Chiles v. Salazar

A Nationwide Crisis 

Between 2017 and 2021, the number of American young people diagnosed with gender dysphoria—an experience of severe distress over their biological sex—increased 300%. Research shows that the vast majority of these children will grow out of their distress naturally if allowed to go through puberty unhindered. Nevertheless, thousands of these children have instead been put through a “gender transition,” including a regime of puberty blocking drugs, cross-sex hormones, and surgeries, to make their bodies resemble the opposite sex. There is no reliable evidence that these procedures offer any long-term benefits, and abundant evidence that they cause lasting harms—including increased risk of cancer, loss of bone density, sexual dysfunction, and permanent sterilization.

Because of these harms, 25 states and several European countries have banned or severely restricted gender transitions for children. And victims of this treatment are increasingly coming forward, asking why they were offered medical treatment to change their bodies, instead of compassionate care to help them navigate natural puberty and careful counseling to help them heal from the underlying causes of their discomfort. (See their stories.) 

Counselors Can Help 

Faith-based counselors nationwide help youth experiencing gender dysphoria by taking a more cautious approach. They talk with children to address the underlying causes of their discomfort, alleviate their distress, and, if possible, help them to accept their bodies without resorting to irreversible life-altering medical intervention. This approach is supported by the best available scientific evidence and supported by recently enacted laws in dozens of states and several European countries. 

Colorado, however, bans counselors from using a cautious approach. Rather than allowing children to work through the root causes of their discomfort, state law requires counselors to affirm children in their belief that they were born in the wrong body—and only allows counseling that assists a child in undergoing a gender transition. As a result, therapists who offer compassionate talk therapy, like Kaley Chiles, face the loss of their license and fines of up to $5,000. Meanwhile, Colorado permits a wide range of high-risk treatments for youth mental illness—including medical marijuana, psychiatric hospitalization, electroconvulsive therapy, and surgeries that remove healthy body parts. But when it comes to simple conversation aimed at helping a child accept her body, Colorado imposes a total ban. 

A defense of compassionate counseling 

On June 13, 2025, Becket filed a friend-of-the-court brief at the Supreme Court on behalf of Chiles. The brief argues that Colorado’s ban on talk therapy disproportionately harms religious children and silences one side of an important medical debate—punishing counselors who want to help children work through the underlying causes of their distress without rushing into irreversible medical procedures. The brief urges the Court to protect the ability of therapists to offer compassionate care that reflects both sound science and their deeply held beliefs. 

Colorado isn’t the only state targeting compassionate counseling for children experiencing gender dysphoria. In Michigan, Becket represents Catholic therapist Emily McJones and a local Catholic Charities counseling ministry in a case challenging a similar state law. Like Chiles, they are asking the courts to protect their ability to help children in distress without being forced to steer them toward life-altering medical interventions.  

 

Importance to religious liberty:  

  • Free speech: Free speech includes the right to a free and peaceful exchange of ideas with others—including religious ideas. Freedom of speech and religious liberty go hand-in-hand; protecting one protects the other. 
  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. 
  • Parental Rights: Parents have the right to direct the religious upbringing of their children. Teachings around family life and human sexuality lie at the heart of most religions, and Becket defends the right of parents to guide their own children on such matters.    

 

St. Isidore of Seville Catholic Virtual School v. Drummond

Opening doors to education in the Sooner State 

Families throughout Oklahoma, especially those living in rural school districts, need more educational options for their children.  For over a century, the Archdiocese of Oklahoma City and the Diocese of Tulsa have operated Catholic schools to serve Oklahoma families. These schools offer parents the opportunity to provide their children with an education that nurtures both the heart and mind, giving students the tools they need to thrive. To extend this rich tradition to more Oklahomans—especially those in rural and underserved communities—the dioceses launched a virtual charter school, St. Isidore of Seville Catholic Virtual School. In 2023, the Oklahoma Statewide Virtual Charter School Board approved St. Isidore to join the over 30 privately-run charter schools in the state.  

St. Isidore targeted for its faith  

Shortly after St. Isidore signed its contract to operate as a charter school, Oklahoma Attorney General Gentner Drummond sued the charter school board. Drummond argued that St. Isidore should not be allowed to participate in the state charter school programs simply because it is religious. He claimed that approving a Catholic virtual charter school would essentially create a state-sponsored religious public school, even though the school, the Diocese, and the charter school board all agree that St. Isidore continues to be a private school. In 2024, the Oklahoma Supreme Court blocked the School Board from allowing St. Isidore to participate in the program. 

This is yet another example of government officials attempting to exclude religious groups from publicly available education benefits. Despite the Supreme Court’s clear guidance in Trinity Lutheran, Espinoza, and Carson—which held that religious institutions cannot be denied access to public funding simply because of their religious character—states continue to take steps that shut out religious schools from programs offered to other private institutions. This is taking place not just in Oklahoma but also in Maine and California where state governments are defying Carson and blocking otherwise-qualified religious schools from participating in programs intended to help rural and disabled students. This case is an opportunity to close some of the loopholes that states have been using to continue excluding religious organizations from generally available funding.    

Becket takes a stand to defend Orthodox Jews 

On March 12, 2025, Becket filed a friend-of-the-court brief in support of St. Isidore and on behalf of the Orthodox Union, the nation’s largest Orthodox Jewish synagogue organization, representing nearly 1,000 congregations as well as more than 400 Jewish non-public K-12 schools across the United States.  

For many Orthodox Jews, sending children to Jewish day school is a requirement of their faith. Like other schools in America, Orthodox Jewish schools often rely on government funding to provide additional security measures and much-needed assistance to students with disabilities. If states are allowed to continue skirting Carson and other Supreme Court rulings, Orthodox Jewish communities will be harmed. Oklahoma’s attempt to label religious schools as “state actors”—simply because they receive government funding—would force Orthodox Jewish schools to choose between maintaining their religious identity and protecting their students. That’s bad for Orthodox Jewish schools, bad for the families who depend on St. Isidore, and bad for diverse religious families across the country.  

On April 30, 2025, the Supreme Court heard oral arguments in the case. Less than a month later, the Supreme Court split evenly 4-4, leaving the lower court’s ruling in place and providing no answer on the constitutional questions in the case.  

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.   

Federal Bureau of Investigation v. Fikre

Yonas Fikre and the No Fly List 

The FBI placed American citizen Yonas Fikre on the No Fly List, a government database of people who are prohibited from flying through U.S. airspace. According to Fikre, FBI agents questioned him about his mosque in Oregon and offered to remove him from the list if he agreed to become a confidential government informant regarding the mosque, which he declined. The government denied Fikre’s request to take him off the list, and Fikre filed a federal lawsuit arguing that he was being deprived of his right to free travel based on his religious affiliation. 

The FBI backtracks 

After Fikre filed suit, the FBI removed him from the No Fly List. A federal district court then accepted the FBI’s motion to dismiss his case as “moot,” meaning that the court saw the harm to Fikre as no longer ongoing. Fikre appealed that decision to the Ninth Circuit, arguing that his rights were still at stake because the FBI could put him back on the No Fly List at any time. The Ninth Circuit sided with Fikre and reversed the lower court’s decision. In 2023, the government asked the Supreme Court to hear the case and it agreed. 

At the Supreme Court, Fikre argued that his case should not be dismissed because the government offered no assurance that it would not put him back on the No Fly List. The FBI asserted that the Court should trust the government’s word because it had testified that it would not return Fikre to the List “based on currently available information.” 

Becket argues against special treatment for government 

In November of 2023, Becket filed a friend-of-the-court brief in the case in support of neither party. The brief explains that governments should have to meet a high standard to prove that a legal dispute is no longer live when it reverses policies or activities at issue in a case. Courts should hold governments to the same high standard as private citizens in determining whether their voluntary change in conduct means a case should be dismissed as “moot”.  

Granting governments special treatment would be especially harmful to religious Americans. Federal, state, and local governments frequently make policy changes after being taken to court for violating religious liberty protections to avoid being held accountable. For example, Becket has challenged several versions of the Affordable Care Act’s contraceptive mandate in which government officials have used this tactic to attempt to evade religious liberty claims. There is no reason for court to give governments a do-over when they deprive religious Americans of their constitutional rights.  

In March of 2024, the Supreme Court ruled that the government should be held to the same strict standard as everyone else when it attempts to strategically make a case irrelevant. As Justice Gorsuch wrote in the majority opinion, “To show that a case is truly moot, a defendant must prove ‘no reasonable expectation’ remains that it will ‘return to [its] own ways…That much holds for governmental defendants no less than for private ones.”  The Court’s reasoning closely tracked the argument in Becket’s brief, emphasizing that the government does not get special treatment in these cases. The decision will help ensure that the government is held accountable for violating Americans’ bedrock freedoms. 

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, 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. The Court heard arguments on April 22, 2024. On June 28, 2024, the Supreme Court ruled 6-3 that Grants Pass’s anti-camping laws were not “cruel and unusual punishment” and that federal judges do not have the authority to dictate homelessness policy. Instead, local governments have the primary responsibility to do so and will be able to partner with religious organizations to address pressing social issues like homelessness.  
 

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. 

Moyle v. United States and Idaho v. United States

Feds weaponize the law to target pro-life states 

Congress passed the Emergency Medical Treatment and Labor Act (EMTALA) in 1986 to prevent hospitals from refusing care to uninsured patients. EMTALA applies to all hospitals with ERs who serve anyone who receives Medicaid or Medicare, as well as the hospitals’ physicians and other staff. Weeks after the Supreme Court overturned Roe v. Wade in 2022, the Department of Health and Human Services (HHS) reinterpreted EMTALA to expand abortion access. For the first time ever, HHS decided that the decades-old law contained a mandate to provide abortions. The government argues that EMTALA requires doctors and hospitals to perform abortions in certain situations, including when a woman presents “with an incomplete medical abortion.” HHS released its novel interpretation in a guidance document and letter and stated that these requirements override any conflicting state abortion law. 

The federal government quickly filed a federal lawsuit against Idaho over its Defense of Life Act, which bans abortion except when necessary to save the life of a mother, or in cases of rape or incest. A district court sided with the federal government and blocked Idaho’s law. Idaho then appealed the decision to the Ninth Circuit Court of Appeals, which put a hold on the lower court’s decision while the case was pending. Idaho and its legislature asked the Supreme Court to take the case, and it agreed. 

HHS’s history of punishing religious groups 

The EMTALA guidance is yet another example of the government weaponizing HHS to achieve its policy goals, regardless of its impact on religious objectors.  For example, in 2011, HHS issued a federal contraceptive mandate as part of the Affordable Care Act (ACA). This mandate required employers to provide contraceptives in their health insurance plans, including those that many religious groups consider to be abortion-causing drugs. Despite the many religious objections to the contraceptive mandate, HHS included only a narrow religious exemption. This exemption did not protect  groups like the Little Sisters of the Poor, a Catholic order of nuns that runs homes for the elderly poor. The Little Sisters were forced to litigate for over a decade to protect their religious exercise, with the Supreme Court stepping in three times. Their battle is still not over. 

