Gutierrez v. Saenz

On June 16, 2020, a Texas death-row inmate was hours away from his execution when the United States Supreme Court halted the procedure. Ruben Gutierrez had asked Texas to provide access to a Christian chaplain in his last moments before death but had been refused by the prison administration. Gutierrez filed an emergency order before the Court, arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment should guarantee the free exercise of religion, even for those in prison and especially for those about to meet their Maker.  

Spiritual Comfort– for some or for none 

Texas has a long tradition of allowing chaplains in the death chamber. It all changed when Texas refused the request of spiritual comfort to Buddhist prisoner Patrick Henry Murphy, a right that had been afforded to other prisoners through state-employed chaplains. On March 28, 2019, the United States Supreme Court granted a stay in Mr. Murphy’s execution, noting that Texas’ actions were a “governmental discrimination against religion” and violated the Constitution. 

Unfortunately, instead of allowing different kinds of spiritual advisors in the death chamber, Texas responded to its Supreme Court loss in the Murphy case by eliminating all use of chaplains in the last moments of death. This went against years of tradition, where spiritual guidance had been safely given to the condemned for decades. Now, no Texas prisoner could receive that pastoral care before death. 

Need of Clergy for the Condemned 

However, federal law supports the idea that all people of all faiths should be able to practice their faith freely, a right that should not be refused once someone enters the prison cell. Mr. Gutierrez only requested the services of state-employed chaplains, the chaplains that have ministered to Texas state prisoners for decades. Texas denied the request due to what it said were safety concerns, but in the previous year, Texas told the Supreme Court that their chaplains could be trusted in the most difficult circumstances in the death chamber. 

After staying the execution in June 2020, the United States Supreme Court sent the case back down to the Texas district court and asked the lower court to figure out “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.” The lower court concluded that Texas had no compelling interest in preventing access to the clergy and on January 25, 2021, the United States Supreme Court reversed the Fifth Circuit’s decision that Texas could deny Mr. Gutierrez a chaplain. The case is ongoing in district court.  

Importance to Religious Liberty:  

  • Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith. 
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons. 

 

Ramirez v. Collier

View: A HISTORY OF CLERGY PRESENCE IN THE EXECUTION CHAMBER

The right of the condemned to prayer before an execution long predates the formation of the United States, which inherited the tradition from England. Since before the colonial era, it was common for ministers to accompany the condemned to the gallows, where they would pray with, minister to, and touch those who are about to die. General George Washington honored such requests by deserters executed during the Revolution, and the United States also honored such requests by Nazi war criminals after the Nuremberg Trials. 

Today, condemned prisoners of all faiths often request such prayers in the death chamber from their clergy as a way to “get right with God” and safeguard their eternal destiny. And some religious traditions require such ministrations to those marked for death. The federal government and state governments have routinely allowed clergy to minister to the condemned in the death chamber—both by praying aloud and holding their hand. 

In 2019, the state of Alabama denied a Muslim prisoner the presence and prayer of an imam before his execution. When the Texas Department of Criminal Justice (TDCJ) attempted to do the same thing to a Buddhist prisoner just a few weeks later, the Supreme Court stepped in, ruling in Murphy v. Collier that Texas had to permit the prisoner’s Buddhist spiritual advisor to accompany him to the death chamber. Since then, the Supreme Court has similarly protected Christian prisoners in both Texas and Alabama. Despite these clear rulings and centuries of history, including its own traditional practices, TDCJ recently imposed two rules – one preventing clergy from praying aloud and one preventing clergy from touching the inmate – contrary to centuries of tradition. TDCJ said these long-accepted prayers would “disrupt the execution” despite any evidence that they had or would.  

Death row inmate John Henry Ramirez appealed to the Supreme Court seeking prayer and touch from his Southern Baptist pastor during his final moments. Becket filed a friend-of-the-court brief with prominent constitutional scholar and Stanford Law School Professor Michael McConnell and the Harvard Law School Religious Freedom Clinic. Becket’s brief describes the long history of audible clergy prayer and clergy touch and explains why that means Ramirez ought to prevail under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act.  

On November 1, 2021, the case was argued before the Supreme Court. In an 8-1 vote, on March 24, 2022, the Court ruled in favor of allowing clergy to audibly and physically pray with Ramirez. The Court cited Becket’s amicus brief on the long history of clerical prayer present at executions and agreed that prohibiting such practices substantially burdened the prisoner’s religious exercise and that Texas could not satisfy strict scrutiny.

Importance to Religious Liberty:

  • Individual freedom: A fundamental part of human dignity is recognizing the human desire for religious faith.
  • RLUIPA: The federal Religious Land Use and Institutionalized Persons Act – passed, like the Religious Freedom Restoration Act (RFRA), with strong bipartisan support – protects the human dignity of prisoners by ensuring that their religious liberty is protected and bans discriminatory land-use rules that are often used to prevent disfavored groups from building houses of worship.  

United States of America v. State of Texas

The Humanitarian Respite Center in McAllen, Texas, ministers to over 1,000 recent migrants each day. The Center was created in 2014 by Catholic Charities of the Rio Grande Valley, a ministry of the Roman Catholic Diocese of Brownsville. The Center has served more than 100,000 migrants to date and is the first stop for many migrant families after they cross the border and are released by law enforcement. At the Center, families dropped off by Border Patrol receive COVID tests and transportation to quarantine locations, if needed. Those without COVID enter the Center to receive basic necessities: medical attention, food, water, temporary shelter from the elements. Catholic Charities then transports them to hospitals, shelters, or on their way to reunite with family.   

