Minnesota Churches’ Challenge to COVID-19 Executive Order


Leaders in protecting public health  

Throughout the coronavirus pandemic, the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota have been leaders in protecting public health. They voluntarily suspended in-person services to prevent the spread of COVID-19 well before statewide stay-at-home orders came into effect. Since then, these faith communities have been ministering to their communities any way they can—serving meals to the homeless, donating medical supplies, accompanying the elderly, and raising money for those in need.

Aware of the deep spiritual, mental, and emotional loss that comes from being deprived of in-person worship, on May 7 the churches presented Governor Walz with proposed protocols for resuming in-person worship services in line with the recommendations of the World Health Organization and United States Centers for Disease Control and Prevention. On May 13, Governor Walz issued an executive order allowing retailers to open their doors to fifty percent capacity, businesses—from pet-grooming services to medical cannabis operations—to resume in-person work, and even announced a phased plan for reopening bars and restaurants. In-person worship, however, remained banned beyond ten people. No guidance or plans for reopening were announced.

This meant that while the Mall of America could open its doors to those seeking retail therapy, houses of worship were barred from providing spiritual healing to their congregations.

Retail therapy, but no spiritual healing

The Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota remain committed to mitigating the risk of spreading coronavirus in their congregations and communities by instituting rigorous social distancing and hygiene protocols to prevent the spread of coronavirus. But, if the state deems the risk low enough to reopen non-essential businesses, why should religious communities be forced to comply with a ten-person limit?

Acting in defense of religious liberty

After weeks of negotiation between the churches and the governor to try to achieve equal treatment for churches and houses of worship, on May 20, Becket sent a letter to Governor Walz on behalf of the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota explaining that continuing this discriminatory treatment of in-person worship violates federal and state law.

The letter announced that on May 26, 2020, in advance of Pentecost Sunday (May 31), the faith communities would resume holding in-person worship services and ministering to their congregations at one-third capacity whether or not Governor Walz amended his executive order. Governor Walz returned to the negotiating table after the Churches acted in defense of their free exerciseannouncing on May 23 that he would clear the way for houses of worship of all faith traditions to open to larger groups starting May 27, 2020. 

Importance to Religious Liberty:

  • Religious communitiesThe First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When Churches are given a special disability not felt by secular entities, the government is violating the Free Exercise Clause by substantially burdening religious practice.

Sharonell Fulton, et al. v. City of Philadelphia

Faith-Based Foster Care Fact Sheet

Free To Foster: Read about heroic foster families

A history of heroic service in the City of Brotherly Love

Sharonell Fulton and Toni Simms-Busch each have decades of experience in the foster care system. Sharonell has fostered 40 children, and Toni spent years working as a foster care social worker and child advocate before fostering and adopting herself. These two Catholic women chose to partner with Catholic Social Services because they wanted to work with a faith-affirming agency and were impressed by its excellent reputation.

The Catholic Church pioneered foster care in Philadelphia over 200 years ago when it founded an agency to help mothers, children, and families in need. Inspired and motivated by its religious identity, Catholic Social Services has been providing critical foster care services to children ever since. It is one of the most successful foster agencies in the city and has a great reputation. Catholic Social Services’ faith (and its ability to recruit foster families who are inspired by their own faith) is a big part of its success. It’s also proved excellent at supporting and retaining foster families. Catholic Social Services’ caseworkers build strong relationships with both foster kids and their families, and are available any time—day or night. When Sharonell took in new foster kids on Christmas Eve, Catholic Social Services’ caseworkers delivered wrapped presents to her door.

But because of the city’s discriminatory actions, loving foster families that partner with Catholic Social Services (like Sharonell and Toni) were stuck on the sidelines—their homes sitting empty—even though the government has admitted that there were kids in immediate need of their love and support.

Making room for diversity

When someone wants to become a foster parent, the first step is to contact a private foster agency (there are 30 in Philadelphia) and complete a home study. Home studies are deeply personal and require the agency to send someone into the family’s home to assess things like the strength of their personal relationships, their physical and mental health, and their relationships with their children. Only once this is completed can an agency partner with the foster family to help care for a child in need.

As part of the Catholic Church, Catholic Social Services cannot partner with and endorse same-sex or unmarried couples. Instead, it will help that couple to find a match from among the 29 other nearby foster agencies that can provide the same endorsement and partner with that couple to serve kids in need. Three of these other agencies are even recognized for their excellence in serving the LGBTQ community.

Agencies help foster families find a better match all the time (like, for example, if a family lives too far away, or the agency has a long waiting list, or a couple is seeking to foster kids with special needs). But this wasn’t enough for city officials, who demanded that if a same-sex couple ever approached Catholic Social Services (none had), the agency had to endorse their relationship and partner with them.

Catholic Social Services’ religious beliefs and traditions aren’t a policy or set of guidelines it can change. The agency walks with the Catholic Church in its teachings about marriage and family as well as its commitment to serving the local community—and all parts of the human family—as best it can. As a majority of the Supreme Court Justices acknowledged, Catholic Social Services is “an arm of [the Catholic Church].” Its Catholic convictions are why the agency is committed to serving all children in need—regardless of their race, religion, or sexual orientation.

Sidelining all-stars while kids are left hanging

In Philadelphia, there are dozens of private agencies that partner with LGBTQ foster parents. And same-sex couples have been fostering kids in Philadelphia for years with their help. Nothing about this case would change that. Instead, Catholic Social Services wants to continue serving vulnerable kids and foster families without compromising its beliefs (as it has done successfully for the last 200 years) alongside a diverse network of other agencies also serving the Philadelphia community. Catholic Social Services has loving families ready to care for kids today, but the government is keeping them on the sidelines.

Foster moms asked the Supreme Court to protect the agency that affirms their religious identity

In May 2018, Becket stepped in to represent children, families, and Catholic Social Services in their lawsuit against Philadelphia’s government. In June 2018, Becket asked a federal court to end the government’s discriminatory actions and let Catholic Social Services serve foster kids and families. In July 2018, the district court denied the request, and Becket immediately appealed to the Third Circuit Court of Appeals.

In April 2019, the Third Circuit ruled against Sharonell Fulton, Toni Simms-Busch, and Catholic Social Services in a controversial decision that split with several other appeals courts. Becket then asked the Supreme Court to take up their case and protect the freedom of faith-affirming foster agencies nationwide to maintain their deeply held beliefs while serving those most in need. On February 24, 2020, the Supreme Court agreed to hear this case. Oral argument took place on November 4, 2020 and on June 17, 2021, the U.S. Supreme Court unanimously ruled in favor of “exemplary” foster mothers Sharonell Fulton and Toni Simms-Busch, allowing these foster care heroes to continue serving children in need in partnership with the Catholic foster ministry that has been serving Philadelphia for over 200 years. As the Supreme Court unanimously confirmed, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”


Importance to religious liberty

  • Religious FreedomReligious organizations must be free to act according to their faith, including when caring for children in need. The government cannot exclude religious groups by demanding they give up their religious beliefs in order to continue providing much needed social services.
  • Public SquareFaith-affirming organizations serve their neighbors and provide benefits to the community when they are able to operate in the public square. Religion in the public square is not a threat, but rather the expression of a natural human impulse.

