriminates

Although the author of notorious California bill SB 1146 recently backed down and announced amendments to remove the parts of the bill that would have meant that thousands of low-income minority students would be unable to attend college, SB 1146 still includes controversial anti-privacy and “scarlet letter” provisions that would be both bad policy and unconstitutional to boot:

  • The anti-privacy provisions would force California’s religiously-affiliated colleges and universities to report four times a year on every expulsion and suspension of a student, and the reasons for the discipline. This language makes no provision for preserving the privacy of disciplined students, and may violate federal privacy laws that protect students’ privacy. California students don’t need every disciplinary infraction they’ve ever committed reported to the government or posted on the Internet forever.
  • The anti-privacy provisions are also discriminatory, as they target only religious colleges and ignore many other kinds of related institutions, such as military schools, some public schools, and fraternities and sororities. Singling out religious institutions solely because they are religious violates the principle that the government should stay neutral on religious matters.
  • Similarly, the “scarlet letter” provisions would also force religious schools under a cloud of governmental suspicion by requiring religious colleges to use government-dictated language to communicate their religious beliefs to their students, faculty, and communities. Schools like Fresno Pacific University have no objection to sharing their religious beliefs—in fact, that is part of why they exist—but object to having the government dictate how they express their religious beliefs. If the government cannot even have schoolchildren wear t-shirts that say “Tomorrow’s Leaders,” it certainly cannot tell religious schools how to share sensitive religious beliefs to their own religious communities and to the public they want to serve.
  • The scarlet letter provisions also violate constitutional guarantees of equality and freedom of speech because they target only religiously-affiliated colleges and universities.

These notions are just as wrongheaded as the outrageous idea that California should force poor minority students to give up on their dream of a college education. California legislators should finish the job and let SB 1146 die.

UPDATE 8/29/16: Under severe pressure, Senator Lara has retreated even further. He has taken out the anti-privacy provisions (presumably because they violated federal law protecting student privacy) and created a one-year delay before the “scarlet letter” provisions would take affect. After these further amendments, the bill passed the Assembly on August 23, and is now being considered by the California Senate.

Despite Senator Lara’s retreat, he still has not gone far enough. The Senate should still reject SB 1146 because the scarlet letter provisions continue to illegally target religious colleges and universities for special scrutiny, just because of who they are. If the bill comes before him for signature, Governor Brown should veto it.

The Best Argument for Religious Liberty You’ll See This Week

June 30, 2016, 

In the spirit of making life easier for those who don’t already agree with me, I wanted to share a beautifully articulated defense of religious liberty, natural rights, and the idea that just because something is “the law” doesn’t necessarily make it right. (That, by the way, is a fallacy people on both sides of the aisle have been known to succumb to—from conservatives who think immigrants who came to the U.S. illegally should always be treated as criminals to progressives who think Christian-owned pharmacies should be forced to stock the morning-after pill). Without further throat-clearing, I present for your consideration these excellent recent remarks from Becket Fund founder Seamus Hasson:

Notable & Quotable: Armando Valladares

March 23, 2016, The Wall Street Journal 

From remarks by Cuban poet and human-rights activist Armando Valladares upon receiving the Becket Fund for Religious Liberty’s Canterbury Medal in New York, May 12:

When I was 23 years old I did a very small thing. I refused to say a few words, “I’m with Fidel.” First I refused the sign on my desk that said as much, and after years of torture and watching so many fellow fighters die, either in body or in spirit, I persisted in my refusal to say the few words the regime demanded of me.

Top 7 Scroogiest Scrooges of the Holiday Season

Ebenezer Blog BannerWho deserves a lump of coal this holiday season? Each year Becket names the most absurd affronts to Christmas and Hanukkah, listing the most outrageous offenders of holiday cheer until we reach the top bah-humbugging, grinchiest transgressor. Not only do they deserve a lump of coal, they are crowned with the great (dis)honorable Ebenezer Award.

7. Portland Public School choirs gagged from singing in a venue deemed “too religious.”

Christmas and choirs go together like Han Solo and Chewbacca. But this year, the choirs from Jackson Middle School and Wilson and Lincoln High Schools in Portland, Oregon, had a change of plans. They’ve been banned from singing at the annual “Festival of Lights” concert, held at the Grotto Catholic shrine, because their oh-so-close neighbor, Wisconsin-based Freedom from Religion Foundation, raised a stink. FFRF, A.K.A. Krampus, said the venue is too Catholic-y for their taste. No Grotto, no Christmas celebrations, and certainly no religion! The schools were instead forced to move to a “non-religious” venue—ironically named “The Old Church”—in downtown Portland. The title of this year’s program? “Let us Sing!” Troll level: Expert

6. Court bans Indiana high school from performing Nativity scene in school pageant.

A federal judge banned the 45-year-old tradition of having a nativity scene in Concord High School’s Christmas Spectacular after the ACLU and FFRF complained.

But it gets better.

Prior to the ruling, Concord High School added other symbols from both Hanukkah and Kwanza. But like the Grinch, who didn’t just suck the Christmas spirit from one house in Whoville, the judge said the Nativity scene received more time in the pageant than the other holidays so it had to go.

5. Soldiers Blocked from Helping Christmas Charity

Samaritan’s Purse is an international Christian ministry that helps impoverished children around the world. Every year their charity event, Operation Christmas Child, send toys, soap, socks, and school supplies in shoeboxes to disadvantages kids overseas. A military member at Dover Air Force Base in Delaware asked his fellow soldiers to help Samaritan Purse. Well, the Military Religious Freedom Foundation had some choice words for the charity’s request, calling it a “manifestly dangerous tool.” Yes, a charity program for needy children is a daaaangerous tool! Even better, it’s a “radioactive wrecking-ball of surpassing hazard” (Come again?)

The Airman retracted his request to help support Operation Christmas Child after mounting pressure by the MRFF. Grinch wrecking ball:

4. New Mexico town gets letter demanding the removal of historical nativity sculpture

A nativity scene in Belen, New Mexico has been a long standing fixture in the small town but the anti-religion group, Freedom from Religion Foundation, 1,300 miles away was offended by the display and demanded its removal.

Belen, by the way is Spanish for BETHLEHEM, the birthplace of Jesus. The FFRF is not only trying to remove Christmas from the holiday season, but ignore the deep religious heritage of the town. But take heart! A number of pastors in the area organized a Christmas event in the parking lot of City Hall where not only did they have a nativity scene but a few dozen barnyard animals, a camel and a zebra. We call that #winning.

The overarching message from the town of Belen to the grinchy FFRF:

3. School district tells veteran to leave out the word “Christmas” in “Christmas tree lighting”

A persnickety individual at the local school district in Marlborough, New Hampshire, told John Fletcher, the commander of the American Legion, to remove the word “Christmas” from flyers advertising the town’s annual Christmas tree lighting event.

However, while no mention of Christmas could be made, the school district said Fletcher and his wife could still dress up as Mr. and Mrs. Santa Claus to give out gifts to children attending the event. It looks and smells like a Christmas event, to us. A half-hearted eggnog toast for not taking gifts away from children.

2. University publishes its 10-point ban on Christmas

The Office of Scroogeness posted 10 “best practices” in scrubbing Christmas out of ugly sweater parties and the “Secret Santa” gift exchange across the University of Tennessee’s campus this Christmas season.

They warned, don’t try any speak easy-type parties either. Christmas parties in “disguise” are absolutely off-limits.


1. And the 2015 Ebenezer Award goes to…..

The Department of Veteran Affairs For banning employees at its Salem, Virginia facility from saying “Merry Christmas” to veterans

Senior staff at the Salem VA Medical Center could have had an eggnog toast. Instead they receive our lump of coal.

First they tried to ban Christmas trees from the facility, but, after employee resistance, they backed down. Instead, they have banned employees from wishing Veterans and visitors a “Merry Christmas” and singing Christmas carols in public spaces.

Three cheers for taking the Christmas spirit from those who have fought for our freedoms – including {cough} religious freedom.

The Medical Center’s employees’ private religious expression can only be given in a whisper in “personal work areas” and all music played must be “be non-religious.” Tran Siberian orchestra on repeat?

Employees have been threatened with penalties if they do not comply with the senior staff’s demands.

Home Alone gif

Religious Communities in College: A Home Away from Home

by Adèle Keim, Legal Counsel for the Becket Fund for Religious Liberty

This week was special for three different religious communities – Catholics welcoming Pope Francis to U.S. soil, Jews celebrating Yom Kippur, and Muslims observing Eid Al-Adha. For many, these events could only be fully experienced in community with others. Although far from home, religious college students share this longing.

Continue reading “Religious Communities in College: A Home Away from Home”

The Eighth Circuit Gets It Right

by Daniel Blomberg, Legal Counsel of the Becket Fund for Religious Liberty

Yesterday, the U.S. Court of Appeals for the Eighth Circuit split with seven other U.S. Courts of Appeal, issuing two opinions ruling that the HHS Mandate violates the Religious Freedom Restoration Act. While the Eighth Circuit was in good company (12 other appellate judges had already come to a similar conclusion, and the vast majority of over two dozen district courts had as well), it is the first circuit to issue a merits ruling that went the right way on this issue. That creates a circuit conflict which will make it even more likely that one of the seven petitions currently pending before the U.S. Supreme Court will be taken up in the coming term. Continue reading “The Eighth Circuit Gets It Right”

To tax and destroy.

by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

To tax and destroy. The Washington Post is running a fascinating series of essays on whether to roll back two centuries of history and impose state and federal taxes on religious organizations. This is not a new debate; in 1970 the ACLU and others challenged New York’s church property tax exemption and lost. The Supreme Court pointed out that “[f]ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality [i.e., tax exemptions] toward churches … .” Walz v. Tax Comm’n of City of New York, 397 US 664, 666-67 (1970). In the latest round of this debate, constitutional law professor Rick Garnett weighs in: Continue reading “To tax and destroy.”

Remembering Whitney Ball, Defender of Liberty

Like all those who knew Whitney Ball, I was so sad to hear of her passing on August 17th; it was too soon and she was too young. Despite contracting cancer at a young age, Whitney lived her life looking forward.

In every encounter I had with Whitney I was astonished by her strength, lack of fear, sense of humor and her ardent optimism. Whitney’s driving force was her faith in God and she was fearless in her mission to defend our liberty. She always asked what she could do to help the cause of religious freedom.

Throughout her disease Whitney never complained or felt sorry for herself, even while enduring the most unpleasant effects of her treatments. Instead, Whitney is a role model to all of us on how to live and make the most of the time we’ve been given. She is also a role model on the work one person can do in defending our rights as individuals. Thank you Whitney for helping me, as you did so many others, advance the cause of liberty!

Julie Riggs
The Becket Fund for Religous Liberty

Honoring Becket Friend and Religious Liberty Ally: Elder L. Tom Perry

Picture of Elder L. Tom Perry with a quote about religious freedom

“A good character is something you must make for yourself. It is the reward that comes from living good principles and manifesting a virtuous and honorable life.”

Today we remember a dear friend of the Becket Fund and a staunch defender of religious liberty, L. Tom Perry, a member of the quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints. Bill Mumma, president of the Becket Fund recalls Elder Perry: “He really was a giant of man – full of good-natured zeal. He believed the fight for religious liberty was worthwhile and he insisted on action right away!”

At nearly 6-foot-five, Elder Perry’s commanding physical presence combined with his enthusiasm and optimistic style made him a powerful force for good. He spoke frequently about the importance of religion in society, the family and preserving religious freedom, emphasizing that the “essential freedoms of conscience, embedded in religious liberty, must be diligently preserved and protected.” He worked closely with leaders of other faith and religious institutions to promote the cause of religious freedom.

His support of faith started long before he was called as a member of the Twelve Apostles. Elder Perry often recounted the devastation of WWII in Nagasaki, Japan as one of the saddest experiences of his life. The loss of life and lack of food left many Japanese children to fend for themselves. He and his friends organized an orphanage with sisters from the Catholic Church and rebuilt local chapels during their off-duty time.

The cause for religious liberty lost a great advocate and he will be greatly missed by all who knew him. Elder Perry’s life is an example of how all of us should live: always willing to lend a listening ear, diligently seeking opportunities to serve and lift others, and ever optimistic in the face of adversity.

Remembering Dr. John Templeton

by Maria Montserrat Alvarado, Director of Operations of the Becket Fund for Religious Liberty 

There are few more uplifting moments in life than realizing, that in some small way, you have truly made a difference.” – Dr. John M. Templeton

Today we remember Dr. John M. Templeton Jr., former pediatric surgeon and president and chairman of the Templeton Foundation who dedicated much of his life to answering humanity’s “Big Questions” through the rigorous study of science, religion, and human understanding.

Continue reading “Remembering Dr. John Templeton”

Why you shouldn’t be asking “Can I shop at Hobby Lobby?”

by Mark Rienzi Senior Counsel of the Becket Fund for Religious Liberty

The Green family of Hobby Lobby
The Green family won their case at the Supreme Court in June 2014.

A new complicity argument from opponents of religious liberty?

Well, here’s something I didn’t expect to read about in the New York Times.

You may recall that the Times strongly opposed the efforts by the Green family (who own Hobby Lobby) to avoid paying for abortion-inducing drugs. Hobby Lobby employees, of course, are free to spend their money on these drugs (or anything else) if they want to. But the Greens did not want to be complicit in abortion and therefore asked not to pay for the drugs. The Times derided the Greens’ effort to step aside as trying to “impose their religious views on employees.” Continue reading “Why you shouldn’t be asking “Can I shop at Hobby Lobby?””

UCLA debate over bias of believers

by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

Chi Alpha students from Cal State Stanislaus in a group photo
In a similar case targeting religious student groups, Chi Alpha was kicked off its Cal State campus for asking its leaders to share its beliefs.

“Given that you are a Jewish student and very active in the Jewish community, how do you see yourself being able to maintain an unbiased view?” That sentence, uttered last month by a UCLA undergraduate evaluating a Jewish student-government candidate, has ignited a firestorm. The New York Times reports that the Jewish student was asked to leave the room while the rest of the group spent 40 minutes discussing whether her participation in on-campus Jewish student groups meant she would be biased as a member of student government. In response, UCLA’s chancellor said it was “intellectually and morally unacceptable” to “assume that every member of a group can’t be impartial or is motivated by hatred.” He was, of course, correct: It is straightforward discrimination to assume that because someone is religious, they will be biased. My law firm, the Becket Fund for Religious Liberty, exists to combat discrimination like this.
Continue reading “UCLA debate over bias of believers”

Prisoner beards and religious freedoms — what a recent Supreme Court decision means for you

By Hannah Smith, Senior Counsel of the Becket Fund for Religious Liberty

Late last month, the U.S. Supreme Court delivered a unanimous victory for religious freedom in Holt v. Hobbs. It held that a federal civil rights statute requires prison officials to accommodate peaceful expressions of religious devotion, an issue arising from a dispute between a bearded Muslim inmate (named Holt) and the Arkansas Department of Correction. Because the same statute also happens to protect the land-use needs of religious organizations, the circle of winners from the court’s endorsement of the statute’s power extends well beyond a prison’s walls.

Continue reading “Prisoner beards and religious freedoms — what a recent Supreme Court decision means for you”

Mr. Smith goes to Washington

Mr. Robert Soto, Lipan Apache religious leader and feather dancer and plaintiff in McAllen Grace Brethren Church v. Salazar

By Lori Windham, Senior Counsel of the Becket Fund for Religious Liberty

The Atlantic just published a fascinating elegy for Alfred Smith. You may not recognize the name, but if you’ve seen a constitutional law textbook in the last twenty years—or spent more than a few minutes on the Becket Fund’s website—you’ve probably heard of his case. Mr. Smith is the plaintiff in Employment Division v. Smith, a case which changed the landscape of religious freedom law in the United States. This controversial decision allowed neutral, generally applicable laws to trump religious belief—even when they placed a heavy burden on religious freedom. Continue reading “Mr. Smith goes to Washington”

Court to consider prison beard ban: In Plain English

SCOTUSBlog October 3, 2014

For starters, they have the some of the same lawyers, from the Becket Fund for Religious Liberty – which describes itself as a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”

Read the full article here.

What’s in Wisconsin’s water?

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

The Debbie Downers of Madison are at it again – the Freedom From Religion Foundation (“FFRF,” pronounced “furf”) has sent a nasty letter to a high school band in Ohio. What sin is FFRF complaining about this time? Members of the Licking Valley High School Marching Band are wearing t-shirts that have the word “Salvation” printed on them. Continue reading “What’s in Wisconsin’s water?”

Becket Fund Applauds Lift on Headscarf Ban

By Asma Uddin, Legal Counsel of the Becket Fund for Religious Liberty

Last week, Turkey lifted its ban on the Muslim headscarf for girls in middle and high school. While girls in primary school are still not permitted to wear headscarves, they have the choice to do so starting in fifth grade (this is also usually the time when many girls reach puberty and the religious dress code requirements become applicable). Continue reading “Becket Fund Applauds Lift on Headscarf Ban”

Finding Hope: Protecting Religious Freedom In Prison

Acton Institute September 15, 2014

The Becket Fund is co-counsel for this case, and believes that all Americans, even ones who are incarcerated, have the right to practice their religion freely. Nearly 15 years ago, Congress found that there was widespread abuse of prisoners’ rights in this area. In addition to the case sited above, there were instances of Jews not being allowed to wear yarmulkes, dietary restrictions not honored by prison facilities and the banning of religious objects such as rosaries. However, it is Mr. Muhammad’s case that the Supreme Court will hear.