Due to the ongoing COVID-19 pandemic, incoming migrants are tested for COVID-19 before entering the Center. Migrants who test positive are safely quarantined at nearby hotels. However, on July 28, 2021, Texas issued an Order forbidding non-governmental entities from transporting migrants anywhere in Texas. While supposedly intended to prevent COVID-19 transmission, the Order in practice would prevent the Humanitarian Respite Center from taking migrants from the Center to local bus stations, airports, hospitals, and more permanent shelters. And it would prevent the Center from safely transporting COVID positive migrants to quarantine locations. Instead, with the Center unable to take in any more migrants, Border Patrol would leave migrants—without ever testing them for COVID—at local McAllen bus stations, increasing the likelihood of COVID transmission in the community and leaving young women and children with no means of contacting transportation or procuring food and water.   

Concerned about the negative impact this order would have on the federal government’s operations, the Department of Justice filed a lawsuit on July 30, seeking to block enforcement of the order. On August 3, a federal judge in El Paso granted temporary relief, set to expire on August 13. On August 11, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that the order impeded the religious rights of Catholic Charities contrary to federal and state law. After a court hearing on August 13, the district court issued an injunction that protects Catholic Charities Rio Grande Valley from Governor Abbott’s order while the case continues in court. The court recognized the vital role of religious ministries, finding “sufficient evidence” that federal officials must rely on the transportation efforts of “NGO-partners” like Catholic Charities “in order to operate the immigration system successfully.” 

As Becket’s friend-of-the-court brief explains, both state and federal law protect the free exercise of religion – including the exercise of religious ministries like the Humanitarian Respite Center. Not only did the order potentially increase the spread of COVID-19, but it also – in violation of state laws protecting religious exercise – threatened the Center if it carried out its religious mission of serving the vulnerable.  

The case is currently pending in the U.S. District Court for the Western District of Texas, El Paso Division. 

Sossamon v. Texas

Getting right with God

Harvey Sossamon was an inmate in a Texas. He wanted to cultivate his faith even while in prison, but he was denied access to the prison chapel for religious services even though other inmates were allowed access to the same space for secular uses such as marriage training sessions and sex education. Instead, the prison officials allowed worship services to be held only in multi-purpose spaces where there were no religious symbols to aid in worship.

This meant that, while he was able to practice his faith in multi-purpose spaces, he was unable to engage in essential aspects of Christian worship such as kneeling at the altar or praying at the foot of a cross.

Pursuing equal access

Sossamon sued the prison officials in their individual capacities, arguing that denying him access to the chapel unfairly burdened his religious exercise and is prohibited under the Religious Land Use and Institutionalized Persons Act (RLUIPA), an important civil rights law that protects the religious liberty of prisoners and patients.

Denied just recourse

The U.S. District Court for the Western District of Texas ruled against Sossamon, finding that he could not sue the officials in their individual capacity under RLUIPA. On appeal to the Fifth Circuit, Sossamon lost again. Sossamon appealed his case to the Supreme Court of the United States. At the Supreme Court, Becket filed an amicus brief that explained why it is so important for religious individuals to be able to sue government officials under the federal civil rights laws. The Supreme Court affirmed the Fifth Circuit’s decision on technical grounds, holding that Congress had not been specific enough in the wording of RLUIPA to override the State of Texas’s sovereign immunity. Justice Sotomayor dissented, discussing at length Becket’s kosher diet case Moussazadeh v. Texas Department of Criminal Justice.

Importance to Religious Liberty:
Individual Freedom—In order for individuals to have the freedom to exercise their beliefs without government interference, individual government actors who take adverse action against religious liberty must be able to be held personally responsible.

Archdiocese of Galveston-Houston v. HHS

Caring for the poor, the widow, and the immigrant

Following Catholic teaching, the Archdiocese of Galveston-Houston cares for the poor, the widowed, and the immigrant, providing critical, life-saving services through its ministries to hundreds of thousands of people in need every year. The Archdiocese and its vital ministries are driven by their Roman Catholic faith to care for those in need. The people they serve are of all creeds and backgrounds, including many living in poverty. In 2018, its ministries gave over 25,000 meals to seniors, provided over $10 million in disaster-recovery aid, and filed nearly 4,000 immigration petitions on behalf of refugees and immigrants.

A regulation standing in the way of helping children in need

Despite the Archdiocese’s many efforts to serve the underserved in its community, there is still a glaring crisis in the State of Texas. Thousands of vulnerable children wait to be placed in loving homes, but there are too few families to take all of them in. The Archdiocese would like to do more to help address the great need for foster families in its community. But a 2016 Department of Health and Human Services (HHS) regulation is preventing the Archdiocese from helping Texas foster kids, harming children who are still waiting for a home and family. The regulation requires religious foster care agencies to place children with same-sex couples even if doing so would go against their religious beliefs. This also contradicts a Texas law allowing agencies to refer couples to other agencies if they are unable to partner with them for religious reasons.

Many prospective foster families choose to work with faith-based organizations because of their shared beliefs and values. But some state and local governments are using this 2016 HHS regulation as justification for targeting religious agencies. Amid a nationwide foster care crisis, this regulation limits the number of agencies that can care for foster children in need, forcing organizations—like the Archdiocese—with the skills, resources, and desire to help to remain on the sidelines. The Archdiocese is seeking to grow, not limit, the number of foster families available to the orphans of Southeast Texas. Ending the regulation will strike a balance ensuring that all couples (including same-sex couples) can adopt, and all agencies (including Catholic agencies) can help broker foster and adoption placements. This is in the best interest of Texas’ foster children.