Janus v. American Federation of State, County, and Municipal Employees

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued his union—the American Federation of State, County and Municipal Employees. Janus argued that mandatory union fees forced him to subsidize the union in taking negotiating positions against the government with which he disagreed. After losing in the district court in September 2016 and again at the Seventh Circuit Court of Appeals in March 2017, Janus appealed to the U.S. Supreme Court. In December 2017, Becket filed a friend-of-the-court brief emphasizing that government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom. On June 27, 2018, the Supreme Court ruled for Janus when it clarified that mandatory fees are a form of government coercion that violate workers’ rights.

Pay no attention to the government behind the curtain

Pay no attention to the government behind the curtain! At least that’s what supporters of mandatory union fees for government workers wanted in Janus v. AFSCME. Unions can be protective forces for government workers—but not when they use the force of the government to exact mandatory fees from government employees, to support speech with which the employees disagree.

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued the American Federation of State, County and Municipal Employees in federal court, claiming that mandatory union fees force him to subsidize the union in taking positions against the government with which he disagrees. Janus asked the district court to protect his First Amendment rights and make public sector unions earn the trust of government employees, rather than using government power to force them to support union speech with mandatory fees. In September 2016, the district court ruled against Janus. On appeal in March 2017, the Seventh Circuit Court of Appeals again ruled against Janus. Janus appealed to the U.S. Supreme Court, which agreed to hear his case.

Becket argues that mandatory fees threaten religious liberty

In December 2017, Becket filed an amicus brief in support of Janus, arguing that the government is engaging in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will by using unions to hide the coercion.

Our brief showed that this issue has far reaching consequences, especially for religious liberty. For instance, the government uses private accrediting agencies as gatekeepers for federal funding like Pell Grants. Accreditors should not be allowed to use their funding authority to suppress religious speech any more than the government itself could. There are many other situations where the government relies on private entities to provide government benefits or to perform government services. When acting on the government’s behalf, these organizations should be required to respect constitutional rights the same way the government is. Just like “money laundering” (passing illegitimate funds through a legitimate business) cannot remove the taint of criminally obtained funds, “coercion laundering” (allowing a private party to force someone to do something the government could not force them to) cannot remove the taint of unconstitutional coercion.

U.S. Supreme Court: Mandatory union fees are form of government coercion

On February 26, 2018, the U.S. Supreme Court heard Janus’ case. On June 27, 2018, the U.S. Supreme Court ruled in favor of Janus in a 5-4 decision, striking down mandatory union fees for government workers. The ruling clarified that mandatory fees are a form of government coercion that violates workers’ rights.

This ruling has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices. Janus was represented by Liberty Justice Center and National Right to Work Legal Defense Foundation.

Janus was represented by Winston & Strawn, Liberty Justice Center, National Right to Work Legal Defense Foundation.


Importance to religious liberty

  • Individual freedom: When acting on the government’s behalf, private entities should be required to respect constitutional rights the same way the government is. Government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom.
  • Free speech: The government engages in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will just because it is using unions to hide the coercion.
  • Education: The U.S. Supreme Court’s ruling in Janus v. AFSCME has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices.

National Institute of Family and Life Advocates v. Becerra

A mission to provide essential care

For over twenty years, the National Institute of Family and Life Advocates (NIFLA) has provided education and training to hundreds of pregnancy clinics across the country. Driven by faith, NIFLA provides essential legal resources and counsel to clinics that share their commitment to life-affirming support for vulnerable women and their families.

Free speech—unless the government favors the other side

In 2015, California enacted the FACT Act, joining a number of other state and local governments that have passed laws to target pregnancy centers that do not recommend or refer for abortion services. The FACT Act requires licensed pregnancy centers, which offer free services to pregnant women, to post in their waiting rooms a disclosure explaining that the state of California provides free or low-cost abortion and contraception services. This licensed disclosure must also include a phone number for a county office that refers women to clinics that provide abortion services. Under the law, other pregnancy centers, too, would have to post burdensome disclosures, not only on site but in all of their advertisements. The FACT Act thus would have forced NIFLA centers to advertise messaging that violates their deeply held beliefs and undermines their mission to offer life-affirming care to women and children.

NIFLA challenged the FACT Act in court. After losses in the district court in January 2016 and at the Ninth Circuit Court of Appeals in December 2016, NIFLA appealed to the U.S. Supreme Court, which agreed to hear the case. In January 2018, Becket filed a friend-of-the court brief on behalf of Support Circle, supporting NIFLA and defending their right to continue to serve women and children according to their religious mission.

Victory for free speech

The Supreme Court heard the case in March 2018. During oral argument, California admitted to the Court that some applications of the law were unconstitutional, and the Justices spent much of the argument focusing on the law’s obvious attempt to target pro-life clinics. On June 26, 2018, the Court ruled 5-4 protecting pregnancy centers’ right to serve women and children according to their religious mission. NIFLA was represented by Alliance Defending Freedom.

The ruling affirms that the First Amendment protects individuals that may hold viewpoints different from those of the government. On issues as deeply important as abortion, it is vital that the government does not silence one side of the debate.

Importance to religious liberty

  • Free speech: The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government does not silence one side of the debate.
  • Public square: Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.

Little Sisters of the Poor v. Commonwealth of Pennsylvania

WEBSITE for Little Sisters Cases

Despite Supreme Court victory and new rule, Little Sisters are still in court

On October 6, 2017, Health & Human Services issued a new rule with an updated, broad religious exemption that finally protected religious non-profits like the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly poor. In its new rule, the government admitted that it broke the law by trying to force the Little Sisters and others to provide services like the week-after-pill in their health plans that violated their religious beliefs. That result should mean that the end is near for the Little Sisters’ lawsuit.

However, following the new mandate announcement, the state of Pennsylvania sued the federal government to take away the Little Sisters’ religious exemption. Pennsylvania admits that it already has and already uses many government programs to provide contraceptives to women who need them.  Pennsylvania never challenged the Obama Administration for creating much larger exceptions for secular corporations—exceptions that covered tens of millions more people than the religious exemption.  Pennsylvania does not even have its own contraceptive mandate at all.  And Pennsylvania’s lawsuit does not identify a single real person who previously had contraceptive coverage but will lose it because of the new Rule.

Despite all this, Pennsylvania is asking a judge to order that the Little Sisters must comply with the federal mandate (not a state mandate) or pay tens of millions of dollars in fines.

Becket challenges Pennsylvania’s attempt to take away Little Sisters’ religious rights

In November 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. The Pennsylvania court refused to let the Little Sisters intervene in the case, or even argue in court. A week later, the Pennsylvania court temporarily blocked the new rule that gave the Little Sisters a religious exemption. Becket immediately appealed both rulings. Oral argument was held on March 23, 2018 to decide whether the Sisters will be allowed to intervene in the case, and on April 24, 2018, the Little Sisters’ motion for intervention was granted. On January 14, 2019, the court ruled against them – a decision which the Little Sisters immediately appealed. The Third Circuit heard oral arguments in May 2019.

On July 12, 2019, the Third Circuit ruled against the Little Sisters. Becket has argued all along that the government has many ways to provide services to women who want them as well as protect the Little Sisters. Neither the federal government nor the state governments need nuns to help them give out contraceptives. On October 1, 2019, the Little Sisters of the Poor asked the Supreme Court to protect them from the HHS contraceptive mandate again and end their legal battle once and for all. On January 17, 2020 the Supreme Court agreed to review the Third Circuit’s decision in Little Sisters of the Poor v. Commonwealth of Pennsylvania. Oral argument took place on May 6, 2020.

