City of Grants Pass v. Johnson

Ninth Circuit discounts the faithful 

In 2018, the Ninth Circuit decided Martin v. City of Boise, which was a challenge to Boise, Idaho’s anti-camping laws. The court based its decision on the Eight Amendment to the United States Constitution, which prohibits “cruel and unusual punishments.” The Ninth Circuit ruled that the city could not enforce its anti-camping laws because it did not have enough shelter beds available to its homeless population. In doing so, the court discounted any beds in shelters that had a “religious atmosphere,” “Christian messaging on the shelter’s intake form,” and “Christian iconography on shelter walls.”  

Court doubles down on anti-religion ruling 

Just weeks after the court’s decision in Martin, a group of homeless individuals sued the city of Grants Pass, Oregon, over its laws that restrict individuals’ ability to sleep overnight in public places like streets, parks, and sidewalks. Breaking the laws can result in penalties up to several hundred dollars and repeat offenders can be barred from all city spaces. A federal district court ruled against Grants Pass, preventing the city from enforcing the laws.  

The Ninth Circuit agreed with the lower court and ruled that Grants Pass’s anti-camping laws were cruel and unusual punishment because of a lack of available shelters—all while refusing to count the Christian shelter in the city, the Grants Pass Gospel Rescue Mission. The city asked the Supreme Court to review the case, and it agreed to do so. 

Becket defends religious ministries from bad law 

On March 4, 2024, Becket filed a friend-of-the court brief at the Supreme Court in support of neither party. Becket’s brief argues that the Ninth Circuit’s ruling relied on a wrongheaded legal standard known as the Lemon test that the Supreme Court overruled in 2022 in Kennedy v. Bremerton School District. For decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. In the Kennedy case, the Supreme Court emphasized that the Establishment Clause prohibits government from establishing an official state religion. Even though Lemon was overturned by the Supreme Court in 2022 in Kennedy v. Bremerton School District, some lower courts, including the Ninth Circuit, continue to rely on it.   

Becket’s brief urges the Supreme Court to reject the Ninth Circuit’s misguided view of the Establishment Clause and reiterates that courts should apply a historical test based on what was understood as a religious “establishment” at the time of the Founding. Oral argument in the case was heard by the Supreme Court on April 22, 2024, and a decision is expected by the end of the Court’s term in June.

Importance to Religious Liberty: 

Public square: Religious organizations are crucial to maintaining a free society. Government policies that presume religion does not belong in public life get our best traditions, our bedrock principles, exactly backward. 

HotChalk v. Lutheran Church-Missouri Synod

Maintaining the faith 

Founded in 1847, the Lutheran Church-Missouri Synod (the Church) is the second-largest Lutheran denomination in the United States. As part of its religious mission, the Church has “ecclesiastical stewardship” over the Concordia University System, a group of Lutheran colleges and universities spread across the United States. Consistent with its religious polity (or organizational structure), the Church exercised its responsibility to ensure that leaders at Concordia University – Portland adhered to the Church’s Lutheran religious beliefs in operating the University, in part by making religiously-informed decisions regarding the appointment of the school’s new spiritual leader, its president.  

Tech giant goes on fishing expedition 

For numerous reasons, including financial difficulty, Concordia University – Portland closed its doors in 2020. In the aftermath of the closure, HotChalk, a multimillion-dollar technology firm that helped run the University’s online courses, sued the school and Church, demanding over 300 million dollars. The Church agreed to produce documents regarding the contract with HotChalk, and its related finances. HotChalk, however, also sought access to internal religious communications among Church leaders about religious doctrine, church governance, and the selection of religious leaders at Concordia. 

But this is not the first time HotChalk has found itself in hot water. In 2015, the U.S. Department of Education conducted an investigation into the company’s mismanagement of online student programs, resulting in a one-million-dollar settlement. 

Protecting religious organizations from government intrusion  

The First Amendment protects the right of religious groups to make internal religious decisions without threat of government interference. Forcing the Church to hand over private deliberations about matters of faith to courts would seriously interfere with the church’s ability to oversee its schools and ministry. As Becket’s amicus brief also argues, disrupting this balance would have damaging consequences for minority religious groups throughout Oregon.  

