Little Sisters of the Poor v. Commonwealth of Pennsylvania

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

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

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

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

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

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

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

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

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

Importance to religious liberty 

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

FFRF v. Morris County Board of Freeholders

At the Supreme Court, changes to the law are often slow and incremental. Sometimes these changes take place even when the Court decides not to take a case, as when one or more Justices write in a way that helps lower courts see the issues in a new light. This case, involving government grants for the preservation of historic buildings, including churches, is one such matter. Although the Court declined to hear the case, an opinion written by Justice Kavanaugh, and joined by Justices Alito and Gorsuch, reveals their commitment to equality for religion in the public square.

Historic buildings are an important part of our national heritage, from Independence Hall, to George Washington’s home in Mount Vernon, Virginia, to the Ebenezer Baptist Church where Martin Luther King served as pastor until his death. These buildings need frequent restoration to remain available to the public for future use. In 2002, Morris County created a historic preservation fund to help restore beautiful, historic buildings within the County. The program is a competitive grant program and requires applicants—both secular and religious—to establish the historic significance of the building, typically by showing they are on the state or national historic registry.  

In December 2015, the Wisconsin-based Freedom From Religion Foundation (FFRF) sued Morris County in New Jersey Superior Court, complaining that allowing churches to participate in the program violated the New Jersey Constitution. They claimed that Morris County can restore historic buildings—just not churches. Yet courts have consistently ruled that churches cannot be banned from widely available public benefit programs. In June 2017, for example, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer  that a state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids. Similarly, in January 2017, the New Jersey court had ruled in Morris County’s favor and protected the right of religious historic buildings to participate in the program. But in April 2018, and despite the U.S. Supreme Court’s decision in Trinity Lutheran, the New Jersey Supreme Court reversed and ruled in FFRF’s favor, saying that under the New Jersey constitution the government cannot provide grants to preserve the architecture of historic churches. 

On September 19, 2018, Morris Country, represented by Becket, appealed to the U.S. Supreme Court, asking the Court to let Morris County continue treating all historic sites the same, without having to engage in religious discrimination. 

On March 4, 2019, the Supreme Court declined to review the case, but Justices Kavanaugh, Alito, and Gorsuch issued an opinion that goes a long way toward steering lower courts in the right direction. The opinion suggested that it would be inappropriate for the Court to take another case like Trinity Lutheran so soon after it was decided. This policy gives the lower courts more time to work through new decisions on a particular issue before the Supreme Court considers what gaps or confusion remain in the law. But in a promising move for his first writing on religious liberty at the Court, Justice Kavanaugh made clear that excluding sites from a historic preservation program because they are religious creates “serious tension with this Court’s religious equality precedents.”

This is not the last time the Court will have a chance to definitively resolve the issue. Although the New Jersey Supreme Court’s bar against religious organizations remains in place, a church suing the State of New Jersey or one of its counties after being denied funds could point to Justice Kavanaugh’s opinion to support a claim of religious discrimination. And Justice Kavanaugh himself agreed that “[a]t some point” the high court will have to step back in. In the meantime, the lower courts are on warning: according to Justices Kavanaugh, Alito, and Gorsuch, excluding religious organizations from generally available government programs is “pure discrimination against religion.”


Importance to religious liberty

  • Public Square: Houses of worship that have historical significance should qualify for the same benefits as other historically significant sites.
  • Reinforcing precedent: In June 2017, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Comer that the state of Missouri couldn’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools.

Islamic Society of Basking Ridge v. Township of Bernards

A suburban New Jersey town denied a small Muslim congregation the right to build a new mosque where it could meet to worship. So the congregation went to court.

A small mosque with a big dream

Mohammad Ali Chaudry is a Pakistani immigrant who has lived with his family in Basking Ridge, New Jersey for nearly 40 years. Chaudry, who has a Ph.D. in economics from Tufts University and is a retired AT&T executive, has a long history of community engagement, including serving on the town’s board of education and as mayor from 2004 to 2007. He is also the founding and current president of the Islamic Society of Basking Ridge, a small Muslim congregation.

In 2008, Chaudry began looking for property to build a larger space to hold the Society’s prayer meetings and Sunday school for children. A few years later, Chaudry purchased a 4-acre site zoned for houses of worship and began planning construction. The small, unassuming mosque was designed to fit in with the residential neighborhood, without a traditional dome and with discrete minarets that looked like chimneys.

Red tape discrimination from the town board

In 2012, after the Society filed its application for a permit with the Township’s Planning Board, what ensued was four years of local bureaucratic quagmire. The Board held a record 39 public hearings during which time the Society faced hostility and vandalism from members of the local community.