Read the full article here.

Watch Out for the Pharaoh Effect

Wall Street Journal August 28, 2014

New York City Mayor Bill de Blasio’s pending offer to subsidize students at religious schools’ full-day pre-kindergarten classes has proved both predictably and surprisingly controversial. It was entirely predictable that the New York Civil Liberties Union would break out in hives. What’s surprising is how many religious organizations are declining the mayor’s offer because of the strings attached to it—regulations on an assortment of things, from prayer after meals to covering up religious symbols to limits on referring to sacred texts.

Read the full article here.

“A Clockwork Orange” in America’s penal system:

The Hill August 14, 2014

As Luke Goodrich, Deputy General Counsel at the Becket Fund for Religious Liberty, said: “Prisoners surrender many of their physical rights at the jailhouse door, but they do not surrender the fundamental right of conscience.”

Read the full article here.

Becket Fund Congratulates Rabbi Saperstein on Nomination

Today President Obama announced his intent to nominate Rabbi David Nathan Saperstein to the position of Ambassador at Large for International Religious Freedom, a position within the U.S. State Department.The Becket Fund congratulates Rabbi Saperstein on his pending nomination. In his role as Director of the Religious Action Center of Reform Judaism, Rabbi Saperstein has frequently supported religious liberty in general and clients of the Becket Fund in particular, both through amicus briefs and public statements. For example, Rabbi Saperstein and the Religious Action Center supported the Islamic Center of Murfreesboro, a Becket Fund client in Tennessee, in its struggle to build a new mosque in the face of opposition from neighbors. At the time Rabbi Saperstein explained, “An attack on one religion is an attack on all religions.”

Continue reading “Becket Fund Congratulates Rabbi Saperstein on Nomination”

Hobby Lobby (In)Sanity and the Right to be Wrong

By Adèle Keim, Legal Counsel at the Becket Fund for Religious Liberty

Tired of all the overblown claims about what the Supreme Court actually did in Hobby Lobby? So is the Washington Post. And Politifact. Megan McArdle’s Q & A at Bloomberg is a terrific antidote as well. And of course, you can find Becket’s perspective here.

But the brouhaha about Hobby Lobby raises a bigger question: how do we get along in a nation where we strongly disagree about things like birth control, sex, and religion?

Continue reading “Hobby Lobby (In)Sanity and the Right to be Wrong”

What Hobby Lobby Means for Religious Liberty

By Zachary Enos, Assistant Director of Communications

Looking for the inside scoop on Hobby Lobby’s historic advance of religious liberty? You just found it! Only hours after the Supreme Court’s ruling, Eugene Volokh of the Volokh Conspiracy blog (hosted by the Washington Post) published exclusive legal analysis from Professor Mark Rienzi—one of Hobby Lobby’s lead attorneys and Senior Counsel for the Becket Fund.

After highlighting landmark aspects of the opinion, Rienzi demonstrates that High Court’s reasoning sounds the death knell for the Administration’s assault on religious ministries. Here’s a brief sketch of Mark’s points: Continue reading “What Hobby Lobby Means for Religious Liberty”

Defending Ramadan and Religious Freedom

By Asma Uddin, Legal Counsel at the Becket Fund for Religious Liberty’s almost midnight, and my day has just started. While I was immersed in my daily work throughout the day, I moved among my tasks without breaking to eat or drink—for all 17 hours of my Washington, DC July fast. Now that the sun has set and my kids have gone to bed, I can turn to reflecting and meditating: the stuff Ramadan is all about. Ramadan, especially Ramadan at night, is about putting your worldly concerns behind as you turn inward, and toward God. The experience is deepened by the day’s fast, which gives you an intimate look inside the daily suffering of people all over the world whose hunger is never satiated.

This Ramadan, there’s an added layer of spiritual sorrow. News broke last week that Muslim teachers, students, and civil servants in the northwestern Xinjiang province of China have been forbidden from fasting or taking part in any religious activity during the Muslim holy month of Ramadan. Continue reading “Defending Ramadan and Religious Freedom”

Private: Prof. Mark Rienzi: A good day for Hobby Lobby — and for the Little Sisters of the Poor and Mr. Muhammad, too

Mark Rienzi explains that the Hobby Lobby decision on Monday was historic in many ways. The decisions clarified the idea that for-profit corporations can exercise their religion and stands as the first time the Supreme Court addressed the question of substantial burden under the Religious Freedom Restoration Act.

Mark also adds that the decision will positively effect non-profit institutions like the Little Sisters of the Poor as well as non-mandate cases like Holt v. Hobbs.

Read the entire article here.


How the Becket Fund became the leading advocate for religious freedom for all

A Response to the American Prospect

By Luke W. Goodrich

On June 18, the American Prospect published an article about the Becket Fund and its role in the Hobby Lobby litigation. Much of the article is fair and balanced. But one of its core claims—that the Becket Fund has been drifting from its founding principles—misses the mark and misunderstands religious liberty.

First, the fair and balanced part. The article does a fine job of describing the Becket Fund’s founding principles. As the article notes, the Becket Fund’s founder, Seamus Hasson, “insisted that [the Becket Fund] would be different.” It was never designed “to restore a version of Christian hegemony.” Rather, it was based on “the notion that ‘religious expression is natural to human culture,’” that religious liberty is a “natural right,” and that therefore religious freedom belongs to everyone—including those with whom we disagree.

The article rightly notes that, from the beginning, “Becket’s ecumenical commitments set it apart.” The firm was “beholden to neither party”; it freely “offered its services to aggrieved believers of all stripes”; and it “took cases that gratified and vexed advocates on both sides of the political aisle.” As examples, the article cites Becket’s defense of a Catholic organization that sought to display a crèche on city property, and its defense of Muslim police officers who sought the right to grow a beard. It could have cited many more.

But then comes the questionable claim. Citing cases involving the HHS mandate and gay rights, the article suggests that there has been “a shift in the fund’s strategy.” According to unnamed “critics,” the Becket Fund “has become ideological” and is “tacking right.” It is drifting away from nonpartisan defense of religious liberty for all, and is instead becoming conservative.

This is an interesting claim, and it is worth examining the evidence offered in support of it. The first piece of evidence is a quote from Douglas Laycock, a distinguished scholar of religious freedom who has frequently partnered with the Becket Fund. According to the article’s characterization, he “has noticed a troubling change.” He is quoted as saying, “They’ve bought into some of that culture-war, anti-Obama rhetoric from the right. . . . The legal work is still very good. The political statements are much more heavy-handed.”

I asked Professor Laycock about this quote, because we’re currently working together on a prominent Supreme Court case about the religious freedom of Muslim prisoners. He said: “The quote is accurate. The way it is used is not. It was about the press releases; it was not about the legal advocacy. I was quite clear that Becket remains unusual in its commitment to free exercise for all.”

The second piece of evidence is an assertion about the “balance” of the Becket Fund’s cases, which the article says is “shifting.” It cites cases on behalf of Hobby Lobby, the Little Sisters of the Poor, and Belmont Abbey College challenging the HHS mandate; a case on behalf of a pharmacist who declines to sell emergency contraception; and a case on behalf of a Mennonite couple who declines to host same-sex weddings in their church-turned-art-gallery. It also cites a seven-year-old law review article and a nine-year-old conference in which Becket attorneys predicted (correctly) that the legalization of same-sex marriage would produce additional religious freedom litigation.

But this is hardly a complete picture of the Becket Fund’s cases. As the article concedes, “Even in the midst of its contraception-mandate litigation, the Becket Fund has maintained its old commitments.” It gives two examples: a suit in Florida seeking a kosher diet for Jewish prison inmates, and a suit in Tennessee protecting a Muslim mosque—both of which were supported by the ACLU and the Obama Administration. But even these are only a small fraction of the story.

Notably, the Becket Fund currently represents a Muslim prison inmate in the U.S. Supreme Court, arguing that he has a right to grow a half-inch beard, contrary to rules imposed by the State of Arkansas. This is the biggest religious freedom case scheduled for the Supreme Court’s next term, but the author ignores it. That is likely because the case doesn’t fit the article’s narrative—especially since both the ACLU and the Obama Administration are also supporting the Becket Fund’s client.

The article also omits many other Becket Fund actions, including current cases, that don’t fit its narrative. A few examples include:

  • A suit on behalf of Native Americans challenging the destruction of sacred lands under the George W. Bush Administration;
  • A suit on behalf of a Sikh woman challenging a ban on the wearing of her kirpan in a federal building under the George W. Bush Administration.
  • A suit on behalf of a Brazilian religious group challenging the enforcement of federal drug laws under the George W. Bush Administration;
  • A suit on behalf of Montana Hutterites challenging a law enacted by a Republican legislature;
  • Suits in Texas, Indiana, and Georgia on behalf of a Jewish prison inmates challenging the denial of a kosher diet by Republican administrations;
  • A suit on behalf of Native American prison inmates in Alabama challenging hair-length restrictions imposed by a Republican administration;
  • A suit on behalf of a Santeria priest challenging a ban on animal sacrifice in a heavily Republican Texas county;
  • A suit on behalf of a Muslim prison inmate in Louisiana challenging restrictions on religious literature imposed by a Republican administration.

Of course, these cases may not attract the attention of reporters eager to write about the “culture wars.” But they remain a major part of the Becket Fund’s work—as they always have been.

So what’s really going on here? The article reflects two important mistakes.

First, it adopts a cramped view of religious liberty, dividing the world into two types of cases. The first are the true religious liberty cases, which involve “protecting religious minorities from discrimination.” In the author’s view, that was the purpose of the Religious Freedom Restoration Act, and it is exemplified by cases like Muslim police officers challenging a ban on beards, or Jewish prison inmates challenging the denial of a kosher diet.

All other cases are labeled “conservative causes that ha[ve] little to do with religious minorities’ rights.” These cases “almost always [involve] Christians,” who claim the right to live in accordance with “traditional sexual values”—usually in the areas of abortion, contraception, or gay rights. According to the article, these cases are “ideological.”

But this simply reflects the author’s own narrow-minded disdain for opposing views. The same criticism is often made by conservatives who disdain Becket’s defense of Muslims. Both accusations are essentially the same: “The Becket Fund is [controversial/ideological/conservative/liberal] because it defends [groups I disagree with].”

At its core, however, religious liberty is, as Becket’s founder put it, “The Right to Be Wrong.” It is the right to live according to religious truth as you understand it, even when other segments of society think you’re wrong. That applies to Christians, even when some liberals might think they’re an oppressive majority. And it applies to Muslims, even when some conservatives might think they’re conspiring to “impose sharia law.” Supporting religious freedom only when it aligns with your own personal beliefs—whether they’re “liberal” beliefs in favor of contraception and gay rights, or “conservative” beliefs in favor of “Christian hegemony”—is no support for religious freedom at all. The Becket Fund has always defended every faith’s “right to be wrong,” and it always will.

The article’s other important mistake is to misunderstand the unprecedented sweep of the HHS mandate. Never in the Nation’s history has the federal government imposed a rule on the entire country that conflicts with the religious practices of hundreds of religious organizations. That rule has now prompted 100 lawsuits on behalf of over 300 religious groups, representing tens of thousands of religious believers.

The fact that the Becket Fund is involved in a fraction of those cases—less than ten percent—hardly marks “a shift in the fund’s strategy.” It simply marks the fact that the Becket Fund is always involved in the important religious freedom issues of the day—whether they are high-profile “culture war” issues that reporters pay attention to, or low-profile conflicts between stubborn bureaucrats and religious minorities.

We would like nothing more than for the controversy over the HHS mandate to vanish, just as we would like nothing more than for stubborn bureaucrats (in Republican and Democratic administrations alike) to stop trampling on the rights of religious minorities. Until that day comes, the Becket Fund will keep defending “the right to be wrong” for all faiths—no matter which segment of society dislikes them.

Luke Goodrich is Deputy General Counsel at the Becket Fund for Religious Liberty, where his clients in cases right now include Catholics, Eastern Orthodox, Hindus, Jews, Muslims, Native Americans, Protestants, and Sikhs.

The Terrors of Blasphemy Laws Asma Uddin, Legal Counsel for the Becket Fund for Religious Liberty

The conflict between religious freedom and blasphemy laws in Pakistan is a source of constant concern for the international community. Not only are the blasphemy laws in Pakistan outrageous in themselves, but they are also applied unfairly by those with an agenda, and even the act of defending someone who has been accused of blasphemy has come to be seen as a crime.

All of these elements are evident in the May 7, 2014 murder of human rights lawyer Rashid Rehman, who was killed for defending poet and Fulbright scholar Junaid Hafeez against allegations of blasphemy. Hafeez, a professor, was accused by his students of insulting the Prophet Muhammad on Facebook. The accusations were baseless, but as with most cases of blasphemy charges in Pakistan, no real evidence was needed. He was charged by the police, defenseless without a lawyer. Rehman, special coordinator at Pakistan’s Human Rights Commission, agreed to represent Hafeez in court, knowing the decision would put his life in danger. Continue reading “The Terrors of Blasphemy Laws”

Canterbury Medalist Rabbi Sacks’ Stirring Defense of Freedom Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

“In America, the tree of liberty has religious roots. Don’t believe you can sever those roots and have the tree of liberty survive.”

Those words came from Rabbi Lord Jonathan Sacks, this year’s Canterbury Medalist. Sitting in the room Thursday night, I watched Catholics, Sikhs, Mormons, Jews and Evangelicals stand together to applaud Rabbi Sacks, who gave an impassioned defense of religious freedom. The entire speech is here, and it is well worth your time. Continue reading “Canterbury Medalist Rabbi Sacks’ Stirring Defense of Freedom”

Something is rotten in the state of Denmark

By Eric Rassbach, Deputy General Counsel for the Becket Fund for Religious Liberty

“To be or not to be?” is a lot tougher question than the one everyone should be asking about Denmark today — “Why did Denmark really ban kosher and halal slaughter?” The answer is sadly quite simple–to discriminate against its Jewish and Muslim citizens. The government claims that it is because it wishes to allow only humane slaughter, but the evidence is at best equivocal. Many countries, including the United States, treat kosher and halal slaughter as definitionally humane methods of slaughter. Continue reading “Something is rotten in the state of Denmark”

Plea for a new church-state ruling

SCOTUSblog, May 7, 2014

The Elmbrook case is not about prayer.  Rather, it is about a public high school’s decision to stage a graduation ceremony in a church that is adorned with numerous religious symbols, displays, and literature.

Election Ends Threat from Québec “Charter of Values”

By Adèle Keim, Legal Counsel for the Becket Fund for Religious Liberty

Valeurs_depliant_version_longue-7.jpgIn November we reported on the Québec “Charter of Values”, a proposal by the government of Québec to ban state employees–from doctors to daycare workers–from wearing “overt and conspicuous” religious symbols. The Charter of Values, which was criticized across Canada and around the world, would have required Jewish employees to remove their kippahs, Sikhs to remove their turbans, and Muslims to remove their headscarves.

Continue reading “Election Ends Threat from Québec “Charter of Values””

2013 Canterbury Medal recipient Elder Dallin H. Oaks delivers “message of hope” for religious freedom

Elder Dallin Oaks, a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints and recipient of the 2013 Canterbury Medal, delivered the keynote address at Utah Valley University’s Constitutional Symposium on Religious Freedom two days ago. Offering mutual understanding, accommodation, and goodwill among neighbors of all faiths as the solution to conflict, Elder Oaks conveyed an encouraging optimism for the future of religious freedom. He also gave a welcome shout out to the Becket Fund.

Continue reading “2013 Canterbury Medal recipient Elder Dallin H. Oaks delivers “message of hope” for religious freedom”

European Court of Human Rights rejects Hungary’s attempt to create ”second-class churches”

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

In an important freedom of religion decision, earlier today the European Court of Human Rights rejected parts of Hungary’s 2011 Church Act that stripped most Hungarian religious groups–including prominent religious groups such as Mennonites, Evangelicals, Reform Jews, and Buddhists–of “church” status that they had held for many years after the fall of Communism. Continue reading “European Court of Human Rights rejects Hungary’s attempt to create ”second-class churches””

Are corporations people?

CNN, March 25, 2014

“Ultimately, Hobby Lobby isn’t interfering with anyone’s access–they are simply saying they can’t provide a small handful of products the government admits may terminate a human life,” says Mark Rienzi, Senior Counsel for the Becket Fund for Religious Liberty, which represents the Hobby Lobby in the case vs. Sebelius.

Democratic Congressman and Supporter of ACA Speaks Out Against HHS Mandate

On Tuesday, USA Today published an opinion editorial by former Democratic Congressman Bart Stupak, who proudly supports the Affordable Care Act, but exhorts his colleagues to protect the conscience of Americans like the Green family of Hobby Lobby from the controversial Health and Human Services Mandate.

Americans should never “be required to pay for abortions or violate their conscience by participating in or promoting a procedure they find morally objectionable, ” says Stupak.

Continue reading “Democratic Congressman and Supporter of ACA Speaks Out Against HHS Mandate”

Dalai Lama leads prayer in Senate – What about Town of Greece?

