Gregory Tucker v. Faith Bible Chapel

A dedicated, faithful school 

Faith Christian Academy is a Christian K-12 school operated as a ministry of Faith Bible Chapel, a church in Arvada, Colorado. For years, the local community has repeatedly selected Faith Christian as the best school in the city, with the best teachers, best leadership, and best service to parents and students. Faith Christian provides a top-notch education, academically outperforming other schools and sending 90% of graduates to college. And for over 50 years, the school’s focus—like the Church’s—is to prepare students to live out the Gospel in a sincere relationship with Jesus Christ.  

Faith Christian provides an intentionally Christian environment, with Bible classes and weekly Chapel services required for all students as part of the regular curriculum. In addition, every educator must uphold and abide by Faith Christian’s Statement of Faith and teach all subjects from the church’s biblical perspective.  

One of Faith Christian’s explicit fundamental beliefs is that every person is created in the image of God. The school lives this out by opening its doors wide to students in its community who want a quality Christian education and partnering with local nonprofits to provide full scholarships to underprivileged students. Faith Christian also provides a variety of outreach programs within the local community and abroad. For instance, it partners with the Denver Dream Center, a nonprofit committed to helping the poor, to serve thousands of children by providing educational resources and one-on-one tutoring, and supports building safe neighborhoods through the Adopt-A-Block campaign. Every week, Faith also serves hot meals to those struggling in its local community, and recently partnered with the USDA’s Farmers-to-Families program to provide over 215,000 pounds of food to Arvada families. Globally, Faith has supported refugees fleeing the war in Afghanistan, raising tens of thousands of dollars and helping to place Afghan families within the Arvada community. 

Faith Christian students are personally involved in Faith’s ministry. Students have participated on school mission trips to construct homes in Costa Rica, provide clean water for communities in Senegal, and build a church in the Amazon jungles of Peru.  

Conflict on Church Teaching 

As school chaplain, Gregory Tucker was responsible for the students’ spiritual wellbeing. He also taught Bible classes on topics such as Christian leadership and the foundations of the Christian faith. He held a position of religious leadership in the school and was entrusted to represent its faith wisely. One of his duties was leading weekly chapel services, which included planning religious teaching, coordinating worship, and often personally leading prayer. But during one of these services in 2018, Tucker allowed a chapel service on racial reconciliation to become too political. And after he failed to handle the situation in a way that restored trust with parents and students, Tucker left Faith Christian.  

Faith Christian bans racial discrimination, welcomes students from all backgrounds, and fosters an environment that discourages divisiveness while encouraging loving conflict resolution. But Tucker forgot to keep practicing what he’d been preaching, filing a federal lawsuit against the school and making outrageous claims of racism against his former students, an unusual charge against a student body taught to uphold the opposite. And Tucker’s lawsuit was flawed from the start: the First Amendment doesn’t allow religious leaders to settle religious disputes in federal court, since using courts as leverage in religious disagreement hurts both church and state. 

To evade the First Amendment, Tucker began claiming that he wasn’t a religious leader. His lawyers described his chapel services as “pep rallies,” and his Bible courses—which he said were meant to ensure students “grow personally in devotion to Christ”—as merely “comparative religion” classes that treated all religions as the same. Tucker even claimed that he was primarily a science teacher, when 51 of the 53 courses he taught over his final eight years at Faith Christian were in the Bible department, and when half or more of his time every day was spent on his Chaplain duties.  

Protecting Church Autonomy 

Faith Bible argues that religious institutions have the right to hire leaders that share in its religious mission, both in word and deed. The constitutional principle known as the ministerial exception keeps the government from entangling itself in religious institutions like Faith Bible.  

A divided three-judge panel of the Tenth Circuit ruled that a jury would have to decide whether a “chaplain” was a minister under the First Amendment, the first court in the country to reach that conclusion. One of the three judges disagreed. The panel’s ruling directly conflicts with rulings from the Supreme Court and numerous other federal appeals courts. On June 21, 2022, Becket asked the full Tenth Circuit to hear Faith Bible’s case en banc. A diverse coalition of minority faith groups, religious school organizations representing thousands of schools, leading legal academics, and sixteen states filed briefs supporting Faith Bible.

303 Creative v. Elenis

An Artist’s Mission 

As both a Christian and graphic designer, Lorie Smith believes that God has called her to use her talents in a way that comports with her religious beliefs. Smith started her own graphic design business in 2012, to follow that mission.  

