Civil Rights Department of California v. Tastries

Meet Cathy Miller, an expert baker and faithful Christian

Cathy Miller is a faithful Christian and a baker living in Bakersfield, California. For 40 years, she worked as a schoolteacher while raising a family and pursuing her interests in floral arranging, event planning, and baking. In 2013, she felt called to open her own bakery, Tastries, where she sells pastries, cookies, cakes, and other baked goods. Tastries also creates custom-designed items ordered in advance for important life events such as birthdays, graduations, and weddings.

Miller believes that her bakery is “God’s business.” Her bakery’s mission statement is to “honor God in all that we do,” and her Christian faith influences everything from the Bible verses she puts on her business cards to the music she plays in the shop.  Early on, she realized that sometimes customers would ask her to bake things that her faith forbids, so she developed written design standards to ensure that all of Tastries’ custom bakery items reflect her religious beliefs. For example, Tastries will not design custom bakery items that depict gory or pornographic images, celebrate drug use, witchcraft, or violence. Miller will also not design wedding cakes that violate the Christian sacrament of marriage—including cakes celebrating divorce and same-sex unions. When customers ask for custom items that conflict with these design standards, Tastries refers them to a nearby bakery.

A baker’s livelihood targeted by California

In 2017, a same-sex couple visited Tastries to buy a custom-designed cake to celebrate their wedding ceremony. During their visit to the store, Miller realized that she was being asked to design a custom wedding cake for a same-sex wedding, which she could not do. After a moment of prayer and reflection, she kindly told the couple that she could not design their cake but would be happy to refer them to a nearby bakery. In the days and weeks that followed, Tastries was flooded with angry social media posts and harassing emails and phone calls. The California Department of Civil Rights soon filed a lawsuit in state court to punish Miller for upholding her religious beliefs.

Miller seeks to serve her community in accordance with her beliefs

Six years after California started its prosecution of Miller, and after a five-day trial, a judge on the Superior Court of California ruled that Miller cannot be forced to design a wedding cake that violates her sincere religious beliefs. On October 23, 2023, the state appealed the court’s decision to the California Fifth District Court of Appeal.

With the help of Becket, Miller filed her appeal brief on January 18, 2024. Miller should not be forced to make the choice between upholding her faith and operating her business. Americans have the freedom to bring their beliefs into the public square without being prosecuted by government officials.

Importance to religious liberty: 

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace.
     

Huntsman v. Corporation of the President of The Church of Jesus Christ of Latter-day Saints

Revitalizing the spiritual home of the Church 

During the late 1840s, members of The Church of Jesus Christ of Latter-day Saints migrated to the American West to escape religious persecution in Ohio, Illinois, Missouri, and other states. Led by the Church’s second president, Brigham Young, these pioneers eventually settled in the Salt Lake Valley, where Young selected a plot of land to build a temple dedicated to God. Today, that site—known as Temple Square—serves as the spiritual seat of the Church’s worldwide leadership and is home to the iconic Salt Lake City Temple and renowned Tabernacle Choir. 

When the area south of Temple Square needed renovation in the early 2000s, Church leaders made a religious decision to invest in its revitalization. Through its then-president Gordon B. Hinckley, the Church announced it was developing the property to protect the environment surrounding the Temple and to promote the economic vitality of the local community. Church leaders explained that the Church would not directly finance the project through tithing, the millennia-old, Scripture-based practice of voluntarily donating a portion of one’s income to the Church as an act of financial support and trust in God. Instead, it would use earnings from invested funds it had set aside for future use.  

A church community attacked from within 

Over a decade after the Church decided to revitalize the area surrounding Temple Square, businessman James Huntsman—who has deep family ties and a long history of leadership roles within the Church—sued to recoup millions of tithing dollars he had paid in religious offerings over the prior two decades. He argued the Church had committed fraud by not describing with greater clarity that the earnings from reserve funds used to finance the revitalization project had tithing as their principal. The Church explained that its statements were all true, since it never solicited, let alone used, tithes themselves for the project. Moreover, its statements could not have possibly misled anyone, least of all someone as knowledgeable about Church affairs as Huntsman, who was well aware that all Church assets have their origin in tithing. 

Protecting the Church from disgruntled donors 

In 2021, Huntsman filed a lawsuit against the Church in federal court, attempting to recover at least five million dollars of his tithing offerings. The district court ruled for the Church, concluding that all its statements about the use of tithes for the revitalization project were true. On appeal, the Ninth Circuit Court of Appeals overturned the district court’s decision, ruling that a jury ought to decide whether the Church had committed fraud in not describing more clearly how it would fund the project.  

On September 20, 2023, the Church asked the Ninth Circuit to reconsider the case in front of a full panel of judges. Becket filed a friend-of-the-court brief in support of rehearing, arguing that the court’s decision poses a serious threat to religious institutions’ ability to carry out their missions. The brief explains that courts have no business second-guessing a church’s inherently religious decision about how to define tithing, which is itself an inherently spiritual practice. The ruling thus threatens religious organizations by allowing disaffected members to sue anytime they disagree with how a Church, through the exercise of its spiritual judgement, chooses to carry out its mission. 

Importance to Religious Liberty: 

  • Religious Communities— Churches and religious organizations have a right to live, teach, and govern in accordance with the tenets of their faith. When the government unjustly interferes in internal church affairs, the separation of church and state is threatened. The First Amendment ensures a church’s right to self-definition and free association.

Loffman v. California Department of Education

Donate to Support Becket’s Efforts in Loffman v. California Department of Education

Watch: A Better IDEA

Finding an education that accommodates unique needs and faith  

Every parent that has a child with disabilities must navigate a complex system of services and resources to find the right educational fit for that child. Chaya and Yoni Loffman, Fedora Nick and Morris Taxon, and Sarah and Ariel Perets are Jewish parents in California who have the obligation of providing their children with an education that reflects their religious values. These parents want to find schools that not only will equip their children with the tools necessary to flourish, but also with an education structured around the Jewish tradition.  

Shalhevet High School and Yavneh Hebrew Academy are top-notch Jewish schools in Los Angeles that provide what Jewish parents want most: a premier education that seamlessly integrates their shared Jewish faith. Shalhevet and Yavneh also desire to provide a safe and supportive environment that offers a distinctively Jewish education to children with disabilities.    

Religious children with disabilities left behind by California politicians 

The Individuals with Disabilities Education Act (IDEA) is a federal law ensuring that all children with disabilities in America can receive an education that is right for them. To accomplish this, IDEA provides grants to states in exchange for a free and appropriate public education that is tailored to each child’s unique needs. These grants pay for essential resources like assistive technology, staff training, special education programs, and other services. Like other states, California supplements federal IDEA funding with state special education funding. 

IDEA also provides for students to be placed in private schools that can meet their needs when public schools cannot offer a free and appropriate education. In California, however, legislators have excluded religious parents and schools from accessing federal and state special education funding and services. Even though private non-religious schools are eligible under California law, and even though a recent poll shows that only around a quarter of Californians think that the state’s public schools are doing a good job of helping children with disabilities, parents are unable to send their children to religious schools that will meet their needs.  

Additionally, religious schools are unable to receive the support necessary to fully welcome all students with disabilities into their communities. This leaves many religious families in California without the ability to give their children an education that is best for them. It also disproportionately affects lower-income families, as children from low-income households are more likely to have a disability than children living above the poverty line.  