On July 8, 2020 the Supreme Court ruled 7-2 in favor of the Little Sisters of the Poor, allowing them to continue serving the elderly poor and dying without threat of millions of dollars in fines. Writing for the Court, Justice Thomas said that “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. . . . But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” The Court held that the federal government was right to protect those beliefs.

Despite losing at the Supreme Court, Pennsylvania continues to ask the federal courts and HHS to change the rules.

Importance to religious liberty 

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communitiesReligious communities have the right to organize and operate according to their beliefs without the government discriminating among sincere religious.
  • Individual freedomReligious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship.

Harvest Family Church v. Federal Emergency Management Agency

Pillars of hope and help for disaster-stricken communities

In the aftermath of Hurricane Harvey in 2017, houses of worship across Texas opened their doors and welcomed thousands of families forced to evacuate their homes. From housing and feeding evacuees to loading trucks with meals and hygiene supplies, local churches, synagogues, and mosques were pillars of safety, hope, and help when disaster struck.

Yet at the same time they were opening their doors to the community, they were picking up the pieces to their own devastated buildings. Houses of worship like Harvest Family Church and Hi-Way Tabernacle suffered unprecedented flooding, and churches along the Gulf Coast like Rockport First Assembly had their steeples blown off and windows blown out.

Becket defends churches from FEMA discrimination

FEMA has repeatedly praised churches and religious ministries for the valuable shelter and aid they provide to disaster-stricken communities, and regularly uses houses of worship as staging areas for relief efforts. Yet FEMA banned houses of worship from receiving recovery grants that are available to other similar private nonprofits, such as museums, zoos, and even community centers that provide services such as sewing classes and stamp-collecting clubs. This discriminatory policy stood in defiance of a 2017 Supreme Court ruling in Trinity Lutheran v. Comer, which protects the right of religious organizations to participate in widely available programs on equal footing with secular organizations.

In September of 2017, Becket filed a lawsuit on behalf of Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God. Because the churches were badly damaged and struggling to recover from the hurricane, Becket filed an emergency request for the court to quickly grant equal access to relief.

In December 2017, the district court ruled against the churches. That same day, the churches filed an emergency appeal to the Fifth Circuit, which granted an expedited appeal but not emergency protection.

Victory: Supreme Court urges a new FEMA policy

Becket then filed an emergency request with Justice Samuel Alito, the Supreme Court Justice who hears emergency petitions from the U.S. Court of Appeals for the Fifth Circuit, to grant emergency relief to avoid further delay in allowing the churches to apply for help. The Supreme Court responded by asking FEMA to explain its discrimination against houses of worship by January 10, 2018.

The pressure from the Court’s request allowed the churches to celebrate a complete victory for houses of worship nationwide: On January 3, FEMA quickly published a new policy and announced the change before the January 10 deadline. The new policy gave the churches what they needed, putting an end to FEMA’s decades of discrimination against houses of worship. Since FEMA would now treat houses of worship like all other non-profit disaster relief applicants, the churches dismissed their lawsuit shortly after.

FEMA also opened up a new application window for houses of worship that had previously been denied aid under its old policy, including two synagogues in Florida represented by Becket that also sued FEMA due to damage they sustained by Hurricane Irma.


Importance to religious liberty:

  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Freedom From Religion Foundation v. Trump

The Supreme Court ruled 9-0 that keeping government officials out of internal church decisions is vital to protecting a separation of church and state. That includes allowing houses of worship to choose what to teach during their worship services. But now an atheist group is trying to force the IRS into the business of editing sermons and punishing church beliefs. Becket is fighting back.  

Leaders should be free to preach about issues that matter 

Throughout American history, religious leaders of different faiths have helped speak up for those who could not speak for themselves. They encouraged their congregations to throw off British oppression, to support the abolition of slavery, and to protect civil rights. That tradition continues today. 

In 2012, the Reverend Charles Moodie and his family left New York to settle in Englewood, a Chicago neighborhood plagued with violence, drugs, and poverty. In his mission to help the underprivileged and drug addicted find redemption and the fellowship of a community, Reverend Moodie pastors Chicago City Life Center. Reverend Moodie preaches about social and political issues that affect the people of his congregation, including protecting the most vulnerable in society. 

In Wisconsin, two more pastors also assert their freedom to lead their congregations in the faith. Pastor Koua Vang preaches about political issues that impact his Hmong community, a group of people that has historically experienced injustice and oppression under communist regimes in Laos and Vietnam. Father Patrick Malone likewise preaches about the need for his congregation, Holy Cross Anglican Church, to seek justice in every aspect of life, including politics.  

But now their right to freely preach is facing a dangerous threat.  

Atheists demand the tax man’s censorship of sermons 

In 1954, Congress passed a law—popularly known as the Johnson Amendment—that bans certain nonprofits from teaching about politics or candidates. There’s no evidence that Congress intended to limit the historical tradition of pastors preaching from the pulpit, but the IRS claims that it can ban such preaching. While the IRS talks tough, it has never attempted to actually prevent a pastor from preaching during religious services. 

But now the atheist group Freedom From Religion Foundation (FFRF) wants to change that. It wants the IRS to punish pastors for their sermons by asking the court to enforce regulations that would revoke the churches’ tax-exempt status, involve the IRS in the churches’ finances, and levy fines against both the churches and their individual leaders. This is FFRF’s second attempt to enforce the Johnson Amendment; it tried three years ago, but then threw in the towel after Becket got involved. Now FFRF is back in court trying its same old arguments again.  

If enforced, the rule could silence Reverend Moodie and countless other ministers like him, restricting their ability to lead their churches. 

Defending religious leaders’ right to free speech 

In June 2017, Becket sought to intervene on behalf of Reverend Moodie, Pastor Vang, Father Malone, and Holy Cross Anglican to protect their right to preach free from IRS entanglement. Religious leaders – not the IRS or FFRF – should decide what to preach. In August 2017, Becket asked the court to reject FFRF’s suit outright as a violation of the separation of church and state.

In December 2017, FFRF dismissed their own lawsuit, giving up before the court had a chance to rule against them. By law, because this is now the second time that FFRF has given up on the same claim, FFRF’s dismissal means they have lost on the merits—and the pastors have permanently fended off FFRF.

Kondrat’yev, et al v. City of Pensacola

A historic cross in a historic city 

The City of Pensacola has a rich history older than the U.S. itself. A key seaport connected to the Gulf of Mexico, it is named after the Native American people who lived there as early as the 1100s, and it was one of the first areas to be settled by Spanish explorers. Today, Pensacola is known as the “Cradle of Naval Aviation” and is home to many members of the military.    

On a scenic bayou within the City lies Bayview Park, a popular location for social and civic gatherings. The 28-acre park features a senior center, amphitheater, two dog parks, tennis courts, a bocce ball court, playground, several boat ramps and docks, walking trails, picnic areas, and a memorial to a local citizen who died in a waterskiing accident. Tucked in the northeast corner of the park is the Bayview cross, a monument first erected in 1941 by the Jaycees, a non-profit civic group, to unite the community just months before the U.S. entered World War II.  

A needless lawsuit 

For over 70 years, Pensacola citizens have held community events at the monument, such as sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings. More than a religious symbol, the Bayview cross has become part of the history of Pensacola and a reminder of the many diverse groups, religious and nonreligious alike, that make the City what it is. But in May 2016, four plaintiffs, represented by the American Humanist Association, filed a lawsuit in federal court to remove the cross. Two of the plaintiffs live in Canada; one has held his own ceremonies at the cross; the fourth lives seven miles away from the park. But they all claim that seeing the cross is offensive.  