Diocese of Lubbock v. Guerrero

Promoting healing and protecting the vulnerable

This case was based on the January 2019 decision of Texas Catholic bishops to compile and release lists of clergy that, based on Catholic Church law and in accordance with internal church investigations, were credibly accused of sexually abusing “minors” as defined by Catholic law. The lists were part of an ongoing effort throughout the Church to speak with Catholics in a transparent manner about past sexual abuse, promote healing within the Catholic Church, and protect the vulnerable.

Punished for transparency

Among the names published by the Diocese of Lubbock was that of Deacon Jesus Guerrero, who was suspended in 2003 and permanently suspended from the diaconate in 2007 due to alleged sexual misconduct with a woman who has a history of mental and emotional issues.

Deacon Guerrero threatened to sue the Diocese of Lubbock for including him on the list. He claimed that his inclusion was defamatory, because the person he is accused of abusing was not under 18 years of age at the time of the alleged misconduct. The diocese explained that under Canon Law—the centuries-old body of law of the Catholic Church, which clergy are bound to follow—any person over the age of 18 who lacks the mental faculties of an adult (non sui compos) is considered a minor. Nevertheless, on March 22, 2019, Guerrero brought a million-dollar defamation lawsuit against the diocese.

Churches must be able to self-govern free from government interference

Guerrero’s suit asked that a civil court adjudicate whether the Catholic Church’s religious understanding of “minor” was reasonable, and, as applied to his conduct, true. At the Texas Court of Appeals, Becket filed an amicus brief on behalf of the Texas Catholic Conference of Bishops—all 22 bishops in the State of Texas—arguing that the government cannot tell churches how to resolve church controversies and cannot evaluate church standards of morality. Allowing courts to decide religious questions would open a Pandora’s box of lawsuits over internal church affairs, obliterating the healthy separation of church and state.

On December 6, 2019, Texas’s Seventh Circuit Court of Appeals rejected the Diocese of Lubbock’s appeal. Becket, representing the Diocese, appealed the case to the Supreme Court of Texas. Its appeal received the support of 34 members of the Texas Legislature, the Texas Attorney General’s Office, prominent legal scholars, and diverse religious organizations. On June 11, 2021, the Supreme Court of Texas dismissed the case, ruling in favor of the Diocese of Lubbock by a vote of 8-1.  The  Court recognized the full scope of the First Amendment’s freedom for religious institutions to shape their own faith and missions. Religious institutions, the Court said, are not only free to make “internal management decisions that are essential to the institution’s central mission.” They are also free to make any “publications that relate to a religious group’s right to shape its own faith and mission.”

Importance to Religious Liberty:

  • Religious communitiesChurches 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 autonomy and self-governance.

Belen Gonzales v. Mathis Independent School District

Brothers bound by a sacred promise 

When Pedro and Belen Gonzales’ eldest son, Cesar, was an infant, he contracted a very serious illness. Longing for his recovery, Pedro and Belen made a religious promise that if their son’s health improved, they would keep a strand of hair on the back of his head uncut as an expression of faith and gratitude. After Cesar recovered and their second son, Diego, was born, the family continued the practice as a deeply important and personal part of their religious faith. As they grew older, both boys continued to keep a small strand of their hair uncut, committed to living out their family’s sacred practice 

From kindergarten through sixth grade, the local school district allowed the boys to keep their long hair—despite a dress code requiring boys to have short hair—because the school recognized that the religious promise was an important part of their identity. The boys were active in many afterschool activities, such as football, the robotics team, and student government.  

Forced to sever a core part of their identity 

In August 2017, as they were entering the seventh grade at Mathis Middle School, the Gonzales brothers were suddenly told that they would no longer be allowed to keep a strand of their hair uncut. The Gonzales family appealed the decision but were eventually denied by the school board. The boys were banned from all University Interscholastic League (UIL) interschool competition in sports and clubs, which meant they couldn’t play on the football team or travel with the robotics team. Cesar’s grades even began to suffer when he was excluded from band performances—a core part of the academic band grade.  

The Texas Association of School Boards instructs school districts that they “must accommodate requests for exceptions [from grooming codes] based on a student or parent’s sincerely held religious belief.But the boys’ school district has refused to follow this recommendation. The school’s coaching staff even told Cesar, “All it takes is a quick snip of the scissors for you to get your football equipment.”  

Defending students’ freedom to express their faith 

On May 30, 2018, the Gonzales family sued the Mathis Independent School District on behalf of their sons, arguing that the school’s stubborn adherence to their grooming code imposed a burden on the family’s religious practice. 

On July 15, 2019, Becket sent a letter to Mathis Independent School District, urging the District to reach a settlement with the Gonzales family and allow the Gonzales boys to learn and play alongside their classmates.  

When the District refused, the federal court on September 5, 2019, granted the family’s request for a religious accommodation allowing participation in extracurriculars while the case proceeds. Finally, on May 25, 2021, the Mathis Independent School District entered a settlement agreement resolving the case. The District paid $20,000 to cover the family’s attorneys’ fees and promised to respect the Gonzales brothers’ religious practices for the duration of their enrollment. The Gonzales children can now fully participate in the life of the school while keeping their religious promise.  

The Gonzales family was represented by Texas attorney Frank Gonzales and Jamie Aycock, Kenneth Young, and Kelsee Foote of the international law firm Kirkland & Ellis. 