The law protects children with disabilities from discrimination by Sacramento politicians 

California politicians cannot deny children with disabilities the safe and supportive learning environments they deserve because they are religious, nor can they exclude schools from participating in the program simply because they are religious. Parents of children with disabilities already face complex challenges in finding the right school for their children, and California is making it even more challenging for religious parents.  

As the Supreme Court has consistently and recently affirmed, public benefits that are open to private secular organizations must also be open to religious ones. Denying religious parents of children with disabilities the opportunity to send their children to religious schools clearly violates the law and must end. It also goes against what the state’s residents believe—according to a recent poll, nearly 60% of Californians think that children with disabilities should be able to use federal and state funding to go to religious schools, but the state’s elected representatives are making that impossible. 

The Orthodox Union, the nation’s largest Orthodox Jewish umbrella organization, representing nearly 1,000 congregations as well as more than 400 Jewish non-public K-12 schools across the United States, is supporting Becket’s effort to protect religious parents, their children and religious schools’ right to access special education funding in the state of California.  

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.

Fellowship of Christian Athletes v. San Jose Unified School District

Creating a safe environment for students to learn and grow

Teachers and administrators are entrusted with safeguarding our youth and modeling appropriate behavior—a particularly important responsibility during high school, when students are preparing to become adults. But at San Jose Unified School District in California, instead of fostering an environment that’s inclusive of diverse viewpoints, teachers and administrators targeted religious students for their beliefs and forced them to go to court to fight for a place in their campus community.

Targeted for their faith

While they were students at the district’s Pioneer High School, Elizabeth Sinclair and Charlotte Klarke served as co-presidents of Pioneer’s Fellowship of Christian Athletes (FCA) student club. FCA is a national organization which supports student-athletes committed to living out their faith on and off the playing field. The club held regular meetings open to all students, empowering them to share their faith, grow as athletes, serve their local community, and encourage one another through testimony, prayer, and Bible study.

FCA has had a presence in the San Jose Unified School District for over a decade. But in 2019, district officials derecognized FCA and forced the student group off campus after a Pioneer teacher attacked the group’s Christian beliefs in his classroom. The teacher targeted the club during class time, and then sent emails to the school principal describing FCA’s beliefs in vulgar language and advocating for FCA’s removal from campus. He even suggested that FCA’s beliefs and mere presence on campus should be treated as equivalent to sexual harassment. Why? All because FCA wanted to choose leaders who shared their Christian beliefs, which the teacher and the district said was illegal discrimination. Within two weeks, Pioneer FCA was kicked off campus by the district, and eventually all three FCA student clubs in the district were shut out. When students tried to get the FCA club reestablished on campus the next semester, their request was denied—while at the same time, the school recognized a Satanic Temple Club that formed for the purpose of protesting FCA.

Standing together in faith

FCA clubs welcome all students and believe that everyone should be treated with dignity and respect. At Pioneer, school officials even acknowledged that the club “does great things on campus” and is led by “great students.” But none of this mattered when district officials determined that the club couldn’t choose leaders who shared its faith. Across the district, numerous student groups require both leaders and members to support the purpose of the group. Groups like the National Honor Society can exclude students who don’t have a high enough GPA, and sports clubs are allowed to exclude students based on their sex. FCA’s request is even more modest. All students are welcome to attend FCA meetings. The club asks only that those who seek to lead FCA’s ministry affirm the club’s religious beliefs. Even so, district officials targeted FCA and labeled the club “discriminatory,” even while allowing numerous other student groups to choose leaders who align with their missions.

After discussions with the district failed, FCA and its student leaders asked a federal court to order the district to allow it equal access to meet on campus—just like other student clubs. As FCA explained, its request is eminently reasonable: all FCA asks is that those students who lead its ministry—directing Bible studies, leading worship, and determining the direction of the club’s ministry—agree with the very beliefs that animate the club’s mission and ministry. On August 29, 2022, the Ninth Circuit Court of Appeals agreed, ruling that FCA students must be treated fairly and equally and that the District could not discriminate against their religious leadership standards under the First Amendment to the U.S. Constitution and the Equal Access Act. 

The District responded by shutting down all other student groups for Fall 2022 and asking the full Ninth Circuit to reconsider its decision protecting FCA. On January 18, 2023, the Ninth Circuit agreed to rehear the case “en banc” (before a panel of eleven federal judges). Oral argument took place on March 23. On September 13, 2023, the en banc Ninth Circuit overturned the district court’s decision and upheld the ability of FCA student clubs to freely gather on campus. 

Americans for Prosperity Foundation v. Bonta

Does a California tax law violate the freedom of assembly? 

If you want to be a nonprofit organization in California, you must disclose your donors to the Attorney General. This disclosure ostensibly makes future law enforcement more “efficient.” But California’s requirement is a national outlier and invites harassment. Indeed, in the past, the California Attorney General’s Office has leaked sensitive information like a sieve, resulting in donor harassment.  Americans for Prosperity Foundation (AFP) did not submit to the disclosure requirement and, as a result, in 2013, California threatened to revoke AFP’s nonprofit status.  

There and back again: a journey through the courts 

AFP sued California in December 2014. It claimed that California’s mandatory donor disclosure requirement violates the right to “freedom of association”—a right protected by the U.S. Constitution, but with unclear basis in the Constitution’s text, history, or tradition. This confusion led the Ninth Circuit Court of Appeals to reverse AFP’s trial court victory. It claimed that, since nothing is “distinguishable” between associating for political campaigns (where disclosure ensures democratic accountability) and associating for any other charitable purpose, the law permitted California to demand disclosure of every nonprofits’ donors.   

AFP appealed the Ninth Circuit ruling to the U.S. Supreme Court, which granted AFP’s petition on January 8, 2021. Oral argument was held on April 26, 2021.  

An opportunity to set straight the meaning of “freedom of assembly” 

On March 1, 2021, Becket filed an amicus brief at the U.S. Supreme Court, and our argument about the freedom of assembly was mentioned during oral arguments by three of the Justices and extensively discussed by advocates for both AFP and California. Our brief urged the Court to use this case as an opportunity to correct the courts’ decades-long faulty interpretation of the Assembly Clause, which focuses primarily on protecting expression. This error at the core of the Ninth Circuit’s decision has led to decades of bad rulings against religious and other assemblies, and it restricts the Constitution’s protection for civil society. As our brief explains, assemblies should not be protected based on how “expressive” they are. Rather, the text, history, and tradition of the First Amendment’s Assembly Clause confirms that assemblies primarily exist for formative purposes—shaping people in beliefs and customs, regardless of their political expression or popularity.   

Our brief argued that the freedom of assembly is grounded in, and was historically understood to come from, the freedom to assemble for the purpose of worship. By looking to our long national tradition of how and why we protect religious assembly, the law can better protect the right to assemble generally, and the right to not give the government the tools to squelch private assemblies out of existence (or into submission). Properly applying that tradition dooms California’s donor disclosure requirement and shores up legal protections for civil society.  

On July 1, 2021, the U.S. Supreme Court ruled that the First Amendment protects collective action for “preserving political and cultural diversity” and that “[m]ere administrative convenience” is not enough to restrict First Amendment freedoms. Justice Thomas’ concurring opinion cited Becket’s amicus brief, noting that “[t]he text and history of the Assembly Clause” include “the right to associate anonymously.” 