Becket defends the cross 

 In June 2017, despite recognizing that the cross “is part of the rich history of Pensacola,” and that the cross “might well pass constitutional muster,” the federal court ruled that the cross has a “religious purpose” and must be removed. Becket immediately came to the City’s defense, arguing that that religion is a fundamental aspect of human culture and history, and the Constitution does not require the government to strip every religious symbol from the public square.

In September 2018, the Eleventh Circuit court of appeals ruled that it was “bound” by earlier precedent to rule against the cross. But two of the three judges said the earlier precedent was “wrong” and “needs to be reversed.” They urged the full Eleventh Circuit or Supreme Court to uphold the cross.

In September 2018 Pensacola appealed to the U.S. Supreme Court. On June 28, 2019 the Supreme Court sent the case back to the Eleventh Circuit to be reconsidered in light of American Legion v. American Humanist Association, a case in which the Supreme Court upheld the constitutionality of a World War I memorial in Bladensburg, Maryland. The court decided on February 19, 2020 that the cross is constitutional.


Importance to religious liberty 

  • Public SquareBecause religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

Moses v. Ruszkowski

New Mexico textbooks for kids

Every child has the right to a quality education. Accessing that right is already an uphill battle for students in New Mexico, especially for thousands of low-income and minority children. The problem is not new, and state legislators have been working to fix it. Over 100 years ago, before New Mexico even became a state, the territorial and state legislatures enacted laws to ensure that all children had equal access to quality textbooks, regardless of where they attend school. Ever since, the textbook law has benefited children, particularly thousands of low-income and minority students, many of whom live in rural areas with limited options for quality education. But now, their access to quality education is at risk because of anti-religious activists and a discriminatory state law.

A law designed to discriminate

In 2012, two anti-religious activists sued the state, arguing that the New Mexico textbook lending program violated the state constitution because it allows children from religious schools the same access to education materials as children in other schools. To defend their lawsuit, the anti-religious activists pointed to a discriminatory 19th century state law—designed to disadvantage New Mexico’s native Catholic citizens—called the Blaine Amendment. Across the country, Blaine Amendments have been used by anti-religious activists to keep religious organizations from participating in neutral, generally applicable, government programs on equal terms as everyone else. They have been used to try stopping children with disabilities from attending a school that meets their needs, to prevent schools from making their playgrounds safer, to keep food kitchens from helping the poor, and more.

Becket defends children seeking an education

Both the trial court and the New Mexico Court of Appeals protected the state textbook program, but the decision was appealed to the New Mexico Supreme Court. In 2015, based on the Blaine Amendment, the New Mexico Supreme Court ruled that the state’s textbook program was unconstitutional. By its plain language, New Mexico’s Blaine Amendment prohibits the use of state funds toward “sectarian” or “private” schools. At the time of enactment, however, essentially all private schools were religious, and the law’s intention and effect were to promote religious discrimination. In 2017, Becket appealed the New Mexico Supreme Court’s ruling to the U.S. Supreme Court. The Supreme Court has recognized that Blaine Amendments arose from anti-religious bigotry.

In June 2017, the U.S. Supreme Court issued a 7-2 ruling in Trinity Lutheran v. Comer, a similar case involving Missouri’s Blaine Amendment. The Trinity Lutheran ruling stated that a church school could not be excluded from a generally available public benefit simply because it was religious. Based on the Trinity Lutheran decision, the U.S. Supreme Court ordered the New Mexico Supreme Court to reconsider its decision on the textbook lending program. The New Mexico Supreme Court heard oral argument on May 7, 2018.

On December 13, 2018, the Court reversed its earlier ruling, acknowledging that Blaine Amendments are “tainted” by anti-Catholic sentiment, and concluding that New Mexico’s Blaine Amendment should be interpreted narrowly to avoid denying students state-approved textbooks and other learning materials simply because they attend a religiously affiliated school. The Court’s opinion rejects the activists’ arguments that the textbook lending program improperly aids religion stating, “The textbook loan program furthers New Mexico’s legitimate public interest in promoting education and eliminating illiteracy.” The textbook lending program was then reinstated.


Importance to religious liberty:

  • Education: Religious schools should be able to participate in publicly available programs without discrimination.
  • Dismantling discriminatory state laws: While anti-religious laws from the mid-19th century remain in place, people of all faiths are at risk of being discriminated against.
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Oliver v. Hofmeister

A program to give children with learning disabilities better opportunities

In 2010, the State of Oklahoma enacted the Lindsey Nicole Scholarship Program for Children with Disabilities to give students with learning disabilities access to private education by granting scholarships based on the cost of their public education. The program allowed students to attend a school that could help them with their specific learning disabilities. The vast majority of the state’s 541 school districts immediately complied with the law by issuing scholarship checks to eligible students. But four school districts decided that complying with the law would somehow violate the state’s Blaine Amendment, an archaic provision in the state constitution that targets “sectarian” groups.

The U.S. Supreme Court has acknowledged that these provisions were “born of bigotry” in an era of widespread anti-Catholicism. Yet these four districts unilaterally asserted the Oklahoma Blaine Amendment to deny students the funds, arguing that it might aid religiously-affiliated schools. Conveniently, this allowed those school districts to keep the funds for themselves. After Becket sued to defend the students’ rights, the legislature learned of their plight and changed the law so the scholarships would issue directly from the State Board of Education, bypassing the renegade school districts.

A five-year battle with public school bureaucrats

Two of the school districts—Jenks and Union Public Schools—then turned around and sued the parents for accepting their scholarships. Becket defended the students’ rights again, this time all the way to the Oklahoma Supreme Court, which dismissed the lawsuit, chastising the school districts for going after their own students.

Despite that ruling, the school districts renewed the lawsuit, this time against the State Board of Education for granting the scholarships. In 2014, a lower court upheld the scholarship program, but only for students attending schools that were secular or religious “in name only.” Becket stepped in again, arguing what should have been obvious: when the state makes benefits generally available to its citizens, it can’t discriminate against some of them just because they are religious. Becket pointed out that this bizarre ruling would require the state to examine the beliefs of every religious school and decide which ones were too religious to accept the students’ scholarships.

Giving children with special needs equal access to public programs

In February 2016, the Oklahoma Supreme Court once again ruled in the students’ favor, finally upholding the Lindsey Nicole Scholarship Program for Children with Disabilities for good. Oklahoma children with learning disabilities are free to use their share of the state’s education funds for an education best suited to their individual needs.

The Oklahoma Supreme Court’s ruling reaffirms that the government is not allowed to create a Goldilocks scenario of deciding which religious beliefs are ”just right.” The First Amendment requires that public programs be administered neutrally, without regard to religious belief. Thanks to Becket, the students and their families are finally able to participate in Oklahoma’s scholarship program on equal footing with everyone else.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 

Matal v. Tam

What do a Jewish-owned clothing line called “Heeb,” an Asian American rock band called “The Slants,” and the Washington Redskins have in common? The U.S. government says they are too “disparaging” to receive trademark protection.

In 2011 Simon Tam tried to register the name of his rock band, The Slants. The government rejected his application because “Slant” disparages Asian-Americans (watch his TedTalk, “Give Racism a Chance”). Tam, who is Asian-American, challenged the decision in court and won. The government then appealed to the Supreme Court, which heard oral argument in January 2017.