Importance to Religious Liberty: 

  • Education: No American should have to give up their faith when they go to school. The Constitution protects the free expression of sincerely held religious beliefs from arbitrary restrictions 
  • Individual Freedom: Every individual has the right to live and act according to their conscience, both privately and publicly, free from government coercion. 

Patrick Henry Murphy v. Bryan Collier, Executive Director, Texas Department of Criminal Justice

On the evening of March 28, Patrick Murphy was awaiting death by lethal injection. His final request for his Buddhist minister to pray with him at his execution, and help lead him into the afterlife in which he believes, had been denied. Yet at 9:20 pm—two and a half hours after Murphy was scheduled to die—the Supreme Court of the United States stepped in. The Court said that Texas could not go forward with the execution unless and until it granted Murphy the right to a reverend of his own faith at his side.

It was a shock—especially given that just weeks before, the Supreme Court refused to stop the execution of Muslim prisoner Domineque Ray when he was denied an imam at his own moment of death.

The story of what changed—and how Becket helped win the rights of the condemned to the comfort of clergy—comes down to the power of arguments based on principle.

Texas denies religious rights at death 

For the past six years, Patrick Murphy has practiced his Buddhist faith in prison with the help of spiritual advisor Rev. Hui-Yong Shih. Mr. Murphy believes that the presence of his spiritual advisor in the moments before his execution is necessary to assist him to maintain the focus required to be reborn in the Pure Land after death.

Despite Texas permitting Rev. Shih to visit Mr. Murphy in prison for over six years, and despite official prison approval of Rev. Shih as a prison spiritual advisor, the State of Texas refused Mr. Murphy’s request to have Rev. Shih present with him in the execution chamber. Texas made the surprising argument that a Buddhist minister was a security risk to the prison. And this was despite the fact that Texas already permitted Christian ministers and Muslim imams to be present in the execution chamber.

An eleventh-hour voice of reason 

Death penalty appeals are harried, and provoke strong feelings and emotions from all sides. In order to help prevent this from clouding the key religious liberty issues at stake, Becket filed a friend-of-the-court brief at the Supreme Court. This brief pointed the way toward a clear path that could protect the religious liberty of Mr. Murphy, while cutting through the competing arguments and ideological differences that are usually involved in a death penalty appeal.

Becket’s brief made the point that principles of religious liberty—and the very tangible religious liberty interest of Mr. Murphy—should not be ignored simply because the Court might not approve of the delay tactics that often accompany a Supreme Court death penalty appeal. Instead, the Court could protect religious liberty and find other ways to make their dislike of last-minute stay applications known.

More specifically, Becket marshaled key legal and historical sources to explain why a prisoner facing imminent execution has the constitutional right to turn to his minister for crucial support:

“The guidance of the soul at the moment of execution—the moment at which the knife falls—has for centuries been well recognized as a crucial moment of religious exercise calling for a minister’s guidance. This Court should recognize that our Constitution and civil rights laws support a right to that guidance.”

Becket asked that the Court order the State of Texas to grant Murphy access to his Buddhist minister in the execution chamber, which is exactly what the Supreme Court did.

The Supreme Court took action 

Almost two and a half hours after the scheduled start of Murphy’s execution by the State of Texas, the United States Supreme Court issued an order halting Murphy’s execution. The Court ruled that Texas could not proceed with the execution “unless the State permits Murphy’s Buddhist spiritual advisor… to accompany Murphy in the execution chamber,” exactly following Becket’s recommendation.

Justice Kavanaugh wrote separately, reinforcing the fact that “governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution.”

What changed?  

But what about the Muslim prisoner who was denied the same source of comfort at the moment of his death just a month earlier? One factor is clear: Becket’s involvement in the case brought new legal arguments to the table—arguments that were not made in the prior appeal to the Supreme Court. The Supreme Court, without the benefit of these arguments, was not presented with the full picture. Becket relied on cases that support the Free Exercise of religion, and prevent discrimination against people with different religious beliefs as a result. But the arguments previously made in support of the Muslim prisoner were more limited, and focused instead on different legal protections. This change was crucial to the protection of religious liberty in principle and in practice.

Importance to Religious Liberty

  • Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith.
  • RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons.

Whole Woman’s Health v. Texas Catholic Conference of Bishops

No good deed goes unpunished

The Catholic Church has long been known for its pro-life stance. In line with these beliefs, Catholic churches in Texas have worked with hospitals and families for many years to provide burial for unborn remains. When the State of Texas passed a law requiring all hospitals and abortion clinics to bury or cremate all unborn remains, the Texas Catholic Conference of Bishops offered support—as an act of ministry, the bishops publicly offered to donate free space in Catholic cemeteries across the state for this purpose.

In December 2016, Whole Woman’s Health, a group that runs abortion facilities in Texas, sued the State to stop the fetal remains law. Even though the Texas Catholic Conference of Bishops was not part of the lawsuit, in March 2018 Whole Woman’s Health retaliated against the bishops for publicly supporting the fetal remains law. Whole Woman’s Health served them with a subpoena demanding that the bishops hand over all communications about abortion. The bishops handed over more than 4,000 pages of communications, but the bishops stood their ground when it came to private religious deliberations among the bishops, refusing to hand them over.

Church theology is not a public affair

Churches should be free to lend tangible support to public initiatives without fear that they will be forced to hand over private, internal communications, especially on matters of doctrine and theology. The Texas Catholic Conference of Bishops had already handed over thousands of communications with outside groups. Handing over their private, internal religious deliberations between the bishops regarding matters of faith would seriously interfere with the Church’s ability to conduct its ministries – not to mention that handing them over to advocacy groups who believe differently than the Church does on matters like abortion would be damaging.