Importance to Religious Liberty 

  • Freedom of assembly: The First Amendment includes “the right of the people peaceably to assemble.” Contrary to popular interpretations, which link freedom of assembly most closely to freedom of speech, the freedom of assembly is grounded in the freedom to assemble for formative purposes. Self-government depends upon shaping individuals to govern themselves, and that is what safeguarding space for civil society permits.  

Gateway City Church v. Newsom

U.S. Supreme Court ended California’s draconian worship ban

On February 5, 2021, the U.S. Supreme Court invalidated California’s complete ban on indoor worship. Previously, California had the most severe restrictions in the nation when it came to in-person worship, banning indoor worship altogether while allowing secular businesses like Hollywood film studios and big-box retailers to open. In South Bay II, the Supreme Court recognized that California’s total ban on worship violated freedom of religion.

In response to the Supreme Court decision, the very next day California lifted its ban on indoor worship, allowing churches to open with indoor worship at 25% of capacity.

Santa Clara County goes against U.S. Supreme Court

Churches across the state have opened for indoor worship, allowing churchgoers to gather together with proven safety precautions. But Santa Clara County refuses to comply with the Supreme Court’s decisions in South Bay II and Diocese of Brooklyn. Instead, the County has ordered all churches to remain closed through Lent and Easter, preventing people from gathering to worship together as their faiths demand.

Diocese of San José, with Becket’s help, files to support houses of worship

On February 24, 2021, Becket filed a friend-of-the-court brief on behalf of the Diocese of San José at the United States Supreme Court. Banning indoor worship is unconstitutional—and the Supreme Court has said so several times, but they repeated the message again on February 27, 2021, forcing Santa Clara County to drop its ban on worship and allowing the Diocese of San José to reopen churches for Lent and Easter worship.

Importance to Religious Liberty:  

Religious communities: Meeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to gather together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship.  

 

South Bay United Pentecostal Church v. Newsom; Harvest Rock Church v. Newsom

The most extreme restrictions in the nation

Since March 4, 2020, houses of worship in California have been subject to a series of draconian restrictions that, with a few brief respites over the summer, have banned all indoor worship for months at a time. During this period, California permitted secular businesses—from Hollywood film studios to liquor stores and big-box retailers to nail salons—to remain open, some with percentage-of-occupancy caps and others with only distancing and masking requirements.

For months, non-essential retail, big-box, and department stores could open their doors to hundreds of mingling shoppers seeking retail therapy, but houses of worship couldn’t admit a single worshiper, even while following social distancing and masking requirements.

Fighting for the right to worship

In response to this disparate treatment, South Bay United Pentecostal Church sued Governor Gavin Newsom in May 2020, challenging this total ban on in-person worship. South Bay’s case went all the to the Supreme Court in an emergency posture, but initially resulted in a loss for the church with four Justices noting that they would have enjoined California’s restrictions.

Meanwhile, across the country, numerous states had been working cooperatively with religious organizations to find ways to conduct indoor religious worship services while still combating the COVID-19 pandemic. In fact, by late November of 2020, California stood alone in its absolute prohibition on indoor religious worship. Every other state permitted some form of indoor worship, with most states imposing no restrictions at all.

In November 2020, both Harvest Rock and South Bay brought renewed challenges to Governor Newsom’s restrictive orders, this time with a new arrow in their quiver: the Supreme Court had recently ruled, in Roman Catholic Diocese of Brooklyn v. Cuomo, that New York could not simultaneously allow “non-essential” retail stores to operate with percentage-of-occupancy caps (potentially opening their doors to hundreds of shoppers) while imposing 10- or 25-person hard caps on religious worship, regardless of the size of the religious worship space. Citing this recent decision, the Supreme Court sent Harvest Rock’s case back to the lower courts, telling the courts to reconsider their decisions upholding California’s complete ban on indoor worship.

When Harvest Rock went back before the U.S. Court of Appeals for the Ninth Circuit, Becket filed a friend-of-the-court brief explaining why the Supreme Court’s decision in Diocese of Brooklyn should control the outcome in this case. The right to worship, protected by the First Amendment, should not be treated less favorably than secular conduct like shopping at retail stores. Becket’s brief also explained that almost all states had moved from fixed, numerical caps on religious worship to percentage-of-occupancy caps that account for the size of the worship space. But the Ninth Circuit declined the Supreme Court’s invitation to reconsider its decision and again upheld California’s worst-in-the-nation treatment of religious worship. The churches therefore again sought relief from the Supreme Court.

Throwing open the doors of churches

On January 29, 2020, Becket filed a friend-of-the-court brief in support of South Bay and Harvest Rock at the Supreme Court. On February 5, 2021, the Supreme Court ruled that California could not enforce its discriminatory indoor worship ban against South Bay Pentecostal Church, Harvest Rock Church, and other houses of worship. As a result, California changed its unconstitutional worship restrictions the very next day.

 

Importance to Religious Liberty: 

  • Religious Communities: Meeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to assemble together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship.

Maxon v. Fuller Theological Seminary

Training ministers of the gospel

As one of the world’s leading Christian seminaries, Fuller Theological Seminary offers a vibrant multidenominational, multiethnic, and international Christian community where Christian students prepare to fulfill their vocations in a variety of ministry settings. For over 70 years, Fuller Theological Seminary has equipped Christian ministers and faith leaders through rigorous academic programs rooted deeply in Christian teaching, to answer God’s call to lead their own communities in the way of Jesus.

When students apply to Fuller Theological Seminary, they agree to adhere to a wide swath of biblically-based Christian ethics by giving written consent to abide by the seminary’s community standards as a continuing condition of enrollment. This collective agreement shapes the worldwide ethos of Fuller and includes upholding the belief that God created marriage to be the permanent covenant between only one man and one woman, and that sexual union must be reserved for that relationship. The seminary’s community standards are clear that students are to abstain from sexual conduct outside of this sacred marriage covenant.

The right to define ministry training

Joanna Maxon and Nathan Brittsan applied to Fuller Theological Seminary and agreed to Fuller’s community standards. Both individuals later admitted knowingly violating the standards by entering into same-sex marriages.

As with all students at Fuller, Ms. Maxon and Mr. Brittsan provided written consent to abide by the seminary’s community standards when they applied to the seminary, agreeing that they would follow them as a condition of participating in Fuller’s theological training with the rest of the student community. Their same-sex marriages were a direct and knowing violation of the standards to which they had agreed. Thus, after confirming the standards violations, Fuller regretfully dismissed them from the theology program and refunded their tuition for all classes that were left incomplete at the time of dismissal.

As a religious organization, Fuller Theological Seminary has the First Amendment right, and the religious duty, to uphold specific standards of ethics and morality for the members of its Christian community. This is a right that has been widely accepted and protected by courts for decades. Nevertheless, in November 2019, Ms. Maxon sued Fuller Theological Seminary in federal district court. Mr. Brittsan, who applied to Fuller but never matriculated, joined the lawsuit in January 2020.

Defending a healthy separation of church and state

Churches, seminaries, and other religious groups must be able to decide how to train their own religious leaders according to their own sincere determinations of their religious mission and the teachings of their faith. The government cannot entangle itself in these religious decisions by second-guessing or undermining how religious schools and organizations have decided to train their ministers and leaders. Permitting the government to force itself into the process of setting standards for scholars and ministers of faith is a clear violation of religious autonomy—a threat to the healthy separation of church and state.