For more than a decade, Becket and the federal government have fought laws banning “insulting” and “defaming” religious speech at the United Nations and in places like Pakistan, Indonesia, and Australia. These laws are widely abused to target religious minorities like Asia Bibi, the Pakistani woman sitting on death row for allegedly insulting the Prophet Mohammed. Becket filed a brief in the Supreme Court urging the government to stop excluding allegedly “disparaging” names from the federal trademark system. In December 2016, Becket told the Supreme Court that the U.S. government should practice at home what it preaches abroad: free speech for all, even speech that offends.

In June 2017 the Supreme Court ruled unanimously 8-0 championing the band’s free speech.

Tam was represented by Eugene Volokh and Stuart Banner of the UCLA School of Law Supreme Court Clinic, and John Connell of Archer & Grenier, P.C.

Duncan v. Nevada, Lopez v. Schwartz

Expanding educational opportunities for Nevada students

Like any other state, Nevada seeks to provide quality education to students of all incomes.

So in 2015, the state of Nevada established the Education Savings Account (ESA) program, which allocates money into a specified bank account for each child that, similar to a medical flexible spending account, parents can use only for education expenses such as tuition for private schools, books and tutoring.

The ESA program has allowed thousands of children to seek better educational opportunities, such as by seeking a private school education at a school of their choice.

Meet the activists who want the program gone

Yet not everyone is happy. The American Civil Liberties Union (ACLU) and the Americans United for the Separation of Church and State are suing to end Nevada’s ESA Program. Why? Because the program uses state funds toward services that may be religiously affiliated.

The activist groups are using a 19th century state law with anti-Catholic roots called the Blaine Amendment, which prohibits the use of state funds toward “sectarian” schools. The law was originally enacted – and successfully used – to shut down an orphanage run by Catholic nuns. In the 1880s, forbidding “sectarianism” meant forbidding anything remotely Catholic, but now activist groups are using the term to single out any school that is “too religious.”

Both interpretations are in direct violation of the U.S. Constitution’s Equal Protection Clause.

Becket defends religious schools, and the students who choose them

It is not up to the state to block schoolchildren from religious influence. Every child has the right to seek a better education, whether it is at a religious school or not. Becket is standing up to this blatant discrimination against religious schools and the students who choose them, and is urging the dismissal of this case.

On October 28, 2015, Becket filed an amicus brief  in  Duncan v. Nevada  in Nevada state court, stating, “To claim that the ESA Program funds ‘sectarian’ purposes is simply a modern spin on the same discrimination that birthed the Blaine Amendments.”

On May 18, 2016, that court dismissed the challenge to the ESA program, ruling that Nevada’s Blaine Amendment could not be used to stop neutral programs that allow parents to choose how to use their education funds. In September 2016, the Nevada Supreme Court ruled that the ESA program did not violate the Blaine Amendment, because once the funds reach the parents’ hands they no longer constitute state money, but private funds to be put toward a child’s education. The Court’s decision means that once the State corrects the fund appropriation process, the program can move forward and benefit schoolchildren statewide.

In a related case, Lopez v. Schwartz, the district court granted temporary relief to the schools and students challenging Nevada’s ESA program. That case is now headed for the Nevada Supreme Court.

Nevada’s Office of the Attorney General and Bancroft, PLLC (Paul Clement) represented the state.

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws: So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 

Douglas County School District v. LaRue

In 2011, Douglas County, Colorado created the Choice Scholarship Program to help low-income families send their children to a private school that best suits their child’s needs, some of which are religious schools.

But in June 2011, the ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued to stop the scholarship program. The court ended the program, ruling that it violated the state constitution’s Blaine Amendment, an arcane anti-religious provision adopted in the mid-19th century and originally used to discriminate against a growing wave of Catholic immigrants in the U.S.

To this day, Blaine Amendments remain in dozens of state constitutions and prohibit the use of state funds at “sectarian” schools.  They have an ugly history. Beginning in the mid-nineteenth century, the U.S. endured a rash of anti-Catholic and anti-immigrant bigotry known as the “Know-Nothing” movement—decried at the time by Abraham Lincoln and in recent years throughout the courts. The movement unleashed a wave of religious discrimination in the form of Blaine Amendments, which were adopted in numerous state constitutions in the late 1800s and early 1900s and were designed to suppress Catholic schools in favor of Protestant-dominated public schools.

In April 2012, Becket filed an amicus brief in the Douglas County School District appeal, shining a spotlight on the Colorado Blaine Amendment’s ugly past and its unconstitutional treatment of children in religious schools who simply wish to be treated the same as children in secular schools. The Institute for Justice defended the county.

In February 2013, the Colorado Court of Appeals ruled in favor of the scholarship program. The court wisely avoided relying on the Colorado Blaine Amendment, refusing to invoke its nefarious history. Yet in June 2015, the Colorado Supreme Court overturned the court of appeals decision, interpreting the Blaine Amendment to prevent scholarships from going to students who wanted to attend a religious school. In October 2015, Douglas County appealed to the Supreme Court.

Gaddy v. Georgia Department of Revenue

In 2008 the state of Georgia created a scholarship program that allows children of low income families to attend a school, religious or secular, that best fit their needs. The scholarships are funded through voluntary donations from Georgia taxpayers, who could count the donations as tax credits.

But the program is now being threatened by a group that claims the scholarship program violates Georgia’s Blaine Amendment, an arcane anti-religious provision adopted in the mid-19th century and originally used to discriminate against a growing wave of Catholic immigrants in the U.S.

To this day, Blaine Amendments remain in dozens of state constitutions and prohibit the use of state funds at “sectarian” schools.  They have an ugly history. Beginning in the mid-nineteenth century, the U.S. endured a rash of anti-Catholic and anti-immigrant bigotry known as the “Know-Nothing” movement—decried at the time by Abraham Lincoln and in recent years throughout the courts. The movement unleashed a wave of religious discrimination in the form of Blaine Amendments, which were adopted in numerous state constitutions in the late 1800s and early 1900s and were designed to suppress Catholic schools in favor of Protestant-dominated public schools.

If this scholarship program ends, thousands of low-income children will be deprived of the education they need to succeed. And if the lawsuit succeeds, severe limitations would block the government from working with vital private charities, forbidding crucial service organizations from accepting even neutral government aid.

In December 2016, Becket filed a friend-of-the-court brief to defend the tax credit program and to condemn Georgia’s anti-religious Blaine Amendment, which is being used to prevent children from getting the best education for their needs. In January 2017, the Georgia Supreme Court heard oral argument, and in June 2017, ruled to protect low-income schoolchildren and their scholarship program. Georgia’s Office of the Attorney General was counsel in this case.

American Humanist Association v. Matawan-Aberdeen Regional School District

On March 31, 2014, the American Humanist Association (AHA), a group of hypersecularist atheists, partnered with New Jersey atheists to rip the words “under God” out of the Pledge of Allegiance. The complaint marks their second state level assault on the Pledge. The first suit—a Massachusetts based challenge that raised identical claims—was unanimously rejected by Massachusetts’ highest court.

Becket vindicated the Pledge in Massachusetts, and is committed to doing the same in New Jersey. On July 28th, 2014, Becket intervened on behalf of three New Jersey public school students, their parents Frank and Michele Jones, and a fraternal organization called the Knights of Columbus.