In the Jewish community, for example, rabbis frequently must make important determinations regarding what Jewish law requires. These decisions often entail sensitive internal deliberations about religious doctrine and Jewish law. The ability of religious minorities like Jews to speak freely without fearing intrusive, costly litigation is crucial to the survival of these communities and their religious beliefs.  

On May 2, 2024, the Oregon State Supreme Court ruled in favor of the Lutheran Church-Missouri Synod, prohibiting HotChalk from accessing the Church’s internal religious deliberations. The case will continue in trial court.

Importance to religious liberty 

Religious communities: Religious communities must be free to operate and minister without government interference, including by keeping internal church communications private, especially when it comes to matters of doctrine and theology. 

Slockish v. U.S. Department of Transportation

A spiritual promise to protect sacred lands of Mount Hood

Members of the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of Grand Ronde have lived in the areas surrounding Mount Hood for centuries. Sacred land nearby, known as Ana Kwna Nchi Nchi Patat, or the Place of Big Big Trees, has been used for religious ceremonies and sacred burials since long before this nation was founded. 

For decades, Hereditary Chief Wilbur Slockish and Carol Logan, a spiritual practitioner and elder in her tribe, have visited the land to pray, meditate and pay respects to their ancestors through memorial ceremonies. As leaders in their community, their role of protecting the land and preserving their traditions is of utmost importance. 

Government bulldozes sacred lands

In 2006, the U.S. Federal Highway Administration announced a project to expand U.S. Highway 26, which runs between Mount Hood and Portland in Oregon. The Native leaders alerted government officials to the importance of the burial grounds, as tribe members had done in the past when the government announced expansion plans. Yet, this time, the government refused to listen.   

In 2008, ignoring the tribe members’ objections, government officials bulldozed the ancestral burial grounds. Although the government left the other side of the highway untouched—protecting nearby wetlands and a tattoo parlor—it destroyed ancestral grave sites, dismantled a sacred stone altar, and removed safe access to the sites.  

Defending the religious rights of Native Americans

In October 2008, Chief Slockish and Carol Logan, together with the Cascade Geographic Society, the Mount Hood Sacred Lands Preservation Alliance, and the late Hereditary Chief Johnny Jackson, sued the government, relying on the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the U.S. Constitution. After two-and-a-half years of negotiations between the tribe members and the government, negotiations failed.   

In 2015, the tribe members returned to court. In October 2017, an important hearing was held in which the tribe members asked the court to find that the destruction of their sacred site substantially burdened their religious practices. Sadly, the tribes were denied justice when the judge ruled that RFRA did not apply to the case and the government was free to bulldoze sacred Native American burial grounds and destroy sacred artifacts if it occurred on federal land.  

In December 2018, the tribe members asked the court for relief based on their claims that the destruction of their sacred site violated environmental laws. Following a magistrate judge’s preliminary recommendation against the tribe members in April 2020, the district court denied relief to the tribe members in a 3-page order on February 21, 2021.

The tribe members then appealed to the Ninth Circuit. On November 24, 2021, the Ninth Circuit ruled that the government will not be held responsible for its destruction of the sacred site and dismissed the case as “moot.” Essentially, the Ninth Circuit said nothing could be done since the destruction had already occurred.

On October 3, 2022, Becket asked the United States Supreme Court to reverse the Ninth Circuit’s ruling and hold the federal government accountable for needlessly destroying their sacred land. On October 5, 2023, after a 15-year legal odyssey, the government agreed to settle the case and make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site.  

The tribe members are represented by Becket together with Keith Talbot of the Seattle-based law firm, Patterson Buchanan Forbes & Leitch. 

Importance to Religious Liberty

  • Individual freedom: Religious liberty includes the right to worship how and where one’s faith dictates. Government should not restrict the ability of individuals or groups to access religious sites, especially when there is an alternative way for the government to achieve its goal.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.

Matal v. Tam

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

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

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

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

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