The government cannot pressure religious groups into abandoning their beliefs. If Sikhs decide to abandon the turban and kirpan, Orthodox Jews choose to stop keeping Kosher, or Muslims want to reject wearing the hijab, then those must be decisions made freely by members of the faith—not under compulsion from lawsuits and courts. So too with Christian beliefs on the sacrament of marriage. Fuller filed a motion to dismiss the plaintiffs’ case in February 2020, and a hearing took place on August 4, 2020. On October 7, 2020, the federal district court dismissed the claims against Fuller, protecting the rights of religious educational institutions to uphold community standards. On November 3, 2020, Maxon and Brittsan appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

On December 13, 2021, the Ninth Circuit unanimously protected the right of Fuller Theological Seminary to freely direct its own religious community, a significant win for the rights of religious education institutions of all faiths.

Importance to Religious Liberty:

• Religious Communities—Religious groups must be able to select the members of their ministries according to their religious mission and sincere faith, free from government interference.
• Freedom of groups to train their own leaders—The Supreme Court’s decision in Hosanna-Tabor unanimously protected a church’s right to choose and maintain standards for its own leaders. That principle applies to the training of religious leaders as well. Both church and state are best served when the state isn’t controlling the internal leadership decisions of a religious institution.

Our Lady of Guadalupe School v. Morrissey-Berru

Our Lady of Guadalupe fights for excellence 

Our Lady of Guadalupe School is a Transitional Kinder-8th grade Catholic school located in Hermosa Beach. A ministry of Our Lady of Guadalupe Parish, the school is committed to providing a faith-based education rooted in the Catholic tradition.  

In 2012, the school was struggling financially and on the verge of closing, with only one student in the graduating eighth grade class. In a bold turnaround effort, the school sought to improve by implementing a new reading and writing program to be taught by all teachers, a healthy diet program, and programs tailored for children with special needs.  

As a teacher at Our Lady of Guadalupe, Ms. Morrissey-Berru was responsible for providing a Catholic education, while implementing the school’s new programs, which were a top priority. However, Ms. Morrissey-Berru soon proved unwilling to follow the guidelines of any of the programs, and her students’ academic performance suffered as a result. Her recurring poor performance prompted complaints from fellow colleagues and parents.  Principal April Beuder decided to move Ms. Morrissey-Berru to a part-time teaching position, and in 2015 chose not to renew her contract. 

Catholic schools must be free to choose who teaches the faith 

As a Catholic school teacher, Ms. Morrissey-Berru held a crucial role of teaching the beliefs and mission of the Roman Catholic Church. She taught religion, led students in daily prayer, and prepared them for mass and other important liturgical activities such as feast days, Lenten services, and an annual performance of the Passion of the Christ. Every subject she taught was infused with Catholic values. The school also paid to have her trained as a certified Catechist. 

Under the ministerial exception, church schools like Our Lady of Guadalupe have the First Amendment right to choose who teaches the faith to the next generation, free from any government interference.

Morrissey-Berru sues Our Lady of Guadalupe 

After her contract term ended, Ms. Morrissey-Berru sued Our Lady of Guadalupe School for age discrimination. A federal judge sided with the school, following the U.S. Supreme Court’s 2012 unanimous Hosanna-Tabor decision protecting the First Amendment right of a Lutheran church school to choose its teachers. Ms. Morrissey-Berru then appealed to the U.S. Court of Appeals for the Ninth Circuit.  

In a two-page order, a three-judge panel of the Ninth Circuit reversed and sided with Ms. Morrissey-Berru. The panel recognized she had “significant religious responsibilities,” and was “committed to incorporate Catholic values and teachings into her curriculum,” yet, still ruled that Morrissey-Berru’s duties were not religious enough to invoke First Amendment protections. 

Nine other judges on the Ninth Circuit criticized the Morrissey-Berru panel’s decision in a dissenting opinion authored by Judge Ryan Nelson in a parallel case also handled by Becket, St. James School v. Biel. The dissenting judges called the alarm, stating that “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally.”  

Becket defended Our Lady of Guadalupe School, arguing that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith. The case was appealed to the Supreme Court on August 28, 2019. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in Our Lady of Guadalupe, and consolidated the case with another Becket case, St. James School v. Biel. The Court heard oral argument on May 11, 2020. Also representing Our Lady of Guadalupe were Linda Miller Savitt, John Manier, Stephanie Kantor of Ballard Rosenberg Golper & Savitt, LLP, and Margaret Graf of the Archdiocese of Los Angeles. 

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty: 

  • Freedom of religious groups from state intrusion on religious affairs: Religious groups should be fully empowered to select their priests, rabbis, ministers and other religious teachers free from government interference. The Supreme Court has acknowledged this right under the ministerial exception and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry. 

St. James School v. Biel

A Catholic parish school since 1918

St. James Catholic School is a K-8 school in Torrance, California, dedicated to educating students while developing their life in the Roman Catholic faith. It is the parish school for St. James Roman Catholic Church. Since its founding in 1918, the school has lived out the parish’s motto “to continue the praise of God.” Parents choose St. James because they know their children will receive a quality academic education rooted in the Catholic faith and infused with Catholic teaching and practice.

As the only fifth-grade teacher at St. James Catholic School, Ms. Biel was the person charged with promoting, teaching, and fostering Catholic identity in the fifth graders at St. James. She carried out this mission by teaching a religion class on the Catholic faith each week; leading students in prayer daily, including the Our Father and Hail Mary prayers; taking them to and supervising them during Mass; and infusing the entire curriculum with the Catholic faith and values. After the school found Ms. Biel’s classroom performance to be below the school’s standards, they worked with her for months to improve. When she did not show signs of improvement, the school decided not to renew her one-year contract.

Ninth Circuit defies U.S. Supreme Court’s unanimous Hosanna-Tabor decision

In 2015, Ms. Biel sued St. James School in federal district court. In January 2017, the district court ruled for St. James based on the U.S. Supreme Court’s unanimous decision in the 2012 Hosanna-Tabor case. In Hosanna-Tabor, the U.S. Supreme Court protected the First Amendment right of a Lutheran school to choose who teaches the faith to the next generation, free from government interference. The Supreme Court decision recognized that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith.

Ms. Biel appealed to the U.S. Court of Appeals for the Ninth Circuit. On December 17, 2018, a divided panel of the Ninth Circuit reversed the district court’s ruling. The Ninth Circuit ruling contradicts Supreme Court precedent, claiming that though Ms. Biel had the same important religious role as the Lutheran teacher in Hosanna Tabor, St. James Catholic School did not have the same right as a Lutheran school to choose who teaches their faith.  

On January 22, 2019, Becket filed its en banc petition for the full Ninth Circuit Court to hear the case on behalf of St. James. On June 25, 2019, the Ninth Circuit denied en banc review. Nine judges joined a dissenting opinion authored by Judge Nelson. In the opinion, the dissenting judges stated that the Ninth Circuit is exhibiting “the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”

On September 16, 2019, Becket asked the Supreme Court to review the Ninth Circuit’s decision and defend the right of St. James School to choose the teachers best able to pass on its faith teachings to the next generation. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in St. James School, and consolidated the case with a similar Becket case, Our Lady of Guadalupe v. Morrissey-Berru. The Court heard oral argument on May 11, 2020. Also representing St. James Catholic School were Jack Sholkoff of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Margaret Graf of the Archdiocese of Los Angeles.