Each argument offered by the atheists has been overwhelmingly rejected in every state and federal challenge leveled against the Pledge to date. At root, the AHA’s suit is based on one critically flawed assumption: that the phrase “under God” is a theologically charged religious statement.

For over a decade, Becket has demonstrated the fallacious nature of that assumption. The phrase “under God” encapsulates America’s unique political philosophy that grounds human dignity and fundamental rights in an authority higher than the State. Consequently, historic appeals to “Nature’s God” in the Declaration of Independence, Washington’s Farwell Address, and Lincoln’s Gettysburg Address are not primarily religious. By adding “under God” to the Pledge of Allegiance in 1954 (reaffirmed in 2002), Congress sought to contrast the mutually exclusive conceptions of human rights envisioned by the United States and the U.S.S.R.

Courts have recognized that the Pledge is constitutionally permissible because it uses the phrase “under God” as a statement of political philosophy, not theology. So far, Becket has successfully defended the Pledge of Allegiance in the First Circuit, the Ninth Circuit, the Massachusetts’ Supreme Judicial Court, and the United States Supreme Court.

Removing the words “under God” would prevent the Pledge from reminding children that citizens have inalienable rights; rights that the State cannot trample because “a power greater than the government gives the people their inalienable rights.” That guiding principle protects the rights of every American. Now is hardly the time weaken the philosophy that has guided this Republic since its Founding.

On February 6, 2015, Samantha Jones, a high school student in New Jersey, successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety. A great victory for religious freedom. On April 13, 2015, the American Humanist Association decided not to appeal Samantha’s victory, marking Becket’s fifth victory in a row defending the words “one nation under God.”

Watch footage of Samantha Jones’ statement following the hearing on November 19, 2014:

Friedrichs v. California Teachers Association

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

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

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

Jenks v. Spry

Related to previous Oklahoma Blaine cases: Jenks v. Spry & Kimery v. Broken Arrow Public Schools 

Stephanie and Russell Spry’s disabled son will be able to get the best education from a school specially designed for his needs.  After a five-year battle with school bureaucrats from a handful of public schools, the Oklahoma Supreme Court ruled that the Lindsey Nicole Scholarship Program for Children with Disabilities is constitutional and that religious organizations and individuals have the right to access generally available state aid on equal footing with everyone else.

The State of Oklahoma enacted the program in August 2010 to give students with learning disabilities scholarships based on the cost of their education to help them attend  a private school of their choice that could help them with their specific learning disability. The vast majority of the state’s 541 school districts immediately complied with the law by issuing scholarship checks to eligible students. But four school districts decided on their own that complying with the law would somehow violate the state’s Blaine Amendment, an archaic provision in the state constitution that targets “sectarian” groups.

Although the U.S. Supreme Court has acknowledged that these provisions were “born of bigotry” in an era of widespread anti-Catholicism, these four districts unilaterally asserted the Oklahoma Blaine Amendment to deny students their state aid on the purported ground that allowing them to direct their own education might aid religiously-affiliated schools. Conveniently, of course, this allowed those school districts to keep the funds for themselves. After Becket sued to defend the students’ rights, the legislature learned of their plight and changed the law so the scholarships would issue directly from the State Board of Education, bypassing the renegade school districts.

Adding insult to injury, two of the school districts—Jenks and Union Public Schools—turned around and sued the Sprys, along with parents of three other children with learning disabilities, for accepting their scholarships! Again Becket defended the students’ rights, this time all the way to the Oklahoma Supreme Court, which eventually dismissed the lawsuit, chastising the school districts for going after their own students.

Despite the ruling from the high court, the school districts recruited allies to again renew the lawsuit, this time against the State Board of Education. In 2014, a lower court upheld the scholarship program, but only for students attending schools that were secular or religious “in name only.” On appeal, Becket again represented the student and their families, arguing that this bizarre ruling would have required the state to examine the beliefs of every religious school and decide which ones were too religious to accept the students’ scholarships. We made what should be an obvious point: when the state makes benefits generally available to its citizens, it can’t discriminate against some of them just because they are religious.

On February 16, 2016, the Oklahoma Supreme Court once again ruled in our favor, finally upholding the Lindsey Nicole Scholarship Program for Children with Disabilities. Now the Spry’s son and other Oklahoma children with learning disabilities are free to use their share of the state’s education funds for an education best suited to their individual needs. After five years of fighting, they can focus on their schooling, without fear that they will be denied the same opportunity as other students, just because of their religion.

The Oklahoma Supreme Court’s ruling reaffirms that the government is not allowed to create a Goldilocks scenario of deciding which religious beliefs are ”just right.” The First Amendment requires that public programs be administered neutrally, without regard to religious belief.

The road to this victory was long, but—with the help of Becket—the students and their families are finally able to participate in Oklahoma’s scholarship program on equal footing with everyone else.

Becket was co-counsel in this case along with Lester, Loving, & Davies, P.C. (Andrew Lester, Carrie Vaughn, D. Matt Hopkins).

Kimery v. Broken Arrow Public Schools

Related to previous Oklahoma Blaine cases: Jenks v. Spry & Oliver v. Hofmeister

Stephanie and Russell Spry’s disabled son will be able to get the best education from a school specially designed for his needs.  After a five-year battle with school bureaucrats from a handful of public schools, the Oklahoma Supreme Court ruled that the Lindsey Nicole Scholarship Program for Children with Disabilities is constitutional and that religious organizations and individuals have the right to access generally available state aid on equal footing with everyone else.

The State of Oklahoma enacted the program in August 2010 to give students with learning disabilities scholarships based on the cost of their education to help them attend a private school of their choice that could help them with their specific learning disability. The vast majority of the state’s 541 school districts immediately complied with the law by issuing scholarship checks to eligible students. But four school districts decided on their own that complying with the law would somehow violate the state’s Blaine Amendment, an archaic provision in the state constitution that targets “sectarian” groups.

Although the U.S. Supreme Court has acknowledged that these provisions were “born of bigotry” in an era of widespread anti-Catholicism, these four districts unilaterally asserted the Oklahoma Blaine Amendment to deny students their state aid on the purported ground that allowing them to direct their own education might aid religiously-affiliated schools. Conveniently, of course, this allowed those school districts to keep the funds for themselves. After the Becket Fund sued to defend the students’ rights, the legislature learned of their plight and changed the law so the scholarships would issue directly from the State Board of Education, bypassing the renegade school districts.

Adding insult to injury, two of the school districts—Jenks and Union Public Schools—turned around and sued the Sprys, along with parents of three other children with learning disabilities, for accepting their scholarships! Again the Becket Fund defended the students’ rights, this time all the way to the Oklahoma Supreme Court, which eventually dismissed the lawsuit, chastising the school districts for going after their own students.

Despite the ruling from the high court, the school districts recruited allies to again renew the lawsuit, this time against the State Board of Education. In 2014, a lower court upheld the scholarship program, but only for students attending schools that were secular or religious “in name only.” On appeal, the Becket Fund again represented the student and their families, arguing that this bizarre ruling would have required the state to examine the beliefs of every religious school and decide which ones were too religious to accept the students’ scholarships. We made what should be an obvious point: when the state makes benefits generally available to its citizens, it can’t discriminate against some of them just because they are religious.

On February 16, 2016, the Oklahoma Supreme Court once again ruled in our favor, finally upholding the Lindsey Nicole Scholarship Program for Children with Disabilities. Now the Spry’s son and other Oklahoma children with learning disabilities are free to use their share of the state’s education funds for an education best suited to their individual needs. After five years of fighting, they can focus on their schooling, without fear that they will be denied the same opportunity as other students, just because of their religion.