Similarly in 2016, HHS issued regulations under the ACA that required doctors and hospitals to perform gender transition procedures and other treatments to alter a patient’s body in response to gender dysphoria. Healthcare professionals could be penalized for declining to help with a gender transition, even if it was against their medical judgment and religious beliefs. Becket represented the Christian Medical and Dental Associations (CMDA), a nonprofit organization of over 12,000 Christian healthcare professionals, and other parties who objected to this transgender mandate on religious grounds. CMDA spent more than six years in court fighting HHS’s transgender mandate before a federal appeals court ultimately concluded that the federal government had violated CMDA’s religious exercise.  

Becket defends religious healthcare professionals  

On February 27, 2024, Becket filed a friend-of-the-court brief on behalf of CMDA in support of Idaho. The brief argues that the government’s abortion mandate fails to consider the Religious Freedom Restoration Act (RFRA). When HHS issues regulations it is required to consider protections for religious Americans, and it failed to do so in this case. That is especially glaring given the government’s long history of losing in court when it fails to take RFRA seriously. 

The government’s mandate also runs counter to public opinion. According to the 2023 Religious Freedom Index, 71 percent of Americans think that healthcare workers should have the freedom not to participate in abortion if it goes against their religious beliefs. Religious healthcare professionals should never have to abandon their faith to care for those in need. 

On June 27, 2024, the Supreme Court published a brief opinion stating that the case had come to the high court too soon and that it should return to the lower courts for further consideration. While the Court did not decide how the case should ultimately turn out, several justices signaled support for the rights of religious health care professionals. In a concurring opinion, Justice Barrett—joined by Chief Justice Roberts and Justice Kavanaugh—noted that during oral argument “the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.” These protections will prevent the government from “strip[ping] healthcare providers of conscience protections.” 

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. 

M.C. and J.C. v. Indiana Department of Child Services

Indiana officials investigate Catholic parents for their religious beliefs 

Mary and Jeremy Cox are a faithful Catholic couple living in Indiana. In 2019, their son left them a note informing them that he identified as a girl. Because of their religious belief that God creates human beings with an immutable sex—male or female—they could not refer to him using pronouns and a name inconsistent with his biology. The Coxes also believed that he needed help for underlying mental health concerns, including an eating disorder. As a result, they provided therapeutic care for their child’s mental health and scheduled appointments with a specialist to help him with the eating disorder. During this time, Mary and Jeremy spoke to their son about their religious beliefs regarding sexuality, and they agreed to find middle ground with him by calling him by the nickname “A”.  

In 2021, Indiana investigated Mary and Jeremy following a complaint that they were not referring to their child by his preferred gender identity. The reporting source falsely claimed that the parents were neglecting and verbally abusing their child. The state’s report also accused them of failing to utilize Indiana’s LGBTQ resources for parenting transgender children. Indiana then removed the teen from his parents’ custody and placed him in a home that would affirm his preferred identity.  

State courts allow removal of child from fit parents 

At the initial trial court hearing, Indiana officials argued the child “should be in a home where she is [ac]cepted for who she is.” The court restricted Mary and Jeremy’s visitation time to a few hours once a week and barred them from speaking to their child about their religious views on human sexuality and gender identity. 

After completing its investigation, Indiana made an about-face and abandoned all allegations against Mary and Jeremy, admitting that the accusations of abuse and neglect were unsubstantiated. State officials then surprised the parents by pointing to the disagreement over gender as a reason to keep him away from his parents. The state said it contributed to an eating disorder, even though that disorder became worse after he was removed and placed in a transition-affirming home. The trial court relied on Indiana’s argument to keep the child out of his parents’ custody and keep the gag order in place. And an appeals court upheld the removal, reasoning that the Coxes’ First Amendment rights did not apply to private speech in the home.

Religious parents ask Supreme Court to protect parental rights 

Almost two years after Indiana removed their child from their home, Mary and Jeremy had no other option but to ask the Supreme Court to step in. On February 15, 2024, Becket and attorney Joshua Hershberger filed a reply brief at the Court, asking the Justices to protect the parents and others from government interference in raising their children. The Coxes fear that Indiana could remove their other children from their home, and that other loving parents throughout the nation may lose custody of their children because of their religious beliefs.  

On March 18, 2024, the Supreme Court declined to take the case. Mary and Jeremy remain committed to fighting for religious freedom and parental rights, to ensure that what happened to their family does not happen to others.

Importance to Religious Liberty: 

Parental Rights: Parents have the right to direct the religious upbringing of their children. Teachings around family life and human sexuality lie at the heart of most religions, and Becket defends the right of parents to guide their own children on such matters. 

 

Loper Bright Enterprises v. Raimondo

Supreme Court allows government power grab 

The framework of American government was built on the idea that different branches of government should check and balance each other. That structure was created to stop a concentration of power in any one branch that would eventually lead to abuses by the government. However, in its 1984 ruling Chevron v. National Resources Defense Council, the Supreme Court gave the executive branch enormous power over the branches of the federal government. The Court ruled that when a law passed by Congress is unclear, courts should trust executive branch agencies to interpret and apply the law in the first instance. This power, known as Chevron “deference”, has given federal officials license to wield executive authority in ways that go well beyond what Congress intended. For years, the Chevron decision has empowered federal government officials to target religious believers for special disfavor. 

Chevron punishes religious groups 

The Little Sisters of the Poor, a Catholic order of nuns that run homes for the elderly poor, are just one example of how Chevron has hurt religious groups. In 2011, the Department of Health and Human Services issued a federal mandate as part of the Affordable Care Act (ACA). This mandate, based on vague language in the ACA, required employers to provide contraceptives in their health insurance plans. Despite the many religious objections to the contraceptive mandate, HHS included an exceedingly narrow religious exemption—one that did not include groups like the Little Sisters of the Poor. The Little Sisters’ religious beliefs about the dignity of all human life meant that complying with the mandate was impossible.  

For a decade now, the Little Sisters have been in and out of court fighting to receive permanent protection from the contraceptive mandate. Even though they have secured multiple victories—including at the Supreme Court—they have been forced through years of court battles. The endless cycle of punishment for religious objectors exists because the Court’s decision in Chevron has empowered federal regulators to create new ways to punish unpopular religious groups and deny them exemptions. 

The Court should rebalance the branches of government 

Becket filed a friend-of-the-court brief on behalf of The Little Sisters of the Poor in support of Loper Bright, detailing the long history of how unchecked executive power has been a unique threat to religious groups. The brief urges the Court to adopt a rule that will check executive overreach at all levels of the legal system, ensuring that officials can no longer use their powers to run roughshod over religious believers. This will protect religious groups like the Little Sisters who will not be forced to endure years of litigation in federal courts. 

 

Importance to Religious Liberty:

Religious communities — The ability of individuals to gather freely together to worship and teach their religion is a cornerstone of religious liberty. U.S. law has always protected the rights of religious ministries, schools, and churches to be able to make their own rules and live out their own values free from government interference.

Mahmoud v. Taylor

Let Parents Parent: Restore the Opt-Out in Montgomery County

Montgomery County’s Pride Storybooks 

In fall 2022, the Montgomery County Board of Education announced over 20 new “inclusivity” books for its pre-K through eighth grade classrooms. But rather than focusing on basic civility and kindness, these books champion pride parades, gender transitioning, and pronoun preferences for children. For example, one book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “[drag] queen,” “underwear,” “leather,” and the name of a celebrated LGBTQ activist and sex worker. Another encourages fifth graders to discuss what it means to be “non-binary.” Other books advocate a child-knows-best approach to gender transitioning, telling students that a decision to transition doesn’t have to “make sense” and that doctors only “guess” when identifying a newborn’s sex anyway. The teacher’s guide to another book about a playground same-sex romance invites schoolkids to share with classmates how they feel when they “don’t just ‘like’ but … ‘like like’” someone. The curriculum suppresses free speech and independent thinking by having teachers tell students they are “hurtful” if they question these controversial ideologies.  

When the Board first went public with its Pride Storybooks, it assured hundreds of concerned parents they would be notified when the books were read and could opt their children out. This meant parents troubled by the books’ blatant disregard for widely held religious beliefs and scientific perspectives would be respected. Upholding parental rights also meant that children would not be subjected to age-inappropriate instruction against their parents’ wishes. Indeed, in Maryland—as in most states across America—teaching family life and human sexuality requires parental notification and the ability to opt-out. Historically, the Board has respected that law, allowing parents to opt their children out of sex ed classes and controversial readings on related topics. The Board’s own “Guidelines” regarding religious diversity go even further. They guarantee that parents may seek opt-outs and alternative assignments for their children on a wide range of potential classroom activities, discussions, and reading assignments.

“Inclusion” as exclusion of parents 

Everything changed in March 2023, when the School Board issued a statement saying it would no longer notify parents or honor requests to opt-out. Immediately, parents of the more than 70,000 elementary schoolkids in Montgomery County were denied their right to decide when their elementary-aged children would be exposed to books promoting transgender and queer ideology. One Board member justified the decision by claiming that allowing opt-outs because these books “offend[] your religious rights or your family values or your core beliefs is just telling [your] kid, ‘Here’s another reason to hate another person.’”  

Soon after, a diverse coalition of religious parents including Muslims, Christians, Jews, and others began to fight back. While coming from different faith backgrounds, these parents all believe the books are age-inappropriate, harmful to children, and portray notions of sex and gender that conflict with their religious beliefs. Though they have many different beliefs, these parents are united in protecting their right to direct their children’s religious and intellectual education on such sensitive matters regarding family life and human sexuality.   

The law protects parents’ right to guide their children’s education 

The Board cannot refuse parents who want to opt their children out of instruction that violates their religious beliefs on sensitive matters. The Board is unlawfully coming between parents and their kids and targeting them because of their religious beliefs about gender and sexuality.  That violates the Board’s own policies, Maryland law, and the U.S. Constitution. The Supreme Court has held that children are not wards of the state, and that parents have the right to make key decisions about the education of their children on such critical matters concerning family life and human sexuality. 

After filing the lawsuit on May 24, 2023, the district court ruled against the parents. They appealed the decision to the Fourth Circuit Court of Appeals, and on May 15, 2024, the appellate court ruled to keep the school board’s no-notice, no-opt-out policy. Becket appealed the ruling to the United States Supreme Court on September 12, 2024. The Supreme Court agreed to hear the case, and oral argument was heard on April 22, 2025. 