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty

  • Freedom of religious groups from state intrusion on religious affairs: Religious institutions should be fully empowered to select their priests, rabbis, ministers and other religious teachers. The Supreme Court has acknowledged that right and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry.

Su v. Stephen Wise Temple

A synagogue’s work at risk

Stephen S. Wise Temple is one of the largest and most prominent Reform Jewish synagogues in Southern California, serving its congregation through worship, community service, and education. But the Temple’s work was put at risk when the State of California claimed it could interfere with the synagogue’s internal decisions about its ministers.

In September 2013, the State of California sued the Temple in state court over whether the Temple gives certain ministers—here, preschool teachers—long enough lunch breaks. Represented by Horvitz Levy, the Temple stood up for its rights, arguing that California has no right to second guess the Temple’s decisions about how its ministers should carry out its religious mission.

The Supreme Court has confirmed autonomy for houses of worship

In March 2016, the trial court agreed with the Temple, basing its decision on the landmark U.S. Supreme Court case Hosanna-Tabor v. EEOC, which Becket won on behalf of a Lutheran elementary school in 2012. In Hosanna-Tabor, the Court unanimously recognized a principle of the First Amendment known as the ministerial exception, which states that the government should not interfere with religious institutions’ decisions about the employment of their ministers – including teachers in religious schools.

The State of California appealed the trial court’s decision, arguing that the ministerial exception does not apply to the Temple in this case. In July 2018, Becket – joined by the Church Of God In Christ denomination, one of the largest African-American denominations in the United States – filed a friend-of-the-court brief at the California Court of Appeals for the Fourth Appellate District. On March 8, 2019, the Court of Appeals ruled against the Temple, and on June 19, 2019, the California Supreme Court denied further review.

Houses of worship have the right to make their own decisions when it comes to choosing how their religious ministers will conduct religious ministry. Thus, the Temple, not the government, gets to determine how ministry should be performed by the ministers who teach Jewish religious values and traditions to young children.

Importance to religious liberty:

  • Freedom of religious groups to choose how their ministers will minister: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t evaluating the internal religious affairs of a religious ministry.

First Resort, Inc. v. Herrera

A mission to care for women 

Support Circle is a non-profit clinic and counseling center dedicated to providing support for women facing unplanned pregnancies. At no cost to the women they serve, Support Circle has for decades provided pregnancy tests, ultrasounds, medical care, emotional support, and career counseling to women in the San Francisco Bay Area. Through the many services they offer, Support Circle seeks the well-being of each woman and child that comes to them for help. But because of their belief that abortion is harmful both to women and their unborn children, Support Circle does not offer or refer for abortions. This pro-life viewpoint has resulted in San Francisco trying to stop women in need from even finding out about Support Circle in the first place.  

City ordinance restricts speech—and women’s options 

 In 2011, the City of San Francisco introduced an ordinance that prohibits “limited services pregnancy centers” from making false or misleading statements about the services they offer. But there is hypocrisy built into the ordinance: Support Circle is considered a “limited service” pregnancy center because it does not provide or make referrals for abortion, yet centers that do not offer or refer for other services—like ultrasounds or adoption—are not considered “limited service” centers. Essentially, San Francisco created a one-sided false advertising law, targeting pro-life pregnancy centers, but not abortion providers, for restrictions on their speech. 

Worse, the City says that centers are violating its new ordinance if search engines like Google display their website when the terms “San Francisco” and “abortion” are entered into the search engine together. But Support Circle counsels women considering abortion, and also offers post-abortion counseling, while making clear to all women it serves that it does not offer or refer for abortions. The end result of the city’s ordinance is that women looking for information about abortion on the internet won’t get a chance to see the options available through Support Circle. Instead, they’ll hear only one side of the story—the abortion providers’ side.  

Becket defends free speech for all 

Women facing an unplanned pregnancy have a right to know all their options. And pro-life pregnancy centers have the right to attempt to reach women in need using the same online marketing tools available to every other organization, without being targeted for their viewpoint. 

Thus, in 2012, Support Circle sued the city to stop this unnecessary and unconstitutional ordinance. After a loss at the Ninth Circuit Court of Appeals, in February 2018, Support Circle appealed its case to the Supreme Court. Becket joins Locke Lord in defending Support Circle’s right to provide necessary options to women in need without being silenced for its pro-life views. 

In June 2018, the Supreme Court declined to hear the case.

On January 16, 2018 Becket filed a friend-of-the-court brief on behalf of Support Circle at the U.S. Supreme Court in NIFLA v. Becerra, another case involving a government attempt to target pregnancy centers’ speech. On June 26, 2018, the Supreme Court ruled 5-4 to protect pro-life pregnancy centers’ right to serve women and children according to their religious mission.

Importance to religious liberty: 

  • Free speech: Governments cannot restrict speech because of the speaker’s beliefs. This principle is especially important for speech relating to deeply important and controversial moral and religious issues, like abortion. San Francisco’s law is a one-sided false advertising law that violates this principle and amounts to viewpoint discrimination.  

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.

California v. Little Sisters of the Poor

WEBSITE for Little Sisters Cases

More information on the history of the HHS mandate and HHS cases can be found here. 

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

In October 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.  

But the Little Sisters are still in court. Following the new mandate announcement, the state of California sued the federal government to take away the Little Sisters’ religious exemption. California admits that it has many of its own programs to provide contraceptives to women who want them. California never filed suit over the much larger secular exemptions created by the Obama Administration for big corporations—exemptions that applied to tens of millions more people than the religious exemption. California’s own mandate does not even apply to the Little Sisters of the Poor. And California has not identified a single actual person who had contraceptive coverage but will lose it because of this new rule. Despite all this, California asked a judge to find that the Little Sisters should be forced to comply with the federal mandate (not a state mandate) or pay tens of millions of dollars of government fines. 

Becket is seeing the Little Sisters through their fight 

On November 21, 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. 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 December 12, 2017, the Little Sisters argued in an Oakland, California district court for their right to participate in the case and receive protection from government fines. On December 29, 2017, the court granted their motion to intervene in the case. In January 2018, the Little Sisters appealed to the Ninth Circuit to overturn a federal judge’s decision to invalidate the new HHS rule protecting the Sisters. Becket’s brief, filed in April 2018, explained why the states have no right to challenge this regulation, and why the new regulation is required by law and the 2016 Supreme Court order in Zubik v. Burwell. 

Ninth Circuit gives CA the go-ahead to continue its fight against the Little Sisters 

Oral argument took place on October 19, 2018. On November 7, 2018 the government issued a new rule finalizing its exemption protecting religious ministries. On December 13, 2018, the Ninth Circuit ruled against HHS’s interim exemption and allowed California to continue its fight against the Little Sisters. The Ninth Circuit ruling did not address the final HHS rules. 

On January 11, 2019, Becket represented the Little Sisters at oral argument in federal court in Oakland, California to defend their religious exemption from the HHS mandate. On January 14, 2019, the court ruled against them – a decision which the Little Sisters immediately appealed. The Ninth Circuit heard oral arguments on June 6, 2019. On October 22, the Ninth Circuit ruled 2-1 against the Little Sisters, stating it would “welcome guidance from the Supreme Court.”