The Society’s application met every requirement from the Township Planning Board, but the goal posts kept changing. For example, the 150-congregant mosque was required by local ordinance to have 50 parking spaces—the same amount required for churches and synagogues of the same size. But local bureaucrats changed the rules to require more than double that amount of parking for the mosque.

In January 2016, the application to build the mosque was ultimately denied.

Becket defends the right to worship

In March 2016, represented by Patterson Belknap Webb & Tyler LLP,  the Society sued the town for violating the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First and Fourteenth Amendments. In May 2016, the Society asked the court to rule in its favor.

Becket filed a friend-of-the-court brief supporting the mosque, which was signed by a diverse coalition including the American Association of Jewish Lawyers and Jurists, Baptist Joint Committee for Religious Liberty, Becket, Center for Islam and Religious Freedom, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Interfaith Coalition on Mosques, International Mission Board of the Southern Baptist Convention, International Society for Krishna Consciousness, Muslim Bar Association of New York, National Asian Pacific American Bar Association, National Association of Evangelicals, New Jersey Muslim Lawyers Association, Queens Federation of Churches, Sikh American Legal Defense and Education Fund, Sikh Coalition, South Asian Bar Association of New Jersey, South Asian Bar Association of New York, and Unitarian Universalist Legislative Ministry of New Jersey.

On November 22, 2016 the Department of Justice filed a lawsuit against the Township of Bernards over the denial of zoning approval for the mosque. On December 31, 2016, the court ruled in favor of the mosque’s right to build.

In May 2017, the Township settled the lawsuits, agreeing to treat all houses of worship equally.

American Humanist Association v. Matawan-Aberdeen Regional School District

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

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

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

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

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

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

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

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

Heffernan v. City of Paterson

In 2006 New Jersey police officer Jeffrey Heffernan was spotted picking up a campaign sign for the candidate opposing the mayor of Paterson. Officer Heffernan didn’t live in the city and was picking up the sign for his bed-ridden mother. And in any case, the Constitution protects nonpolitical employees who decide to get involved in elections. None of that mattered to the chief of police, who demoted Officer Heffernan from detective to patrol officer as punishment for opposing the sitting mayor. Officer Heffernan sued the city, the mayor, and the police chief of Paterson, New Jersey for violating his freedom of speech and association. Becket joined his fight in a friend-of-the-court brief at the Supreme Court explaining how important it is to protect freedom of assembly, and citing scholars such as Washington University School of Law Professor John Inazu, who advocate that approach. Officer Heffernan was represented by Mark B. Frost & Associates, UCLA School of Law Supreme Court Clinic, and Munger, Tolles & Olson LLP.

 

Albanian Associated Fund v. Township of Wayne

For years, the Township of Wayne, New Jersey blocked the Albanian Associated Fund (AAF), a Muslim congregation, from building a mosque. The congregation’s efforts were opposed by a so-called “Property Protection Group” in the community, who labeled the mosque a “public nuisance.” Instead of protecting the First Amendment rights of the congregation, Wayne Township suddenly decided that it needed to seize the future home of the mosque for “open space.”

In July 2006, Becket, along with Roman P. Storzer of Storzer & Greene, filed a federal lawsuit on behalf of AAF against the Township of Wayne, for violating the Constitution as well as the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The lawsuit, filed in New Jersey district court, was filed to stop the Township from using eminent domain to seize AAF’s property. A federal judge sided with Becket, preventing the Township from seizing the property, and protecting the mosque’s right to build.

“This is a great victory in the battle for the rights of religious organizations of all faiths,” said Kevin ‘Seamus’ Hasson, Founder of Becket, “However, the greater war will continue until local governments learn that the Constitution prohibits this type of eminent domain abuse.”

“It is wonderful to see the courts in this country protect religious freedom,” said Atmi Kurtishi, president of the Albanian Associated Fund. “But we couldn’t have done it without Roman Storzer and Becket.”

Christ Church New Jersey v. Rockaway Township

Cramped—that’s how members of Christ Church felt after an exhausting seven year search for a new house of worship. In less than twenty years, a home Bible study of eight people had grown to a church of more than 5000 members. Their 800-person sanctuary was bursting at the seams; it couldn’t keep pace with the needs of a rapidly expanding congregation.

In April 2003, the Church signed a contract to purchase a large property from a bio-tech firm in Rockaway Township, New Jersey. It seemed like a perfect fit. Conveniently located just 21 miles away from the Church’s primary campus in Montclair, the new facility could seat over 2,500 people, every service. But when Christ Church requested approval for its site plan from the Rockaway Township Planning Board, local officials actively sought to block construction. Although couched in terms of concerns about traffic and congestion, there were also indications that some of the resistance came from the fact that Christ Church’s membership was diverse, and its Senior Pastor, Rev. David Ireland, was African-American.