Despite this, on June 17, 2018, a trial judge ordered the bishops to hand over their internal communications about abortion to Whole Woman’s Health. The bishops appealed to the Fifth Circuit Court of Appeals for emergency protection from the order. On June 18, 2018, the Fifth Circuit suspended the trial court’s order, protecting the bishops until the case could be fully considered. Simultaneous briefs were filed at the Fifth Circuit on June 25, 2018.

Fifth Circuit Court protects bishops from “Hobson’s choice”

On July 15, 2018, the Fifth Circuit granted the bishops permanent protection from the order. The Court found that the bishops’ claims “go to the heart of the constitutional protection of religious belief and practice as well as citizens’ right to advocate sensitive policies in the public square.” The Court also stated that the abortion facilities’ efforts against the bishops “looks like an act of intimidation,” placing the bishops’ conference in a “‘Hobson’s choice’ of retreating from the public square or defending its position.” On July 30, Whole Woman’s Health asked the full Fifth Circuit to rehear the case. On August 16, 2018, the en banc Fifth Circuit rejected Whole Woman’s Health’s petition for rehearing.

In November 2018, Whole Woman’s Health asked the U.S. Supreme Court to reverse the Fifth Circuit’s decision. On January 11, 2019, Becket filed a brief opposing that request. On February 19, 2019, the U.S. Supreme Court rejected Whole Woman’s Health’s appeal, putting an end to the abortion group’s intrusion efforts.

The Texas Catholic Conference of Bishops was represented by Becket and by Steven Levatino of Levatino | Pace PLLC in Austin, Texas.

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.
  • Public square: Churches should be free to support public initiatives that affect their religious beliefs without being forced to forfeit their privacy.

Moussazadeh v. Texas Department of Criminal Justice

Prisoners are people too

Prisoners lose many of their physical rights when they enter prison, but they do not lose their dignity. They may be unpopular, but they still have human rights.

The Religious Land Use and Institutionalized Person Act (RLUIPA) was established to protect those rights. Congress unanimously passed RLUIPA in 2000 because prison bureaucrats around the country were arbitrarily banning Bible studies, confiscating sacred texts, denying access to the sacraments, and prohibiting religious diets to prisoners. These arbitrary bans not only undermined the rehabilitation of prisoners, but also stripped them of their dignity by denying their right to seek God.

A Texas-sized denial of dignity

Max Moussazadeh is an Orthodox Jew who was imprisoned in Texas and denied kosher meals. In October 2005, Becket sued the State of Texas on Mr. Moussazedeh’s behalf, arguing that the state was arbitrarily denying Mr. Moussazadeh’s religious freedom in violation of RLUIPA. The vast majority of prison systems across the U.S. provide Jewish prisoners with kosher meals, and have done so for many years. Texas could do so at a cost of less than 0.02% of the prison system’s annual food budget.

Victory and freedom

Thanks to Becket’s and Latham & Watkins’ lawsuit — which lasted twelve years and included two victories at the U.S. Court of Appeals for the Fifth Circuit — the Texas prison system established a kosher diet plan and began providing Mr. Moussazadeh and all Orthodox Jewish inmates with kosher meals. Mr. Moussazadeh then put his lawsuit on hold, and ultimately dropped the lawsuit in 2017 after being released from prison.

Becket has also brought successful kosher meal cases against the states of Florida and Georgia, and assisted in a similar victory against Indiana. In 2015, it won a unanimous Supreme Court victory in Holt v. Hobbs, a landmark case protecting the right of all prisoners to peacefully practice their faith.

 

Franciscan Alliance v. Becerra

In May 2016, the federal government issued a mandate requiring that virtually every healthcare provider in the country be willing to perform and provide insurance coverage for gender-transition procedures. The mandate made no exception for providers who believe those procedures to be harmful or object to them on religious grounds, and it applied to all patients, including children.

The mandate elevated ideology over medicine. A growing body of research shows there significant risks with gender reassignment therapy, such as heart conditions, increased cancer risk, and loss of bone density. Moreover, most children who experience gender dysphoria grow out of it naturally without these invasive and irreversible procedures. So under the mandate, many doctors were being required to violate not only their religious beliefs, but also the Hippocratic Oath, on pain of draconian penalties.

An association of over 19,000 healthcare professionals, eight states, and two religious hospitals challenged the mandate in the federal court for the Northern District of Texas. (A similar suit, involving other challengers, was filed in North Dakota). In December 2016, the Texas court issued a preliminary ruling that the policy was an unlawful overreach by a federal agency and a likely violation of religious liberty. And in October 2019, the court confirmed its earlier ruling, explaining that doctors must be free to practice in their field of medicine without being forced to perform these controversial procedures that violate their faith.

The court did not, however, issue an order permanently stopping the government from imposing this unlawful mandate on religious hospitals and doctors. Becket therefore appealed on behalf of the challengers. In April 2021, the U.S. Court of Appeals for the Fifth Circuit ruled that the district court should consider further whether to grant that lasting protection.

Back at the district court, in August 2021, the judge granted the permanent relief the doctors and hospitals sought. Under the district court’s final ruling, the government may not require the challengers to perform or insure gender-transition procedures contrary to their faith and medical judgment going forward—even if the agency tinkers around the edges with the language of its mandate.

Dissatisfied with not being able to force religious healthcare providers to violate their faith, in late 2021, the federal government, along with the ACLU, appealed the decision back to the Fifth Circuit. Oral argument will take place on August 4, 2022.