On July 8, 2020, the Supreme Court ruled 7-2 in favor of the Little Sisters in Little Sisters of the Poor v. Pennsylvania protecting the Little Sisters for the third time, and sent California v. Little Sisters of the Poor back to the Ninth Circuit to be decided in light of the Court’s decision.

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 communities: Religious communities have the right to organize and operate according to their beliefs without fear of government interference.
  • Individual freedom: Religious 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.

Advocate Health Care Network v. Stapleton

Advocate Health Care Network v. Stapleton
St. Peter’s Healthcare v. Kaplan
Dignity Health v. Rollins
Overall v. Ascension Health

Status: On June 5, 2017, U.S. Supreme Court voted unanimously 8-0 protecting religious hospitals.

Faith-based hospitals draw inspiration from their religious heritage. Driven by their faith to provide compassionate care, these hospitals treat people of all faiths and backgrounds, and their wellness services go beyond just providing medical care. For example, Saint Peter’s Family Health Center also serves juvenile victims of abuse, economically disadvantaged families and mentally disabled or violence-prone youth. And Catholic Health Initiatives provides millions annually to benefit programs and services for the poor, such as free clinics.

These faith-driven hospitals also provide generous benefits to their employees, including pensions through the hospitals’ comprehensive church pension plans. Yet their beliefs and the charitable work they do are being threatened for no reason: a group of plaintiffs’ lawyers are targeting these hospitals for a payoff, dragging them to court and demanding that they pay their attorney fees. Their argument? That hospital ministries are not religious enough to have a tax-exempt church pension plan under The Employee Retirement Income Security Act (ERISA). However, it is not the job of lawyers to decide that hospitals can’t be part of a church, and the IRS has rightly viewed these ministries as part of a larger church for over 30 years.

The legal campaign against faith-based hospitals began in 2013. In 2015, the case Overall v. Ascension Health was settled. In 2016 three other cases were appealed to the Supreme Court, while almost a hundred more are waiting in lower courts across the country. On August 15, 2016, Becket filed a friend-of-the-court brief at the Supreme Court supporting the hospitals and their right to freely exercise their religious-based mission to provide compassionate and excellent healthcare according to their faith.

The Supreme Court heard oral argument in March 2017. On June 5, 2017, the U.S. Supreme Court voted unanimously 8-0 to protect religious hospitals founded and run by nuns, allowing them to continue providing generous benefits for their employees as well as free health services to their inner-city communities.

Chi Alpha v. Cal State

For 40 years, a group of Christian students have been gathering at Cal State Stanislaus in California’s Central Valley. They call themselves Chi Alpha (Greek letters standing for “Christ’s Ambassadors”) and they were long a recognized part of student life. All that changed this fall when the university yanked their charter and locked them out of their meeting space.

Chi Alpha’s sin? Asking their student religious leaders—who lead worship and Bible study—to share Christian beliefs. Cal State accused Chi Alpha of “religious discrimination” and told the students that, after 40 years, their Christian group was not welcome on campus.

Chi Alpha exists to help college students live out their faith in worship, prayer, and service.

The Chi Alpha group at Cal State Stanislaus is a chapter of Chi Alpha National, the student arm of the Assemblies of God, one of the ten largest churches in the U.S. Chi Alpha was founded in 1953 as a place where college students could learn about Christianity and live out their faith together.

Today, more than 28,000 students gather in Chi Alpha groups across the country. They gather to worship God, study the Bible, pray, and to give back through programs like feedONE, which provides food for over 140,000 hungry children worldwide. Their Christian faith is what unites them and motivates them to serve. And while Chi Alpha membership is open to any student, Chi Alpha asks that the students that lead its worship services and teach its Bible studies actually believe its Christian message.

Cal State’s selective “all-comers” policy

Believe what you teach – most places, that’s called integrity. But not at Cal State.

California State University (Cal State) is the largest public university system in the nation. Chi Alpha has been a recognized part of the Cal State community for over 40 years. That changed this fall, when Cal State Stanislaus told Chi Alpha students that they were guilty of “religious discrimination” for asking that their student religious leaders be Christian.

Within twenty-four hours of being branded as “discriminators,” Chi Alpha’s students found themselves locked out of their reserved meeting space and shut out of the other parts of campus life open to all other student groups.

Today at Cal State, the Feminist Majority Leadership Alliance can (and should be allowed to) require its leaders to be feminists. The Young Democrats can (and should be allowed to) require their president to be a Democrat. And frats can require their leaders to be men. But neither Chi Alpha—nor any other religious group—can require its leaders to believe in the message the group exists to teach.

If a religious student group stands its ground, Cal State will brand it a “religious discriminator,” pull its charter, and shut it out of the campus community of recognized student groups. Because these consequences are so severe, many of the students leading these groups feel they have no option but to give in.

Chi Alpha fights back

On March 17, 2015, Chi Alpha wrote a letter to Cal State insisting that the Chi Alpha group at Cal State Stanislaus be reinstated immediately. Religious students shouldn’t be branded “discriminators” and have their groups excluded from the campus community for asking their leaders to have integrity.

After over a year of having various chapters kept off campus, Chi Alpha was finally reinstated at all campuses within the California State University system on November 19, 2015. The decision affirmed Chi Alpha’s right to choose leaders who lived by their standards and their Christian faith.

 

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.

Matter of Congregation Kol Shofar

Congregation Kol Shofar is a Conservative Jewish synagogue in Tiburon, California, just north of San Francisco. In 2006, the Tiburon Planning Commission denied the synagogue’s plan to make much-needed improvements to its existing sanctuary, despite the Congregation’s stated willingness to accept reasonable conditions.

That’s when the synagogue turned to the Becket Fund. In a series of legal opinion letters to Tiburon’s elected officials, the Becket Fund warned that the denial of building permits violated both state and federal law.

The Becket Fund noted that denying Kol Shofar the ability to make improvements to its facilities resulted in a substantial burden on the Congregation’s religious activities. Space constraints would force synagogue services—particularly on Rosh Hashanah and Yom Kippur—to be held at times incompatible with Jewish ceremonial requirements, and limited the synagogue’s ability to host community religious events. The Becket Fund further observed that Kol Shofar was the only Jewish congregation in Tiburon, and that churches in the area had been permitted to expand their facilities without bureaucratic obstruction. The town had previously claimed that permitting Kol Shofar to build would result in “incompatibility” with the surrounding neighborhood: a textbook example of unconstitutional viewpoint discrimination.

As a result, Tiburon compromised and allowed Kol Shofar to expand its sanctuary, allowing the Jewish congregation to practice their faith in peace.

“I am writing to express our synagogue’s profound appreciation for the critically important work of The Becket Fund. It was a delight and an honor to work with you. We are grateful that you agreed to take us on as a client – we fearlessly predicted we would add to the mettle of the Becket Fund!” — Kol Shofar Congregation

*Photo of Kol Shofar synagogue. Photo credit: Michael Loeb Photography.  Used by Permission.

Darling v. Bakersfield School District

Danielle and Alexandra Darling are students in the Bakersfield City School District and observant Episcopalians. In March 2006, their mother Nona Darling followed school policy and contacted her daughters’ school to be excused at noontime in order to attend Ash Wednesday services. Following their beliefs, the Darling sisters fasted in the morning and planned to break their fast at the noon Ash Wednesday service at their church.