On June 27, 2025, the Supreme Court ruled 6-3 that the parents have the right to opt their children out of the storybooks. In the Court’s decision, Justice Alito writing for the majority said, “Today’s decision recognizes that the right of parents ‘to direct the religious upbringing of their’ children would be an empty promise if it did not follow those children into the public school classroom.” He went on to say that the Court “cannot agree” with lower courts who have ruled otherwise for over fifty years. 

This is a monumental win for parental rights in Maryland and across America. With this decision, the Supreme Court restored common sense and made clear that parents—not government—have the final say in how their children are raised. 

Importance to Religious Liberty: 

Parental Rights: Parents have the right to direct the religious upbringing of their children—an authority parents do not surrender at the schoolhouse door. Teachings around family life and human sexuality lie at the heart of most religions. On such core questions, Becket defends the religious authority of parents. 

Groff v. DeJoy

SCOTUS guts religious rights 

For decades, many Americans have been forced to choose between their faith and their job because of the 1977 Supreme Court decision in Trans World Airlines v. Hardison. In that case, the Court ruled that one of the nation’s largest airlines did not have to provide a religious accommodation to an employee who could not work on his Sabbath day due to his religious beliefs. Although Title VII of the Civil Rights Act says that employers must reasonably accommodate employees’ religious beliefs and practices, the Court ruled that employers only need to prove a minimal burden on the operation of their business to deny employees accommodations.  

As legal scholars have pointed out, Hardison was the result of the Supreme Court’s outdated Establishment Clause thinking from its now-overturned decision in Lemon v. Kurtzman.  Lemon made the Hardison Court fear that even accommodating minority religious practices would be unconstitutional. In the years that followed, this legal standard has been used by large companies to discriminate against religious employees in ways that would be unthinkable to other protected groups under federal law.  

Hardison punishes religious minorities 

Over the years, Becket has defended multiple religious Americans—especially those of minority faiths—who were discriminated against by their employers under Hardison. Becket filed a friend-of-the-court brief at the Supreme Court in EEOC v. Abercombie, a case in which an Abercrombie & Fitch store refused to hire a Muslim woman because the district manager said her headscarf might conflict with the store’s dress code policy.  

In Patterson v. Walgreen Co., Becket represented Darrell Patterson, a dedicated Walgreens employee and devout Seventh-day Adventist who was fired from his position after he could not attend a training session on his Sabbath. Patterson asked the Supreme Court to hear his case, and while three Justices expressed the need to reconsider Hardison, the Court declined to review. In Dalberiste v. GLE Associates, Becket represented a devout Seventh-day Adventist who was also denied his religious rights soon after receiving a job offer. Mitche Dalberiste requested a scheduling accommodation for his Sabbath observance from his new employer, but instead of respecting his religious beliefs, the company rescinded his offer of employment. Again, the Court decided to delay reconsidering Hardison for a future case. 

In 2023, the Supreme Court decided to review a case of a religious employee who was discriminated against by the U.S. Postal Service. Gerald Groff began working as a USPS carrier in 2012, and his religious beliefs require him to observe the Sunday Sabbath. After USPS began delivering packages on Sunday for Amazon, Groff offered to take extra shifts on weekdays and holidays to avoid working on his Sabbath. USPS initially granted him an accommodation, but then changed its mind and began scheduling Groff for Sunday work. Groff refused to violate his faith, and faced termination until he ultimately resigned in 2019. Groff’s case before the Supreme Court now has the potential to overturn Hardison, which would protect religious employees nationwide and bury this discriminatory legal standard for good. 

Religious Americans deserve protection in the workplace 

Becket filed a friend-of-the-court brief in Groff’s case, arguing that the Hardison decision was the result of outdated Establishment Clause thinking from the now-overturned decision in Lemon v. Kurtzman. The brief outlines the history of Lemon’s impact on Hardison and argues that because Lemon is now overturned, the court has the chance to set a better legal standard that protects religious employees as Congress intended.  

Becket argued that the new standard should resemble the one from the Americans with Disabilities Act (ADA), the only other federal law with the same language regarding workplace accommodations. Under the ADA, employers must reasonably accommodate a person’s disability unless the employer can show that the accommodation imposes a substantial hardship to business operations. Applying this same standard to religious accommodations would replace the minimal burden test under Hardison that has allowed businesses to discriminate against their employees for decades.  

On June 29, 2023, the Supreme Court unanimously rejected the “minimal burden” test from Hardison. Instead, the Court imposed a much higher standard, ruling that employers can only deny religious accommodations if they can prove that a burden is so big as to be “substantial in the overall context of an employer’s business.” The Court’s decision protects religious Americans from choosing between their jobs and their faith. 

Importance to Religious Liberty: 

Individual Freedom: Religious exercise encompasses more than just thought or worship—it involves visibly practicing faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs. 

Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission

VIDEO: Wisconsin Says Catholic Charities Isn’t Religious – Here’s Why They’re Wrong

Fulfilling the Catholic Church’s religious mission 

Catholic dioceses across the country organize their efforts to meet the needs of the disadvantaged within their local community through nonprofit entities called Catholic charities and other similar organizations. Since 1917, Catholic Charities has fulfilled this mission for the Diocese of Superior in northern Wisconsin, providing a wide range of services to help the disabled, the elderly, and the poor throughout the Diocese. Catholic Charities’ mission, consistent with their Catholic faith, is to serve all those in need—regardless of their religious beliefs. Accordingly, each year Catholic Charities ministers to thousands of individuals and families in need by offering in-home healthcare, housing for the elderly and disabled, childcare services, employment opportunities, and other vital resources.  

Wisconsin denies Catholic Charities’ religious mission 

Wisconsin’s unemployment insurance program provides financial assistance to those who have lost their job through no fault of their own. Under state law, certain nonprofit organizations in Wisconsin can opt out of the program, including those operated primarily for religious purposes.  

Catholic Charities requested an exemption from the state’s unemployment program so that it could enroll in the Wisconsin Bishops’ Church Unemployment Pay Program (CUPP), a more efficient unemployment compensation program that provides the same level of benefits as the State’s program. 

However, in 2024, the Wisconsin Supreme Court ruled that Catholic Charities could not receive a religious exemption from the State’s unemployment compensation program. The court’s decision essentially cut Catholic Charities off from the Diocese of Superior, concluding that the clear religious purpose of the Catholic Church and the Diocese in setting up and running Catholic Charities was irrelevant. Instead, the Wisconsin Supreme Court concluded that Catholic Charities’ service to the poor and needy was not “typical” religious activity. The court thus denied Catholic Charities the exemption, forcing it to remain in the state’s less efficient unemployment compensation program.  

State law and the U.S. Constitution confirm that Catholic Charities’ mission is religious 

The Wisconsin Supreme Court’s decision was deeply problematic. By separating Catholic Charities from the Diocese, the court ignored the Catholic Church’s religiously motivated decision regarding how to structure its own religious ministry. By concluding that Catholic Charities’ activities were not religious because Catholic Charities serves all those in need and doesn’t proselytize, the court penalized faiths that make caring for those in need—regardless of their religious background—a religious obligation. And, by probing “how religious” the court thought Catholic Charities and their subsidiary ministries are, the court inserted itself into deeply religious questions, violating the separation of church and state.  

This outcome was wholly avoidable. Wisconsin’s unemployment compensation law, Wisconsin’s Constitution, and the U.S. Constitution all require that courts look to the undisputed religious purpose of the Diocese of Superior when determining whether Catholic Charities qualifies for a religious exemption from the State’s unemployment compensation program.   

Catholic Charities appealed the Wisconsin Supreme Court ruling to the United States Supreme Court. After agreeing to review the case, the Justices heard oral arguments in March of 2025. 

On June 5, 2025, the U.S. Supreme Court ruled 9-0 that Wisconsin could not discriminate against Catholic Charities because of its religiously motivated care for the needy. Justice Sotomayor wrote that Wisconsin violated the Constitution by “impos[ing] a denominational preference by differentiating between religions based on theological choices”—a “textbook” violation of the Free Exercise and Establishment Clauses. The Court’s decision further recognized that “whether to express and inculcate religious doctrine through worship, proselytization, or religious education when performing charitable work are, again, fundamentally theological choices driven by the content of different religious doctrines.”  

This is a historic victory for Catholic Charities and people of all faiths. The Court’s decision reaffirms that the government cannot prefer or favor one religion over another and protects the rights of all religious ministries to care for the poor and needy consistent with their sincere religious beliefs.

Importance to Religious Liberty: 

Religious Communities: Religious communities have a right to serve those in need according to the dictates of their faith. Unfortunately, religious institutions are often targeted if not in alliance with societal standards.

YU Pride Alliance v. Yeshiva University

A uniquely Jewish institution 

For more than 135 years, Yeshiva University has been a place where students can immerse themselves in Jewish culture to study the Torah, learn Hebrew, and receive an education steeped in the Modern Orthodox tradition. The school gets its name from the word “yeshiva,” referring to a Jewish religious school dedicated to study of the Talmud. True to its name, all undergraduate men spend two to six hours each day intensely studying Torah. Undergraduate women take at least two Jewish studies courses every semester. Shabbat (the Jewish sabbath) is observed campus wide, as are the laws of kashrut (kosher food).  

As at most yeshivas and Jewish seminaries, there are sex-segregated classes, dorms, and even campuses. Students are strongly encouraged to dress and conduct themselves consistent with Torah values. Yeshiva’s strong religious environment pervades its campuses, accommodating and supporting the schools’ reason for existing and the faith of its students.  

Putting a judicial thumb on the scale

Yeshiva lives out its religious commitment by striving to bring Torah values to the modern secular world. In this pursuit, Yeshiva has long sought both to uphold Torah moral teachings and to welcome and protect its LGBTQ students. It has strong anti-discrimination policies and has held many public events over the past decade to explore what it means to be LGBTQ and Jewish, and how the University can demonstrate greater respect and understanding for LGBTQ students.  

In 2020, a group of students asked Yeshiva to officially recognize a new student club called “YU Pride Alliance.” Following extensive discussion with the students, Yeshiva’s administrators and Roshei Yeshiva (“senior rabbis”) introduced several changes on campus to better support LGBTQ students. But Yeshiva concluded that a club called “Pride Alliance”—as described by the students and understand by the culture at large—would not be consistent with its Torah values. Nevertheless, Yeshiva remained committed to ongoing dialogue regarding forums or clubs that would be consistent with Torah values.  

Unhappy with Yeshiva’s religious decision, the students sued. They demanded that a court force Yeshiva to endorse the Pride Alliance, regardless of its 3,000-year-old religious values. 

Protected by law 

Both the U.S. Constitution—as recently affirmed by the Supreme Court in Our Lady of Guadalupe—and New York City’s Human Rights Law protect Yeshiva University’s ability, as a private religious institution, to carry out its religious mission in keeping with its religious teachings. 