By Becket Staff

In an historic first, the Dalai Lama gave the opening prayer in the U.S. Senate today. Prayers like these have been taking place in our nation’s legislatures for over 200 years. They showcase our nation’s religious diversity, highlight the fact that religion is a fundamental aspect of human culture, and reinforce the founding idea that our rights come from the Creator—not the legislature.

Continue reading “Dalai Lama leads prayer in Senate – What about Town of Greece?”

Church attacked for ministering to the homeless

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

In a shocking attack before this past Sunday’s worship services, Harbor Community Church in Ventura, California had a rock thrown through its church sign and a banner stating “Thou Shalt Not Steal Our Neighborhood” stuck to the sign. Police are investigating.

The church has come under attack from neighbors for running a ministry to the homeless called “Operation Embrace” that provides food, showers, clothing, employee assistance, and religious worship to the needy. The church is seeking a renewed permit to operate its ministry, and is represented in that effort by the Stanford Law School Religious Liberty Clinic headed up by Jim Sonne.

Continue reading “Church attacked for ministering to the homeless”

The U.S. Conference of Catholic Bishops, 67 Catholic Theologians, Lutherans, Southern Baptists, and the National Association of Evangelicals File Briefs Supporting the Little Sisters of the Poor

By Adèle Keim, Legal Counsel at the Becket Fund for Religious Liberty

On New Years’ Eve, Justice Sonia Sotomayor intervened to protect the Little Sisters of the Poor from crushing penalties that were scheduled to begin at midnight—an order that was confirmed and expanded by the entire Supreme Court on January 24. As a result, the Little Sisters are protected from complying with the Mandate (including the government’s so-called “accommodation”) while their appeal is being considered by the Tenth Circuit Court of Appeals in Denver. Yesterday, the U.S. Conference of Catholic Bishops, 67 Catholic theologians, and a wide-ranging group of Protestant organizations—including the National Association of Evangelicals, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod—filed briefs to tell the Tenth Circuit why the Little Sisters deserve more lasting relief. Continue reading “The U.S. Conference of Catholic Bishops, 67 Catholic Theologians, Lutherans, Southern Baptists, and the National Association of Evangelicals File Briefs Supporting the Little Sisters of the Poor”

“A good read on religious law in American courts”

By Eric Rassbach, Deputy General Counsel for the Becket Fund for Religious Liberty This week Prof. Eugene Volokh of UCLA Law School is serializing his recently published article in the Oklahoma Law Review regarding the use and application of religious law – especially Islamic law – in American courts.  Prof. Volokh points out as the Becket Fund did a few years ago that American courts have long enforced religious contracts or the judgments of religious tribunals, as long as they are treated on the same basis as other “foreign” contracts or tribunals. Prof. Volokh does a great job of explaining why “creeping sharia” is a wrong-headed way to view this longstanding American practice – the series is well worth a read for anyone interested in this issue.

Let the Little Sisters be Sisters

By Daniel Blomberg, Legal Counsel at The Becket Fund for Religious Liberty

Since their founding in 1839, the Little Sisters of the Poor have existed for just one reason: treating the poor, elderly outcasts of society as if they were Jesus Christ. The Little Sisters’ foundress gave up her bed to the elderly poor, begged to get food and shelter for the elderly poor, and started a movement that holds the hands of the elderly poor as they leave this life and are welcomed into the arms of God. As the director of nursing at the Little Sisters’ Washington D.C. home explained, no one dies alone at a Little Sisters home. This commitment to caring for those at life’s end is based on the Little Sisters’ fundamental religious commitment to the God-given dignity of every human life, and particularly those human lives that society doesn’t care to protect.

But after almost 175 years of ministry to the elderly, the federal government demanded that the Little Sisters make a choice: either reject the core of their religious identity by providing drugs and devices that can take innocent human lives, or take millions of dollars away from the elderly poor and pay it to the IRS as the cost of staying true to who they are.

Continue reading “Let the Little Sisters be Sisters”

Remembering our First Freedom

By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty

Today is Religious Freedom Day – observed each year on the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom. After a misstep last year, this year President Obama issued a proclamation calling religious freedom a “critical foundation of our Nation’s liberty,” and quoting Thomas Jefferson, who “declared religious liberty a natural right and any attempt to subvert it ‘a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.’”

Continue reading “Remembering our First Freedom”

Religion, Work, and Ducks

490px-Duck_(3665835190)By Eric Rassbach, Deputy General Counsel at the Becket Fund for Religious Liberty

One of the many interesting things about the Sebelius v. Hobby Lobby case now pending at the Supreme Court is the government’s position that once a group of people organized as a corporation decides to seek a profit, it is impossible for them to engage in religious activity. In the government’s view, once you earn a dollar, you can’t be religious anymore. Religion and work are like oil and water — they can’t mix. Continue reading “Religion, Work, and Ducks”

Victory for Nonprofits

By Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty

On November 21, in Zubik v. Sebelius, a federal judge in Pennsylvania became the first to rule on the HHS Mandate’s so-called “accommodation” for nonprofit religious organizations that, based on their faith, cannot provide insurance coverage for contraception, sterilizations, and abortifacients. The outcome? An order that the government cannot enforce the Mandate—even via the “accommodation”—against Catholic Charities and other social services and educational organizations in the Dioceses of Pittsburgh and Erie.

Continue reading “Victory for Nonprofits”

Québec Charter of Values: Not Neutral

By Adèle Keim, Legal Counsel at the Becket Fund for Religious Liberty

The furor over Québec’s proposed “Charter oValeurs_depliant_version_longue-7.jpgf Values” continues to grow: it has been criticised by the Québec Human Rights Commission and linked to a rise in attacks on women wearing the hijab, while on the other side, some Québécoise women have taken to the streets to defend it.

The most controversial aspect of the proposed Charter is the ban on state employees–from doctors to daycare workers–wearing “overt and conspicuous” religious symbols. The Québec government has published a poster to explain what this means: small pendants, rings, and earrings are ok, but turbans, headscarves, kippas, and large crosses are not.

Continue reading “Québec Charter of Values: Not Neutral”

Does the Constitution Require Least-Common-Denominator Prayer?

By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty

Today’s oral argument before the U.S. Supreme Court in Town of Greece v. Galloway revealed a stark choice between allowing government to include diverse religious views and forcing government to exclude all but one governmentally approved religious view. At issue was the centuries-old practice of legislative bodies opening their meetings with prayer. The Founders’ understanding of that practice was the subject of the Becket Fund’s amicus brief, which the Town’s counsel cited at today’s argument. Even though the Supreme Court gave its constitutional blessing to legislative prayer decades ago, advocacy groups have tried to chip away at it by intimidating small municipalities into prayer-less silence. In 2008, though, the Town of Greece called the groups’ bluff, and has vigorously litigated against them ever since.

Continue reading “Does the Constitution Require Least-Common-Denominator Prayer?”

Coming up at the Supreme Court…

By Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty

This is an important week in the Supreme Court for religious freedom. This Wednesday, the Justices will hear argument in Town of Greece v. Galloway. The case asks whether a municipal board unconstitutionally “establishes” an official religion merely by allowing volunteer chaplains from a variety of religious faiths to pray before the opening of board meetings. The Court has not considered this issue since its 1982 decision in Marsh v. Chambers, which upheld our nation’s two-centuries-old tradition of such invocatory prayers before federal and state governmental bodies. Town of Greece gives the Court an opportunity to reaffirm Marsh and explain in greater depth why invocations like these violate no one’s rights and bear no resemblance to the religious “establishments” outlawed by the First Amendment. Lyle Denniston at Scotusblog provides an excellent preview of the case here. The Becket Fund’s amicus brief contains a wealth of original historical research supporting the constitutionality of the prayers.

Continue reading “Coming up at the Supreme Court…”

Why the Constitution Demands Government-Paid Priests, Imams, Pastors, and Rabbis

By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty

How can the U.S. Constitution, with its rejection of state-supported religion, permit the existence of military chaplains? After all, chaplains are government-paid employees from specific faith groups who are hired to preach and teach their religious beliefs on the job. At first blush, that seems to be a governmental establishment of religion, which would violate the Establishment Clause. Continue reading “Why the Constitution Demands Government-Paid Priests, Imams, Pastors, and Rabbis”

What do a Baptist and a Mormon have in common?

By Diana Verm, Legal Counsel at the Becket Fund for Religious Liberty

On Monday, October 21st, Dr. Albert Mohler, president of The Southern Baptist Theological Seminary, addressed the faculty of another school, Brigham Young University, an institution run by the Church of Jesus Christ of Latter-day Saints. This occasion was a sign of a growing relationship between religious groups that have historically been—and remain—at odds theologically. In his speech, Dr. Mohler addressed the moral ground common to Evangelical Christianity and Mormonism in the context of growing societal affirmation of secularism. He pointed out that society has evolved from the Modern Age, where it was “possible not to believe,” to a “Late Modern Age” in which it is, for many, “impossible to believe.”

But what does this have to do with religious liberty? With the growth in popularity of intellectual secularism that is often hostile to belief, Dr. Mohler pointed out that one thing that draws Mormons and Baptists together is religious liberty. Dr. Mohler said: “I do not believe that we are going to heaven together, but I do believe we may go to jail together.” It is because of this common threat that he called on different groups to work together to promote religious liberty. Continue reading “What do a Baptist and a Mormon have in common?”

Hobby Lobby petitions Supreme Court to take up birth control mandate case

The Hill’s Healthwatch, October 21, 2013

“Hobby Lobby’s case raises important questions about who can enjoy religious freedom,” Kyle Duncan, the lead lawyer for Hobby Lobby, said in a statement. “Right now, some courts recognize the rights of business owners like the Green family, and others do not. Religious freedom is too important to be left to chance. The Supreme Court should take this case and protect religious freedom for the Green family and Hobby Lobby.”

Restored or Engaged? The State of Free Exercise of Religion in America

newseum frontTwenty years after the Religious Freedom Restoration Act (RFRA) was signed into law by President Bill Clinton, what is the state of religious freedom in the United States? Join some of the country’s leading experts on the religious liberty principles of the First Amendment for a lively exchange on RFRA’s impact, current debates over the health care mandate, and the future of free exercise of religion.

The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, the Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute invite you to a provocative and timely symposium:

Thursday, Nov. 7, 2013, 10 a.m. to 4 p.m.
Knight Conference Center at the Newseum
555 Pennsylvania Ave., N.W., Washington, D.C.

The symposiuim is free, but reservations are required. RSVP online by Oct. 31. Lunch will be provided to participants registered for the entire symposium.


  • Oliver Thomas, religious liberty attorney and chair of the broad coalition that helped draft and enact RFRA
  • Doug Laycock, law professor at the University of Virginia and one of the nation’s leading authorities on the law of religious liberty


  • History and Impact of the Religious Freedom Restoration Act
  • Religious Liberty and the Contraception Mandate in the Affordable Care Act
  • Free Exercise of Religious in a Diverse Society: Current and Future Challenges

Christmas Wars, Round 43: More Reason to Fix Our Broken Church-State Jurisprudence

Flickr_-_USCapitol_-_Capitol_Christmas_Tree_2011By Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

This week marks the start of the Supreme Court’s 2013 term. It also marks the return of the Christmas wars, that special time of year when we repeat our nation’s annual argument over the meaning of the First Amendment’s ban on “establishment of religion.”

The Christmas wars got an early start this year. They were kicked off by a news report that a school district in Wisconsin was cancelling Christmas and Hanukkah concerts and requiring that any religious song be paired with four secular songs. That report has created a public firestorm, and provoked a lengthy clarification from the school district. It all began when local bureaucrats, fearful of doing anything that might invite the ire of the Freedom From Religion Foundation, declared that holiday concerts could only occur if religious songs were offset by a number of secular songs—say, a four-to-one ratio. The rules were so onerous that the high school’s Master Singers choir canceled their Christmas concerts entirely. Continue reading “Christmas Wars, Round 43: More Reason to Fix Our Broken Church-State Jurisprudence”

Private: A Shutdown of Military Religious Liberty?

The recent budgetary conflict on Capitol Hill has grabbed headlines nationwide, and many people are feeling the harm of the federal government’s shutdown. While the facts are still fluid, some reports indicate that the shutdown is starting to affect the ability of our men and women in uniform to exercise their faith. The Archdiocese for the Military Services released a statement that the shutdown could force priests who are serving as government contractors (as opposed to those who are serving on active duty) to stay at home. Even priests that are willing to volunteer to provide religious support are apparently being told that they can’t. According to the Archdiocese, this means that some Masses have been cancelled for this Sunday. By contrast, military bases are still finding ways to keep base movie theaters running on schedule.

The reason these reports are troubling goes to the core of why our country has military chaplains in the first place: to provide for the free exercise rights of soldiers, sailors, airmen, and Marines. Because service members face unique burdens on their religious exercise—such as being sent into armed conflict or moved to remote countries far from their faith communities—a restriction on chaplains is a restriction on the ability of service members to exercise their faith.

Thus, it is crucial that the government make provision for service members’ religious needs. To protect these fundamental human rights, the military chaplaincy was established even before our Nation’s founding. Chaplains go wherever service members go. They serve on military bases in the U.S. and around the world. They serve during peace at home, and during war on the front lines. They nurture the living, care for the wounded, and honor the dead. Among Army chaplains alone, nearly 300 have lost their lives in service to God and country.

Our Nation’s effort to accommodate service members’ religious needs has been remarkably successful and “follows the best of our traditions.” Zorach v. Clauson, 343 U.S. 306, 314 (1952) (praising the State’s efforts to accommodate the “spiritual needs” of citizens). The Becket Fund has defended this fine tradition in the past, and stands ready to do so today.

If the recent reports are accurate, and if the Department of Defense is treating movie theaters as essential, but chaplains as superfluous, that is a problem. It suggests that certain sectors of the military may be devaluing service members’ constitutionally protected religious needs. Service members are risking their lives to protect our freedoms. The least we can do is protect theirs.

Je me souviens

By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty

Founded by three Augustine nuns, L’Hôtel-Dieu was the first hospital in North America.

In 1639, Québec’s famous Hôtel-Dieu hospital was founded by three Augustine nuns who came from France to provide medical care for the colonists and the First Nations communities who lived near them. L’Hôtel-Dieu, which still operates as a teaching hospital, was not only the first hospital in Canada, it was the first in North America.

Continue reading “Je me souviens”

Crossing the West-Muslim Divide with Religious Freedom

By Asma Uddin, Legal Counsel at the Becket Fund for Religious Liberty

My work on religious freedom, especially international religious freedom, provides much fodder for academic and op-ed pieces alike. One thing that has bothered me for some time—and which I write about often—is the seeming impasses in communication across the West-Muslim world divide when it comes to religious freedom and free speech issues. Continue reading “Crossing the West-Muslim Divide with Religious Freedom”

Yoga is an Exercise of Physique – Not Religion

By: Diana Verm, Legal Counsel at the Becket Fund for Religious Liberty

Remember when we said that the government promoting yoga as a physical exercise doesn’t set up an official religion in violation of the Establishment Clause? It turns out that we were right, at least according to one California judge. Judge John S. Meyer of the Superior Court of California in San Diego considered a challenge to a yoga-based physical education program in one public school district last month. He held that the yoga program does NOT violate the Establishment Clause of the First Amendment. Continue reading “Yoga is an Exercise of Physique – Not Religion”

Protecting Religious Diversity, Even at the Mall

By Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty

It is hard to name a more commercial environment than a shopping mall. Hundreds of stores deliberately grouped together to offer their goods and services. Hundreds of employees getting paid money to sell them. Thousands of customers paying money to buy them. The federal government has lately been arguing that religious freedom is incompatible with making money, at least in the HHS Mandate context. On that view, one would expect a shopping mall to be a black hole for religious liberty. That is why it is such a pleasant surprise to see the Obama Administration’s EEOC fighting for the right to religious accommodations—even in a shopping mall, and even in a job that is all about getting paid to buy and sell products that have nothing to do with religion. Continue reading “Protecting Religious Diversity, Even at the Mall”

Exhibit A showing why blasphemy laws are such a bad idea

By Eric Rassbach, Deputy General Counsel at the Becket Fund of Religious Liberty

Pretty much every time blasphemy laws are in the news, one gets more evidence of how bad they are for society. The latest example, as reported by Eugene Volokh, comes in Bangladesh, where atheists are being prosecuted for blogging as atheists. Sending someone to jail for expressing an opinion on a religious question is a gross violation of religious liberty, regardless of whether that person expresses an underlying religious belief. Bangladesh will not be able to develop unless it can rid itself of the albatross of blasphemy laws.