More information can be found at www.transgendermandate.org.


Importance to Religious Liberty:

  • Individual Freedom: The freedom of conscience is the human right to believe, express beliefs, and act according to the dictates of an individual’s conscience. Becket defends the right of all individuals to live according to their consciences without government coercion.

East Texas Baptist University & Houston Baptist University v. Azar

Two Christ-centered Texas universities share a mission

East Texas Baptist University and Houston Baptist University are Christian liberal arts colleges in Texas that hold faith central to their educational missions.

East Texas Baptist University (ETBU) is committed to “Christian stewardship” and “academic excellence while integrating faith with learning.”  Its religious beliefs include traditional Christian teachings on the sanctity of life—this includes that all human beings bear the image and likeness of God, and therefore that all human life is sacred and worth protecting.

The founders of Houston Baptist University (HBU) wanted to establish a Christian college that emphasized quality of life as well as quality of learning. The University’s current mission statement emphasizes the important Christian witness of its administration, faculty, and students, which abides by their central confession: “Jesus Christ is Lord.”

Baptists in America are sensitive to forced government actions that infringe on their religious liberty. America’s first Baptist leader, Roger Williams, fled Massachusetts and founded a colony in Providence, Rhode Island, because his religious beliefs were not allowed under Massachusetts laws. The rich Baptist tradition is manifested in the missions of these two Christ-centered Texas universities, so when a government mandate threatened their beliefs, they were forced to court to defend their religious freedom.

Challenging the HHS mandate

In 2011, the Department of Health & Human Services issued a mandate that forced these universities to either violate their faith-driven mission by providing services, such as the week after pill, or pay crippling IRS fines. So in October 2012, East Texas Baptist University and Houston Baptist University went to court with Becket’s help to fight this unconstitutional mandate.

In March 2013, Westminster Theological Seminary intervened in Becket’s lawsuit on behalf of ETBU and HBU in federal district court, which ruled in favor of the religious universities in December 2013. The government appealed to the U.S. Court of Appeals for the Fifth Circuit, which reversed the district court’s decision in June 2015.

In July 2015, Becket, along with former Solicitor General and leading Supreme Court advocate Paul Clement, appealed to the Supreme Court on the universities’ behalf. In March 2016 the Court heard the case along with the Little Sisters of the Poor and other religious non-profits in the consolidated case called Zubik v. Burwell.

Unanimous win-win outcome at the Supreme Court

On May 16, 2016, the U.S. Supreme Court unanimously protected the religious groups, stating that that the government cannot fine ETBU and HBU for carrying out their religious beliefs in their health plans and must find another way to provide services to women who want them. It also threw out the lower court decision against the universities.

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 ministries from the HHS mandate. Following the order, HHS Secretary Tom Price said that HHS “will be taking action in short order” to protect the Little Sisters and other religious ministries harmed by the mandate.

On October 6, 2017, the government issued a new rule with a broader religious exemption. On November 7, 2018, the federal government issued a final rule protecting religious ministries like ETBU and HBU while offering alternative means for women to obtain free contraception.


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.

Walker v. Texas Division, Sons of Confederate Veterans

In Texas, drivers have the option of personalizing their vehicles with a specialty license plate. Many of these are designed and submitted by private organizations. In 2015, there were 80 license plates to choose from, with messages that ranged from: support for the University of Oklahoma and the Louisiana State University; advertisements for Mighty Fine Burgers, Freebirds Burritos, Dr. Pepper soda, and Re/Max real estate; and the statement that the driver would “Rather be Golfing.” Some license plates display viewpoints that some government entities oppose as offensive, such as Texas Trophy Hunters Association, “Choose Life,” or “One State Under God” (featuring three crosses).  

In 2009, the Texas Division of the Sons of the Confederate Veterans (SCV) submitted an application for a license plate design featuring the Confederate battle flag and the name of its organization. When the Texas Department of Motor Vehicles Board rejected the design twice, the SCV sued the Board, and then lost in district court. The Fifth Circuit Court of Appeals reversed the decision and sided with SCV. The U.S. Supreme Court later agreed to hear the case.  

On February 17, 2015, Becket, represented by prominent Free Speech expert and law professor Eugene Volokh, filed a friend-of-the-court brief before the Supreme Court arguing that, although Becket does not agree with or support the use of the Confederate flag, allowing government restriction of highly offensive speech violates the First Amendment. Although Texas retained the right to final approval authority, the State never once exercised this right until the SCV submitted its design. When it comes to private speech in the public forum, such as non-profit organizations using bus or subway advertisement space, viewpoint neutrality has always been a constitutional requirement. Becket argues that the government should not have broad authority to discriminate against private speech, however controversial, because such power in the hands of the state is dangerous for free speech and the free expression of religion. 

The U.S. Supreme Court heard the case on March 23, 2015. On June 18, 2015, the Court ruled 5-4 that the specialty license program constituted government speech, and so the rule against viewpoint discrimination did not apply to the State. 

Importance to Religious Liberty: 

  • Free Speech—Freedom of speech and freedom of religion go hand in hand. We believe in order for a free democracy to be preserved, we must allow a wide variety of voices and opinions to coexist, even conflict. The government doesn’t get to decide what speech is permitted based on whether it is offensive.  
  • Public Square—Messages that offend should not be scrubbed from our public spaces. Allowing differing viewpoints in the public square ensures a diverse marketplace of ideas—including religious ideas that offend many—which is the bedrock of a free society.  

Tagore v. Department of Homeland Security

In April 2005, Kawal Tagore reported to her IRS job, as she always did. But that day was different: her supervisor sent her away from the office and told her not to return.