Smith started to expand her business and wished to add wedding websites to her portfolio. Even though she was happy to work with anyone, she could not in good faith design websites that celebrated same-sex marriage.  

For Smith, it was about the message, not any potential client’s personal characteristics. But because of Colorado’s Anti-Discrimination Act (CADA), she was prohibited from creating wedding videos. Smith filed a lawsuit in 2016, hoping to keep true to both her job and her religious beliefs. 

A case designed for the Supreme Court 

After unfavorable rulings at the district court and the Tenth Circuit Court of Appeals, Smith appealed her case to the United States Supreme Court. The Court agreed to hear her case on February 22, 2022.  

On June 2, 2022, Becket filed a friend-of-the-court brief in Smith’s case. While the counsel’s briefs to the Supreme Court point out that she should win her case under textbook Free Speech rules such as compelled speech, content discrimination, and viewpoint discrimination, Becket argued that the Court could also take a simpler route to deciding the case. 

Looking back at Anglo-American legal tradition, religious speech has always been considered “core speech” and as such, deserves special protection. When the Founders were drafting the Constitution, their experiences, and the experiences of their forebears, with the suppression of religious speech were at top of mind. The Founders thus wrote the First Amendment to protect speech concerning religion and political matters. Indeed, the idea of freedom of speech originated as freedom of religious speech, and outspoken religious dissenters paved the way for freedom of speech for everyone.  

To the Founders, the only reasons to limit religious speech were threats to peace or safety or encouragements of “licentiousness.” Since Smith’s religious speech doesn’t threaten to do any such things, her speech is protected under the First Amendment and must be allowed to continue. Colorado cannot penalize her for engaging in sincere religious speech. The First Amendment’s robust protections for religious speech demand no less. 

Little Sisters of the Poor v. Azar

An unconstitutional federal mandate 

In August 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act. The mandate required employers to provide all FDA-approved contraceptives in their health insurance plans, including the week-after pill, free of cost. Despite the obvious religious liberty issues with a contraceptive mandate, HHS included only a narrow religious exemption—one that did not include religious non-profits like the Little Sisters of the Poor, a Catholic order of nun that runs homes for the elderly poor across the country.  

The Little Sisters’ Catholic beliefs about life and contraception meant that complying with the mandate was impossible. The Little Sisters initially tried to communicate their concerns with the federal government. In good faith, they believed that the government would grant them an exemption. After all, HHS already exempted thousands of other secular employers whose plans were “grandfathered” in under the new rule—including Exxon, Pepsi Bottling, and Visa—and even exempted the healthcare programs for the U.S. military. Instead, HHS doubled down, continued to refuse to exempt the Little Sisters, and threatened them with ruinous fines of tens of millions of dollars if they did not comply with the mandate.  

Five years of litigation—including at the Supreme Court 

In September 2013, represented by Becket, the Little Sisters of the Poor went to court against the federal government to protect their religious freedom. After a district court ruled against them, the Little Sisters appealed to the U.S. Court of Appeals for the Tenth Circuit, which again ruled against them. However, on December 31, 2013, Justice Sotomayor of the U.S. Supreme Court granted the Little Sisters emergency protection against the rule, temporarily protecting them from fines. The entire Court then granted the Little Sisters a longer-term injunction in January 2014, and sent the case back to the Tenth Circuit for reconsideration. 

But after the Tenth Circuit ruled against the Little Sisters once more, the U.S. Supreme Court again agreed to review the Little Sisters’ case. In March 2016, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, a consolidation of six cases brought by religious non-profits against the mandate, including the Little Sisters of the Poor. At the Supreme Court, the Obama administration admitted to the Court that the mandate required the Little Sisters’ participation and the use of their health plan, and that the government could provide contraceptive services in other ways that didn’t require using the Little Sisters. These key admissions cleared the path for the Supreme Court to find a solution.

In May 2016, the Supreme Court unanimously overturned the lower court rulings against the Little Sisters, ordered the government not to fine the Little Sisters, and instructed the lower courts to provide the government an opportunity to find a way to provide services to the women who want them without involving the Little Sisters.  

Resolution at last, and a win-win outcome 

The Supreme Court decision was a victory, but one that would take another two years to reach completion. In May 2017, President Trump issued an Executive Order directing HHS and other federal agencies to protect the Little Sisters of the Poor and other religious non-profits from the mandate.  

On October 6, 2017, the government issued a new rule with a broader religious exemption. In June 2018, the Little Sisters’ original case was finally resolved with an order by the U.S. Court of Appeals for the Tenth Circuit. And on November 7, 2018, HHS issued a rule  finalizing the Little Sisters’ religious exemption.  