Big Mountain Jesus: A Monumental Case

Last week our case defending the Big Mountain Jesus war memorial in Montana was appealed to the Ninth Circuit Court of Appeals. Since then we’ve released a new video which tells the inspiring story of two of the co-defendants in the case, Ray Leopold and Gene Thomas, who drive to the top of the mountain every year to make repairs to the statue. In the video, Ray explains that the statue means many things to many different people. He says, Continue reading “Big Mountain Jesus: A Monumental Case”

Echoes of 1940: New Mexico Supreme Court turns back the clock on free expression

By: Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty

The Elane Photography decision handed down by the New Mexico Supreme Court last week is notable for many things. Chief among them is a concurrence by Justice Bosson, which chillingly describes the sacrifice of free speech and religious freedom as “the price of citizenship.” Continue reading “Echoes of 1940: New Mexico Supreme Court turns back the clock on free expression”

New York Times notices religious liberty for Orthodox Jews

By: Eric Rassbach, Deputy General Counsel at the Becket Fund for Religious Liberty

Last week, the self-styled “paper of record” finally took notice of a phenomenon we at the Becket Fund have been talking about (see Blog: Fear, Loathing, and Demographics) for a long time: the New York City government’s conflicts with its growing population of Orthodox Jews. New York Times reporter Joe Berger penned a well-researched article describing conflicts ranging from attempts to prosecute Orthodox store owners for requiring some modesty of their customers, to refusals to accommodate Hasidic women’s requests for a female lifeguard, to targeted regulation of the ancient circumcision ritual of metzitzah b’peh. Continue reading “New York Times notices religious liberty for Orthodox Jews”

Law, Not Theology

By: Kyle Duncan, General Counsel at The Becket Fund for Religious Liberty

The American legal system doesn’t do theology. Thank heavens. No one wants judges telling us whether the Nicene Creed is correct, whether the Red Sea really parted, or whether reincarnation happens. Yes, religious believers sometimes go to court when their rights are violated, but they typically argue that theology is none of the government’s business. And the government almost always agrees. Continue reading “Law, Not Theology”

Religious Freedom and Human Dignity

By Luke Goodrich, Deputy General Counsel

In case you missed it, Becket Fund board member and Princeton Professor Robert George was elected chair of the U.S. Commission on International Religious Freedom this week. Today, together with vice chairwoman Katrina Lantos Swett, Professor George has a great op-ed in the Wall Street Journal explaining why religious freedom is an essential element of human dignity. Continue reading “Religious Freedom and Human Dignity”

Religious Freedom and U.S. Foreign Policy

By Luke Goodrich, Deputy General Counsel

Can Islam embrace religious freedom? If so, should the United States be working for religious freedom in Muslim-majority countries?

Yes, says Georgetown University professor Tom Farr, in an interesting series of posts on National Review Online.

First, Professor Farr argues that “there is a practical concept of religious freedom . . . that can be adapted by Muslim societies” — a concept that is “similar to what the American Founders meant by religious freedom.”

Second, he argues that fostering religious freedom in Muslim-majority countries is in the United States’ interest, because doing so can “help struggling democracies such as Egypt and Pakistan attain a measure of stability that will undermine the kinds of extremist Islamist ideas that fuel terrorism.”

Third, he argues that the Department of State is failing “miserably” at doing so.

Read the whole thing.

Indiana should not criminalize religious same-sex wedding ceremonies — even by accident

Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies.

wedding_cakeby: Eric Rassbach

There was a recent blogstorm about what was by some billed as a new legislative attempt to criminalize religious–but not civil–gay marriage in Indiana. It turned out that the purported change in law was related to a recodification of Indiana’s criminal laws rather than an intentional targeting of same-sex wedding ceremonies. And it is possible to interpret the law as only relating to civil marriage, not religious ceremonies.

But there is still a serious religious liberty problem. The Indiana law in question says that “A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by [Indiana’s law prohibiting same-sex marriage] commits a Class B misdemeanor.” The plain text of this law appears to criminally prohibit a member of the clergy from conducting a religious same-sex wedding ceremony. That’s because “solemnizes” is not defined in the Indiana statutes, and one of the word’s main dictionary meanings is conducting religious ceremonies. Indeed, many Christian denominations have long used the term “solemnization” to describe their wedding ceremonies. The law may well have borrowed the term from the Church of England’s Book of Common Prayer, which sets forth the liturgy for “Solemnization of Matrimony“.

That interpretation is backed up by the Indiana Supreme Court’s discussion of “solemnization” in the 2008 case of McPeek v. McCardle, in which the Indiana Supreme Court refers to the “solemnization” under Indiana’s marriage laws as the ceremony itself—in that case, a religious ceremony conducted by a minister.

That’s why any friend of religious liberty should be concerned about the Indiana law. Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies. It would be flatly unconstitutional for a prosecutor relying on the plain language of the Indiana law to seek a conviction of a minister for conducting a religious same-sex wedding ceremony.

More than that, just having the law on the books in its present form is a problem. Plainly unconstitutional laws that remain technically in force can still have a chilling effect on First Amendment activities. That is a particular danger here, since several different denominations conduct religious same-sex wedding ceremonies, including the United Church of Christ and some Conservative Jewish synagogues. The best way to solve this problem is to change the law—which the Indiana legislature should do by making clear that no one can be criminally punished for solemnizing a religious same-sex wedding.

Thus even though the Indiana law may be a case of criminalization by accident, proponents of same-sex marriage are still right to be concerned about the religious liberty of those who want to participate in same-sex weddings. One hopes that going forward they will also show the same solicitude for the religious liberty of those who cannot in good conscience participate in those same weddings. As many legal scholars from both sides of the debate have pointed out, adopting same-sex marriage without strong protections for religious dissenters will lead to a host of foreseeable conflicts, such as government penalties and private discrimination lawsuits. Ministers and churches should not be punished for solemnizing same-sex marriages, but neither should other ministers and other churches be punished for disagreeing with those same-sex marriages.

The reality is, both sides in the debate over the nature of marriage should support strong religious liberty protections, and they should make a point of supporting those protections for the people they disagree with. A good start would be by amending Indiana’s law.

Eric Rassbach is Deputy General Counsel at the Becket Fund for Religious Liberty

UPDATE: The word “purported” was added to this post to clarify that the specific provision criminalizing solemnization of same-sex marriages (Indiana Code 31-11-11-7) has not changed since 1997; the misdirected blogstorm referred to in the first paragraph concerned both what many wrongly thought were changes to both the solemnization provision and the fraud provisions concerning the submission of marriage license applications. As is explained in more detail here, only the latter provisions were actually amended as part of the recodification, and those amendments lowered the relevant criminal penalties.

*Photo credit: Thinkstock

Religious Liberty and the “Correct World View”

By Daniel Blomberg, Legal Counsel

As a recent case working its way through federal courts is bringing to light, Germany has decided it can suppress “the development of religious[ ]” groups by forcing their “integration” into state-controlled institutions. And Germany has chosen a chilling route to enforced cultural conformity—conscripting children. Relying on a law with Nazi-era roots, Germany enforces a public-school mandate for all children and punishes religious minorities that homeschool to avoid their kids being force-fed official orthodoxy. While the original Nazi vision of “training German youth in the spirit of national socialism” has been updated to something more benign-sounding, the goal of state-defined homogeneity remains exactly the same. As does the means: forcing parents to send their children in for state indoctrination, on pain of crippling fines or—in the ultimate threat to parents—loss of child custody.

That Germany is re-enacting a bad scene from its past is not good news. But, one might hope, at least some German religious minorities might escape to a better life in the United States, land of the First Amendment and religious liberty. After all, at the same time that Hitler was enforcing his public-school mandate, the U.S. Supreme Court was upholding the right of “children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it.” Prince v. Massachusetts (1944). And that’s what the homeschooling Romeike family thought when they escaped to the U.S. from Germany and sought asylum in 2008, and what the immigration judge thought when he granted said asylum. But in 2010, the Department of Homeland Security disagreed, appealed the Romeike’s case, and convinced immigration officials that Germany’s “prosecution” of religious homeschoolers wasn’t “persecution” of religious homeschoolers. (This is, of course, the same DOJ that argued to the U.S. Supreme Court that churches are the same as bowling clubs when it comes to the First Amendment. Hosanna Tabor v. EEOC (2012).)

As a part of its argument, DOJ actually defended Germany’s thought-policing of its citizens’ children as a “generally applicable” law that the U.S. should respect in the same way that it respects prosecution of tax-dodgers. But the overwhelming majority of individuals who are burdened by the law are religious minorities. Thus, setting aside the offensiveness of the comparison between tax fraud and religious liberty, even if Germany’s law is generally applicable, it is so only in the way that a generally applicable “tax on wearing yarmulkes” is really just a “tax on Jews.” Bray v. Alexandria Women’s Health Clinic (1993).

Germany gave the game away when it admitted that its prohibition on homeschoolers was to limit the “religiously motivated” elements of society that didn’t want to dance to the state’s tune. In fact, the German high court made this discrimination against religious believers explicit when it defended Germany’s decision to allow job-based homeschooling: “[T]he differences between those who are ‘school refusers’ for religious reasons, and children who are exempt from compulsory school attendance because their parents, due to their occupation, do not have a firm residence, are of such a nature and such a weight that they justify unequal treatment.” In other words, if your job makes you homeschool your kids, that’s okay, but if your God makes you homeschool, the government will take your kids, fine you out of existence, and throw you in jail. Yet the Department of Justice is defending that as an appropriate “prosecution” that the state may use to entrench the “correct world view” in its citizens.

A three-judge panel of a federal court of appeals agreed with the DOJ, finding that Germany’s policy was neutral toward religion, applied generally to all German citizens, and thus was not a basis for asylum. While immigration law is notoriously tricky, and while the court clearly indicated that it wasn’t sanctioning Germany’s treatment of homeschoolers, that ruling seems incorrect for two reasons.

First, the federal court’s crucial “neutrality” conclusion simply does not grapple with the German high court ruling; it doesn’t even mention it. Again, Germany’s highest court said that the whole reason that the law exists is to stamp out religious “parallel societies.” To my mind, the German court’s ruling makes it impossible to treat this Nazi-derived law as anything approaching neutral.

Second, the federal court looked at the occupation exemption for other homeschool families and found that the government still exercised some control over those homeschool curriculums. So the court concluded that the Romeikes were asking for something more than what those state-approved homeschoolers got. But again, this ignores the German high court’s open admission that the law does treat secular homeschoolers and religious homeschoolers unequally. And, practically speaking, the German court was right. As any family knows, where children learn, and who they learn from, affects what children learn.

The Romeikes have asked that the full appellate court grant en banc review of the case. Here’s hoping they do. Germany is actively seeking to prevent the Romeikes, and others like them, from exercising their fundamental right to live their faith. And that is precisely why this nation has asylum law in the first place: So that we can serve as a refuge for those who’ve been denied their most fundamental human rights.

A Question of Priorities

By Adèle Keim, Legal Counsel

In a blog post yesterday afternoon, the Treasury Department announced that it will delay enforcing major aspects of the ACA “employer mandate” until 2015 in order to accommodate employers’ feedback about “the complexity of the requirements and the need for more time to implement them effectively.” As Becket’s General Counsel Kyle Duncan notes here, the Administration’s latest announcement says nothing about the HHS contraceptive/abortifacent mandate, which remains fully in force and still carries crippling fines. But the blog post does raise an interesting question: what are we to think about an administration that is prepared “to adapt and to be flexible” when businesses complain about administrative burdens, but will not give an inch when their religious liberty is at stake?

Telling It On the Mountain?

By Diana Verm and John Ehrett

On the edge of a remote ski slope in Montana stands a statue of Jesus, popularly nicknamed “Big Mountain Jesus.” It is a war memorial, a relic from the mountain’s rich history, a landmark for skiers, a religious symbol, an object of local curiosity…and the subject of a lawsuit challenging its constitutionality.

But today, in light of a recent federal court ruling, it is defined by what it is not: an establishment of religion.

Nearly sixty years ago, the Knights of Columbus leased a 25-foot x 25-foot plot of land, situated within a commercial ski resort, from the United States Forest Service on Big Mountain. They planned to erect a monument honoring fallen soldiers from World War II, and “Big Mountain Jesus” was the final result. Their leasing permit was renewed every ten years without incident, until the Freedom from Religion Foundation sued to have the statue permanently removed, claiming that it violates the Establishment Clause of the United States Constitution.

As U.S. District Judge Dana Christensen correctly ruled, this was not the case. Controversies over similar symbols, however, will persist due to popular misunderstandings surrounding the Establishment Clause.

The Establishment Clause expressly forbids the creation of a state-sponsored religious apparatus, in the vein of the Church of England or Russian Orthodox Church. What it does not do, however, is enforce cultural amnesia about religious aspects of our history. Instead, the Establishment Clause calls the government to viewpoint neutrality in the public sphere. Under such a standard, both commercial enterprises and religious organizations (and by extension, everything in between) are given equal access to the broader public forum, without state suppression of their expressive activity.

America has historically thrived through its diversity of thought and discourse, and in keeping with this pluralism, it is entirely acceptable to acknowledge religion as a component of national heritage and tradition. This is precisely what the “Big Mountain Jesus” monument does. Treating all such acknowledgement as an “unconstitutional establishment of religion” compromises the intent of the Constitution and saps the richness of the American experience. Equal access is the linchpin of the matter: the state may not demonstrate preferential treatment of one faith over another, but neither must it purge religious elements from all arenas bearing some relationship to government. In the case of “Big Mountain Jesus,” Judge Christensen observed that the historic and cultural legacy of the monument outweighed any perceived state endorsement of a given faith. Though the statue itself was of religious character, this dimension alone did not constitute an Establishment Clause violation.

In the wake of all this controversy, “Big Mountain Jesus” has taken on two additional significant qualities. Now, the statue is something more than simply a war memorial, ski landmark, or religious display: it is an ongoing testament to the freedom of expression that first forged the American nation, and a sobering reminder of the need for constant vigilance.

True government neutrality in the marketplace of ideas may be a difficult, multifaceted, and ever-elusive goal…but the alternative is unacceptable.

Diana Verm is Legal Counsel with the Becket Fund for Religious Liberty and John Ehrett is a summer communications intern at the Becket Fund for Religious Liberty and a rising senior at Patrick Henry College.

Rethinking the “Red Line”

By Asma Uddin, Legal Counsel

From June 8-11, I had the pleasure of convening a working group at the 2013 US-Islamic World Forum in Doha, Qatar.

The Forum is part of the Brookings Institute’s Project on U.S. Relations with the Islamic World. The Project seeks to engage and inform policymakers, practitioners, and the broader public on developments in Muslim countries and communities and on the nature of their relationship with the United States.

Brookings is an extremely well-respected and prestigious think tank with an international presence, and it was an incredible opportunity to be chosen as a convener for the Forum.

My working group was titled “Rethinking the ‘Red Line’: The Intersection of Free Speech, Religious Freedom, and Social Change.” I proposed the topic because free speech, particularly freedom to speak about, criticize or even reject religion, continues to be a contentious issue among Muslims, and between Muslims and non-Muslim compatriots, in the United States and in Muslim-majority countries. While I have had opportunities in the past to engage actors from the Muslim-majority world on this issue, the Forum gave me the unique opportunity to do it at a much higher level, with greater potential of actual on-the-ground change.

Several high-level members of the Organization of Islamic Cooperation (OIC) participated in my group, as well as activists and politicians from the US, Europe, and numerous Muslim-majority countries. Together, we explored the reasons why free speech remains a controversial topic with changing contours and disputed boundaries, and how these disputes might be addressed and resolved. Using the OIC’s Defamation of Religions Resolution as a case study, the working group looked at different definitions of free speech, alternative standards governing limits on free speech, and how the gaps among competing standards might be bridged.

In particular, I spent some time exploring the public order justification for speech restrictions. It is an exception that exists in international free speech and religious freedom law, in US law in the form of the incitement to imminent violence standard, and, in much broader form, in the jurisprudence of Muslim-majority countries. The way this exception is defined and interpreted varies considerably across these bodies of law, and I feel strongly that reconciling these interpretations is key to reaching consensus on adequate free speech protections.

Deeply committed to bringing about change on this issue, I am working with Brookings and other actors to continue building on the Doha discussion.

White House Stands Firm on Contraception Rules

Wall Street Journal, June 28, 2013

The Becket Fund for Religious Liberty, a public-interest law group representing several of the groups suing to block the requirement, said the final rule was “the same old, same old.” “This doesn’t solve the religious conscience problem because it still makes our non-profit clients the gatekeepers to abortion and provides no protection to religious businesses,” said Eric Rassbach, deputy general counsel for the fund. “The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires. Instead this issue will have to be decided in court.”

What EEOC gets and HHS doesn’t

The Greens are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn’t.

By Kyle Duncan

Two weeks ago, the EEOC sued a Peoria trucking company for violating the religious liberty of two of its Muslim drivers when it fired them after they asked not to haul alcohol in their trucks. The EEOC found the trucking company “could have readily avoided assigning these employees to alcohol delivery” but instead “chose to force the issue” and fire them. However the case comes out, the EEOC is right about one thing: the Muslim drivers have a genuine objection to being forced to transport alcohol, because it is an act forbidden by their faith. It is beside the point that the drivers are not being made, say, to drink alcohol themselves or to hand out drinks at a party. As the EEOC correctly recognizes, transporting alcohol is also a practice the drivers’ religion forbids, every bit as much as taking a drink themselves.

Meanwhile, 600 miles away in Oklahoma City, another federal agency, HHS, has taken a narrower view of religious faith. HHS is arguing that a devout Christian family, the Greens, must use their family business, Hobby Lobby, to deliver a different product—emergency contraceptives—or face draconian fines. HHS fails to recognize that the Greens object, not only to using the drugs themselves, but also to providing them to employees through their health plan. The district court agreed with HHS, however: it found that the Greens’ real objection was merely to contributing funds that “might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012). That decision is now before the en banc Tenth Circuit.

Imagine if the EEOC had taken the HHS mandate approach to the Muslim truck drivers. Instead of accepting their beliefs at face value, the EEOC could have said the drivers’ real objection was merely to furnishing transportation services that “might, after a series of independent decisions” result in “someone else’s participation in an activity that is condemned by [their] religion.” EEOC didn’t take that position, of course, because it would have rewritten the drivers’ beliefs. They object to their own coerced participation in delivering alcohol, not to whether other people drink it. They are simply saying, “Leave us and our trucks out of this.”