After the New York County Supreme Court denied Yeshiva University’s arguments and concluded that the school was not a “religious corporation” under city law and not protected by the U.S. Constitution, the Court entered a permanent injunction ordering Yeshiva to “immediately” violate its Torah values and approve the club. On behalf of Yeshiva University, Becket moved quickly to request relief from both the New York Appellate Division and the New York Court of Appeals (the state’s highest court), but both requests were rejected on August 25, 2022. Four days later, on August 29, 2022, Becket filed an emergency request to the United States Supreme Court, requesting that the Court intervene to stay the violation of Yeshiva’s First Amendment rights pending appeal.  

On September 9, Justice Sotomayor entered an emergency stay, protecting Yeshiva pending a full Court decision. In a 5-4 decision, the full Court lifted that stay, while also stating that “[i]f Yeshiva seek[s] and receive[s] neither expedited review nor interim relief from the New York courts, [it] may return to this Court.” At the same time, four justices dissented, saying that Yeshiva should have been granted immediate relief. And if Yeshiva comes back, they added, “Yeshiva would likely win.” Failure by the New York courts to grant relief, they said, would be “a shocking development that calls out for [SCOTUS] review.” The following Monday, the New York Appellate Division agreed to rehear its denial of Yeshiva’s stay request. After these two court rulings, Pride Alliance agreed to voluntarily stay the injunction against Yeshiva pending all appeals, including back up to the U.S. Supreme Court if necessary.  

After the agreed-to stay, Yeshiva and the students worked towards a resolution in the case. As a result, the plaintiffs agreed to a club created by the University that follows rabbinically-approved guidelines and is designed to help students live fully halachic lives.  

303 Creative v. Elenis

An Artist’s Mission 

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

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

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

A case designed for the Supreme Court 

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

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

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

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

On June 30, 2023, the Supreme Court decided that the government cannot force religious people to choose between their faith or their business. In its 6-3 ruling, the Court picked up on Becket’s friend-of-the-court brief, saying that unlike “commercial advertising,” governments cannot compel speech “about a question of political and religious significance.” 

Smith v. Ward

RLUIPA allows prisoners to seek God 

The peaceful expression of religion is an important aspect of human culture, and can provide important and unique benefits for prisoners and society alike. Studies have shown that allowing prisoners to connect with their faith helps with rehabilitation, ensures that they can reintegrate into society when released, and reduces recidivism. For decades, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has protected the religious freedom of inmates. It has enabled Jewish inmates to obey kosher diets, Catholics to access to important sacraments, and practitioners of many faiths to possess religious texts.

In 2015, the Supreme Court unanimously confirmed the importance of protecting prisoners’ religious exercise, holding in Holt v. Hobbs that Arkansas was required to accommodate a Muslim prisoner’s request for a half-inch beard. As the Supreme Court in Holt explained, RLUIPA is a crucial protection for religious prisoners, ensuring that religious exercise is not arbitrarily burdened by prison officials. Instead, prison officials must explain—with supporting evidence—why they cannot accommodate the sincere religious exercise of an inmate. This burden is especially demanding when most other prison systems safely provide the same accommodation. Unfortunately, some courts and prison systems did not get the Supreme Court’s message in Holt v. Hobbs.  

The Eleventh Circuit ignores Holt v. Hobbs 

In 2012, Lester Smith filed a lawsuit after his request to the Georgia Department of Corrections (GDOC) to grow a full-length beard was denied, a request that most prison systems would allow. As a devout Muslim, Mr. Smith believes that an untrimmed beard is required by his faith. But the Eleventh Circuit Court of Appeals ruled against Mr. Smith, claiming that it was enough for GDOC to say that it is more risk-averse than 39 other prison systems, and that allowing beards creates some additional risk. In essence, GDOC can write its own permission slip to violate Mr. Smith’s rights. 

In reaching its decision, the Eleventh Circuit relied on its 2015 decision in Knight v. Thompson, where Becket filed a friend-of-the-court brief. Knight was flatly inconsistent with both Holt v. Hobbs and the way that other courts around the country have interpreted RLUIPA. In Mr. Smith’s case, the Eleventh Circuit has doubled down on that wrong position. 

At the Supreme Court   

On April 28, 2022, Becket, along with Scott Ballenger and Sarah Shalf of the University of Virginia Appellate Litigation Clinic, filed a petition to the Supreme Court on behalf of Mr. Smith, asking the Court to protect this inmate’s religious expression under the rule of Holt v. Hobbs. The ruling in Holt taught us that a prison must offer enough proof that it cannot provide the same accommodation practices set by other institutions. If 39 other prison systems can allow untrimmed beards without incident, that is conclusive evidence that a longer beard is not detrimental to the safety and security of Georgia’s prisons. Courts also cannot blindly defer to prison officials’ preferences if religious accommodations are possible.  

The Supreme Court laid out a clear rule in Holt, saying that prisons should be inclined to withdraw existing accommodations if they are abused rather than denying them outright. But no such misbehavior is present here. Mr. Smith has the right to follow his sincere beliefs and grow his beard.  

On October 3, 2022, the Supreme Court declined to review the decision below in this case. 

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.  

Kennedy v. Bremerton School District

Fired for public prayer

For eight years, Coach Joseph Kennedy helped lead the football team at Bremerton High School, a public school in Washington. Win or lose, Kennedy would walk to the 50-yard-line after the game, kneel for a few seconds, and thank God in quiet prayer. Eventually, some players asked if they could join Coach Kennedy. He told them, “This is a free country,” and “You can do what you want.” The students soon noticed the tradition and would voluntarily join the coach on the field for an uplifting and unifying message, inviting players from opposing teams to listen in.

Despite receiving an outpouring of support for allowing Coach Kennedy to continue expressing his faith, the school district demanded Kennedy stop praying where anyone could see him because some onlookers might be offended and see it as an unacceptable school “endorsement” of religion. While the school district had no problem with Coach Kennedy inspiring his students, the school district soured on it altogether when it learned that Kennedy did so through prayer. Coach Kennedy refused the school’s censorship and was no longer welcome as part of the coaching staff.

Six years off the field and in court

Coach Kennedy filed a lawsuit against Bremerton School District in 2016 and asked to continue coaching while the case made its way through the court system. The request made it all the way to the United States Supreme Court, where it was ultimately denied and sent back down to the district court to further develop the case. In the decision, four Justices expressed serious concern about how the school district had interpreted the First Amendment.

After the lower courts again sided with the school district, the Supreme Court agreed to hear the case. Becket submitted a friend-of-the-court brief on behalf of the U.S. Conference of Catholic Bishops on March 2, 2022.

Public prayer is not a boogie man

The Ninth Circuit Court of Appeals ruled that the Constitution’s Establishment Clause required the school to ban Coach Kennedy from praying because permitting it would amount to government “endorsement” of religion. The school district’s lawyers have gone even further, labeling Coach Kennedy’s quiet prayers as “coercion” that the government must censor, because an onlooker might not feel comfortable seeing prayer in public.

But that’s not how the Constitution works. The First Amendment lets individual people—not the government—decide whether and how to pray. Becket’s friend-of-the-court brief at the Supreme Court explains a basic truth about public religious expression – it’s a normal and natural part of our culture and shared history as a country and is no more coercive than any other form of protected expression in the public square. Excluding religion—and only religion—from acceptable forms of public expression and inspiration says that something is inherently wrong and offensive about religion itself. The First Amendment takes that conclusion off the table. A coach doesn’t have to check his religion at the schoolhouse gates for fear that someone in the stands might feel offended.

On June 27, 2022, the United States Supreme Court ruled to protect Coach Kennedy, writing that Kennedy was pursued by the government “for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.” In its decision, the Court also decided to eliminate the Lemon test, a vague legal standard used to decide Establishment Clause cases. The Court confirmed that Lemon has long been dead, and that the Establishment Clause is understood through America’s history and tradition of religious pluralism. The opinion, authored by Justice Gorsuch, pointed to his recent concurrence in Shurtleff v. Boston, where he adopted Becket’s proposal for Lemon’s replacement: a standard rooted in the history and tradition of the Establishment Clause. 

Coach Kennedy was represented by First Liberty Institute, Paul Clement and Erin Murphy (now of Clement & Murphy PLLC), Spencer Fane LLP, and The Helsdon Law Firm, PLLC.  

Photo credit: First Liberty Institute

Shurtleff v. City of Boston

Permit application to raise a Christian flag denied  

Outside of Boston’s City Hall, three flagpoles stand. The city ordinarily flies the United States flag on one pole, the Commonwealth of Massachusetts flag on another, and the third flagpole’s flag often varies. In order to celebrate Boston’s diversity, the city allows outside, private groups to hold flag-raising ceremonies and display a flag of their choosing on the third pole. These flags can celebrate other countries, cultures and causes.

Between 2005 and 2017, the city approved all 284 flag requests it received. The first denial came in 2017 when Camp Constitution, a religious volunteer organization, asked to raise a flag featuring a red Latin cross to commemorate Constitution Day. Boston decided it would not allow a “religious” flag out of “concern for the so-called separation of church and state.” The message was clear—no religious speech allowed.

Boston’s decision was wrong, but it’s not alone. Government officials have used similar reasoning to exclude religious speech from public spaces and even to deny disaster relief funds to churches and synagogues damaged by hurricanes.

Courts ignore the Constitution

Harold Shurtleff, cofounder of Camp Constitution, sued the City of Boston for its discriminatory permit denial. Applying an outdated interpretation of the Establishment Clause called the Lemon test, the U.S. Court of Appeals for the First Circuit concluded that Boston was correct to censor religious speech. Shurtleff then appealed to the United States Supreme Court. The Court granted review of the case and heard oral argument on January 18, 2022.

Understanding the Establishment Clause

On November 22, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that this mistake happened because Boston’s city officials (and the lower courts) misunderstand the Establishment Clause. Government officials who have an outdated understanding of the Establishment Clause often ban religious elements from the public square simply because they are religious.

This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.

The widespread misunderstanding of the Establishment Clause dates back to the 1970s, when courts started to rely on the Lemon test. This legal test is a vague standard that not only ignores history but also has created a mess of Establishment Clause jurisprudence. Becket asked the Supreme Court to formally overrule Lemon so that the hostile censorship against religion in the public square is stopped, once and for all.

During oral argument on January 18, 2022, Justice Kavanaugh cited Becket’s brief and pointed out the failings of the Lemon test.  

On May 2, 2022, the Supreme Court unanimously ruled. Because the City of Boston had a “lack of meaningful involvement in the selection of the flags or the crafting of their messages,” the flag raising was deemed “private, not government, speech.” 

While the Court refrained from disposing of the Lemon test during this decision, Justice Gorsuch said that Lemon came from a “bygone era” and “produced chaos” for the Establishment Clause. He also adopted Becket’s proposal for Lemon’s replacement– a standard rooted in the text, history, and traditions of the Establishment Clause. The next month, in the case Kennedy v. Bremerton School District, the Supreme Court formally announced the end of Lemon.  

