How the Becket Fund became the leading advocate for religious freedom for all A Response to the American Prospect

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.