The Green family is saying the same thing. They object to the government forcing them and their businesses to deliver a specific product against their consciences. They are not trying to limit anyone else’s freedom to use emergency contraceptives; they are simply saying, “Leave us and our business out of this.” Not a difficult concept to grasp. What is puzzling is why the EEOC gets it, but HHS doesn’t.

Kyle Duncan is General Counsel for The Becket Fund for Religious Liberty.

Behind the Colors

On June 14, millions of Americans will celebrate Flag Day. Unfortunately, the traditional two-minute ceremony by which Americans profess loyalty to their national colors has come under fire yet again.

By John Ehrett

Over the last several years, repeated challenges have been leveled at one of America’s most revered bastions of patriotism: the Pledge of Allegiance. Lawsuits seeking to strip two simple words – “under God” – from the Pledge have arisen in state and federal courts alike. Those opposed to the Pledge’s current text have continued to press for change, despite losses in the the 9th Circuit Court of Appeals (2010) and the 1st Circuit (2010). This persistence may be due to the fact that the Supreme Court has only obliquely weighed in on the issue: in 2002 the Court ruled that Michael Newdow, the atheist minister responsible for many of the challenges, lacked proper standing to proceed with his suit, but issued no majority opinion regarding the Pledge’s constitutional permissibility.

There is no broad political groundswell seeking to toss out “under God”; nearly 90% of Americans favor retaining the phrase. Unfortunately, their views run directly counter to the radical secularism currently seeking to eradicate religion from the public square…even when such “religion” isn’t even rooted in a specific ideology.

Contrary to what many in the secularist camp have asserted, the Pledge of Allegiance is neither a prayer nor a declaration of metaphysical dogma. As historians have noted, the phrase was originally introduced in the 1950s as a political counterweight to the anti-religious antagonism of the Soviet Union. The clause “under God” simply recognizes that individual persons are uniquely valuable, invested with natural rights that transcend their roles as cogs in a social machine; furthermore, by referring to “God,” the government is forced to acknowledge that its authority over citizens is in fact limited. Irrespective of any religious context, those are positive and humanistic ideas – around which both people of faith and nonbelievers can unite.

When Americans unite to speak the words of the Pledge of Allegiance, they are collectively reaffirming their belief in these human rights, whether or not they personally choose to revere a deity. The power of the Pledge is its implicit assumption that human beings are more than means to a given political or economic end; by virtue of their humanity alone, they possess a certain inherent worth that no government may legitimately infringe.

In keeping with this sentiment, the Becket Fund for Religious Liberty is committed to upholding the intrinsic dignity of all people. Foundational to that dignity, in turn is a recognition of individuals’ right to freely exercise their religious beliefs, in both public and private spheres.

This Flag Day, let’s collectively pause to remember the sacrifices behind the freedoms we take for granted…including religious freedom. Our society, founded on such liberties within a system of democratic pluralism, has dynamically impacted the course of human history. And if a deep-rooted respect for fundamental beliefs – worldview systems that both unite and divide us – is sacrificed on the altar of anti-religious fear, our nation loses one of its most valuable assets.

Americans may not agree about much else, but we should be able to agree on that.

John Ehrett, a senior at Patrick Henry College, is the communications intern at the Becket Fund.

Victory in Murfreesboro

Mosques must be treated on the same terms as other houses of worship.

By: Luke Goodrich, Deputy General Counsel, The Becket Fund for Religious Liberty

A Muslim congregation in Murfreesboro, Tennessee, has now been freed from a discriminatory ruling that cast a cloud over the use of their new mosque.

Last year, a local judge invalidated the mosque’s construction plans on the ground that the mosque was subject to a stricter legal standard than a Christian church. But last week, a Tennessee appellate court overturned that ruling, holding that Rutherford County had properly approved of the mosque.

The mosque had faced a campaign of intimidation and harassment by local opponents. But in 2012, the Becket Fund filed a federal lawsuit on behalf of the mosque. Shortly thereafter, a federal court ruled that the mosque had to be treated on the same terms as other houses of worship, and the congregation was able to use the new mosque for its celebration of Ramadan.

The most recent court decision marks a major victory for Rutherford County and its efforts to treat the mosque fairly. We’re glad that the Islamic Center will now be permitted to worship in peace on the same terms as all other houses of worship.

For more information about the facts and history of the case, click here.

Photo: Islamic Center of Murfreesboro with flag, by Saleh M. Sbenaty (Saleh M. Sbenaty) [CC-BY-SA-3.0], via Wikimedia Commons

Obama, God, and the Profits

Earning money doesn’t suddenly give the government the right to extinguish your constitutional rights.

By: Mark Rienzi, Senior Counsel, The Becket Fund for Religious Liberty

A surprising and public rift opened up last week between President Obama and his lawyers over whether profit-making businesses can pursue goals other than making money, including adhering to religious requirements.

In courtrooms across the country—including one yesterday in Philadelphia—Department of Justice lawyers told judges that profit-making businesses with religious objections to the HHS contraceptive mandate cannot exercise religion. Profit-making business apparently can pursue just one goal: making money. Business owners must check their religious values at the door.

Elsewhere in the country, however, President Obama offered the opposite message to a group of men graduating from Morehouse College. He urged them to forge careers in business, but to avoid focusing solely on profits. Instead, they should consider “what broader purpose your business might serve” by pursuing values other than profits, like “transforming a neighborhood.” The President’s comments echoed his remarks last year at the National Prayer Breakfast, where he proclaimed that leaving our “values at the door” would “abandon much of the moral glue that has held our nation together for centuries.”

The President is right and his lawyers are wrong.

Businesses act on principles beyond the pursuit of profit every day. Vegan markets refuse to sell animal products because they are ethically opposed to hurting animals. Some employers have long provided benefits to same-sex partners based on the moral view that doing so is right and just. Some investment funds refuse to invest in fossil-fuel companies because they view them as destructive. Businesses following moral, ethical, philosophical, and environmental principles are all around us.

Similarly, some businesses operate according to religious principles. The Hahn family, for example, are Mennonite Christians who run Conestoga Wood, a cabinet-making company in East Earl, PA. They have long followed the President’s admonition to consider the “broader purpose” their business might serve, and to avoid leaving their “values at the door.” Yet yesterday they heard government lawyers tell judges that because their company earns money, the Hahns cannot follow their religion while they work. The government seeks to impose crushing fines on the Hahns ($95,000 dollars every day) unless the Hahns will start violating their religion and paying for drugs that they believe cause abortions.

The lawyers have it all wrong. Earning money doesn’t suddenly give the government the right to extinguish your constitutional rights. The New York Times Company is a profit-making corporation, but it obviously has free speech rights. Many doctors provide abortions for profit, but of course the government could not stop them just because they make money. We don’t trade in our constitutional rights when we earn a living.

Of course this does not mean that we will soon see large publicly-traded companies claiming to exercise religion. A religious freedom claim requires a showing of sincere religious practice—which is easy for the Hahns, but virtually impossible for a large, publicly-traded corporation like an IBM, where control is shared among thousands of shareholders. This explains why all of the challenges to the Mandate have been by closely-held family businesses, and none have been by publicly-traded companies. Nor is there any risk that decisions in the Mandate cases will trigger a sudden spike in businesses claiming to exercise religion—the Supreme Court approved of religious exercise claims for sole proprietors more than thirty years ago, and such cases remain few and far between.

Nor does protecting religious exercise for people engaged in business mean that religious values must trump all others in our society. Religious claimants will still lose when the government offers actual proof that it really needs to burden the religious objector—something it has not done so far in the Hahns’ case or any of the HHS Mandate cases. The key is that the religious freedom claims will be determined based on whether there is a real religious exercise, and how strong the government’s evidence is in response—and not based on whether the people or organizations involved make money.

So the men of Morehouse can safely follow the President’s advice, secure in the knowledge that they do not forfeit their constitutional rights when they earn a living, and that they are allowed to pursue “broader purposes” while they do so.

And the President could help them in their pursuit by sending a copy of his commencement address over to the Department of Justice.

Mark L. Rienzi is Senior Counsel at the Becket Fund for Religious Liberty, a law professor at The Catholic University of America, and author of God and the Profits: Is There Religious Liberty for Money-Makers? (forthcoming George Mason Law Review, 2013).

Fear, Loathing, and Demographics

Many of the restrictions and increasingly vicious attacks on people of different religious traditions–especially minority faiths–are motivated by deep fears of the unknown and unfamiliar.

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

If President Roosevelt was right that the only thing we have to fear is fear itself, then religious people have a lot to fear these days. Many of the restrictions and increasingly vicious attacks on people of different religious traditions–especially minority faiths–are motivated by deep fears of the unknown and unfamiliar. In this way the suppression of religious identity and ideas in public life creates a danger for the polity–without the ability to discuss beliefs in public, fear of the differently-believing grows silently, only to explode later in times of political instability. One sees this dynamic over and over again in societies that attempt to pretend away religious differences, from the war in Bosnia to the civil war in Syria today. Both of those wars arose in societies where public expression of religious identity had long been suppressed, yet in the end it turned out that religion, and religious liberty, really did matter.

As we have already noted elsewhere, one facet of this fear is rooted in demographics. Those in power or majorities often fear relative demographic growth of those with different religious beliefs. For example, government officials in Burma recently adopted a “two-child policy” that would apply only to Muslims. This even though Muslims are a tiny minority (approx. 4%) of the Burmese population. This population limitation targeting a specific religious minority is a textbook example of demographic panic, as exemplified by this statement from a government official: “This is the best way to control the population explosion which is a threat to our national identity. If no measure is taken to control the population, there is a danger of losing our own identity.”

Similar feelings of fear and loathing towards the religious were recently published in, of all places, The Forward. The author, Jay Michaelson, focused on the demographic trends, saying, “Call them what you will – ultra-Orthodox Jews, ‘fervently Orthodox’ Jews, Haredim, black hats. They will soon become the majority of affiliated Jews in the metropolitan New York area, and the religious majority in Israel. The results will be catastrophic. … [P]retty soon, the hierarchy will overwhelm us. Demographers tell us that 49% of New York’s Jewish children are Haredi (either Hasidic or ‘yeshivish’). Especially in light of non-Orthodox disaffiliation, New York Jewry, within a generation, will be fundamentalist, poor, uneducated and reactionary.” This kind of attacking language is specifically designed to incite demographic panic among non-Orthodox Jews and others, and thus create support for government measures to suppress a certain disfavored religious group.

Aside from its crude and inaccurate description of the Orthodox, this kind of rhetoric and the solutions it offers are self-defeating. Government suppression of religious identity here or in Burma will not make religious identity go away; it will simply drive religious expression underground, and increase the likelihood of an explosion of interreligious strife. The far better course is to publicly respect and honor religious differences among people, not because we seek to approve any one set of religious beliefs or all religions generally, but because because we respect and honor the inherent dignity of each person and therefore the beliefs she holds.

Oregon church wins appeal to build new sanctuary

The Council relied on The Becket Fund’s letter in reversing the Planning Commission’s decision.

Life Bible Church of Harrisburg, Oregon last week won zoning approval from the City Council of Harrisburg to build its new sanctuary on land formerly owned by a failed RV resort. The Council’s decision overturned an earlier Planning Commission ruling that would have prohibited the Church from using its land at all. News reports said that the Church’s application was successful in part because of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal civil rights law that protects the rights of churches, synagogues, and mosques to use the land they own. The Oregon church will now be able to build its sanctuary on the banks of the Willamette River.

After the Planning Commission denied the Church’s land use permit application, the Becket Fund for Religious Liberty wrote a letter to the City explaining that federal civil rights laws did not allow the City to “change the rules in the middle of the game” and that if the Church’s appeal was not approved, Harrisburg faced “significant financial liability.” The Council relied on this letter in reversing the Planning Commission’s decision.

“This is yet another example of why RLUIPA is so vital to religious organizations across the country,” said Eric Rassbach, Deputy General Counsel for the Becket Fund. “Without RLUIPA, the City could have told Life Bible Church to leave town and worship somewhere else. Now the Church can take land that wasn’t being used and turn it into a flourishing place of worship.”

Yoga doesn’t violate the Establishment Clause

The Presidential Challenge, a White House initiative to help Americans become more physically active, has included yoga as one of the options for pursuing PALA, the Presidential Active Lifestyle Award. According to the White House, yoga is “a universal language of spiritual exercise in the United States, crossing many lines of religion and cultures.”

But if the White House is spending money to promote yoga, isn’t that a violation of the Establishment Clause?

It’s not. The Establishment Clause could remind one of the obstacles encountered in the children’s book, Going on a Bear Hunt. In search of a bear, the reader encounters a field, a river, a cave that must be traversed. We can’t go around it, we can’t go over it, we must go through it! The Establishment Clause is similar. You can’t go around it, you can’t go over it, but there MUST be a way to go through it without eradicating all mention of religion from the public square. The North Carolina legislature wanted to go around it. But states can’t simply disavow the Constitution and establish their own state church. FEMA tried to hide behind it. But Congress believes that houses of worship are deserving of the same federal assistance as other community buildings and overruled FEMA’s objections. Some folks want to over-enforce it by using it to sweep any mention of religion out of the public square. But the Establishment Clause is not optional. Nor is it a bully pulpit for state-enforced secularism. And it does not prohibit any government funds from touching anything that could ever be religious.

To “go through” the Establishment Clause, government action must meet three requirements: it must have a secular purpose, it must not have the primary effect of advancing or inhibiting religion, and it must not result in excessive government entanglement with religion. PALA’s purpose is to encourage Americans to be more active, and the primary effect is likely Americans who are more physically healthy, not more Americans who are Hindu. And there is no hint of entanglement here: the government isn’t getting involved in the practice of religion at all. PALA passes the test with flying colors.

But this doesn’t concede that encouraging yoga is the same as endorsing Hinduism. Just like teaching Algebra doesn’t promote Islam, and reading the Psalms as poetry in school doesn’t promote Judaism, just because yoga was derived from a religious tradition doesn’t mean that it must be a religious activity. At the end of the bear hunt, the children find their bear, and they run back through all the obstacles they encountered. But yoga is nothing to be afraid of, and if you are hunting for an Establishment Clause violation, you will have to keep looking.

April Fools’ in North Carolina?

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.

The latest church-state firestorm is over several North Carolina legislators’ proposed resolution that proclaims North Carolina’s right to establish a state religion. One can only hope that its introduction on April Fools’ Day was not a coincidence.

If you thought we settled the issue of official state-run churches years ago, you were right. The Establishment Clause prohibits the creation of an official state religion. It originally applied only to Congress, and some states famously kept their own established churches into the mid-nineteenth century. (Massachusetts was the last to shut down its state church.) In 1947, the Supreme Court declared the Establishment Clause applicable to the states, which means that North Carolina has no power to set up a state church. While serious scholars have raised questions about whether the Establishment Clause should apply to the states, one thing remains clear: states cannot run their own official churches. History shows us it’s bad for states, and bad for churches.

The good news about the North Carolina law, for all its rhetoric, is that it has no legal effect whatsoever. It is a non-binding resolution, stating the feelings of some in the legislature, but with no power to impact the state’s laws or its citizens. In that way it is the twin of what San Francisco did several years ago, when it passed a resolution condemning the Catholic Church and calling on its priests to disobey Church teachings on same-sex marriage. Both proposals were perfectly obnoxious, and completely toothless.

The stated reason for the proposal is to permit legislatures to open their meetings with prayer. Legislative prayers are an intriguing and important legal issue: the Supreme Court has permitted them in Congress, and lower courts have split over what prayers can be said at city councils, school boards, and other meetings. But this resolution is more likely to hinder than help with that issue–by affirmatively stating that some in government are trying to promote a particular faith, the resolution will make it harder, not easier, to win legislative prayer cases in court.

There are real reasons to be worried about Establishment Clause overreach. It has been used to challenge a South Carolina law that allows private, off-campus religious classes for public school students; a federal law that protects the First Amendment rights of prisoners; and an Arizona scholarship program that helps students attend the schools that are best for them. Happily, the courts beat back each of these challenges. But they demonstrate that extreme readings of the Establishment Clause can do real harm to programs that help real people. The North Carolina resolution merely shows us that bad legal advice is not limited to one side of the Establishment Clause debate.

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.


Becket Fund files Supreme Court Amicus Brief in AID v. AOSI

Prof. Eugene Volokh filed an amicus brief on behalf of The Becket Fund and Christian Legal Society in AID v. AOSI today. In our brief, we argue that it is not “consistent with the First Amendment for the government to condition the receipt of a grant on the recipient’s agreement to make an affirmative policy statement that may be antithetical to the recipient’s beliefs.” Check out the blog post on The Volokh Conspiracy here:

I’m pleased to report that my Mayer Brown LLP colleagues Andrew Frey and Michael Rayfield and I have just filed a friend of the court brief on behalf of the Becket Fund for Religious Liberty and the Christian Legal Society in Agency for International Development v. Alliance for Open Society International, which will be argued before the U.S. Supreme Court later this month.