Ms. Tagore had recently been formally initiated into the Sikh faith and thus begun carrying a kirpan, one of the five articles of faith that Sikhs are required to carry. A kirpan resembles small, blunt knife – symbol meant to remind Sikh believers of their commitment to a just and humane society.

Even though she went through security without a problem, and even though the building contained sharper, more dangerous blades than Ms. Tagore’s kirpan—scissors, box cutters and cake knives—Ms. Tagore was banned from the federal building. She worked from home for about nine months before she was fired altogether.

Becket defended Ms. Tagore’s right to wear her kirpan. In November 2014, the federal government agreed to settle the case and change its nationwide policies to accommodate Sikh federal employees – a victory for Sikh Americans and religious freedom.

 

Elijah Group v. City of Leon Valley

Houses of worship in Texas must be treated fairly, thanks to Becket. Becket stepped in when the City of Leon Valley, Texas refused to allow a church, the Elijah Group, use its building for worship.

The city enacted a new zoning ordinance with a retail corridor intended to boost tax revenues for the city. The ordinance prohibited churches from the corridor while allowing nonreligious assemblies like theaters, auditoriums and private clubs. The Elijah Group, a small congregation looking to relocate near its old location, bought a former church building which was poorly suited for any other use but which was located within the retail corridor.  Although Leon Valley allowed the Elijah Group to move its daycare and administrative offices to its new home, it prohibited them from gathering there for worship.  The Elijah Group sought a zoning change to allow it to worship in its new church, which the city denied.

The Elijah Group sued the city, arguing that the city’s code was unenforceable under the Religious Land Use and Institutionalized Persons Act (RLUIPA), because the city was not treating the church the same as secular assemblies. The district court sided with the city, but after Becket joined the case on appeal, the Fifth Circuit held that the city had indeed violated RLUIPA.  Specifically, the Fifth Circuit recognized that RLUIPA requires churches to be treated the same as the non-religious assemblies like private clubs.

 

McAllen Grace Brethren Church v. Jewell

What would you do if an undercover federal agent came into your church service, confiscated your communion wine, and threatened you with criminal prosecution? Sound crazy? Not if you are Native American.

Meet Pastor Robert Soto of the Lipan Apache tribe

Robert Soto is an award-winning feather dancer and Lipan Apache religious leader. In 2006, he attended a powwow – a Native American religious ceremony involving drumming, dancing, and ceremonial dress. But an undercover federal agent infiltrated the powwow and cut the celebration short when he noticed that Pastor Soto and others possessed eagle feathers.

Threatened for worshiping with eagle feathers

Click to view full size infographic

The agent interrogated Soto and other powwow participants, confiscated their feathers, and threatened them with criminal prosecution unless they signed papers abandoning their feathers. The agent claimed to be enforcing the Bald and Golden Eagle Protection Act, which prohibits possession of eagle feathers without a permit. Under the law, permits are available for museums, scientists, zoos, farmers, and “other interests” – such as power companies, which kill hundreds of eagles every year. They are also available for Native Americans – but only for federally recognized tribes.

Pastor Soto is a member of the Lipan Apache Tribe, which is recognized by historians, sociologists, and the state of Texas – but not by the federal government. Thus, while millions of other Americans are allowed to possess eagle feathers, Pastor Soto – a renowned feather dancer and ordained religious leader – was not.

Becket defends Pastor Soto’s religious freedom

With the help of Becket, Pastor Soto challenged this arbitrary law in federal court, arguing that it violated the Religious Freedom Restoration Act. Relying on the U.S. Supreme Court’s decision in Hobby Lobby, the Fifth Circuit Court of Appeals ruled in favor of Pastor Soto in 2014, stating that the federal government failed to adequately justify this restriction on religious freedom.

Soon after, the federal government entered a historic settlement agreement with Pastor Soto and over 400 members of his congregation. The agreement recognizes their right to freely use eagle feathers in observance of their Native American faith and promises that the government will reconsider its policies for enforcing feather restrictions in the future.

In April 2019, in response to Pastor Soto’s legal victory, the Department of the Interior published a petition for rulemaking from Becket to end the criminalization of eagle feather possession and expand existing protections for federally-recognized Native American tribes to cover members of state-recognized tribes as well. The public was able to comment on the petition through July 16, 2019. Becket analyzed the submitted public comments and found that there was significant support for the rule change from the general public and tribes.

For over a decade, Becket has actively defended the religious freedom of Native Americans. We currently represent members of the Klickitat and Cascade Tribes of the Yakima Nation in a case that calls government bureaucrats to account for the desecration of sacred burial grounds. We have urged government officials to protect the right of Native Americans to wear long hair or a symbolic headband in accordance with their faith. We have also filed legal briefs defending the right of Native American tribes to practice centuries-old religious ceremonies at sacred sites like the Medicine Wheel and Devil’s Tower National Monument in Wyoming.


Importance to Religious Liberty:

  • Individual Freedom: Religious liberty encompasses more than just freedom of thought or worship—it involves the right to practice one’s faith visibly and publicly. The government must respect the right of all people to practice their faith, and it must be especially careful to protect religious minorities who are at risk of discrimination by the government.
  • RFRA: The Religious Freedom Restoration Act ensures that the government cannot burden the religious exercise of individuals or groups to violate their deeply held beliefs without compelling interest or when there are reasonable alternatives to doing so.