Instead of being allowed to miss part of the day like one would typically be excused for a dentist appointment or sick day, the school refused to grant the Darlings an excused absence and punished them for observing this important religious holiday. The school even went so far as to treat the siblings as if they were skipping school or did something illicit—even sending them a truancy letter.

The school district conveyed a message to the Darlings, and the other students, that it is wrong to honor their God according to their beliefs. This was unacceptable and unconstitutional, as students of faith should not be punished for adhering to their faith by attending church on important religious holidays.

After Becket stepped in on behalf of the Darling family, the school district backed down and not only excused Danielle and Alexandra, but also rewrote their existing excused absence policy to accommodate students of faith.

Newdow v. Rio Linda Union School District

“This is about a lot more than just how school kids start their day. It’s about where the next generation thinks its rights come from – the Creator or the State.”
—Seamus Hasson, Becket’s Founder

Atheist activist continues attack on “under God” in Pledge of Allegiance

Just a year after his procedural defeat at the U.S. Supreme Court, atheist activist Dr. Michael Newdow made another attempt to remove the words “under God” from the Pledge of Allegiance—this time in California. In May 2005, Becket intervened on behalf of public school parents whose children sought to continue voluntarily reciting the Pledge in school.

After the federal district court sided with Dr. Newdow, Becket appealed the case to the U.S. Court of Appeals for the Ninth Circuit, which previously issued what the L.A. Times called one of its “most controversial opinions,” that the words “under God” in the Pledge of Allegiance were unconstitutional. In December 2007, the Ninth Circuit heard a lively argument in a packed courtroom that included several of Dr. Newdow’s boisterous supporters.

In the hearing, Becket founder Seamus Hasson argued that the phrase “under God” in American history protects rights, not violates them. 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 but instead embody our Founding Fathers’ political philosophy. By adding “under God” to the Pledge of Allegiance in 1954, Congress not only contrasted mutually exclusive conceptions of human rights envisioned by the United States and the Soviet Union, but affirmed that our rights come from an authority higher than the state.

Ninth Circuit changes its mind—thanks to Becket

After considering the case for almost two and a half years, in March 2010, the Ninth Circuit reversed itself, affirming the constitutionality of the words “under God.” Remarkably, the same court that in 2002 ruled that saying “under God” was like saying a prayer, adopted Becket’s position that the Pledge is a statement of political philosophy.

Dr. Newdow has since made similar attempts in other states to alter the Pledge of Allegiance as well as to scrub the national motto “In God we trust” from U.S. currency. Becket continues to defend religion in the public square, arguing that “God” is not a dirty word that needs to be scrubbed from society.

To learn more about the case, listen to Becket’s Stream of Conscience podcast episode, Rights and Recitations.

Importance to religious liberty:

  • Public Square: Because religious exercise is natural to human beings, it is natural to human culture. It can, and should, have a place in the public square. Becket fights to assure free religious expression in public schools, including the right of students to voluntarily say the Pledge of Allegiance.

Christian Legal Society v. Martinez

In Christian Legal Society v. Martinez, a Christian student group was denied official recognition by a public law school because the group insisted that its voting members and leaders accept and adhere to a statement of faith.  UC Hastings College of Law, located in San Francisco, decided that the Christian Legal Society (CLS) policies violated the school nondiscrimination policy. CLS limited voting membership and leadership to Christians who agreed with the group’s statement of faith, including its teachings on sexual morality. Becket filed an friend-of-the-court brief with the Supreme Court on behalf of a coalition of Muslim, Christian, Jewish, and Sikh groups, arguing that religious groups have the constitutional right to determine the requirements of membership in their organizations. Mike McConnell, Christian Legal Society, Alliance Defending Freedom were counsel in this case.

In April 2010, the Supreme Court ruled in favor of UC Hastings, calling into question the associational rights of student groups across the nation. Four justices filed a strong dissent, calling the decision “deeply disappointing” and “serious setback for freedom of expression in this country.” That dissent relied in part on the arguments made by Becket.

Guru Nanak Sikh Society of Yuba City v. County of Sutter

The Guru Nanak Sikh Society began its effort to build a Sikh temple when it applied for a conditional use permit for a property it owned  in Yuba City, California. The site was located in a residential zone designated for large lot single family homes, where the zoning ordinance permits churches and other religious institutions only with a conditional use permit.

County staff found that the project would be consistent with the county’s general plan and recommended approval of the application with conditions that would minimize potential conflicts with residences in the area. But on April 4, 2001 the County Planning Commission voted unanimously to deny the CUP application, responding to complaints from neighbors regarding “noise and traffic.”

So the Guru Nanak Sikh Society began searching for a different property. In 2002 they bought property in an area of the county zoned for agricultural land. The  Society applied for a conditional use permit seeking approval for expansion and use of an existing house as a Sikh temple. As with the previous application, the Society stipulated that no more than 75 people would occupy the facility at any one time.

Once again, the county staff found the proposed use consistent with the county’s general plan and recommended approval of the application. But once again, neighbors complained, citing traffic and property value concerns. This time, however, the Planning Commission approved the CUP on a vote of 4-3.

The complaining neighbors now appealed the Planning Commission decision to the County Board of Supervisors. County staff recommended that the Board deny the appeal and uphold the Planning Commission’s approval of a CUP. But following a public hearing the Board voted unanimously to deny the use permit.

On August 19, 2002, represented by Michael Barrette, the Guru Nanak Sikh Society filed suit against the county and members of the County Board in U.S. District Court, alleging more than 20 violations of state and federal law, including RLUIPA. On November 19, 2003, Senior Judge Lawrence Karlton issued a 47 page decision in which he found that the County has violated RLUIPA, and upheld the constitutionality of RLUIPA’s land use provisions.

“There can be no doubt that plaintiff’s challenge concerns ‘religious exercise’ within the meaning of RLUIPA,” Judge Karlton wrote. “Defendants argue that plaintiff has failed to satisfy its burden because it ‘does not identify a single religious belief mandated by its faith that is inhibited (much less, substantially burdened) on account of the use permit denial. . . . This argument flies in the face of both the record and common sense. Plaintiff’s permit application itself details the ways in which the temple is required to facilitate Sikh religious practices. . . . Congress’s decision to enact RLUIPA necessarily recognizes the fact that religious assembly buildings are needed to facilitate religious practice, and the possibility that local governments may use zoning regulations to prevent religious groups from using land for such purposes. It is for this reason that challenges of zoning ordinances are expressly contemplated by the statute. The use of the land does not have to be a ‘core religious practice.'”

On December 12, 2003, Sutter County filed a notice of appeal to the Ninth U.S. Circuit Court of Appeals.

On June 9, 2004, Becket filed an amicus curiae brief with the Ninth Circuit. The brief stated that the denial by Sutter County’s Board of Commissioners to issue a building permit to the Sikhs violated the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) because it “substantially burdened” the free exercise of religion.

The Ninth Circuit Court of Appeals followed Becket’s argument, holding that the Guru Nanak Sikh society had the right to build a place of worship in their neighborhood.

“This resounding victory for the Sikh group has nationwide implications for a wide range of cases dealing with religious land interests,” said Jared N. Leland, spokesman for Becket, “and it will echo especially loudly in California.”