The Oklahoma Supreme Court’s ruling reaffirms that the government is not allowed to create a Goldilocks scenario of deciding which religious beliefs are ”just right.” The First Amendment requires that public programs be administered neutrally, without regard to religious belief.

The road to this victory was long, but—with the help of the Becket Fund— the students and their families are finally able to participate in Oklahoma’s scholarship program on equal footing with everyone else.

Doe v. Acton-Boxborough Regional School District

For over a decade, the Becket Fund for Religious Liberty has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the 1st Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”

Elmbrook School District v. Doe

The Question

Where would you rather attend your high school graduation: In a hot, sweaty gym? Or in a state-of-the-art church auditorium? For the Elmbrook School District, the question was a no-brainer: It chose the auditorium.

The school gym was hot, cramped, and sweaty in the month of June—with no air conditioning, inadequate parking, poor handicapped facilities, and only folding chairs or bleachers for seating. So the senior class proposed moving graduation to a local church auditorium.

The auditorium had more space, more parking, better handicapped facilities, and better seating. It had large video screens for close-up viewing. It had air conditioning. And it cost the same as the school gym.

The District happily moved graduation to the auditorium, and for the next decade, the students were delighted.

The Lawsuit

Then came the lawsuit. A secularist organization claimed that certain students were “offended” and “angry” at the use of the church auditorium. They admitted that the graduation events were entirely secular, and that no prayers or religious references had ever been made. But they disliked the fact that there was a cross at the front of the auditorium, Bibles and hymnals in the pews, and church brochures in the lobby.

A federal district court quickly rejected their lawsuit. But surprisingly, the Chicago-based United States Court of Appeals for the Seventh Circuit ruled that renting the church auditorium was unconstitutional. It said that the “religious environment” of the auditorium created a risk that graduating students would “perceive the state as endorsing a set of religious beliefs.”

The Supreme Court Appeal

That’s when the School District turned to Becket. We knew that the case was important:  Hundreds of school districts hold graduations in religious venues, because those venues are often the best and cheapest available. The Constitution does not require school districts to treat religion like a toxic subject that must be avoided.

But we also knew that the odds were against us: The U.S. Supreme Court agrees to hear only about 1% of cases that are appealed to it.

On December 20, 2012, we appealed to the U.S. Supreme Court. After a year-long delay, the Supreme Court declined to hear the case. But in a strong show of support, Justices Scalia and Thomas dissented, arguing that the lower court had failed to apply the proper legal standards.

Becket remains ready to defend the principle that religion is a vital part of human culture—not a toxic subject to be avoided.

 

Town of Greece v. Galloway

A diverse town practices a cherished tradition

In the town of Greece, New York, volunteers from any religious faith may commence legislative meetings with a prayer. The town has had a wide variety of volunteers—from Catholics, Protestants, and Jews, to leaders from the Bahá’í and Wiccan traditions. This practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority and the divine source of the people’s inalienable rights.

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

Becket defends legislative prayer as our Founders saw it

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

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

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

A Supreme Court victory for religious freedom

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

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

Importance to Religious Liberty:

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.

Freedom from Religion Foundation v. Hanover School District

The year was 2007, the night—Halloween, but trick-or-treaters dressed as ghosts and hobgoblins weren’t the only ones stirring up fanciful fears in New England. No, Dr. Michael Newdow, an atheist and ordained minister in the Universal Life Church, along with the Wisconsin-based Freedom From Religion Foundation (FFRF), filed suit to silence the Pledge of Allegiance in public schools across New Hampshire. Why? They found the phrase “under God” spooky.

Representing three New Hampshire families and the Knights of Columbus, Becket intervened, urging the federal district court to dismiss Newdow’s third suit attacking the Pledge in less than 7 years.

After losing at the district court, Newdow appealed to the First Circuit Court of Appeals in Boston. The Founder and now President Emeritus of Becket, Seamus Hasson, personally defended the Pledge as the quintessential expression of American political philosophy. “The Constitution doesn’t ban the word God from public discourse, in California or New Hampshire, in the Pledge or anywhere else,” Hasson declared.

Mr. Hasson demonstrated that historic appeals to “Nature’s God” in the Declaration of Independence, Washington’s Farewell Address, and Lincoln’s Gettysburg Address are not primarily religious. Instead, such phrases embody our Founder’s political philosophy. By adding “under God” to the Pledge of Allegiance in 1954 (reaffirmed in 2002), Congress not only contrasted the mutually exclusive conceptions of human rights envisioned by the United States and the U.S.S.R., but affirmed that our rights come from an authority higher than the State.

In November 2010, the First Circuit joined every other appellate court to rule on the issue by affirming the constitutionality of the Pledge of Allegiance. The Court unanimously held that the primary effect of voluntarily reciting the Pledge, in accordance with the New Hampshire School Patriot Act, “is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.”

The First Circuit flatly rejected FFRF’s assumption that children who decline to participate in the Pledge become “outsiders based on their beliefs about religion” for one simple reason: “Under the New Hampshire Act, both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”

Dr. Newdow appealed to the Supreme Court. In June 2011, the Supreme Court refused to hear the case. Perhaps it’s time for Newdow to find a different haunt.

Vermont Department of Corrections

In August 2007, the Vermont Department of Corrections proposed a measure that would impose lengthy new regulations on religious practices. Becket stood up against the proposed Directive 380.01, warning Vermont that the proposed regulations might violate the constitutional rights of inmates under federal statutes and the First Amendment.

Among other things, the proposed Directive required mandatory registration of an inmate’s religious identity, an imposed one-year waiting period before changing religious affiliation, and prohibition of attendance to interfaith religious services without first applying for a permit. It also denied inmates the right to lead religious services—even if they are ordained clergy—and prohibit inmates from “demonstrative prayer” and prayer with others.

Not long after receiving Becket’s letter, the head of the Vermont Department of Corrections called Becket’s attorneys and told them he would change the proposed rules to accommodate religious exercise: A win for religious freedom in the Green Mountain State.

 

 

Meredith v. Daniels

In 2011, Indiana enacted a school choice program called the Choice Scholarship Program. The law help families of lesser means send their children to private schools of their choice and avoid failing public schools. But teachers’ unions are fighting a furious rearguard action against it, using 19th Century anti-Catholic laws (called Blaine Amendments) to argue that the program violates the Indiana Constitution by providing “aid” to religious schools.

The plaintiffs lost in trial court and the Indiana Supreme Court agreed to hear the case.

In April 2012, Becket filed an amicus brief in the Indiana Supreme Court arguing that Indiana’s constitution should not be interpreted to shut down the Choice Scholarship Program. The Blaine Amendments were adopted in a time of anti-Catholic agitation, just before the notoriously anti-Catholic Know-Nothing Party came to power in the Indiana Legislature. The amendment was therefore custom-designed to promote Protestant “common schools” and keep out Catholics, Jews, and others. Because of its bigoted origins, the Blaine Amendment is tainted law and cannot be used to shut down the Choice Scholarship Program. Becket filed the brief with co-counsel Kevin Koons of Kroger, Gardis & Regas in Indianapolis.