SCOTUSblog has a summary of the case by Prof. Stephen Wermiel here:

The legal issue is a critical one because the government attaches many conditions to the receipt of federal funds. The leading case is one decided by the Supreme Court in 1991, Rust v. Sullivan. The case involved federal funds appropriated for family planning services. To implement the part of the law that prohibited use of federal funds for abortion as a means of family planning, in 1988 the Department of Health and Human Services issued regulations prohibiting organizations that received funds from counseling about or advocating for abortion or from referring patients to abortion providers. Just as in the case of the anti-prostitution rule, family planning organizations were allowed under the regulations to maintain entirely separate, independent abortion counseling programs that had separate staffs, facilities, budgets, and recordkeeping.

Doe v. Elmbrook: A Tale of Two Graduations

Which would you choose?

The Supreme Court has been asked to decide whether it is unconstitutional to hold high school graduations in a church auditorium. If the Supreme Court agrees to hear the school district’s appeal, it has the potential to become one of the most significant church–state cases in many years.

For years Brookfield East High held their graduation ceremony in their school gymnasium, which was hot, cramped, and uncomfortable–lacking air conditioning, adequate seating, adequate parking, or adequate handicapped facilities. At the students’ request, the school moved graduation to a nearby church auditorium.

Want to see the difference?

You can read our petition to the Supreme Court here, and see more photos of the spaces here. The Supreme Court is expected to announce on April 15 whether it will review the case.




Religious Liberty and the Same-Sex Marriage Cases: the Arguments

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

The briefing is now complete in the same-sex marriage cases to be argued on Tuesday and Wednesday at the Supreme Court, and we have seen a number of responses to the amicus brief submitted by the Becket Fund. The Becket Fund does not take a position on same-sex marriage as such, but is concerned instead about the religious liberty implications of recognizing same-sex marriage. In our brief we pointed out that one rational basis for Congress and the voters of California to preserve the previous definition of marriage was the realization that if same-sex marriage were recognized by court action, a whole host of religious liberty conflicts would logically follow. We therefore urged the Court to allow the political process time and space to carefully balance competing societal interests, including religious liberty, rather than constitutionalizing the issue, removing it from the political process, and thereby creating a frozen conflict similar to the one that prevails with respect to abortion.

For an issue that garnered only footnotes in the parties’ briefing, there was a remarkable amount of amicus briefing on religious liberty, responding both directly and indirectly to our brief. In this blogpost, I will summarize the main arguments made in opposition to our brief and provide some responses. I have attempted to make a comprehensive review, but given the sheer volume of briefing in this case, I may well have missed some religious liberty briefing; I also have not attempted to describe every single religious liberty-related argument here. The opposing briefs fall into four main categories:

Briefs that whistle past the graveyard. These briefs mention the religious liberty issue, but assert in a perfunctory way that there are no real religious liberty concerns involved. Typical of this genre is the amicus brief of the United States in the Prop 8 case. In footnote 7, the United States refers to potential religious liberty problems, but dismisses them by quoting dicta from the California Supreme Court’s In re Marriage Cases decision: “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs.” As we point out in our brief, the issue is not the ability to adopt a religious policy, but the ability to carry out that policy in the wider world without civil liability or government penalty. And as we also point out in our brief, the solemnization issue is a red herring. The dicta in In re Marriage Cases are thus irrelevant to the concerns we raised in our brief. Finally, the United States says that religious liberty motivations for voting for Prop 8 would constitute “private biases” and therefore not provide a legitimate justification for the law. But we aren’t talking about the protection of particular religious beliefs, but the protection of religious liberty which is of course a public, and vitally important, interest, one enshrined in the First Amendment. Seeking to protect religious liberty is hardly “private bias.”

Other briefs also try to wish the religious liberty issue away. The Brief of Ken Mehlman and others says that religious liberty is a legitimate concern but, in what can only be called an ipse dixit, is “convinced” that adoption of same-sex marriage will pose no threat to religious liberty. The Brief of Former Senators also focuses on the solemnization red herring, saying that there will be no religious freedom problem because religious organizations can decide which marriages to officiate or not. Two other briefs, from foreign law scholars, and from international human rights advocates make the same mistake, irrelevantly arguing that foreign jurisdictions have not forced clergy to officiate over same-sex marriage ceremonies.

This cursory treatment of the religious liberty issue, combined with an inordinate focus on the spurious solemnization issue, make these briefs unserious contributions to the religious liberty discussion, and unhelpful as guides to the real religious liberty issues at stake.

Briefs that say anti-discrimination laws make religious liberty concerns irrelevant. In this category are the Brief of the Episcopal Bishops of California and others, the Brief of the Anti-Defamation League, and the Brief of the California Council of Churches, all filed in the Prop 8 case. These briefs respond directly to the Becket Fund’s brief by stating that religious liberty concerns could not legitimately support adoption of Prop 8, because Prop 8 did not change existing protections for civil unions under California law. Thus these briefs claim that the discrimination statutes will apply in the same way both with or without Prop 8; in their view, it was therefore irrational for voters to be concerned about the religious liberty effects of same-sex marriage in California.

These briefs are wrong. First, they ignore the fact that the Prop 8 case is not just about Prop 8. If Prop 8 is invalidated, it is quite possible that the rationale for other state traditional marriage laws will be fatally undermined. Just as Roe v. Wade was not just about the Texas statute at issue there, the marriage cases are not just about Prop 8 and DOMA. Thus the anti-discrimination laws of other states are very important to the prudential decision before the Court, which is why we listed many of them in the appendix to our brief.

More fundamentally, these briefs display an ignorance of what is really at stake for religious organizations in the Prop 8 litigation. With same-sex marriage, the relevant laws in a few jurisdictions may be largely unchanged–though the vast majority will in fact change–but the religious problems will be fundamentally different. For many religious organizations, recognizing a relationship as “marriage” is a very different, and much more momentous, thing than recognizing it as a civil union, because marriage already has a specific meaning within that set of religious beliefs. For example, in the Catholic tradition, use of the word “marriage” can create a greater level of “scandal”—a stumbling block to the faith of others—than a civil union might. This is true for other religious traditions as well. Moreover, forcing religious officials to contradict themselves over what relationships they describe as marriages—one definition from the pulpit and another in managing church employees or interacting with the outside world—makes it much harder for a particular religious organization to teach its message, both to its own adherents and to the rest of the world. Finally, municipal non-discrimination ordinances in California that bar gender and marital status discrimination but not sexual orientation discrimination will be triggered by invalidation of Prop 8. Prop 8 therefore makes a significant difference, even with the California civil unions statute.

Briefs claiming that religious liberty is not a legitimate governmental interest supporting DOMA. Though there are others, the main brief making this argument is the brief filed by the Anti-Defamation League and others in the Windsor case.

Perhaps chastened by the existence of the First Amendment, the brief grudgingly admits that “protecting religious liberty could in some circumstances be a legitimate government interest”; but then it says that DOMA does not further that interest. First, the argument goes, DOMA cannot protect religious liberty because it does not protect “equal liberty” for religions that favor same-sex marriage. This badly misunderstands our argument. Keeping DOMA as it is today does not subject any religious organizations or individuals to liability for acting in accordance with their religious beliefs. No church is being sued for discrimination because it proclaims its religious belief in same-sex marriage (nor should it be); they have perfect liberty. But exactly the opposite will occur where same-sex marriage is adopted without protections for conscientious objectors—churches, synagogues, and other religious organizations will be sued. Religious liberty concerns what the government does to religious people, not whether religious people see their policy preferences become law.

The brief then goes on to say that concerns about lawsuits against religious individuals and institutions are “nonsensical” because DOMA won’t trigger state anti-discrimination laws. But DOMA will of course trigger federal anti-discrimination laws forbidding sex discrimination and marital status discrimination. See, e.g., 20 U.S.C. § 1087tt (prohibiting gender and marital status discrimination in student lending). And there are many federal laws and regulations that would be triggered.

Finally, in a further indication of its unreliability, this brief also refers to “the Becket Fund’s own religious perspective.” But as many of the amici on the brief know well (though perhaps not their counsel at Ropes & Gray) this is a false statement: the Becket Fund does not have a religious affiliation, it includes staff members with very different religious backgrounds (including Protestant, Catholic, Jewish, and Muslim staff), and it represents people from a great variety of faith traditions in seeking religious liberty, including people with opposing views on same-sex marriage.

Briefs that agree with us about the danger to religious liberty. Finally, there are several briefs that agree with our conclusion that religious liberty will be deeply affected by adoption of same-sex marriage. These briefs are therefore in disagreement with all of the briefs that claim there won’t be any problem at all. Two were submitted by the American Humanist Association and others—one in the Prop 8 case and one in the DOMA case. Those briefs agree with the Becket Fund that there will be wide-ranging conflicts between same-sex marriage and religious liberty; they just think that the religious organizations deserve to lose those conflicts. In reading these unashamedly religion-hostile briefs, one detects a certain note of glee that religious organizations could soon be getting their comeuppance. These briefs amply support the points we made in our amicus brief—there will be conflicts with religious liberty rooted in the recognition of same-sex marriage. They even add a point that we did not make—some groups would relish suing religious organizations with conscientious objections to same-sex marriage.

Perhaps the most interesting brief opposing ours is the brief submitted by Douglas Laycock, Marc Stern, and Thomas Berg on behalf of the American Jewish Committee. It is no secret that the Becket Fund has worked with each of these noted scholars in the realm of religious liberty, though we often have deep disagreements with them, as we do in this case. Their brief agrees strongly with us that significant religious liberty problems will follow from adoption of same-sex marriage without religious liberty protections, and describes them in detail. However, they argue that, given the constitutional case for same-sex marriage, Prop 8 and DOMA cannot be justified solely on the basis of the “prophylactic” effect they can have in preventing the threat to religious liberty. Instead the Supreme Court should decide in favor of same-sex marriage while protecting religious liberty at the same time.

In response, we would say two things. First, one of the questions we address in our brief is whether there was a rational basis for Prop 8 and DOMA. The AJC brief does not address rational basis analysis because it holds that heightened scrutiny is appropriate for sexual orientation claims under the Equal Protection Clause. The two briefs thus talk past each other when it comes to the appropriate level of scrutiny. Second, the AJC brief says the Court should “take responsibility” for the predictable effects on religious liberty if same-sex marriage is adopted, but it is hard to see how the Court might do so in the cases before it. As we argued in our brief, the more reliable course for protecting religious liberty is to leave the question of same-sex marriage within the political process where legislative accommodations can be worked out.

To sum up, the question of religious liberty is very much before the Court, despite the parties’ relative silence. The briefs submitted in opposition to our amicus brief contradict each other—some say nothing to see here, move along; others say there are religious liberty problems but they are justified, or that they just need watching. None of them convincingly refute our brief. As we said there, the best course for dealing with the deep-seated social and moral differences lurking within these cases is to allow the political process time and space to work. The alternative is to corrode the foundations of the American democratic polity by ending the debate prematurely and turning a largely solvable conflict into one that is intractably frozen.


Needy Kids 1, Anti-Catholic Bigots 0

By Diana Verm, Legal Counsel

As of last Thursday, low-income schoolchildren won’t have the specter of religious discrimination hanging over their chances for a scholarship in Colorado, at least for the time being. In a major victory for religious freedom, the Colorado Court of Appeals yesterday upheld a Choice Scholarship Program that allows students to apply for partial scholarships to attend a private school of their choice, including some religious schools.

The Program had been challenged by the ACLU and Americans United for Separation of Church and State for supposedly violating Colorado’s “Blaine Amendment,” a state constitutional provision that forbids state aid to “sectarian” institutions. Similar to racist Jim Crow laws enacted during the same time period, Blaine Amendments are the hallmark of a nineteenth century movement of anti-Catholic hostility that attempted to purge “sectarian,” or Catholic, influence from the public square, especially public schools. The movement was led by Senator James G. Blaine, who pushed an amendment to the U.S. Constitution that would have mandated discrimination against religious groups; it failed nationally but was inserted into many state constitutions.

The Becket Fund filed an amicus brief at the Court of Appeals highlighting the anti-Catholic sentiments behind the Blaine Amendment and the constitutional implications of discriminating against religion through legislation. In a thorough and well-reasoned opinion, the Court of Appeals did not address that question, holding that the scholarships didn’t violate the Blaine amendment at all: scholarships for the purpose of supporting students and parents do not necessarily constitute aid to religious schools. This is wise judging, because relying on the Blaine Amendment would have given renewed power to the anti-Catholic bigotry that motivated Colorado’s Blaine Amendment. What’s worse is that would have harmed Colorado kids today.

The dissenting judge, however, addressed the Becket Fund’s arguments head on. He admitted that there was obvious Catholic hostility behind the adoption of the Colorado Blaine provision. But he said that this hostility was the fault of the Catholics themselves because they asked for a equal seat at the table in state funding formulas. Blaming the victim is a poor method of constitutional interpretation, particularly when it comes to discriminatory laws. Could Jim Crow laws have been justified because African-Americans were publicly asking for the right to vote? Should needy schoolchildren today suffer because Catholics were too uppity in the 1870s? That kind of rule makes no sense, and the majority rightly rejected it.

It is likely that this case will be appealed to the Colorado Supreme Court. Let us hope that the Supreme Court will follow the Court of Appeals in upholding education equality in Colorado.

Fighting the Stupid Public Square

By: Kyle Duncan, General Counsel

If a city includes a nativity scene in its holiday display, must it also include a sign mocking the Christmas story as a toxic myth? If the scene has an angel, must it have a devil, too? Raising these strange questions is a new strategy adopted by militant atheist organizations like Freedom from Religion Foundation (FFRF). These groups—not content to practice their atheism privately—seek to scour public life of all religious references: nativity scenes, “Under God,” Ten Commandment monuments, and the like. Recently, however, they have advanced the argument that, if there are to be any religious messages in the public square, then there must be equal space for their anti-religious messages. A kind of religious fairness doctrine. Accepting this premise has resulted in some bizarre spectacles—as when a Northern Virginia county allowed “Skeleton Santa” to be crucified on its courthouse lawn, or when the City of Santa Monica sponsored a homage to the “Pastafarian” deity, the Flying Spaghetti Monster. Indeed, the Spaghetti Monster’s incarnation convinced Santa Monica to ban all holiday displays. This new atheist strategy still seeks a “Naked Public Square,” but it gets there by first creating what one might call a “Stupid Public Square.”

The U.S. Sixth Circuit Court of Appeals recently struck a powerful blow against this tactic. Freedom from Religion Foundation v. City of Warren, Michigan, concerned a holiday display placed annually in Warren’s civic center, featuring secular and religious symbols, such as a tree, reindeer, Santa’s mailbox, nutcrackers, candy canes, a “Winter Welcome” sign, and a nativity scene. This last item drew the atheists’ anathema. After repeatedly petitioning Warren’s Mayor James Fouts to remove the nativity scene, FFRF finally threatened to sue unless the City added an “sandwich board” announcing this:

At this season of
may reason prevail.
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world, [sic]
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.

While more nuanced than Flying Spaghetti Monster, the verses did not soften the heart of Mayor Fouts, who fired back a letter rejecting the sandwich board because he thought its message “antagonistic toward all religions.” The Mayor added that he had “allowed a display in city hall celebrating Ramadan,” but that he “would never have allowed a sign next to the Ramadan display mocking or ridiculing the Moslem religion.” The Mayor ended with this plea: “During this holiday season, why don’t we try to accomplish the old adage of ‘Good will toward all’?” Unmoved, FFRF sued.Writing for a unanimous panel, Sixth Circuit Judge Jeffrey Sutton easily found the nativity scene did not establish religion. There was really no serious question about that: the Supreme Court approved virtually the same display over three decades ago. Of greater significance is Judge Sutton’s methodical demolition of the argument that the City of Warren must balance the nativity scene with an anti-religious message. Judge Sutton explained that the holiday display is the city’s speech and no one else’s. By selecting items for its display, Warren crafts its own message; it does not create “a seasonal public forum” to host competing views of the holidays. The city therefore gets to choose messages and symbols it likes (like “Winter Welcome,” Santa’s mailbox, and a nativity scene), and to exclude those it doesn’t (like a sandwich-board proclamation that “Religion is but / Myth and superstition / That hardens hearts / And enslaves minds”).

To be sure, Judge Sutton explained, the First Amendment and our political process give atheists every right to use their own speech to protest the nativity scene. They can stage an anti-nativity rally outside city hall. They can run likeminded candidates against the Mayor. They can complain at city council meetings. They can pass out leaflets and write op-ed columns. They can produce infomercials warning Warren’s citizens about the heart-hardening and mind-enslaving powers of a group of statues representing Jesus, Mary, Joseph, the three Magi, shepherds, an Ox and an Ass. But what they cannot do, as Judge Sutton explained, is “commandeer the [city’s] own voice to deliver its message.”

Forget law; a basic knowledge of civics is enough to demolish this new atheist tactic. Government lives by words and symbols. Any government doomed to give “equal time” to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial. And, as Judge Sutton asked, “[c]ould [the government] urge people to ‘Register and Vote,” ‘Win the War,’ Buy U.S. Bonds’ or “Spay and Neuter Your Pets’ without incurring an obligation to sponsor opposing messages? Doubtful.”

One doesn’t have to dream up hypotheticals. When local governments have felt pressured by FFRF’s specious argument, absurdity has soon followed. Children in Loudoun County, Virginia were terrorized during the Christmas season by the county-approved Passion of Skeleton Santa. Santa Monica found itself sponsoring a shrine to the Flying Spaghetti Monster before simply exiting the holiday display business altogether. And Warren was nearly forced to adorn its display with the poetic equivalent of a sign saying, “You religious folk sure are mean and dumb.”