Becket stepped in to advise Christ Church and counter the city’s attempts to drag out the approval process. City bureaucrats sought to foment local opposition, and even went as far as to question whether Christ Church was, legitimately, a “church” as defined by city regulations. Rockaway Township, observed Derek L. Gaubatz, Becket’s former director of litigation, tried “to hunker down and throw sand in the gears at every step of the process.” In a private meeting with Rev. Ireland, the Mayor of Rockaway said “we don’t want you here,” and threatened to seize the property by force of eminent domain.

On April 15, 2005, Christ Church filed suit against Rockaway Township officials for placing unconstitutional, discriminatory burdens upon its right to pursue its religious mission.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), the federal statute that supplied the core of Christ Church’s claims, shields religious institutions from the imposition of land use regulations which place them “on less than equal terms” with nonreligious assemblies. Local officials did just that. Rockaway Township did everything it could to create an antagonistically unequal playing field for Christ Church.

After two years of litigation, the Rockaway Township Planning Board relented, settled out of court, and in October 2007, granted Christ Church approval for the construction of its interim sanctuary. The church celebrated receiving its final Certificate of Occupancy on June 1, 2009, six years after buying the property.

Living Faith Ministries v. Camden County Improvement Authority

Living Faith Ministries, a 6,000-member, 20-year-old New Jersey church, filed suit in federal court on February 15, 2005. Living Faith charges that Pennsauken Township, Camden County, and the Camden County Improvement Authority are violating the United States and New Jersey Constitutions and the Religious Land Use and Institutionalized Persons Act (RLUIPA) by attempting to seize the church by eminent domain.

The vibrant, predominantly African-American religious community has been growing at a rate of 30% annually. In 2002, Living Faith bought the South Jersey Expo Center property after a two-year search that turned up no other suitable alternatives.

The complaint remarks that the Authority “seeks to seize Living Faith’s Church to demolish it and transfer the property to a private developer for the purpose of building private residential units.” This is not a “public use,” such as a park or highway, so the taking would violate the Fifth Amendment. The Pennsauken Township has already acknowledged that the church would be a beneficial use to the community, with no negative impact on the neighborhood or surrounding businesses.

“Living Faith’s outreach to the community is provided through 27 specialized ministries that are dedicated to improving the lives of all within the larger community in accordance with the vision of the Church,” the complaint says. Living Faith holds several weekly religious services, fellowship programs, Bible study, and youth ministries, and a television show titled “Faith Speaks.”

The Becket Fund for Religious Liberty joined the team of lawyers representing Living Faith Ministries in this suit, and successfully secured a favorable outcome for the church.

Lighthouse Institute for Evangelism v. City of Long Branch

The Lighthouse Mission has been battling with the City of Long Branch, New Jersey since 1994, seeking permission to provide social services and conduct worship services in a building at 162 Broadway. The Lighthouse Mission’s Rev. Kevin Brown found that he was unable to persuade city zoning officials to consider granting a variance that would allow the proposed uses in the district in which the building is located. A Baptist congregation had been engaged in similar activity in rented space located directly across the street.

A suit was filed in Monmouth County Superior Court on June 8, 2000, charging the city with violations of the U.S. and New Jersey Constitutions, the Civil Rights Act of 1871 and the Fair Housing Act. Becket submitted an amicus brief in the case on May 7, 2001.

After a series of appeals to the Third Circuit Court of Appeals, one of the two city ordinances in question was held to be constitutional, while the other was not – a partial victory for the Lighthouse Mission.

ACLU of New Jersey v. Township of Wall

The Supreme Court has long upheld the right of local governments to display traditional holiday scenes containing both religious and secular symbols. Unfortunately, opposing groups have continued to challenge public holiday displays during the Christmas and Hanukkah season.

In 1998, Wall Township in New Jersey set up a holiday display containing a crèche with traditional figures, a lighted evergreen tree, two decorated urns, and four snowman banners attached to light posts. The ACLU sued on behalf of two clients, claiming that the display was an unconstitutional establishment of religion. The following holiday season, the town again exhibited a holiday display. This time including a donated menorah, candy cane banners rather than the less prominent snowman banners, a larger evergreen tree, and two signs reading: “Through this and other displays and events through the year, Wall Township is pleased to celebrate our American cultural traditions, as well as our legacy of diversity and freedom” and “Merry Christmas, Happy Hanukkah.” Yet such inoffensive messages were still unacceptable to the ACLU and its clients, who requested that the court immediately order the removal of the display.