“Apparently it isn’t enough that the teachers’ unions want to deny a future to the children of Indiana, they also want to take us back to the bad old days when anti-Catholics ran the Indiana public schools,” says Becket Deputy General Counsel Eric Rassbach. “Kids who attend religious schools should be able to apply for state scholarships on the same terms as everyone else, not sent to the back of the bus. These discriminatory laws must be stopped. If they don’t end in Indiana, a terrible precedent will be set for the entire nation.”

Indiana’s Office of the Attorney General defended the state’s program.

Norwood v. Gamble

Two Ohio residents were being forcibly evicted by Norwood City so that commercial developers could improve the land and generate more tax revenue.

Becket filed a friend-of-the-court brief to the Ohio Supreme Court urging that the Court reject the Kelo rule in interpreting the state takings clause. We argued that affirming the lower court’s bad decision would both declare open season on the taking of religious institutions of all faiths and functions (houses of worship, schools, hospitals and soup kitchens, to name just a few). Since religious institutions do not pay taxes, they are especially vulnerable to Kelo-style land grabs.  Allowing this taking to go forward would turn the Ohio Constitution’s prohibition against takings for private use on its head.

The Ohio Supreme Court agreed that economic motives alone cannot justify taking private property from its owners, and that cities must demonstrate they have a genuine public use for the land. This decision protects religious institutions throughout Ohio. Institute for Justice was counsel in this case.

Pleasant Grove v. Summum

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

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

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

Kelo v. City of New London

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

Hinrichs v. Bosma

For 188 years, the Indiana House of Representatives had a long-standing tradition of opening each day of legislative business with a prayer. These prayers were offered by local chaplains and clergymen from a variety of faiths. In 2005, several Indiana taxpayers filed suit against the legislature claiming that allowing “overtly sectarian prayers” was unconstitutional because it violated the Establishment Clause. The district court ruled in their favor.

Becket filed a friend-of-the-court to the Seventh Circuit criticizing the lower court’s decision that the Establishment Clause prohibits “sectarian” prayer at the Indiana legislature, but allows “non-sectarian” prayer. Our brief demonstrated to the judges the historical pedigree of the term “sectarian” to help realign its definition with its original connotation.

The Seventh Circuit then overturned the lower court’s decision.

Winston & Strawn LLP represented the Indiana legislature.

*Photo: First Prayer in Congress, September 1774, by: H.B. Hall.  Used by permission

Conaway v. Deane

Nine same-sex couples in Maryland sued when they were denied marriage licenses, due to a Maryland law that defines marriage as between a man and a woman.  Becket filed an amicus brief addressing the impact that a wholesale change to the laws defining marriage would have on religious liberty.  Maryland’s highest court—the Court of Appeals—ruled that the marriage law was constitutional, and the definition of marriage in Maryland remained unchanged. Maryland’s Office of the Attorney General defended the law.

Elk Grove Unified School District v. Newdow

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

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

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

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

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

Arizona Christian School Tuition Organization v. Winn

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

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

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

The Supreme Court ruled our way.

Locke v. Davey

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

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

Zelman v. Simmons-Harris

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

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

 

Boyette v. Galvin

Schoolchildren and parents in Massachusetts sought government funding for parochial education by amending a provision of the Massachusetts Constitution — known as the”Anti-Aid Amendment — that bars any public financial support for private primary or secondary schools.

They sought to amend this provision through a voters’ initiative, but the state Constitution explicitly prohibits initiatives to amend the Anti-Aid Amendment, as well as initiatives that concern “religion, religious practices or religious institutions.”

Becket challenged the two provisions prohibiting voters’ initiatives, arguing that they violate the Free Speech, Free Exercise, Equal Protection, Right to Petition, and Establishment Clause provisions of the federal Constitution.

In 2004 the court ruled against us. The Supreme Court declined to hear the case.

Cutter v. Wilkinson

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

Rigdon v. Perry

Priests and rabbis must be free to preach

In May 1996, the Catholic Church announced a nationwide pro-life campaign to urge Congress to override the President’s veto of the Partial-Birth Abortion Ban Act. The campaign urged priests to preach about abortion, lead prayer services, and invite parishioners to write to their Congressional representatives.

Father Vincent Rigdon, a Catholic priest of almost 20 years and U.S. Air Force Chaplain, joined the campaign. As a military chaplain, he regularly provided spiritual counseling and celebrated mass for servicemembers and their families. Preaching about abortion, an issue important to the Catholic Church, was no different. Yet in June 1996, the Pentagon issued a gag order forbidding military chaplains of all faiths from preaching freely about legislation on important moral issues.

The act also barred Rabbi David Kaye, a Jewish rabbi and military chaplain, from speaking about abortion to his congregation. Torn between following a moral imperative and a military order, Fr. Rigdon and Rabbi Kaye had no choice but to go to court to defend their freedom to preach.

Becket defends muzzled military chaplains from Pentagon gag order

In September 1996, Becket sued on behalf of Fr. Rigdon, Rabbi Kaye, the Muslim American Military Academy, and several service members arguing that the gag order violated the chaplains’ rights under the First Amendment and under the Religious Freedom Restoration Act.

In April 1997, the U.S. District Court for the District of Columbia agreed with Becket that the gag order was an unconstitutional restriction of their free speech and free exercise rights.

Censoring sermons is unconstitutional. Every chaplain must be free to speak as their faith dictates, whether from the pulpit or inside the confessional. Thanks to Becket and the First Amendment, military chaplains are free to preach according to their conscience.

Learn more about this case by listening to our Podcast episode, “Orders and Obedience.”


Importance to Religious Liberty

  • Free Speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when that view is unpopular. Chaplains must be free to preach without government censorship.
  • Individual Freedom: Becket defends the right of all individuals to live according to their consciences without government coercion. In this case, chaplains must be free to exercise their faith by addressing important moral issues.

The Pledge of Allegiance Cases

For over a decade, Becket has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the 1st Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”

***

For more information, or to arrange an interview with one of the attorneys, please contact Melinda Skea, Communications Director, at mskea@becketfund.org or call 202.349.7224.

 

ACLU of New Jersey v. Schundler

Every year, Jersey City sponsors celebrations ranging from Ramadan Remembrance Day, Hindu and Buddhist parades, and scores of other parades, festivals, proclamations and displays celebrating the varied cultures and ethnicities of the community, which is one of the most diverse in the United States. Consistent with this tradition of pluralism, during the holidays Jersey City sought to display a menorah, a crèche, a Christmas tree, and a sign stating that this display was part of the broader celebration of diversity by the City held throughout the year.

Following a challenge by the ACLU — and a defense by Becket — the U.S. District Court in Newark ruled that the menorah, tree, crèche, and sign were unconstitutional. However, it held that the display would be constitutional if it included a Santa Claus, a sleigh, and a snowman. So the next year Mayor Bret Schundler erected a display designed to comply with the District Court’s request, adding a Santa with a sleigh and a snowman near the crèche, and putting several Kwanzaa symbols on the evergreen tree. But even this wasn’t good enough for the ACLU, which tried again to take down the revised display.

Following several years of back-and-forth court battles, the Third Circuit Court of Appeals accepted Becket’s argument, ruling that Jersey City’s display was constitutional because it had explanatory signs and secular symbols. The Court also specifically rejected ACLU’s argument that a crèche may never be displayed under any circumstances in front of a seat of government. The decision was a victory for the ability of local governments to recognize the religious aspects of culture in the public square.

Boy Scouts of America v. Dale

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

Mitchell v. Helms

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

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

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

Michael McConnell was counsel in this case.

 

Agostini v. Felton

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