The evangelical atheist strategy is not subtle. Where courts cannot be convinced to erase all religious symbolism from public space, those spaces must be made safe for religion to be mocked and degraded until the only hope of civic peace is to ban displays altogether. Where the Naked Public Square cannot be commanded directly, the Stupid Public Square is a promising first step.

Judge Sutton’s exposure of the legal and intellectual bankruptcy of this pernicious tactic is crisp, funny, and devastating. May it stiffen the spines of city council members the next time some proselytizing atheist delivers the threat, perhaps in verse:

Let reason prevail:
Lose the nativity scene,
or we crucify Santa.

Read the Sixth Circuit opinion here.

Photo credit:

HHS could learn a thing or two from the USDA

Unlike HHS, it sounds like the USDA knows how to work with religious groups to accommodate religious exercise. From Howard Friedman at Religion Clause:

Ultra-Orthodox Jewish schools seeking religious accommodations in complying with federal school nutrition rules

The Forward reported yesterday on the unique problems of religious accommodation in complying with the federal Healthy, Hunger-Free Kids Act of 2010 faced by ultra-Orthodox Jewish schools. Under the Act and implementing regulations, federal assistance for a school’s food program is available only if the school’s menus meet specified nutritional guidelines. Orthodox Jewish schools have encountered two issues, only one of which has been resolved so far. First, government standards limited the amount of grain-based food that could be served. Orthodox Jewish students needed a slice of bread in order to say the traditional Hamotzi– the blessing over bread with which each meal is begun. That left no room for other grain-based foods. USDA officials agreed that schools could increase the amount of grain consumption, so long as it stayed within the calorie limit set out in USDA regulations.

The second issue involves the requirement to serve leafy dark-green vegetables as part of school meals. Ultra-Orthodox standards for kosher observance require special inspection of leafy vegetables to be sure that they are not insect infested. This would pose prohibitive costs on schools, and if they did not provide for inspection parents would advise their children not to eat the vegetables. The schools are consulting with a nutritionist to attempt to find equally nutritious alternatives.

The USDA rightly recognizes that there are ways both to further the government’s interest in promoting health and to respect religious believers’ right of conscience. By contrast, HHS has rejected numerous alternatives that would further “access” to health care while still protecting religious believers’ right of conscience.

New York City targets Orthodox Jews — again

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

The New York Yankees may be attempting to trademark the term “Evil Empire,” but the government of New York City is making a strong bid for true ownership of the name. The City government’s latest foray into regulatory excess is its lawsuit against Hasidic Jewish businesses in Brooklyn that post signs asking customers not to enter the shop if they are not dressed modestly, for instance not wearing shoes or showing a bare midriff. The City’s lawsuit claims that these mom-and-pop operations are violating City ordinances against gender and religious discrimination.

As a legal matter, these lawsuits verge on the silly. The signs make no distinction on the basis of gender or religion–both men and women, Jews and non-Jews have to wear shoes. Nor has the City offered any evidence that a customer has ever been turned away from one of these stores on that basis. Indeed, the City has yet to explain how these modest requests for modesty differ in any significant way from the ubiquitous “No Shoes – No Shirt – No Service” signs everyone knows. Nor can the City’s spurious interest in allowing the barefoot to shop in Brooklyn outweigh the interest of religious business owners in running their businesses in accordance with their beliefs.

But there is a more sinister side to the story. This bureaucratic targeting of Orthodox Jewish businesses is similar to another ongoing City effort to target a subset of the Orthodox Jews — the City Health Department’s unprecedented attempt to enlist Orthodox religious officials in its efforts to regulate the Jewish practice of circumcision. This regulatory intrusion into the zone protected by religious liberty has drawn its own lawsuit from Jewish religious organizations who want to keep the City out of religious ceremonies; it will likely be heard at the federal Second Circuit Court of Appeals later this year.

Why all the targeting? One suspects it may have something to do with the significant demographic changes going on in New York City’s Jewish population. Because of differing birth and adherence rates, the future of Judaism in New York City increasingly appears to be Orthodox. Indeed, at least 64% of Jewish children in the New York City area are Orthodox. It may be that unreasoning fear of this coming demographic change is what is driving recent efforts to use the power of government to suppress Orthodox religious practices.

But the City’s treatment of the Orthodox is unfortunately also part of a larger trend of antagonistic regulation directed at religious minorities that City officials disfavor, such as Evangelical and Pentecostal Christians. In that sense, the City’s attitude towards religious minorities has regressed back to the days of colonial New Amsterdam. In 1657 its citizens issued the Flushing Remonstrance, which stood up for the oppressed religious minority of the time, the Quakers. Perhaps it is time for the citizens of New York to issue a new remonstrance to government officials who are targeting the religious minorities of today.

Homeland Security admits it got it wrong on religious freedom

In essence FPS and the IRS are saying that having cake at employee birthday parties is more important than the First Amendment right to exercise one’s religion

homeland Tagore1

By: Eric Rassbach, Deputy General Counsel, Becket Fund for Religious Liberty

Tomorrow the Fifth Circuit Court of Appeals in New Orleans will hear a major case concerning the clash between religious liberty and federal security policies. The case concerns Kawaljeet Tagore, an IRS accountant who was fired because she wore a kirpan to work after she underwent Sikh baptism. The kirpan is a Sikh article of faith similar to a short knife that baptized Sikhs must wear at all times; Ms. Tagore’s kirpan was similar to a small butter knife both in size and sharpness. An arm of the Department of Homeland Security, the Federal Protective Service (FPS) said Ms. Tagore could not enter the federal building in downtown Houston because she was wearing the kirpan. She refused to take it off in accordance with the beliefs of Sikhism and was then fired by her employer the IRS.

The worst thing about the case is that FPS allows all kinds of far sharper knives into the Houston federal building, including cake knives, box cutters, and very sharp maintenance tools. In essence FPS and the IRS are saying that having cake at employee birthday parties is more important than the First Amendment right to exercise one’s religion. That stands American values on their head.

The remarkable development in the past week is that the feds are now *admitting* that they got it wrong all along. In the runup to their day in court, the feds revealed a new policy that had apparently been in the works for months: not only will there be no categorical ban on religious items like Ms. Tagore’s kirpan, but FPS also has to make an extra effort to allow in religious items that pose no danger to federal buildings. This new policy was embodied in a FPS Directive that went into effect last year but was kept under seal at the government’s request until days ago. The policy contains specific provisions to deal with Sikh religious objects, but it is designed to accommodate *all* religious groups who do not want to give up their religious identity when they walk through the door of a federal building. In short, Ms. Tagore — whose lawsuit surely led to the issuance of the Directive — has already won a major victory for the religious freedom of not just Sikhs, but believers of all faiths.

The Fifth Circuit appeal will be argued by Scott Newar, a prominent Houston civil rights attorney who has been co-counsel with the Becket Fund and the Sikh Coalition in representing Ms. Tagore. People of good will of all faiths should support Ms. Tagore’s effort to vindicate her rights as an American citizen. Here’s hoping the Fifth Circuit does too.




Supreme Court asked to revisit eminent domain abuse

By: Eric Rassbach,
Deputy General Counsel, The Becket Fund for Religious Liberty

Yesterday a broad coalition of civil rights and public policy groups, including the Becket Fund, the CATO Institute, and others joined together in an amicus brief to ask the Supreme Court to take up a case, Ilagan v. Ungacta, involving eminent domain abuse.

The case itself concerns the use of eminent domain by the government of Guam, a US territory, to take the Ilagan family’s private property, ostensibly for the purpose of economic development. The taking benefited the politically powerful former mayor of Agana (the capital of Guam); the Ilagan family claims that economic development was just a pretext for the mayor’s private benefit.

The issue of eminent domain abuse is very important to religious groups because they are often its target. As the Becket Fund pointed out years ago in its amicus brief in the notorious Kelo case, religious groups don’t create tax revenues for government and thus are considered less “useful.” This leads to pretextual takings for economic development or other reasons. Indeed, in a particularly egregious case, the Becket Fund once represented a California church that had its land taken so the city could hand it over to Costco and harvest property and sales taxes. The Becket Fund also represented an Albanian mosque in New Jersey that had its land seized, supposedly for “open space.” In both cases, federal courts rejected the takings and prevented the eminent domain abuse.

It is high time that the Supreme Court made clear that eminent domain should not be used for private benefit or for “church cleansing” a municipality. The Becket Fund therefore urges it to take the Ilagan case and clarify the law.

Read what others are saying about this issue at Volokh Conspiracy and Cato at Liberty blogs.

Pastor Rick Warren on Hobby Lobby Lawsuit

Statement by Rick Warren on Hobby Lobby Lawsuit:

“Every American who loves freedom should shudder at the precedent the government is trying to establish by denying Hobby Lobby the full protection of the First Amendment. This case is nothing less than a landmark battle for America’s FIRST freedom, the freedom of religion and the freedom from government intervention in matters of conscience. Religious liberty is often called our “First Freedom” because it is the first phrase of the first sentence of the First Amendment of our Bill of Rights. Freedom to practice your religion is listed before the freedom of speech, freedom of the press, freedom to assemble, and the right to bear arms. The first American settlers, Pilgrims, came to America for this very reason – seeking the freedom to PRACTICE their religion, which they were denied in Europe. This is the freedom that made America unique from all other nations.

Today, the government has tried to reinterpret the First Amendment from freedom to PRACTICE your religion, to a more narrow freedom to worship, which would limit your freedom to the hour a week you are at a house of worship. This is not only a subversion of the Constitution, it is nonsense. Any religion that cannot be lived out … at home and work, is nothing but a meaningless ritual.

Some flippantly say ‘A business cannot be a Christian’ but the truth is, every business is either moral or immoral, ethical or unethical, depending the values they base their business on. When the government starts coercing businesses to violate their religious, moral, and ethical values, that is a flagrant violation of our Constitution.

I predict that the battle to preserve religious liberty for all, in all areas of life, will likely become the civil rights movement of this decade. If it takes a popular movement to reign in overreaching government, then Hobby Lobby’s courageous stand, in the face of enormous pressure and fines, will likely be considered the Birmingham bus boycott, where good citizens finally got fed up with having their rights trampled on, and decided to challenge those who favor conformity over freedom.

Regardless of your faith, you should pay attention to this landmark case, and pray for a clear victory for freedom of conscience.”

— Pastor Rick Warren

Quiet Surrender in Precedent-Setting Counselor Conscience Case

Eastern Michigan University quietly threw in the towel on Monday, settling its lawsuitwith its former student Julea Ward. The University had expelled Ward from her graduate counseling degree program when she sought to use a patient referral mechanism that other student counselors were allowed to use. Her sin?  She wanted to refer patients for religious reasons: she did not feel that she could in good faith provide same-sex couples advice on their relationship because she believed those relationships to be sinful. The problem for the University was that it allowed student counselors to refer patients for all sorts of reasons and Ward violated no written University policy; in short, Ward was being targeted. The University’s punishment of Ward earned it a rebuke from the federal Sixth Circuit Court of Appeals in Cincinnati, which held that the University was “permitting secular exemptions but not religious ones and failing to apply the policy in an even-handed, much less a faith-neutral, manner to Ward.” This reasoning followed the Becket Fund’s amicus brief filed in the appeal.

Ward v. Wilbanks is another example of government officials using the power they have to try to force a kind of ideological conformity onto those who dissent from academic pieties. The University’s decision to give up, pay Ward, and issue her a clean academic record indicates that the First Amendment is still a significant bulwark against the bureaucratic urge to squelch diversity of ideas. But it is a bulwark that still requires defenders.

Becket Fund Defends Photographer in New Mexico Supreme Court

Becket Fund amicus brief steps in for religious freedom of New Mexico photographer forced to pay fines for exercising beliefs, argues that RFRA applies to private suits

By: Asma Uddin

Last week, the Becket Fund filed an amicus brief to aid the New Mexico Supreme Court in its review of the case of an Albuquerque photographer forced to pay almost $7,000 for declining to photograph a same-sex commitment ceremony.

Among the issues the Court will consider is whether the photographer, Elaine Huegenin, is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act (NMRFRA). The lower court had refused to apply NMRFRA, holding that it did not apply to a suit that did not involve a government party.

The Becket Fund brief argues forcefully that the lower court was wrong:

“That conclusion was incorrect. It contradicts the holdings of most of the United States Courts of Appeals with respect to the federal RFRA; it contradicts the text, history, and purpose of NMRFRA; and it produces anomalous results. This conclusion is confirmed by new research into the legislative history of the disputed language—research that goes far beyond the evidence considered by any previous court.”

Through extensive analysis into NMRFRA’s text, purpose, and legislative history, along with an overview of relevant policy implications, the brief makes critical and novel arguments sure to make an impact beyond this case.

In the photo: Elaine Huguenin of Elane Photography. Courtesy: Alliance Defense Fund


Hosanna-Tabor: the Gift that Keeps On Giving

Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in Cannata v. Catholic Diocese of Austin.

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

Many prominent First Amendment scholars have said (see Professor McConnell and Professor Laycock’s law review articles) that the Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in New Orleans. In Cannata v. Catholic Diocese of Austin, the Fifth Circuit held that a Catholic parish’s music director could not sue the parish for alleged employment discrimination because of the important role he played in organizing the parish’s weekly masses. Writing for the Court, Judge Dennis adopted the reasoning of Justice Alito’s and Justice Kagan’s concurring opinion in Hosanna-Tabor, stating that civil courts could not interfere with Cannata’s firing because he “played an integral role in the celebration of Mass and that by playing the piano during services, Cannata furthered the mission of the church and helped convey its message to the congregants.” This adoption by the Fifth Circuit of the Alito/Kagan approach represents an adoption of an even stronger form of protection for religious autonomy, and is likely to be adopted other Courts of Appeals as well.

The effects will be wide-ranging. This decision by the Fifth Circuit will not be the last to apply Hosanna-Tabor, and indeed it has already been invoked in the 30-plus HHS mandate lawsuits and other contexts. That means that the case’s aftershocks will continue to be felt for many years to come. And because of the strong stand Hosanna-Tabor took for the freedom of religious organizations to govern their internal affairs, the case looks to be the gift that keeps on giving.

Amicus Briefs Filed in First Federal Appeal Regarding the HHS Mandate

“The trial court rulings in the Wheaton College and Belmont Abbey College cases are frightening examples of judicial abdication that permit the expansion of executive power far beyond its constitutional limits.” — Ilya Shapiro

13 states and 9 key institutions filed briefs on Friday in support of the Becket Fund’s appeal to the D.C. Circuit on behalf of Wheaton College and Belmont Abbey College in their challenges to the HHS mandate:

Illya Shapiro with the Cato institute wrote an excellent blog post on their amicus and the frightening examples of judicial abdication this mandate presents:

The legal point here is somewhat technical, but incredibly important for anyone who thinks his freedom of conscience may be violated by the government in the future (a category that includes essentially everyone). …

We argue that the trial court misapplied the constitutional test for standing by not focusing on the facts that existed at the outset of the case; subsequent government actions, such as the ANPRM, are irrelevant to the preliminary question of standing. We also argue that the trial court’s ruling compromises the principle of separation of powers by giving the executive branch the power to strip a court of jurisdiction merely by issuing a safe harbor pronouncement and an ANPRM (which doesn’t legally bind an agency to act in any way).

It is thus entirely speculative whether the agency will alleviate the harms that the colleges are suffering. Without intervention from the courts, therefore, the colleges are left in legal limbo while facing immediate and undeniable harms to their religious freedom: On one hand, they can’t challenge the constitutionality of a final regulation. On the other, they can’t very well rely on a proposed regulatory amendment that may be offered at some unknown point in the future.

The trial court rulings in the Wheaton College and Belmont Abbey College cases are frightening examples of judicial abdication that permit the expansion of executive power far beyond its constitutional limits. The D.C. Circuit will hear argument in these consolidated cases later this fall.


There are now over 35 separate lawsuits challenging the HHS mandate, which is a regulation under the Affordable Care Act (aka “Obamacare”).

The Becket Fund led the charge against the unconstitutional HHS mandate, and in addition to Wheaton and Belmont Abbey represents: East Texas Baptist University, Houston Baptist University, Hobby Lobby, Colorado Christian University, the Eternal Word Television Network, and Ave Maria University.

Stay tuned.




What does New York City have against ordained ministers?

By: Eric Rassbach

The long-running Bronx Household of Faith case we previously blogged about here is on another trip to the Second Circuit. The case concerns New York City’s repeated attempts to keep churches–and only churches–from renting public school buildings on the weekends like other community groups. In the latest version of its anti-church policy, the City discriminates against religious groups that ordain their ministers and follow a prescribed order of worship. For the City, meetings that include ordained ministers and an order of worship are “religious worship services” that must be excluded. However, groups that engage in hymn-singing, prayer, and other activities are not–in the City’s definition–worshipping and therefore can get access like other community groups.

Yesterday the Becket Fund, along with Professor Michael McConnell of Stanford Law School, submitted an amicus brief to the Second Circuit arguing that the Religion Clauses of the First Amendment do not allow New York City to discriminate against churches based on internal church decisions about whether to ordain ministers or follow an order of worship. Indeed, as the brief argues, New York City should not even care about how churches organize their worship services, much less penalize them for it:

In its efforts to win litigation more than a decade old, the Department has arrived at a Policy that requires it to inquire into and discriminate against religious groups that follow a prescribed order of worship or ordain ministers. But under the Religion Clauses, these are quintessential church decisions that the Department has no business interfering with. True church-state separation demands that the Policy be struck down.