Luckily for holiday cheer and common sense, the trial court ruled that the display was constitutional and the Third Circuit on appeal rejected the argument that the ACLU’s clients had actually suffered any injury. This was a decisive victory for supporters of the religion in public life and the Constitution alike.

In the words of Becket’s founder Seamus Hasson, communities like Wall Township are now free to continue celebrating the significance of holidays and observances “from Christmas to Hanukkah, St. Patrick’s Day to Ramadan, Columbus Day to Passover, and Independence Day to Molly Pitcher Day.”

Fraternal Order of Police v. City of Newark

Police officers who serve their city and their faith

Faruq Abdul-Aziz and Shakoor Mustafa are devout Sunni Muslims whose faith requires them to grow a beard. For over a decade, they served as police officers in the Newark Police Department while maintaining a beard without incident. In 1999, however, the Chief of Police decided to enforce a 1971 policy requiring officers to be clean-shaven. But this policy exempted those who had medical reasons for not shaving. The policy even permitted mustaches and sideburns, and allowed officers to wear beards when undercover. Yet it did not allow beards for religious reasons, so the department initiated disciplinary actions against the Muslim police officers.

Unanimous victory for people of all faiths

Becket works to ensure that when governments grant accommodations for non-religious reasons, they provide the same accommodations for religious reasons as well. In this case, the City of Newark had no justification for its policy requiring religious police officers be clean-shaven when it allowed officers to have beards for numerous other reasons. Mr. Aziz and Mr. Mustafa were forced to choose between their faith and careers—a choice no American should have to make. So instead, they  went to federal district court seeking protection from this unconstitutional choice, and they won.

Then the city appealed. In June 1998 Becket president Seamus Hasson argued the case before the U.S. Court of Appeals for the Third Circuit, supported by a group of amici including the ACLU and the Anti-Defamation League. On March 3, 1999, the Third Circuit unanimously ruled in favor of the officers, stating that the department’s policy violated their religious freedom under the First Amendment. Then-Third Circuit Judge Samuel Alito wrote the opinion, holding that the city’s grooming policy created a “categorical exemption for individuals with a secular objection but not for individuals with a religious objection,” and was thus subject to the highest form of scrutiny, which the city failed to satisfy.

Victorious, the officers were able to continue serving without violating their faith. Their case set an important precedent for people of all faiths who’d might otherwise be forced to choose between their career and their religion.

Importance to religious liberty:

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. No American should have to choose between their career and following their religious beliefs, especially those who serve on the police force.
  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square.

Hood v. Medford Township Board of Education

The Bible: A first grader’s favorite book to read to his class

In 1996, a 1st grade teacher at Haines Elementary School in Medford Township, New Jersey asked her students to choose a story from a favorite book to read aloud in class. Zachary Hood chose to bring his children’s Bible so he could read “A Big Family,” a story in which two brothers, Jacob and Esau, reunite. The story met all the teacher’s requirements regarding complexity and length. Yet after reviewing the story, the teacher refused to allow Zachary to read it to his classmates because she thought his religious speech should be banned from the classroom.

Becket defends religious speech in the classroom

When the Board of Education defended the teacher’s discrimination and censorship, Zachary’s mother Carol sued the Medford Township Board of Education arguing that the school violated Zachary’s First Amendment rights to free speech and religious liberty. After a federal district court sided with the Board of Education and the Third Circuit Court of Appeals affirmed the decision, Becket stepped in and obtained a rehearing. In February 2000, the full Third Circuit heard oral argument, and later the sharply divided court issued a split 6-6 decision, leaving in place the district court’s ruling against Zachary’s right to read his Bible.

When the Supreme Court declined to hear the case, Becket continued pursuing Zachary’s lawsuit against the Board of Education on a related issue that had become part of the case: a religious Thanksgiving poster Zachary had made that was taken down from his classroom’s walls. In November 2002, the Township agreed to settle the case and pay an award to Zachary and his mother.

The government upholds students’ rights in the classroom with “Zach’s rules”

In response to our lawsuit, the U.S. Department of Education  unequivocally confirmed that students retain their free speech and religious liberty while in the classroom, , issuing official guidance in February 2003 that “students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions.” At Becket, they’re known as “Zach’s Rules.”

Importance to Religious Liberty:

  • Education: Students don’t lose their First Amendment rights when they enter the classroom. Freedom of conscience includes the right to believe, express beliefs, and live according to one’s conscience in private and in public, at home and in school.
  • Public Square: Because religion is natural to human beings, it is natural to human culture. Religious expression should not be treated as dangerous expression, scrubbed from society. It can, and should, have a place in the public square, including public schools.
  • Free Speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular.

ACLU of New Jersey v. Schundler

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

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

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

Boy Scouts of America v. Dale

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