Supreme Court 2023-24 Term: Sidewalk counselors, Native sacred land, government mandates Becket highlights religious liberty cases headed to the Supreme Court this term

WASHINGTON – The new Supreme Court Term will provide the Justices with important opportunities to protect religious speakers and activities from unlawful government restrictions. Cases concerning counselors offering help to pregnant women, the destruction of Native American sacred lands, and religious groups fighting government mandates are all headed toward the Court.  

“Religious liberty and free speech are central to our ability to live together in peace,” said Mark Rienzi, president and CEO at Becket. “The Court has an important role to play in protecting the First Amendment rights for people of all faiths.” 

In Vitagliano v. County of Westchester, Debra Vitagliano, a devout Catholic and sidewalk counselor, is asking the Supreme Court to take her case. Last year, Westchester County, New York passed a law restricting offers of help and information to women on public sidewalks outside clinics. The law was modeled on one upheld by the Supreme Court in Hill v. Colorado. It makes it much harder to offer help to women outside abortion clinics. Even on a public sidewalk, no one can approach within 8 feet of another person to offer help or alternatives unless they somehow get explicit consent from that distance. After a federal appeals court upheld the law, Becket asked the Supreme Court to get rid of the Hill decision and protect Debra’s ministry to women in need. 

In Apache Stronghold v. United States, Western Apache and other Native tribes are fighting to save their sacred site at Oak Flat in Arizona (known in Apache as Chi’chil Bildagoteel) where they have gone to worship, pray, and perform essential religious ceremonies since time immemorial. For decades, Oak Flat has been protected by the federal government from mining and other practices that would destroy the Apache land. But in 2021, the United States government pushed ahead on a decision to give the land away to Resolution Copper, a foreign-owned mining company with a history of cultural and environmental degradation. Resolution Copper has announced its plan to blow a 2-mile wide, 1,100-foot crater into the land, ending native religious practices forever. Apache Stronghold—a coalition of Apaches, other Native tribes, and non-Native allies—sued the federal government in federal district court in Arizona, where the trial court denied the request to protect the sacred site. On appeal, the Ninth Circuit denied the Apaches’ request to save Oak Flat —a decision the whole Circuit decided to reconsider en banc. In March 2023, the Ninth Circuit heard the case, and a decision is expected any day. Should the en banc court decide not to protect Oak Flat, Becket plans to file a petition for writ of certiorari at the Supreme Court. 

In Loper Bright v. Raimondo, the Supreme Court will hear argument in a case that could overturn a ruling that has severely damaged religious liberty. In its 1984 ruling Chevron v. NRDC, the Supreme Court gave significant power to unelected lower-level Executive Branch officials, requiring courts to defer to federal agencies’ interpretations of law. For years, agency deference has empowered hostile federal government officials to target religious believers—like Becket’s client the Little Sisters of the Poor—for special disfavor. On July 24, 2023, Becket filed a friend-of-the-court brief at the Supreme Court on behalf of the Little Sisters. 

Read about other cases headed to the Supreme Court from Becket’s Supreme Court preview.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219.