Merced v. Kasson

“Ask not why I defend goat sacrifice. Ask me how you can too.”  
-Eric Rassbach, Vice President & Senior Counsel at Becket 

An ancient religion carries out a unique tradition 

Jose Merced is a priest in the Santeria faith, an Afro-Caribbean religion with roots that go back centuries in West Africa, and later evolving into new forms in Cuba and the Americas. Central to the Santeria religion is the passing on of rituals and beliefs from generation to generation. One of these sacred rituals includes animal sacrifice, which is performed humanely and privately for worship, healing, or the initiation of new priests.

As a Santeria priest, Mr. Merced regularly carried out these sacred religious rituals within his home in Euless, Texas. But in 2006, city officials tried to stop him from practicing his religion, threatening the very existence of the Santeria faith.

Religious liberty means protecting people of all faiths—including minority faiths 

In 2006, officers from the City of Euless, Texas appeared at Mr. Merced’s home and informed him he could not perform his religious rituals in his own home, claiming that his practices violated city ordinances.

Becket stepped in, with Douglas Laycock (Robert E. Scott Distinguished Professor at the University of Virginia School of Law), to represent Mr. Merced at the U.S. Court of Appeals for the Fifth Circuit. Although the government argued two reasons for forbidding the practice—public health and animal treatment— Becket pointed out that the city had never enforced their ordinances against Mr. Merced in 16 years, and that the city had broad secular exemptions to these ordinances, such as hunting, fishing, meat production, pest control, and veterinary euthanasia. In fact, the city was selectively enforcing its ordinances against Mr. Merced because of his religion.

Fifth Circuit rules for Santeria priest 

On July 31, 2009, a unanimous panel of the Fifth Circuit sided with Becket. The court said that city ordinances forbidding the slaughter of certain animals prevented the Santeria priest from performing ceremonies essential to his faith, which was a substantial burden on his religious exercise. The court pointed out that Mr. Merced had conducted these rituals for 16 years without incident, and that the government had other ways to protect public health and animal treatment without forbidding Mr. Merced from practicing his religion in his home.

The Fifth Circuit’s ruling was an important ruling under the Texas Religious Freedom Restoration Act, protecting the right to worship freely in one’s own home.


Importance to religious liberty

  • Individual freedomReligious freedom includes the freedom to practice one’s faith in all areas of life, both public and private, free of government interference.  
  • Minority religions: Minority religions are particularly at risk of religious liberty violations, but government has no right to selectively target minority faith practices because they are unusual or unpopular. Protecting minority religious beliefs and practices is critical for strengthening the fundamental principle of religious freedom: that all human beings must be free to seek the truth and live out their convictions.  

Richardson Independent School District, Texas

Schoolchildren should never be forced to choose between respectfully practicing their religion and obeying the law. Yet in 2005, that was the dilemma that confronted a group of Muslim high school students in Richardson, Texas, who were threatened with expulsion for saying their midday prayers.

At the beginning of the school year, several Muslim students approached administrators to make sure they would be able to continue their daily midday prayers, as they had been allowed to do in the past. School administrators granted such permission, and arranged for them to use an empty lecture hall for the prayer. For two weeks, the students prayed peacefully for three minutes each day, causing no disruptions or inconveniences. Two teachers noticed and complained, and several days later two assistant principals and a police officer confronted the students when they went to pray. The students were told that school policy prohibited them from praying anywhere on campus.

A few days after that, the school slightly modified its ban. Under the new policy, some observant Muslim students would be forced to choose between eating lunch or praying during the lunch period. The daily prayer only lasts three minutes, and the lunch period is half an hour – yet if a student chose to pray, he or she would not be allowed to eat lunch and would be forced to go hungry for the day. Other observant students were still not permitted to pray within the time frame set by their faith because of their assigned lunch period.

Becket intervened on behalf of the students, and Richardson Independent School District eventually revised its policy to allow students of all faiths to pray on school grounds, resulting in a victory for all students of faith in that district.

Van Orden v. Perry

In an Establishment Clause challenge to a Ten Commandments display on the Texas State Capitol grounds, Becket’s amicus brief argued that such displays are constitutionally protected.  The Supreme Court ruled our way. Texas’s Office of the Attorney General and  Acting Solicitor General (Paul Clement) were counsel in this case.

Castle Hills First Baptist Church v. City of Castle Hills

Castle Hills First Baptist Church was a growing church in San Antonio, Texas that needed a new space to accommodate its 17,000 members. So in the late 1990s it acquired six residential lots for much needed additional parking.

Knowing that the church intended to use the lots for parking, the city allowed it to demolish and remove homes on the lots. However, it then refused to grant a special use permit to begin construction of the parking areas. In the following months, city officials proposed a settlement that would allow the parking lots to be built, only to have the City Council vote them down. They also rejected three other applications to begin construction. A study done by the city’s own traffic engineer showed that development of the church’s new parking lot would actually improve traffic conditions in the area, but the report was ignored. The city also demanded that the church provide and pay for additional reports related to the aesthetics, drainage, air quality and traffic impact of the new parking lots. When the church met all these arbitrary requirements, the city council simply ignored them and denied their request to build.

Finally, after years of fruitless attempts to win city approval, the church sued in the summer of 2001. Becket joined the case in December 2001, and successfully won a victory for the Church in March 2004. Judge W.R. Furgeson’s ruling took the opportunity “to encourage Castle Hills and all other similarly situated communities to engage in thorough and positive debate and negotiation on the issues of zoning of religious organizations and places of worship… Cities must govern the health, safety and welfare of their communities, but in so doing, should consider carefully the positive and supportive role that a place of worship will play in doing so.”