The unanimous decision by the Supreme Court and the President’s executive order were big wins for the Little Sisters. But that does not mean anyone lost. As the Little Sisters had argued all along, the solution in no way bars the government from providing these services to women who want them. In fact, any alternative delivery method the government chooses could likely be applied not only to women in religious plans, but to the tens of millions of women in corporate and government plans HHS had previously exempted from the mandate. In the end, the government was able to both provide the mandated services free of charge to any woman who wanted them and accommodate the Little Sisters’ religious beliefs.  


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 dictating their beliefs.
  • Individual freedomReligious individuals and organizations must be free to follow their faith in all aspects of their lives, both privately and publicly, at home and in the workplace.

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.

Colorado Christian University v. Azar

“A university like Colorado Christian University, whose employees and students share its religious convictions concerning the sanctity of life, should not be forced against its beliefs to distribute drugs that it deems to be morally wrong.” – Senior Counsel Eric Baxter

An unconstitutional mandate threatens a Christ-centered university

For almost a century, Colorado Christian University has offered an education that develops students intellectually, professionally, and spiritually. It’s faith-central mission seeks to cultivate knowledge and a love of God in a Christ-centered community, with an enduring commitment to spiritual formation. But in 2011, CCU’s founding principles were threatened by the federal government.

In 2011, the Department of Health and Human Services (HHS) issued a federal mandate requiring employers to provide services like the week-after pill in their health insurance plans.  The government’s unprecedented intrusion into the health care realm forced the university to authorize and take part in providing services that violated their beliefs, or face crippling fines.

CCU fights back

In December 2011, CCU launched its initial lawsuit against the government’s unconstitutional mandate, making it the first interdenominational Christian college to challenge the HHS mandate in federal court. In August 2013, Becket stepped in to refile CCU’s lawsuit after the government’s new promised “accommodations” still infringed on the Christian university’s religious beliefs. In June 2014, the university won temporary relief at the federal district court.

On October 6, 2017, the government issued a new rule with a broader religious exemption for religious non-profits. On July 11, 2018, the U.S. Court of Appeals for the Tenth Circuit granted the university a permanent injunction, protecting CCU from having to violate its faith. And on November 7, 2018, the federal government issued a final rule protecting religious ministries like CCU.

Colorado Christian University is now free to continue carrying out its educational mission according to its religious beliefs.


Importance to Religious Liberty

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that the government cannot unnecessarily force religious people to violate their beliefs.
  • Religious communities: Religious communities have the right to build and lead their ministries according to their beliefs free from governmental discrimination.
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace.

Rocky Mountain Christian Church v. Boulder County


In 2004, Rocky Mountain Christian Church was growing. The nondenominational church and school in Niwot, Colorado applied for the routine permits needed to expand its sanctuary and school buildings.

In a classic case of discriminatory zoning, Boulder County commissioners rejected the church’s application despite allowing a secular school just a mile away to do exactly what the church wanted to do. As a result, the church had to conduct classes in the hallway. Becket stepped in to represent the church.

Becket argued that denying the permit not only treated the church unequally, but substantially burdened the church’s ability to function and dissuaded other houses of worship from locating in the County. (The County had also told a local synagogue it could have only 100 seats because the county did not want any more “mega churches.”)

After a multi-week trial in federal district court, a jury ruled in the church’s favor on all three of its RLUIPA claims. The county then appealed to the Tenth Circuit Court of Appeals, where its appeal was rejected. Intent on discriminating against the church, the county appealed to the U.S. Supreme Court, which finally put an end to it all by refusing to hear the case. This left intact the ruling that Boulder County had unfairly discriminated against the church in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) – a lesson that overly zealous and anti-religious zoning boards should take to heart.

Greenwood Community Church v. City of Greenwood Village

Greenwood Community Church was organized in 1991, when it took over property that had been owned by the Belleview/Holly Baptist Church at a major city intersection (Belleview Avenue and Holly St.). The city had given zoning approval for construction of the church facility in 1985. It consists of just under 32,000 square feet of space, including a 600 seat sanctuary. (The original city permit allowed a 1,135 seat sanctuary, but it was later reduced somewhat in size so that a 125 child day care center could be built. The city issued a permit for day care use in 1988.)

The church has grown considerably in recent years, and the present building is no longer larger enough to accommodate all of its activities – worship services, youth group meetings, adult bible studies and other religious meetings and events – and so in the spring of 2000, it applied for an amendment of its Special Use Permit to expand both the building and associated parking spaces.