 

Dr. A v. Hochul

Healthcare heroes on the frontlines

In March 2020, Americans gained new appreciation and admiration for doctors, nurses, and other healthcare workers who heroically put their own health and safety on the line day in and day out to help and heal their neighbors.

But now that the worst moments of the COVID-19 pandemic are behind us, doctors, nurses, and other healthcare workers in New York are being punished for abstaining from vaccination on religious grounds. In accordance with a state mandate, healthcare institutions across New York have been forced to fire healthcare workers who refused the COVID-19 vaccine—even when they wanted to keep them on the job, and even when firing them has forced them to close emergency rooms and reduce services.

Lose your job or violate your conscience

On August 18, 2021, then-Governor Andrew Cuomo signed into law a vaccine mandate for the state’s heroic healthcare workers that allowed for religious exemptions along the lines of medical exemptions. But on August 26, 2021, Governor Kathy Hochul suddenly changed course and removed the religious exemption while maintaining the medical exemption.

The mandate went as far as to demand healthcare workers either get vaccinated or lose their jobs. And if they decided to follow their conscience, they would also lose their unemployment benefits as well.

As New York faces a severe shortage of medical professionals, Governor Hochul has made it clear that it was no mistake to omit a religious exemption from the state’s mandate. At the Christian Cultural Center in Brooklyn, Hochul mocked religious Americans with objections to the vaccine, saying “you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”

Seeking emergency relief

Shortly after the governor issued the mandate, Thomas More Society filed a lawsuit against Governor Hochul on behalf of 17 healthcare workers who have religious objections to the COVID-19 vaccine but are willing to undergo frequent testing and use protective clothing at all times onsite. Several of the healthcare workers have natural immunity from already contracting COVID due to their heroic work on the front lines of the pandemic.

In November of 2021, Becket joined Thomas More Society in filing an emergency application to the Supreme Court to end New York’s harmful vaccine mandate. Three Justices would have granted the application, which was ultimately denied. In February 2022, Becket and Thomas More asked the Supreme Court to hear the full case on the merits.

Becket’s and Thomas More’s brief points out that 47 other states, as well as the federal government, protect religious objectors by either not mandating vaccines or by allowing religious exemptions for those with objections to the COVID-19 vaccines.

The Supreme Court denied review on June 30, 2022, sending the case back down to the lower courts. Justices Thomas, Alito and Gorsuch dissented, indicating that they would have granted certiorari now.

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.  

Carson v. Makin

Giving Religious Education the Cold Shoulder

For students living in rural Maine communities—in one of the least densely populated parts of the United States—local public high schools are hard to come by. The State of Maine offers tuition assistance to families who send their children to private schools—any private schools except religious schools. In fact, students have used Maine student aid to attend elite New England prep schools such as Avon Old Farms, the Taft School, and Miss Porter’s. They are even entitled to use Maine student aid to attend private schools outside the country—as long as they aren’t religious. These otherwise qualified religious schools are left out and the children attending these schools receive no tuition assistance throughout their entire primary education, all because the schools have a religious mission.

Religious schools nationwide provide high-standard education with a spiritual foundation. These educational opportunities are sought after by parents who choose to send their children to religious schools so that their children receive both a first-rate education and they are able to pass the faith to the next generation.

The Supreme Court Steps In, and In Again

Unfortunately our country has a long history of excluding religious institutions from public programs, stemming from anti-Catholic laws in the nineteenth century. These laws, called Blaine Amendments, were adopted by several states and burdened religious ministries simply because of their faith-driven beliefs. In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that Montana could not exclude religious schools from a scholarship program based on Montana’s Blaine Amendment. The Court explained that the exclusion was “born of bigotry,” and Justice Alito elaborated on the dark history of Blaine Amendments. The decision also strengthened precedent set in Trinity Lutheran v. Comer that said a religious school could not be blocked from participating in a state recycling program.

Unfortunately, the State of Maine thinks that it can still exclude religious schools from its tuition assistance program. On February 4, 2021, families from Maine asked the United States Supreme Court to hear their case and end Maine’s discriminatory actions. The Court granted review and on September 10, 2021, Becket filed a friend-of-the-court brief that emphasized the importance of the First Amendment and the free exercise of religion, saying that Maine could not justify singling out children who wanted to attend religious schools.

On June 21, 2022, the Supreme Court ruled 6-3 that the state of Maine’s tuition assistance program was in violation of the Free Exercise clause, coming as a major victory for religious schools in Maine and throughout the country.

Importance to Religious Liberty:

  • Education:  Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools.

 

 

Hedican v. Walmart

Sabbath day observance, a pillar of faith 

Sabbath day observance is a crucial part of many faiths—a day ordained by God when one abstains from the distractions of daily life in order to devote time to family, community, and worshiping God. As their name indicates, this practice is particularly sacred to Seventh-day Adventists, who observe the Sabbath from Friday at sundown to Saturday at sundown. Many employers voluntarily make allowances for Sabbath day observance, recognizing its essential role in the wellbeing of their religious employees. 

In April of 2016, Ed Hedican was offered a position as an assistant manager at Walmart. When he accepted the position, he requested a religious accommodation so that he would not have to work on the Seventh-day Adventist Sabbath. Though he asked not to be scheduled from on his Sabbath, he was willing to work any other time of the week, including Saturday after sundown.  

A corporation’s disregard for religious rights 

In response to Mr. Hedican’s request, Walmart refused to provide religious accommodation for the Sabbath and rescinded his job offer. Although Mr. Hedican was qualified for the position, and eager to work with Walmart to achieve a compromise (volunteering to work any other day of the week, including nights, and 12-hour shifts), Walmart refused, suggesting he apply to an hourly position of lower pay and lower rank. Though it is the largest non-governmental employer in the United States, Walmart claimed that any accommodation made for Mr. Hedican’s Sabbath observance would burden impose “undue hardship” on the company. 

The average salary of a Walmart assistant manager is just over $50,000. In contrast, Walmart—the largest private employer in the United States—amassed over half a trillion dollars in revenue in 2020 alone, making any cost or inconvenience of religious accommodation in this instance negligible. Yet Walmart even declined to investigate whether costless accommodations were available, such as allowing assistant managers (there were eight at this particular store) to arrange voluntary shift swaps amongst themselves.  

Title VII of the Civil Rights Act protects employees from discrimination due to factors such as religion, race, and gender. Mr. Hedican submitted a charge of discrimination to the EEOC, explaining that Walmart was not reasonably accommodating his religious exercise, as is required by law.  

Correcting a harmful precedent 

In the EEOC’s subsequent suit against Walmart, the federal trial and appellate courts ruled for Walmart, relying heavily on an old Supreme Court precedent from 1977. In Trans World Airlines v. Hardison, the Court ruled that companies may refuse to provide religious accommodation for their employees if providing such an accommodation presents the company with even a minor inconvenience.   

The U.S. Court of Appeals for the Seventh Circuit interpreted that precedent to mean that even a chance that shift-swaps would burden Walmart’s rotation system, without concrete evidence, was enough to rule for Walmart. This rule enables corporations like Walmart, the largest employer in the U.S., to discriminate against religious employees if accommodating them would cause a burden as trivial as rearranging work shifts.  

On behalf of Mr. Hedican, Becket asked the Court to revisit the Trans World Airlines decision and its interpretation in the lower courts, and defend the constitutional right of every American, including shift workers like Mr. Hedican, to work according to their conscience and their faith.  

This case is important for all Americans who are faced with similar conflicts in the workplace, put to the choice between their faith and providing for their family even where reasonable accommodation is possible. People are more than punches in a timecard, and the law should assure that every American has the right to live and work according to their religious convictions.  

Importance to Religious Liberty:

Individual Freedom—Religious exercise encompasses more than just thought or worship—it involves visibly practicing the signs of one’s faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs.  

Dobbs v. Jackson Women’s Health Organization

A Decade-Long War 

In 2013, the Little Sisters of the Poor rose to national recognition when they won their first victory over the contraceptive mandate at the Supreme Court. But their fight to serve the elderly poor without compromising their religious convictions didn’t start or end there. States like California and New York, as well as the federal government, have been relentless, insisting for over a decade that nuns (and other religious nonprofits) must pay for abortifacient drugs in their health plans or pay tens of millions of dollars in crippling fines.  

Among the most ludicrous aspects of the Little Sisters’ fight is that in over a decade, their aggressors have not been able to identify a single woman who will lose contraceptive coverage if the Little Sisters don’t pay for it. These fights are not really fights over nuns and their healthcare plan but rather over expanding and solidifying abortion rights.  

A Consequential Decision 

When the Supreme Court decided the landmark abortion case, Roe v. Wade in 1973, it reached beyond the Constitution to establish a right to abortion. That decision has haunted many areas of the law, including the First Amendment where many cases arise because of abortion advocates seeking to expose and punish religious Americans with moral objections to abortion and contraceptive drugs. These proxy wars have been fought on at least four battlefields with direct implications for religious liberty: contraceptive and abortion mandates, pharmacist regulations, pregnancy center regulations, and restrictions on sidewalk counselors. 

That’s how the Little Sisters of the Poor, and numerous other Becket clients, including Eleanor McCullen, a sidewalk counselor who went to the Supreme Court to fight for her right to speak to share her message of hope with women going into the abortion clinic; family pharmacies operated by people of faith like the Stormans family in Washington state and Luke Vander Bleek and Glenn Kosirog in Illinois that were forced to choose between selling the morning-after and week-after pills at their family-run pharmacies or lose their licenses; and Greater Baltimore Center for Pregnancy Concerns, which wanted to help vulnerable women without being forced to undermine its mission by displaying a sign that read “do not provide or make referrals for abortion or birth control services.” 

These are just a few examples of unnecessary and often painful battles waged in both the courtroom and in the court of public opinion from California to New York, in the hospice rooms of nuns caring for the elderly poor and on the campuses of Christian colleges that teach their students all human beings bear the image and likeness of God – the landscape of the fight has engulfed almost every sector of our society. 

It doesn’t have to be that way—other countries like France, England, and Germany—have experienced much less of this kind of abortion v. religious liberty conflict. But in the U.S., with abortion rights dictated by the Supreme Court, the conflicts have raged.

A Chance to end the unnecessary fights 

Next term, the Court can correct the damage done to religious liberty in a case with a direct challenge to Roe v. Wade – Dobbs v. Jackson Women’s Health Organization.  

In March of 2018, Mississippi passed the Gestational Age Act which restricts abortions after the 15th week of pregnancy. In response, the Jackson Women’s Health Organization filed a lawsuit against the State of Mississippi arguing that the law violated its rights under Roe v. Wade and Planned Parenthood v. Casey. After the State of Mississippi lost the case at both the district court and Fifth Circuit Court of Appeals, it appealed to the Supreme Court which agreed to hear the case in May 2021.  