Church of Christ in Hollywood v. Lady Cage-Barile

Lady Cage-Barile was a member of the congregation of Church of Christ in Hollywood, California, who disagreed with how Dr. Rodriguez, the church leader, and other leaders guided the church. Cage-Barile engaged in disruptive conduct on church premises, sometimes entering the church and following certain members, shouting that they were adulterers, agents of Satan, and demon-worshipers. She shouted at Dr. Rodriguez and church leaders, calling them Satan’s agents because they allow divorced and remarried persons to participate in church ministries.

Dr. Rodriguez then asked Cage-Barile to attend services at a different church — one where she would respect the leadership. In February 2002, he wrote a letter to Cage-Barile, informing her that her membership was terminated, that she could no longer participate in church activities or enter church premises, and that if she did enter the church she would be considered a trespasser.

But when Cage-Barile continued to disrupt worship services, the church filed for a temporary restraining order.

The trial court found that Cage-Barile had a constitutional right of free speech and if the court forced her exclusion it would entangle the court in an ecclesiastical dispute. Becket appealed the case and in May 2002, the court concluded that the church, like any nonreligious property owner, may decide whom to allow on its premises.

Cottonwood Christian Center v. City of Cypress

A growing church seeks a new home

Cottonwood, a large non-denominational church in Orange County, California, was established in 1983 with a membership of just 50 people. Over the years, it grew rapidly, hosting 4,000 adults at worship services, and another 1,200 children at Sunday school each week. Its existing facility had a seating capacity of only 700, and it had to hold hold two services on Saturday and four on Sunday to accommodate its members. Yet it still had to turn away new worshipers because of limited space.

Church members began raising funds to purchase a 17.9 acre property for $13 million in a redevelopment area that had been vacant for decades. They drew up plans for a 300,000 square foot worship center with seating for more than 4,700, as well as a youth center, daycare, gymnasium, and other facilities to serve the congregation.

A city that chooses Costco over a church

In October 2000, Cottonwood filed an extensive application for a Conditional Use Permit (“CUP”), that went well beyond the city’s requirements. But a few weeks later, the city rejected it, citing omission of a Preliminary Design Review, despite the fact that the application itself states that such a review is optional. The following day on a Friday, the city sent the church a letter—by ordinary mail—informing them of a City Council meeting on Monday, at which it would adopt a moratorium on any new permit applications in the redevelopment area.

The moratorium lasted more than a year, during which the Council secured interest from Costco Corporation, the big warehouse retail store chain. The Redevelopment Agency then chose Costco’s proposal despite the fact that it doesn’t own the land, and that the property is not zoned for retail use.

A gross violation of church property rights

In February 2002, represented by Becket and by the firm of Sheppard, Mullin, Richter & Hampton, Cottonwood Christian Center filed a lawsuit against the City of Cypress, charging violations of RLUIPA and the U.S. and California state Constitutions.

In April 2002, the Cypress City Council voted 3-0 to begin eminent domain proceedings to take the land and then sell it to Costco for construction of a new retail warehouse store. Later, after Council member Anna Percy compared the Council members to “parents” who have responsibility to make important decisions, and city residents and church members as “kids” who don’t have all the information to make such decisions, the Council voted 4-0 to take the property.

In June 2002, Cottonwood filed a motion for a preliminary injunction to stop the City of Cypress from taking its property. A judge granted the motion, and held that the church was likely to win, stating: “Preventing a church from building a worship site fundamentally inhibits its ability to practice its religion. Churches are central to the religious exercise of most religions. If Cottonwood could not build a church, it could not exist.”

After months of settlement negotiations, the city and the church dismissed the lawsuits after Cottonwood agreed to build its church on another 29 acre site in the same area.

Images of finished building. Used by permission: Cottonwood Church

Missionaries of Charity v. City of Los Angeles

Missionaries of Charity is an organization founded by the late Blessed Mother Teresa of Calcutta, which now does sacrificial service in many countries, including the United States.  In addition to founding an organization for nuns, Mother Teresa founded a corresponding male group Brothers of the Missionaries of Charity.

In 1992, in the wake of riots in the area in April of that year, Missionaries of Charity Brothers bought and renovated a large house in a depressed neighborhood a little less than a mile west of the Los Angeles Convention Center. The Brothers used the home to minister to homeless young adults (mostly Hispanic) three days a week.

Between 60 and 85 young adults visited the home, known as “Nuestro Hogar” (“Our Home”), on any given day. In this safe, secure, non-institutional homelike residential setting, visitors find refuge from their lives on the streets, a hot meal (supplied by volunteers from area Catholic churches), and the opportunity to shower and clean their clothes. Priests are present from time to time to hear confessions and say Mass, and the Blessed Sacrament can be received in the home’s small chapel.

For nine years, the Missionaries of Charity Brothers pursued this mission to the homeless without incident or any objection from city officials. But in 2001, at the instigation of neighbors who had moved into homes nearby after the Brothers had established Nuestro Hogar, city officials decided that the Missionaries of Charity would have to apply for a conditional use permit and zone variance for their ministry there. The Brothers filed the application, but it was denied by the city’s assistant zoning administrator in May 2001, and an appeal to the Central Area Planning Commission was denied in August.

The Missionaries of Charity Brothers sued and the Becket Fund served as lead counsel.  The Brothers were able to obtain a stay pending resolution of a similar case. In 2006 the Ninth Circuit ruled that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was constitutional. After that, the City never brought the case back to court.  In 2011, the Brothers moved out of the home and the case became irrelevant.  The Brothers were able to stay in their home and help the homeless as long as they had needed the land.

Elsinore Christian Center v. City of Lake Elsinore

For twelve years, a church in downtown Lake Elsinore, California, congregated and ran a soup kitchen as a ministry to those in need. In 2000, the church agreed to buy property from a school that had formerly been used as a canned food store and recycling center. When the church applied for a Conditional Use Permit, the city denied the request.

The Becket Fund stepped in and successfully represented the church to defend its right to use its own property. We argued that the city violated the First and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act, and won a victory at the Ninth Circuit.

The ruling from the 9th Circuit Court of Appeals reversed the only judge in the nation to have ruled unconstitutional the Religious Land Use and Institutionalized Persons Act of 2000.

“It erases any doubt as to the constitutionality of RLUIPA, at least for the land use portion,” said Becket Fund lawyer Roger Severino.

Salazar v. Buono

In a case involving the constitutionality of a cross memorial in the Mojave Desert, Becket’s amicus brief argued that the court of appeals should be reversed, because the plaintiff lacked standing and that the cross did not violate the Establishment Clause. The Supreme Court agreed, with two Justices agreeing that the plaintiff lacked standing, and three Justices agreeing that the court of appeals misapplied the Establishment Clause.

The cross was erected on public land in 1934, and was undisturbed until the ACLU sued for its removal in 2001.  When a federal court ruled that the cross’s presence on federal land was unconstitutional, Congress intervened by passing legislation that directed the U.S. Department of the Interior to give the land where the cross was located to the VFW in exchange for a parcel of equal value.  In 2010, the Supreme Court approved Congress’ action; however, the cross was then stolen by vandals.  On April 25th, 2012, a federal judge approved a settlement agreement for the memorial cross to return to its place in the Mojave Desert.

The Solicitor General of the Department of Justice defended the cross.

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.”

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 First 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.”

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For more information, or to arrange an interview with one of the attorneys, please contact Ryan Colby, Communications Director, at rcolby@becketlaw.org or call 202.349.7219.