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Coming up at the Supreme Court… By Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty

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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.

This week also sees the completion of briefing in the HHS mandate cases currently pending before the Supreme Court. In three separate cases, petitioners have asked the Court to review whether religious business owners can be coerced by a federal regulation into providing insurance coverage for contraceptives, sterilization, and abortion-inducing drugs. In one of those cases, the Becket Fund obtained a landmark victory before the full Tenth Circuit Court of Appeals on behalf of the Green family and their businesses, Hobby Lobby Stores and Mardel Christian. The U.S. Solicitor General and Hobby Lobby have agreed that the issues presented in the case are exceptionally important, implicate a rapidly deepening circuit split, and should be resolved by the Court. (Indeed, just last week, the D.C. Circuit issued an opinion in yet another HHS mandate challenge, Gilardi v. Sebelius, agreeing in part with the Tenth Circuit and splitting the lower courts even further). The Solicitor General’s final brief, filed today, agrees that Hobby Lobby “presents an excellent vehicle” for resolving the critically important religious freedom issues presented by these cases.

The Supreme Court will consider these petitions at its November 26 conference.