A member of the congregation had donated an additional four and a half acres of land immediately adjacent to the original 9 acre property in 1997, and the application proposed using the additional vacant property for the expansion. The expanded facility would occupy up to 61,485 square feet, roughly doubling available floor space and including an expanded sanctuary (at 900 seats, still 75 seats fewer than authorized under the original CUP), chapel, music room, classrooms and community area.

The church was meticulous about meeting city requirements for the proposal. A required (and noticed) neighborhood input meeting was held on July 26, 2000. Other than church and city representatives, only one area resident attended, and testified that the church does not cause traffic problems on Sunday mornings. The church spent some $250,000 on engineering, planning and architectural fees and expenses, and to prepare its application plans and respond to city requests.

On November 6, 2001, the city Planning and Zoning Commission held a public hearing on the application, and in response to newly raised concerns expressed at the meeting, the church agreed to drop its proposed day care use of the property. A month later, the Commission voted 5 to 1 to recommend that the City Council approve the application. In January, 2002, the city’s planning staff sent a memo to the Council stating that the application met all applicable standards, codes and criteria, and recommended approval.

The City Council held a public hearing on the application on January 28, and then took no action on it. Forty-nine days later, on March 18, 2002, the Council abruptly adopted “Findings of Fact, Conclusions and Order,” denying the application unconditionally, without proposing any changes or conditions for approval. Among the Council’s “findings” was that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was unconstitutional, and that it would therefore ignore the law’s requirements.

On May 6, 2002, Greenwood Community Church filed suit against the City of Greenwood Village in Arapahoe County District Court, charging that the City’s actions were “arbitrary, capricious, unreasonable and an abuse of discretion.” It alleges violations of the U.S. and Colorado Constitutions and RLUIPA, and asks the court to issue a preliminary and permanent injunction against the city, as well as an order directing the city to “issue all permits and authorizations necessary” for the expansion project.

On June 7, 2002, Becket joined the lawsuit on behalf of Greenwood Community Church.

In September 2002, the church and the city agreed to explore resolution of the case. After several months of talks, The Greenwood City Council met to reconsider the application at its meeting on December 2, 2002. On a vote of 6-2, the Council reversed its earlier decision and approved the church’s expansion plans.

In addition to compromises agreed to earlier, the church will accept a reconfiguration of its expanded parking area, more than doubling the setback from its eastern boundary, as well as a further reduction in square footage of the new, larger building.

 

Town of Foxfield v. Archdiocese of Denver

In 1998 Monsignor Edward Buelt was designated the first pastor of Our Lady of Loreto parish in the Archdiocese of Denver.  The parish adapted a small separate building, intended for the rectory, for use as a chapel while preparations for building a permanent church across the street were ongoing.  At the urging of a few neighbors living near the rectory, the Board of Trustees of the Town of Foxfield adopted a bizarre ordinance (“Ordinance No. 3”) on March 22, 2001 which makes it unlawful to park more than five motor vehicles for more than fifteen minutes within 1,000 feet of a private residential property on more than two occasions during any thirty day period.

After receiving complaints concerning the church’s parking, the Town filed a lawsuit asking the Arapahoe County District Court to issue a permanent injunction and a declaratory judgment against the Archdiocese.  On August 1, 2002, the Archdiocese filed a motion arguing that Ordinance No. 3 violates the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), Colorado’s “Freedom to Gather for Worship Act,” and the U.S. and Colorado constitutions and is thus void and unenforceable.  The Town filed a cross motion arguing, among other things, that RLUIPA is unconstitutional.

The Archdiocese was represented by the law firm of Rothberger Johnson & Lyons, and in 2002 The Becket Fund for Religious Liberty joined the case in an “of counsel” capacity, bringing expertise in constitutional law and RLUIPA.

The trial court rejected the Archdiocese’s RLUIPA defense, and The Becket Fund, along with a diverse coalition of religious and civil rights organizations filed an amicus curiae brief in the Colorado Court of Appeals that sought a reversal and defended the constitutionality of RLUIPA.  In August 2006 the Court of Appeals’ decision handed the Archdiocese a major victory by allowing the church’s RLUIPA claims to go forward, noting that “Ordinance No. 3” was not “neutral and generally applicable”.   In May 2007 the Court of Appeals’ ruling was upheld when the Supreme Court of Colorado denied the Town of Foxfield’s petition for Writ of Certiorari.