On July 27, 2021, Becket filed a friend-of-the-court brief in Dobbs, arguing that the Court should replace the Roe framework, thereby relieving the heavy burden imposed on religious liberty by abortion proxy wars, and opening the door to more productive solutions to religious liberty conflicts related to abortion.  

On June 24, 2022, the U.S. Supreme Court ruled 6-3 in favor of the state of Mississippi, overturning Roe v. Wade. The decision puts the abortion debate back into the hands of the voters, lessens the battles between religious freedom and abortion, and better ensures Americans the right to live in accordance with their faith. 

Importance to Religious Liberty: 

The legal framework of Roe has haunted religious Americans ever since it was issued by the Supreme Court in 1973.  Fewer national proxy wars over religious liberty and abortion will result from returning the abortion debate back to the states. 

Americans for Prosperity Foundation v. Bonta

Does a California tax law violate the freedom of assembly? 

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

There and back again: a journey through the courts 

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

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

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

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

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

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

Importance to Religious Liberty 

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

Diocese of Albany v. Harris

Pushing the envelope beyond the contraceptive mandate 

In 2011, the United States Department of Health and Human Services ordered employers to cover controversial contraceptives and abortifacients in their health care plans or face crippling fines. Immediately challenges were mounted by religious universities, Christian businesses and, most famously, by the Little Sisters of the Poor—an order of Catholic nuns who dedicate their lives to serving the elderly poor. Three times the Supreme Court ruled in favor of the Little Sisters of the Poor, saying that if the government wanted to provide contraceptives and abortifacients, it could not force the nuns to help.  

But in 2017, when the Little Sisters of the Poor were already two Supreme Court victories into their decade-long legal battle over the contraceptive mandate, the State of New York went a step further and required employers statewide to cover not just abortifacients, but even surgical abortions in their health plans.  

New York initially planned to respect conscience rights by exempting employers with religious objections. But facing pressure from abortion activists, New York narrowed the exemption to protect only religious entities that primarily employ and serve people of their own faith. This discriminatory rule punishes the many religious groups and ministries that provide critical community services and employ or serve people regardless of their faith.  

Standing up for the right to stand aside  

A coalition of religious groups from a variety of denominations—including Roman Catholic dioceses, an order of goat-herding Anglican nuns, Baptist and Lutheran churches, and Catholic ministries—sued New York, arguing that the law forced them to violate their deeply held religious beliefs about the sanctity of life.  

Among the religious groups challenging New York’s abortion mandate are a group of the Carmelite Sisters who run the Teresian Nursing Home for the elderly and dying; the First Bible Baptist Church, which serves the community through its youth ministry and a deaf ministry; the Sisterhood of St. Mary, an Anglican/Episcopal order of religious sisters who live a contemplative, monastic life; and subdivisions of Catholic Charities, which provide adoption and maternity services. 

Each group is challenging New York’s abortion mandate because it believes that life begins at the moment of conception, and that to intentionally end the life of an unborn child is a grave moral sin. However, unless they receive protection in court, these orders, ministries, and churches will either have to violate their deepest religious convictions and provide abortions, or eliminate their employees’ health insurance altogether, which would subject them to crippling fines totaling millions of dollars per year. 

Seeking relief from the High Court 

Represented by Becket and Jones Day, the coalition of religious organizations asked the U.S. Supreme Court to hear its case. The Supreme Court granted the petition, vacated the bad rulings from the New York state courts, and told the state courts to reconsider the case in light of Becket’s other landmark victory in Fulton v. City of Philadelphia. The New York Court of Appeals reconsidered the case, but failed to protect the religious groups and again upheld the abortion mandate. On September 17, 2024, the decision was appealed to the Supreme Court. 

On June 16, 2025, the Supreme Court ruled in favor of the religious organizations fighting New York’s abortion mandate. The ruling ordered New York courts to reconsider the case in light of the unanimous Supreme Court decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. In their opinion, the Court made clear that that governments could not favor one religion over another based on religious beliefs or how they worship, proselytize, and perform charitable works. 

The case will now continue at the New York Court of Appeals. 

Just like the Supreme Court found that the government must find a way to provide contraception that doesn’t involve the Little Sisters of the Poor, so too must the court step in and protect these religious organizations from having to violate their deepest moral convictions by participating in abortions.  

 Importance to Religious Liberty: 

  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without the government discriminating among sincere religious. 
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship. 

Mahanoy Area School District v. B.L.

In 2017, a high school freshman named Brandi Levy learned that she did not make the public school’s varsity cheerleading team—and that she had not gotten the position she wanted on the school’s softball team, either. Frustrated, she posted an angry private message on a Saturday via the social media app Snapchat, which was intended to be seen only by her friends before the message automatically deleted the next day.  

However, one of the cheerleading coaches at her public school was shown a screenshot of the message. As a result, Levy was suspended from the junior varsity cheerleading team for her entire sophomore year. School officials claimed that her message, which contained profanity, violated the school’s good conduct rules for cheerleaders.    

After the school refused to reconsider its position, Levy’s parents sued on her behalf. Even though school officials admitted that the social media message was unlikely to cause any actual disruption on campus, they argued that public schools should be able to police student speech they deem disruptive (or even socially inappropriate) whenever and wherever it takes place. This includes speech—like Brandi Levy’s—made off campus, on the weekend, and sent privately to friends. 

The school’s proposed rule would not only discourage students from speaking for fear of punishment, it would also give a “heckler’s veto” to public school administrators or fellow students who want to suppress speech with which they disagree—even if the student’s speech is expressing deeply-held religious beliefs. After both the district court and U.S. Court of Appeals for the Third Circuit ruled in Levy’s favor, the public school sought review by the U.S. Supreme Court, asking the Court to give public school administrators an unprecedented level of supervision and control over students’ speech.  

“Allowing a public school to silence any speech it deems ‘divisive,’ ‘offensive’ or ‘disruptive’ is an extremely dangerous proposition,” said Nick Reaves, counsel at Becket. “It would permit schools to punish students for expressing their deeply-held religious beliefs—even if expressed in the privacy of their home or at a religious service or ceremony. Students are not creatures of the state, and their rights, and those of their parents, do not evaporate simply because their parents send them to public schools.” 

As Becket’s friend-of-the court brief explains, public school administrators have an unfortunate track record of discrimination against religious speech. Some have lumped religious speech together with obscenity and libel, while others have sought to punish students for, among other things, inviting their peers to a church play. Giving public schools even greater authority to police student speech will only increase the opportunities for such discrimination. It would also disproportionately harm minority students, as schools are less familiar with (and often less tolerant of) unusual or unpopular religious beliefs. 

On June 23, 2021, the Supreme Court affirmed that important constitutional protections, like the freedom of speech, do not evaporate when students attend public schools. As “nurseries of democracy,” public schools must respect the constitutional rights of their students, especially when students are speaking off-campus, on the weekend, to their friends. In his concurring opinion, Justice Alito further emphasized that religious speech, which lies “at the heart of the First Amendment,” enjoys significant constitutional protection and “is almost always beyond the regulatory authority of a public school.” 

Importance to Religious Liberty: 

  • Free speech: The freedom to speak is protected by the First Amendment to the Constitution. Government authorities do not have the ability to punish speech just because it is unpopular, controversial, or even unwise.  
  • Education: The Supreme Court has confirmed that Brandi Levy and students like her still have constitutional rights—even as minors attending high school. Parents, not public-school teachers, are responsible for the religious upbringing of their children. Giving government officials the ability to “veto” speech is detrimental to the healthy exchange of ideas and especially damaging to minorities with unpopular or unusual religious beliefs. 

Gateway City Church v. Newsom

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

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

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

Santa Clara County goes against U.S. Supreme Court

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

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

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

Importance to Religious Liberty:  

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

 

Apache Stronghold v. United States

Video: Apache sacred land threatened by mining in Arizona

A sacred site since time immemorial

Since before recorded history, Western Apaches have lived, worshipped on, and cared for Oak Flat and surrounding lands. Apaches believe that the Creator gives life to all things, including air, water, and the earth itself. Their religious and cultural identity is inextricably tied to the land, and Oak Flat has paramount significance for prayer and sacred ceremonies. Many of their most important religious practices must take place there, such as the coming-of-age Sunrise Ceremony for Apache women; sweat lodge ceremonies; gathering of sacred medicine plants, animals, and minerals; and the use of sacred waters. It is considered the direct corridor to Apache religion—recognized in the National Register of Historic Places and sometimes compared to Mount Sinai for Jews.

Broken promises

Unfortunately, the U.S. government has a sordid history of destroying Apaches’ lives and land for the sake of mining interests. In the 1870s, the federal government forced the Apache people onto the San Carlos Apache Indian Reservation and authorized miners to take Apache land. And although Oak Flat has been expressly protected from mining since the Eisenhower administration, mining companies still covet Oak Flat for a large copper deposit 7,000 feet below the surface.

Mining companies have long lobbied Congress to give them control of the land. One sponsor of a land-transfer bill was even convicted of soliciting a bribe from a mining company in exchange for his support. For many years, Congress refused, protecting the site from exploitation the same way it would preserve a historic, centuries-old church, mosque or synagogue. But in 2014, a last-minute rider was attached to a must-pass defense bill, ordering the land to be transferred to a foreign-owned mining company, Resolution Copper. The government admits the mine will destroy Oak Flat forever—obliterating the sacred ground in a nearly 2-mile-wide, 1,100-foot-deep crater, and making the Apaches’ religious practices impossible.

Seeking Justice

Apache Stronghold—a coalition of Apaches, other Native peoples, and non-Native allies dedicated to preserving Oak Flat—sued the government in federal court. They argued that the destruction of their sacred site violates the Religious Freedom Restoration Act (RFRA) and an 1852 treaty promising that the United States would protect their land and “secure the permanent prosperity and happiness” of the Apaches. After the trial court declined to halt the land transfer, Becket filed an emergency appeal to the Ninth Circuit Court of Appeals. Just six hours before the government’s response was due, the government announced that it would withdraw the environmental impact statement that triggered the land transfer, delaying the transfer for several months. On June 24, 2022, the Ninth Circuit Court of Appeals refused to protect Oak Flat, saying that the land transfer to Resolution Copper did not substantially burden the Apaches’ religious exercise. In a dissenting opinion, Judge Marsha Berzon called the ruling “absurd,” “illogical,” “disingenuous,” and “incoheren[t].”  

In November 2022, the Ninth Circuit agreed to rehear the case “en banc”––meaning in front of a larger panel of eleven judges.  On March 1, 2024, the Ninth Circuit again refused to stop the federal government from transferring the sacred site to Resolution Copper. Five judges dissented from the ruling, writing that the majority “tragically err[ed]” in allowing the government to “obliterat[e] Oak Flat” and prevent the “Western Apaches from ever again” engaging in their religious exercise.  