The Becket Fund hopes that the federal courts will tell New York City “fuhgeddaboutit” when it comes to discriminating against churches.

Also assisting on the amicus brief was attorney Deborah J. Dewart.


Becket Fund on FOX: Embattled Tennessee Mosque Opens

After two years of opposition, the Islamic Center of Murfreesboro is finally open to use its newly built mosque for prayer, thanks to a lawsuit filed by The Becket Fund for Religious Liberty in July.

The federal court ruled in favor of the Becket Fund’s request that all houses of worship be treated equal, including the Murfreeboro mosque, and cleared the way for the mosque to receive a certificate of occupancy on the same terms as any other house of worship.

“You can’t treat a religious group differently because it’s unpopular,” said Lori Windham of the Becket Fund in a Fox News report. “That’s a rule that will protect the mosque today, a synagogue tomorrow and a church on Sunday.”

Watch the Fox News video below

‘The Right to Be Wrong’ Now Available in Paperback

Becket Fund founder Seamus Hasson’s definitive book on religious liberty is now available for purchase in paperback.

Heralded by many as “the best discussion of religious liberty” available, “The Right to Be Wrong” offers an invaluable–and easy to read–examination of the fundamental right of all people to maintain the right to be wrong.

After 20 years of defending the free expression of nearly every religious tradition imaginable: Jews, Christians, Muslims, Buddhists, Sikhs, Native Americans and even Zoroastrians, Hasson dissects stories from both his career at the Becket Fund and American history that illustrate the trenches of the religious liberty culture war.

In one corner are the “Pilgrims,” referencing the early Americans of Plymouth Colony who “thought only the truth was permissible in public” and so restricted the rights of those who disagreed with their definition of truth. In the other corner are “Park Rangers,” a nick-name (with a hilarious back-story) for bureacrats and organizations who think freedom means erasing beliefs from the public square, no matter how harmless.

Pilgrims and Park Rangers, in one form or another, have fought over the place of faith in society since the founding of our country. To end this culture war we must, as Hasson thoroughly points out, defend the free expression of all faiths, even if we disagree with them. “On any given day, I think most of my clients are wrong,” he says in the book’s introduction. “But I firmly believe that, in an important sense, they have the right to be wrong.”

This is the bedrock principle of the Becket Fund, and precisely the reason why we have become the premiere religious liberty law firm for defending the free expression of all, regardless of faith or conviction. To us, there is no better way than this.

We hope you’ll add Seamus’s book to your summer reading list and learn what religious liberty is really all about. Purchase the book on Amazon, Barnes & Noble, or wherever books and ebooks are sold.


Grand Chamber of the European Court of Human Rights to decide seminal church autonomy case


The Grand Chamber of the European Court of Human Rights, the final court of appeal within the European human rights system, has decided to hear a potentially groundbreaking appeal affecting the rights of religious groups in Europe to choose their own clergy. The Becket Fund had publicly urged the Grand Chamber to take up the case, Sindicatul “Pastorul cel bun” v. Romania, because of its importance for the freedom of churches and other religious organizations across Europe. In the Becket Fund’s view, the case has the potential to become a “Hosanna-Tabor for Europe,” referring to the Becket Fund’s successful church autonomy case at the United States Supreme Court earlier this year. The Grand Chamber’s decision suspends the previous ECHR decision in the case.

We blogged about the Sindicatul case here last month, when Becket Fund Deputy General Counsel Eric Rassbach spoke at a conference focused on the case at the Council of Europe in Strasbourg, France.

The stakes could not be higher for religious organizations. As the Becket Fund argued in its briefing to the United States Supreme Court, and in the presentation at the Council of Europe, these cases, whether they arise in Europe or in the United States, boil down to a simple question: Who picks the priest? Either it will be the Church, or it will be the State. And if it is the State, that means at the end of the day judges will be selecting clergy. That is not a role that judges in a modern democratic state should seek to take on. One of the most remarkable parts of the previous panel decision now suspended was that it penalized the government of Romania for leaving this internal church matter up to the Romanian Orthodox Church.

The Becket Fund looks forward to filing an intervention at the ECHR in favor of Romania and the Romanian Orthodox Church.

Eric Rassbach Talks Religious Freedom at the Council of Europe

On June 7, 2012, Becket Fund Deputy General Counsel Eric Rassbach spoke at a conference at the Council of Europe in Strasbourg, France. Rassbach was part of a panel of legal experts including law professors and former judges of the European Court of Human Rights (“ECHR”) who were there to discuss Sindicatul “Pastorul cel bun” v. Romania, a case now pending before the ECHR. Conference attendees included around 20 ambassadors of the Council of Europe member States, representatives of different Churches in Europe, law professors, staff of the Council of Europe, lawyers, and other practitioners.

The Sindicatul case concerns a group of priests of the Romanian Orthodox Church who are seeking to form a trade union against the wishes of their bishops. The Romanian courts and the Romanian government found that the establishment of such a “rogue” union would violate the Church’s freedom of religion. The employees appealed to the ECHR, and the Third Section (a smaller panel of ECHR judges) found that the employees’ right to unionize trumped the Church’s beliefs about the duties of loyalty that a priest owes to his bishop. In March, Rassbach and Becket Fund colleague Diana Verm published an article in a Romanian law review, Revista de Drept Social, urging the ECHR’s Grand Chamber to review and reject the Third Section’s decision.

At the Council of Europe, Rassbach was asked to comment on how the United States Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission can shed light on the central questions in Sindicatul. Rassbach remarked that although Hosanna-Tabor dealt with specifically American laws in its decision in favor of church autonomy, the issue is fundamental to maintaining any pluralistic democratic society.

Church autonomy is essential not only for the benefit of the Church, Rassbach maintained, but also for the benefit of the State. Civil officials are ill-equipped to handle affairs of church administration, and doing so implicitly disrupts State neutrality on religious matters. In addition, the internal management of the Church is a private law matter that cannot be practically balanced with greater values of civil rights.

Rassbach also pointed out that church autonomy is necessary for pluralistic democracy as Europe and America become increasingly religiously diverse. Especially under such conditions, he said, it is “untenable and unjustifiable” for the State to involve itself in the inner workings of a particular church. To ensure neutral treatment of all religious groups and individuals, the State must keep its distance from any church’s organization.

The Grand Chamber of the Court will decide during the summer whether to review the Third Section’s decision.


How Will the Supreme Court’s Decision Impact the HHS Mandate?

Unless the entire act is struck down, the HHS cases move forward. Learn more here.

In the next few weeks the Supreme Court will decide the constitutionality of certain provisions of the Affordable Care Act. How does this impact the HHS lawsuits? The graphic above illustrates the three different scenarios.

The Becket Fund for Religious Liberty led the charge against the Administration’s unconstitutional HHS mandate. The Becket Fund applauds the other courageous defenders who have stepped forward and filed additional suits in defense of America’s first freedom. Today, there are 23 separate cases and 56 individual plaintiffs, representing hospitals, universities, businesses, schools, and people all speaking with one voice to affirm the freedom of religion guaranteed in the Constitution.


Scroll over the dots to learn more about each case, and visit HHS Information Central to learn more about this unconstitutional mandate.

Congress to Sebelius: “This mandate is going to wind up in the Supreme Court”


In this morning’s Congressional House hearing, Sebelius admits she did not consult Supreme Court decisions on religious liberty or have a legal memo prepared before she drafted the mandate. The mandate, unprecedented in American history, forces religious institutions to pay for contraceptives, sterilizations, and abortion-causing drugs, including the morning-after pill and the week-after pill, against their deeply held religious beliefs. The Becket Fund for Religious Liberty is the first and leading law firm to challenge this mandate–filing in four states and three circuits across the country. Read more about our lawsuits here.



Features Representative Gowdy asking Sebelius about her often repeated statement on “balancing” religious liberty and preventative healthcare.

Sebelius admits she did not consult Supreme Court decisions on religious liberty or have a legal memo prepared before she drafted the mandate.

A True Champion of Religious Freedom

His public conversion to a life of faith reverberated throughout American culture, and his work on behalf of countless marginalized and uplifted spirits. As the founder of Prison Fellowship Ministries, Colson brought his faith into the public square and refused to back down when his ministry faced lawsuits that alleged a violation of the Establishment Clause.

Colson was an intellectual giant whose contributions were honored with prestigious awards such as the Templeton Prize, the Presidential Citizens Medal, and numerous honorary doctorates.

In 2001, the Becket Fund awarded Colson its highest honor, the Canterbury Medal, for his contribution to the cause of religious freedom. Colson promoted religious freedom until his last days through his countless books and articles as well as through his influential radio and web presence, BreakPoint. In 2011, Colson delighted attendees of the Becket Fund’s Canterbury Medal Dinner honoring Eric Metaxas with the video below. Colson will be a sorely missed presence defending religion’s rightful place in American public life.


ROLL CALL: Nothing Changes with Obama’s Birth Control Compromise (by: Mark Rienzi)

By Mark Rienzi

In an episode of “The Twilight Zone,” a creepy man comes to the door of a poor family’s house holding a box. He offers them the following proposition: If they will push a button on the box, two things will happen. They will receive a large sum of money. And someone far away, whom they do not know, will be killed.

The family struggles over the moral implications of the choice. They need the money but are concerned about the killing. They know if they press the button, they will be causing someone to die. But they are not actually killing anyone directly — they are not plunging a knife or firing a gun — so perhaps they are not really doing anything wrong in pushing the button.

Does it make a moral difference that someone else would carry out the consequence they would cause by pushing the button? The family thought so and decided to press.

President Barack Obama’s proposed “compromise” announced last week leaves religious employers holding a similar box on the issue of drugs the Food and Drug Administration calls contraceptives, including some that cause abortions.

The president says his proposal should make them feel better because they will not actually be directly purchasing these services. Instead, the president promised that if these religious objectors offer insurance, he’ll simply force someone else (their insurers) to hand out the drugs for free instead.

Even if it is technically true that the religious objectors are not providing the services (and there are good reasons to believe it is false), there is no dispute that the mere offering of the policy is what triggers the employee’s right to obtain the drugs from the insurer. In other words, the act of offering an insurance policy is now like pressing the button in the “Twilight Zone” episode. The instant it is done, it triggers an unavoidable consequence, namely an automatic right to receive the drugs and services at issue.

For some religious objectors, the fact that it will technically be the insurance company providing the drugs may be enough to ease the conscience. They may believe that because they are just pushing the button to trigger someone else’s legal obligation to give the drugs out, they are not really involved. The First Amendment surely protects their right to make that moral judgment on their own.

Other religious objectors, however, take a different view. They look at the alleged compromise and believe nothing has changed. The instant they offer health insurance, they will be triggering an automatic right to these services. The drugs will flow from the insurer they selected to the employee they hired, and they will flow solely because of the religious objector’s decision to offer health insurance. For these people, the fact that they will be pushing a button that legally requires someone else to distribute the services is a distinction without a moral difference.

Who has the better moral argument? Our Constitution doesn’t care.

What matters is that all of us have the right to make our own decisions about whether an act is morally permissible. Therefore, while much has been made of the approval of some of the president’s Catholic supporters, their views are completely irrelevant to the religious objections raised by other Catholics.

Our constitutional protection of religious liberty is not a least-common-denominator proposition, in which all Quakers would lose their right to conscientious objection to war just because some can be convinced to fight. Rather, our laws protect the right of each individual to his or her own religious beliefs, regardless of whether those beliefs are reasonable, consistent or widely shared with anyone else. The approval of some Catholics is not a license for the government to force other Catholics to violate their own beliefs.

The president argues that religious objectors should be fine pushing the button to force insurance companies to give out these drugs. But for millions of Americans, slamming the door in the face of the creepy guy with the box would be an easy moral call. Of course the president and his supporters are entitled to their own moral calculus on that question, but so too are the objectors.

And therein lies the problem with the president’s approach. He is trying to micromanage the rules by which individual Americans will make decisions of conscience. This is an impossible task and one our laws rightly put beyond the reach of government.

That is why the only proposal that will make the president’s religion problem go away is also the simplest one: a complete and unconditional religious exemption for anyone who objects to any type of involvement with these drugs.

Mark Rienzi is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at Catholic University of America.

Hannah Smith on America’s FOX News Room discussing the HHS Contraception Mandate

Today, the Becket Fund for Religious Liberty was featured on both NPR and Fox News discussing our religious liberty fight against the unconstitutional HHS mandate.

Becket Fund Attorney Mark Rienzi delivered a brilliant rebuttal to the opposition’s arguments on the Diane Rehm Show. You can listen to his interview here.

Also, Hannah Smith, attorney with the Becket Fund, gave a great interview and was featured on America’s Newsroom with Bill Hemmer and Martha MacCallum. Watch the clip here.

Additionally, Michelle Malkin praised the Becket Fund last night on the Sean Hannity. Check it out here.

Stay tuned for more exciting coverage.

The Pew Forum on Religion and Public Life praises the Becket Fund as a Top Religious Advocacy Group

In the Pew Forum ‘s November 2011 report entitled “Lobbying for the Faithful: Religious Advocacy Groups in Washington D.C.,” the Becket Fund was praised as one of the top religious advocacy groups in Washington D.C. The Pew study described the Becket Fund as combining “elements of a think tank with a robust litigation program” that “conducts legal research and generates publications like a think tank but also provides pro bono legal representation for individuals and religious bodies to further the cause of religious freedom.” The Becket Fund was singled out for particular praise due to our expertise in litigation involving the Religious Land Use and Institutionalized Persons Act.

To view the Pew Forum’s full report, click here. To view the Becket Fund’s online Pew profile, click here.

Capitol Hill Luncheon Series, Briefing I: Freedom for Religious Organizations and Persons to Exercise their Faith in Public Life

On Friday August 19th, The Becket Fund hosted the first of five Congressional briefings regarding the state of religious liberty in the United States. Over twenty-five Congressional staffers attended the panel discussion on the freedom of religious organizations and individuals to exercise their faith in public life. Luke

Goodrich, Deputy National Litigation Director for The Becket Fund, moderated the panel following opening remarks from Former Congressman J.C. Watts. The panel consisted of Gregory Baylor, Senior Counsel with the Alliance Defense Fund, Rhett Butler, Government Liaison for the Association of Gospel Rescue Missions, and Stanley Carlson-Theis, founder and president of the Institutional Religious Freedom Alliance. The next Congressional Briefing from the Becket Fund will be held on September 30th on the topic of Maintaining the Freedom of Religious Hiring by Faith-Based Organizations.

HHS: Religious groups that help trafficking victims must endorse abortion

The US government gives money to organizations that help human trafficking victims. Trafficking is a big problem; it’s extremely difficult to help the victims; and religious groups have always been on the front line (often alone).

Now the Obama Administration is effectively cutting off funding to religious groups unless they are willing to endorse abortion.

The HHS requirements for this 2011 grant, for example, express “strong preference” for “grantees . . . that will offer all victims referral to medical providers who can provide or refer for provision of treatment for sexually transmitted infections, family planning services and the full range of legally permissible gynecological and obstetric care” (emphasis added).

This will directly harm victims of human trafficking, as groups like the United States Conference of Catholic Bishops and the Salvation Army have long been at the forefront of efforts to help victims. It is a politically calculated sacrifice of human trafficking victims on the altar of a pro-abortion agenda—with the conscience of religious groups as a collateral damage.

HT Freedom2Care

Seamus Hasson on HHS in the NCR

The Becket Fund’s founder, Seamus Hasson, was quoted today in the National Catholic Register’s article on the new HHS contraception coverage rule. Hasson foresaw the rule and its problematic implications in an op-ed published last week. His reaction to the rule, as quoted, is as follows:

The HHS rule “contains a feeble religious exemption that protects only institutions that employ and serve members of their own faith. It offers no protection for the vast majority of religious schools, hospitals and charities that are open to all, as if teaching children, healing the sick and feeding the hungry weren’t religious practices. And it does nothing to protect individual believers,” said Seamus Hasson of the Becket Fund, which provides legal counsel on religious-freedom cases.

“By offering religious exemptions only to organizations that do not reach out to the world, Secretary Sebelius may not have cured the common conscience, but she has certainly done her best to quarantine it,” said Hasson.

Read more here.

HHS Approves Contraception Mandates

The Department of Health and Human Services released regulations on August 1 that require all health insurance policies in the country to include contraceptive coverage, which in HHS parlance also includes drugs that many religious people object to as abortifacients (e.g. the “Ella” drug). The regulations include an extremely narrow exemption for a limited class of religious employers. Becket Fund Founder Seamus Hasson stated:

“The Obama administration once again seems to be completely at sea when it comes to questions of religion and conscience. In crafting ‘protections’ for conscientious objectors from their new Obamacare regulations, they are limiting those who qualify to the narrowest class of institutions possible. And, even more incredibly they seem to think that only institutions and not individuals have consciences worth protecting. If you asked them whether Vietnam-era conscientious objectors from military service had to belong to recognized ‘peace churches’ to be exempt from the draft, the Obama-ites would surely get the answer right (“hell no, they didn’t go”). But just give the Obama-ites an example more foreign to their ethos—religion and contraception or abortion—and they get it all wrong.”