This is not the end for Oak Flat. Apache Stronghold appealed the decision to the United States Supreme Court on September 11, 2024.

In addition to Becket, Apache Stronghold is represented by attorneys Michael Nixon and Clifford Levenson. 

Importance to Religious Liberty:

  • Individual Freedom: The government cannot take actions that prevent or burden the expression or pursuit of religious beliefs. Because each human has an individual right to follow the unique dictates of his conscience, religious freedom cannot be confined to the four walls of a church building. Individuals should be free to pursue their faith at all times without fear of government discrimination or penalty.
  • 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.
  • Religious Freedom Restoration Act: Passed by a bipartisan coalition in 1993, this legislation protects religious groups by requiring the government to show a compelling interest and use the least restrictive means possible when its actions would pose a substantial burden on religious exercise.
Photo © Robin Silver Photography

Dunn v. Smith

Leveling down to avoid religious accommodations

Until recently, Alabama required that a clergy member be present at the execution of a prisoner. But in 2019, the Alabama Department of Corrections abruptly changed its policy to instead ban all clergy members from the execution chamber in response to a Supreme Court ruling in a Texas prisoner’s case, Murphy v. Collier.

In the Texas case, Patrick Murphy was awaiting death by lethal injection, and his final request was for his Buddhist minister to pray with him at his execution. The state of Texas denied his request, arguing that his Buddhist minister was a security risk, even though the state allowed Christian ministers and Muslim imams into the chamber and the minister was a frequent chaplain to Texas prisoners. On March 28, 2019—two and a half hours after Murphy was scheduled to die—the Supreme Court stepped in and said that Texas could not go forward with the execution unless it granted Murphy access to his Buddhist spiritual advisor.

As a result of the Supreme Court’s decision, Texas and Alabama made an ugly move to avoid accommodating minority religions. Both states changed their policies to ban all clergy members from the execution chamber.

Defending the comfort of clergy in the death chamber

Fast forward to 2021. Alabama prisoner, Willie B. Smith was scheduled to be executed for his crimes on February 11, 2021. Smith’s minister, Pastor Robert Paul Wiley, Jr., attested that during his time in prison, Smith repented of his sins and developed a strong personal faith. Pastor Wiley has spent years ministering to Smith in prison. Smith asked that Pastor Wiley be allowed to accompany him in the execution chamber but, in accordance with Alabama’s new discriminatory policy, his request was denied.

Smith sued the state of Alabama for his right to be accompanied by his pastor at the moment of death. The district court ruled against Smith, but the United States Court of Appeals for the Eleventh Circuit ruled in his favor. Alabama appealed to the Supreme Court on February 11, 2021, the morning of Smith’s scheduled execution.

Becket filed a friend-of-the-court brief in support of Smith, arguing that 13 out of 20 prisoners executed in the United States over the past year were allowed to have a clergy member of their choice present in the execution chamber. If the federal government and other states have been able to offer this religious accommodation, so too should Alabama. The brief also argued that the Constitution requires more than equal, bad treatment for all faiths. It requires that all Americans, including prisoners, be accommodated in their religious exercise whenever possible.

Late on the night of February 11, 2021 the Supreme Court declined to disturb the court of appeals ruling that Alabama must allow Smith to be accompanied by his pastor in the execution chamber. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, agreed with the Court’s decision, writing that “past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber.”

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.

Young Israel of Tampa v. Hillsborough Area Regional Transit Authority (HART)

A cherished community celebration  

Young Israel of Tampa is an Orthodox Jewish synagogue serving the growing Jewish population of Tampa, Florida. For decades, Young Israel has hosted many events to share the Jewish faith with the community—such as Chanukah celebrations, Passover Seders, and more.  

For the last fourteen years, Young Israel has hosted a community celebration called “Chanukah on Ice.” This family-friendly event features ice-skating, food, music, a raffle, and the lighting of an ice-sculpted menorah—one of the central symbols of Chanukah.  

Censoring religious speech 

In 2020, Rabbi Rivkin, vice president of Young Israel, sought to advertise Chanukah on Ice on a nearby bus route operated by the Hillsboro Area Regional Transit Authority (HART). The proposed advertisement included an image of a menorah and invited community members to enjoy “ice skating to Jewish music around the flaming menorah.”  

HART, however, refused to run the ad, stating that it “does not allow religious affiliation advertising, as well as banning adult, alcohol, tobacco, and political ads.” When Rabbi Rivkin appealed to HART’s CEO, he was told that Young Israel should strike central religious image from the ad and delete all reference to the lighting of the menorah—deeply offensive changes that were not possible for Young Israel to make.   

Discriminating against religion—because it’s religion—is illegal.  

HART’s ad policy was unconstitutional because it expressly discriminated against religion and banned religious speech on government property. It was also bad policy. It told religious organizations that they are unwelcome in the public square, and it reinforced that message by grouping religious ads with ads promoting alcohol, tobacco, illegal drugs, obscenity, nudity, profanity, politics, pornography, discrimination, and violence. The First Amendment gives special protection to religion; Tampa tells religion it is unfit for public consumption.  

But this wasn’t just about transit advertisements. It was about whether religious messages belong in the public square at all. If religious speech can be banned from public transit, no principle stops bureaucrats from banning religious speech in public parks. Indeed, one of HART’s officials indicated that not even Reverend Martin Luther King Jr. would be allowed to advertise his messages of hope and equality with HART.   

On February 5, 2021, Young Israel filed a lawsuit against HART in the United States District Court for the Middle District of Florida. The federal district court granted summary judgment to Young Israel, finding that HART’s ban on religious advertisements was both discriminatory and standardless. The court also ordered that HART should no longer be allowed to ban ads that primarily promote religious faith or religious organizations. HART appealed the district court’s decision and on January 10, 2024, the Eleventh Circuit ruled in favor of Young Israel, agreeing that HART’s religious ad ban is unreasonable and unconstitutional.  

On October 7, 2024, the Supreme Court declined to hear the case. The Eleventh Circuit’s decision in favor of Young Israel stands. HART can no longer enforce its religiously discriminatory policy and Supreme Court precedent continues to require HART to allow religious advertisements on the same terms as all others. 

Young Israel was represented by Becket, along with the Jewish Coalition for Religious Liberty and Holtzman Vogel, PLLC.   

 Importance to Religious Liberty: 

  • Free speech:  The freedom to speak about religious truth is not only an inherent human right, but also a fundamental building block of our society. The First Amendment protects the right of religious organizations to participate in the public square—without fear that they must surrender their religious identity as a condition of speaking.  
  • Public square: Religious organizations are crucial to maintaining a free society. Government policies that presume religion does not belong in public life misunderstand our  best traditions and bedrock principles.  

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

The most extreme restrictions in the nation

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

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

Fighting for the right to worship

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

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

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

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

Throwing open the doors of churches

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

 

Importance to Religious Liberty: 

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

Danville Christian Academy v. Beshear

Preserving public health while pursuing academic excellence  

Danville Christian Academy, located in Danville, Kentucky, is a Christian educational institution serving students from preschool through grade 12. The mission of Danville Christian is “to mold Christ-like scholars, leaders, and servants who will advance the Kingdom of God.” In order to do so, Danville Christian believes that “its students should be educated with a Christian worldview in a communal, in-person environment.” 

In response to COVID-19, Danville Christian Academy has gone to great lengths to ensure the health and safety of students and families, as well as the broader community, by following the recommendations of local and national health officials. Over the summer, the school spent over $20,000 implementing safety procedures and equipping its facilities for safe, in-person instruction. As a result of Danville Christian’s rigorous efforts, since reopening in August, only a handful of students and staff have tested positive for COVID-19, thus confirming that the school’s strict health and safety precautions have been working. 

Denying educational opportunities  

On November 18, 2020, eight months after the initial outbreak of COVID-19 in the United States, Kentucky Governor Andy Beshear issued two executive orders. The first required all elementary, middle, and high schools to cease in-person instruction and transition to virtual learning. In stark contrast, the second issued guidance permitting most other in-person activities and indoor gatherings to continue, with certain capacity restrictions. Those businesses permitted to remain open included daycares, preschools, colleges and universities, and even gyms, bowling allies, theaters, and gambling venues such as racetracks.  

As a result of this unequal treatment, retailers saw large Black Friday crowds and the University of Louisville has played football games in front of crowds numbering in the thousands. Meanwhile school-aged students, who are at a reduced risk of contracting and transmitting the COVID-19 virus, are kept from vital in-person instruction—despite the fact that all classes at Danville Christian would satisfy the same 25-person capacity restrictions imposed on certain other businesses. 

The result of the Governor’s unequal treatment of schools is even more troubling for private religious schools. The Governor’s actions deny religious communities the right to effectively pass down their faith to the next generation of believers. At Danville Christian, for instance, students are missing out on in-person chapel services, religious instruction, and other communal events that cannot be translated into an on-line format.  In July 2020, the Supreme Court emphasized the fundamental right of religious communities to pass on the faith to the next generation through religious education in its decision in Our Lady of Guadalupe v. Morrissey-Berru. The Court’s opinion specifically highlighted “the close connection that religious institutions draw between their central purpose and educating the young in the faith,” the very interest raised here. 

Vindicating the right to religious education  

On November 20, 2020, Danville Christian Academy filed a lawsuit against Governor Beshear, challenging his restrictions on religious education. The federal district court ruled in favor of Danville Christian, but Governor Beshear appealed to the U.S. Court of Appeals for the Sixth Circuit, which permitted enforcement of the Governor’s order.  

On November 30, 2020, Danville Christian Academy filed an emergency application with the Supreme Court to protect it from the Governor’s arbitrary closure of only primary and secondary schools, while permitting other larger group gatherings. Becket filed a friend-of-the-court brief in support of Danville Christian arguing that the Governor’s order must be subject to stringent judicial review because it interferes with the fundamental right of parents to direct the religious education of their children.

On December 17, 2020, the Supreme Court denied Danville Christian’s request for emergency relief, citing the “timing and impending expiration” of Kentucky’s school closing order. The Court’s opinion nevertheless noted the important First Amendment interests at stake, and highlighted the constitutionally protected parental rights raised in Becket’s brief.

Importance to Religious Liberty: 

  • Religious Communities: Religious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like Danville Christian Academy, which exist to transmit the Christian faith to the next generation, are constitutionally protected from government restrictions that deny them their fundamental right to provide religious education.  

Agudath Israel of America v. Cuomo

Can Governor Cuomo target New York City’s Jewish communities?

Governor Cuomo openly singled out Jewish synagogues like Agudath Israel’s for disfavored treatment,  claiming  that “because of their [Orthodox Jews’] religious practices, etc., we’re seeing a spread [of COVID-19]” and threatened to “close the [Orthodox Jewish religious] institutions down.” Although Governor Cuomo openly admitted the supposedly elevated rates of COVID-19 would not be considered serious in many other states, he drew restrictive “Red” lockdown zones around predominately Orthodox Jewish parts of New York City. These zones heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers. Far from being scientifically justifiable, Cuomo himself has admitted that his drastic actions were taken out of a concern for public opinion, not public health, saying the lockdown zones were “a fear driven response” and admitting “this is not a policy being written by a scalpel, this is a policy being cut by a hatchet.” As a result, a Brooklyn federal judge found that “the Governor of New York made remarkably clear that this Order was intended to target [Orthodox Jewish] institutions.”

Standing up for equal treatment

In response to this unfair treatment, Agudath Israel filed a lawsuit in federal court on October 8, arguing that the discriminatory nature of Cuomo’s “cluster action initiative” rendered it unconstitutional. After the district court denied an immediate injunction, Agudath appealed to the Court of Appeals for the Second Circuit for an emergency ruling protecting them while the case was being argued in the lower court. On November 9, 2020, the Second Circuit declined, in a 2-1 decision, to stop the restrictions before the case was argued, with Judge Park dissenting. However, recognizing the importance of the case, the Court fast-tracked that briefing and argument in the case. 

On November 16, 2020, Becket, along with co-counsel Troutman Pepper Hamilton Sanders LLP, asked the Supreme Court to issue an emergency injunction halting Governor Cuomo’s discriminatory regulations until the case was decided. Pointing to Cuomo’s own admissions of targeting Orthodox Jews, the fact that the governor’s lockdown zones restricted Orthodox Jewish communities more harshly than other communities with equivalent or higher rates of COVID-19 infection, and the Supreme Court’s robust precedent protecting religious groups from hostile discrimination, Becket asked the Supreme Court to lift the governor’s restrictive “religious gerrymander” until the case was decided in court. On November 25, the Supreme Court granted the injunction, finding that Governor Cuomo’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community,’” that there was no evidence that the houses of worship who brought the case had contributed to the spread of disease, and that the regulations violated the First Amendment by privileging secular activities over religious exercise.

The Court’s opinion made clear that “…even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On December 28, 2020 the United States Court of Appeals for the Second Circuit ruled 3-0 in favor of Agudath Israel, halting Governor Cuomo’s 10- and 25-person caps on religious worship while the case is pending.

Uzuegbunam v. Preczewski

Sharing his faith in Jesus

Chike Uzuegbunam, the son of Nigerian immigrant parents and a man of faith, was a student at Georgia Gwinnett College. As a junior in 2016, Chike began sharing a message about Jesus’ love in a plaza outside of the school’s library. “All I wanted to do was share with other students the faith that changed my life,” Chike said.

Threatened with arrest for sharing his faith

Although he wasn’t disturbing anyone, Chike was stopped by campus officials, who told him that he could only distribute literature in a designated “speech zone,” – two tiny areas making up less than 0.0015% of the campus. Chike complied with the policy and reserved a speech zone, but when he tried to speak again, he was silenced by campus police, who threatened to arrest him for “disturbing the peace” if he continued publicly sharing his faith.

Not only was Georgia Gwinnett’s policy – confining free expression to two tiny zones – ridiculous, it was also enforced in a discriminatory fashion. Chike was threatened with arrest for quietly talking with other students who were interested in his message, but university officials allowed other students to talk and play loud music in public areas without silencing them.

Threatened for sharing his faith and speaking his mind, Chike was determined that others—including his friend Joseph Bradford, who had planned to follow Chike’s example until Chike was silenced—should not have to go through the same experience. Chike filed a lawsuit against Georgia Gwinnett.

Holding the government accountable

As a public university, Georgia Gwinnett should have followed the Constitution and allowed Chike to speak. But Georgia Gwinnett’s lawyers still fought to defend their unconstitutional policy in court. Then, Georgia Gwinnett unexpectedly dropped its policy and argued that Chike’s case should be dismissed as “moot” because he had graduated—and that the court should never decide whether the college had violated the law.

Since large government bureaucracies like universities and prisons often use this tactic to avoid facing judgment, Chike was prepared. He had included a request for a small amount of money – “nominal damages”—so that the court could still give justice to Chike even if his case took years to resolve. But the district court still dismissed Chike’s case. The Eleventh Circuit affirmed, breaking with every other U.S. Court of Appeals to hold that, if he wanted justice, Chike should have asked for more money, in the form of “compensatory damages.”

On September 29, 2020, Becket filed a friend-of-the-court brief arguing that governments should not be allowed to evade accountability by changing their unconstitutional policies after the fact and then using technical loopholes (like whether the plaintiffs have asked for nominal vs. compensatory damages) to avoid facing justice for their past actions. Becket, which frequently represents people seeking to practice their faith in prison, pointed out that in many cases, federal law forbids inmates from bringing the kind of compensatory damages claims that the Eleventh Circuit requires.

On March 8, 2021, the Court ruled that Uzuegbunam deserved remedy for his constitutional injury when school officials silenced his religious speech.

Importance to Religious Liberty:

  • Free speech: Free speech is an important human right – and an important constitutional right as well. Unaccountable bureaucrats should not be able to stifle free speech, even – and especially – if the views expressed are unpopular, controversial, or simply disfavored by the government.
  • Public square: Religious exercise is an important part of being human, and as such it has a valuable place in the public square. Religious speech should be protected and cherished, the same as any other form of expression.
  • Education: Students like Chike Uzuegbunam don’t give up their rights when they attend a public college. Establishments of higher education are meant to be places of free and open inquiry, not government inquisition.

Dalberiste v. GLE Associates

A commitment to the Sabbath

Abstaining from work on a “Sabbath” ordained by God is a religious practice that is important to people of many faiths—but particularly to Seventh-day Adventists, as indicated by their name. For Mitche Dalberiste, an environmental technician, this means retreating from the distractions of everyday life to spend time with family, serve his community, and worship God.

In June 2016, Mr. Dalberiste was hired by GLE Associates for a job as an industrial hygiene technician. During the onboarding process when he called to discuss training and his work schedule, he disclosed to his supervisor that, as a practicing Seventh-day Adventist, his religious beliefs barred him from working from sundown Friday to sundown Saturday. Mr. Dalberiste requested a religious accommodation only from work on his Sabbath, and was willing to work during all other times of the week, including late nights and Sunday.

Denied employment for religious reasons

The next day, Mr. Dalberiste’s job offer was rescinded in response to his request for a religious accommodation, without any inquiry into whether an accommodation was practical or what weekend times Mr. Dalberiste could work. This loss was all the more abrupt because GLE Associates had never in the hiring process specified that its role was unavailable to someone only available for part of the weekend.

To someone reading federal law for the first time, GLE Associates’ decision seems unusual. Title VII of the Civil Rights Act bars employers of significant size—like GLE Associates—from discriminating on a number of bases, such as race, sex, and religious practice. The law specifies that these employers are required to “reasonably accommodate” religious practice, unless it would cause serious disruption (“undue hardship”) to the business. Yet GLE Associates did not even try to find an accommodation. Why?

A poor judgment

The answer is found in a 1977 Supreme Court decision. In Trans World Airlines v. Hardison, the Court concluded that employers may deny employees religious accommodation if the accommodation imposes so much as a minor strain on the employer. Under this standard, employers like GLE Associates are given the option to reject a religious accommodation over something as trivial as having to change work shifts.

This standard poses a serious burden to the free exercise of American workers, and mainly those Americans who practice minority faiths or hold different or unpopular beliefs. And the Department of Justice recently called for the Court to revisit this standard, stating that Hardison’s rule is both “incorrect” and “irreconcilable” with the Court’s more recent decision in EEOC v. Abercrombie & Fitch Stores, where Becket became involved to defend a Muslim woman denied a job due to her religious practice of wearing a headscarf.

The chance to right a wrong

In 2016, Mr. Dalberiste sued GLE Associates in Florida federal district court, seeking to defend his right to earn an honest livelihood while following his deeply held religious convictions. However, because of Hardison, the district court and appeals court were compelled to side with GLE Associates.

Along with its partners—the Seventh-day Adventist Church and Gene Schaerr of Schaerr | Jaffe—Becket asked the Supreme Court of the United States to correct its mistaken view in Hardison and restore religious liberty to its proper place in employment law. No American should have to choose between providing for his family and practicing a central tenet of its faith. The Supreme Court was asked to clarify that employers must reasonably accommodate sincere religious practice, just as they do other protected characteristics like disability. The Court denied review of Mr. Dalberiste’s case on April 5, 2021.

Importance to Religious Liberty:

  • Individual Freedom: Religious exercise encompasses more than just thought or worship—it involves visibly practicing faith, at home and at work. All Americans must be free to live according to their consciences without fear of losing their jobs.

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.

Tanzin v. Tanvir

Targeted for their faith

Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari are three American Muslim men who were allegedly approached by FBI agents, who asked the men to serve as informants against fellow Muslims. However, their religious beliefs prevented the men from assisting the FBI in this way.

Abuse of power

After the three men declined to serve as informants for the FBI they were allegedly placed on the No Fly List—a record of individuals deemed to be terrorist threats to the United States and therefore not permitted to fly. According to their court filings, they were on this list for several years.

The three men sued the FBI agents, arguing that they had coercively abused the use of the No Fly List and, in doing so, had violated the Religious Freedom Restoration Act (RFRA) by burdening their religious exercise.

Just four days before the men got their day in court, the FBI said the men were free to fly, then asked the court to dismiss the case and leave the men without any legal recourse.

Just recourse for religious discrimination

The district court ruled that the men had no standing to sue because their names had been removed from the No Fly List. They appealed the case to the Second Circuit Court of Appeals, which rightly ruled in favor of the Muslim men, finding that they had the ability to vindicate their rights in court.

The FBI agents appealed to the Supreme Court, arguing that cannot be held liable for placing the men on the No Fly List.

Frequently, the government changes laws or reverses its behavior to avoid legal trouble. This is a dangerous precedent that allows the government to get away with egregious actions, then deny victims just recourse for the harms they’ve faced. Becket is arguing that to hold the government accountable for unjust actions, individual government actors must be able to be held liable for violating religious freedom under RFRA.

The Supreme Court agreed to review the Second Circuit’s decision in Tanzin v. Tanvir on November 22, 2019. On February 12, 2020, Becket filed a friend-of-the-court brief in support of broad protections under RFRA and allowing those whose rights are violated to seek money damages for RFRA claims. The Court heard oral arguments in the case on October 6, 2020 and ruled on December 10, 2020 that the men are entitled to sue for financial relief, saying that it is sometimes the only form of relief that can remedy government violations of religious freedom.

Importance to Religious Liberty:
• Individual Freedom— The government shouldn’t be able to get out of legal trouble by changing laws and policies when it knows it’s about to lose in court. 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 responsible.