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

No good deed goes unpunished

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

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

Church theology is not a public affair

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

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

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

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

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

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

Importance to religious liberty

  • Religious communities: Religious communities must be free to operate and minister without government interference, including by keeping internal church communications private, especially when it comes to matters of doctrine and theology.
  • Public square: Churches should be free to support public initiatives that affect their religious beliefs without being forced to forfeit their privacy.

Lee v. Sixth Mount Zion Baptist Church

A small African-American church serving the people of Pittsburgh

Sixth Mount Zion Baptist Church is a small, historic African American church in Pittsburgh. Founded in 1899, its current worship services host about 100 people. The community served by Sixth Mount Zion is one of Pittsburgh’s poorest: one-third of the households in its neighborhood are headed by single moms, one quarter of the houses sit vacant, and one person is unemployed for every three that have a job. To support its community, Sixth Mount Zion hosts a number of ministries to the poor, including a monthly food-bank.

A pastor leads the church’s ministries into decline

In December 2012, the membership of Sixth Mount Zion called Reverend William David Lee to be its pastor. As the church’s pastor, Reverend Lee was expected to be the “only leader of the flock.” This meant leading the spiritual life of the church, including leading worship services, educating the congregation, and conducting weddings, baptisms, and funerals.

Three months after taking over the church’s leadership, Rev. Lee insisted that the church sign a contract giving him a 20-year term in office. When church members expressed concern, he assured them that they could still fire him if they believed he wasn’t leading the church in the right direction.

But two years after Reverend Lee became pastor, it became apparent that church life had changed under Lee’s religious leadership—for the worse. A joint board of church deacons and trustees found that membership had plummeted 61 percent, Sunday worship attendance had dropped 32 percent, and tithing and offerings had decreased 39 percent, while church expenses had increased 200 percent. Concerned for the church’s future, the church membership voted to have Rev. Lee step down from the pulpit in January 2015.

Becket defends Sixth Mount Zion’s right to choose its leader

In September 2015, Rev. Lee sued Sixth Mount Zion and eleven of the church’s lay leaders in federal court for $2.6 million.  In August 2017, the court rejected Rev. Lee’s lawsuit. Relying on Hosanna-Tabor, the court ruled that judges cannot second-guess a church’s decision about the quality of its pastor’s religious leadership.

In September 2017, Rev Lee appealed the federal court’s decision to the Third Circuit Court of Appeals. Becket filed its response brief on behalf of Sixth Mount Zion in April 2018. Oral argument took place in July 2018 (audio here).

In September 2018, the Third Circuit ruled 3-0 for the church, stating that the First Amendment prevents courts from deciding questions of spiritual leadership. The Third Circuit’s ruling bolsters the right of all houses of worship to select their leaders—a right called the “ministerial exception”—stating that “While the amount of church contributions and members is a matter of arithmetic, assessing Lee’s role … requires a determination of what constitutes adequate spiritual leadership.” That raises “questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause.”

Importance to religious liberty:

  • Freedom of groups to choose their own leaders: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent protecting a church’s right to choose its own leaders. Both church and state are better off when the state isn’t evaluating the internal religious decisions of a religious ministry.

Freedom From Religion Foundation v. Lehigh County

Seals and flags reflect our nation’s history and culture

Images of historic significance are common on the seals and flags of states, counties, and towns across America. New Mexico’s flag has a single image: the sacred sun symbol of the Zia Native American tribe. Louisiana’s flag has a symbol of a pelican with a bleeding heart that feeds its hatchlings, a symbol long used to illustrate how Christians are nourished by the Eucharist and reflecting the early French Catholic influence in the Louisiana Territory. Utah’s flag and seal have images recalling the Mormon pioneers. And many seals and flags in the American southwest have images of friars and mission churches reflecting the early influence of Spanish Catholics in that region.

Militant atheists try to scrub history from Lehigh County’s seal

Lehigh County, Pennsylvania’s seal includes a collection of images that reflect its history and culture. These images include cement silos, textiles, and a farm, symbolizing significant aspects of the County’s early economy; the Liberty Bell and a red heart, symbolizing its role in the American Revolution and its sense of patriotism; a lamp with books, representing its schools; and a cross, recalling the early Christians who settled Lehigh County in pursuit of religious freedom.

The county’s seal has existed for over 70 years without controversy. But in 2016, militant atheists from the Wisconsin-based Freedom From Religion Foundation (FFRF) sued, demanding that the federal court in Pennsylvania scrub the cross from the county’s seal. They claim that including the cross among the dozen symbols on the seal establishes the Christian religion as the official county religion, and so it must be removed.

Lehigh County fought back—not to endorse one religion over another or religion over nonreligion—but simply to preserve a small reminder that the religious minorities who settled Lehigh County played an important role in its history that is worth remembering, just as it is worth remembering Lehigh County’s early role in the American Revolution, its early economic influences, and its patriotism and schools. Memorializing history is not unlawful just because aspects of it happen to be religious.

Defending religious symbols in the public square

In September 2017, a federal district judge issued an opinion noting that Lehigh County’s seal complies with the actual text of the First Amendment and with the intent of the founding fathers, who wanted to protect citizens from having to worship against their will or pay for churches they didn’t like, but never intended to strip every reference to religion from the public square. The court thought the case should be “cut and dry” for the county. But instead of applying the actual text and meaning of the First Amendment, the court felt bound by an old Supreme Court case, Lemon v. Kurtzman, which requires courts to guess whether the government is trying to “endorse” religion whenever it mentions God or religion. Thanks to Lemon, the courts are flooded with cases challenging “In God We Trust” on our coins, the phrase “Under God” in the pledge of allegiance, prayers in public meetings, and the countless religious images on state and federal buildings, flags, seals, and war memorials.

Even the Supreme Court seems to agree that enough is enough. In recent years it has moved away from the Lemon test, ruling that manifestations of religion in government and in the public square that were acceptable at our nation’s founding are still acceptable today and that recognizing the role of religion among our nation’s peoples, history, and culture does not violate the Constitution.

The case reached the Third Circuit Court of Appeals, to decide whether Lehigh County included the cross to force Christianity on its citizens or whether the cross is simply a reminder, among a dozen others, of one significant aspect of the county’s history. The Third Circuit placed the case on hold while the Supreme Court considered a challenge to a historic war memorial in the form of a cross on public land in Bladensburg, Maryland. On June 20, 2019, the Supreme Court ruled 7-2 in favor of the Bladensburg cross.

On August 8, 2019, following the Supreme Court’s precedent, the Third Circuit Court of Appeals ruled 3-0 that Lehigh County can maintain the Latin cross in its seal as a symbol significant to the county’s history. The court recognized that “Lemon does not apply” to religiously expressive imagery in the public square in light of the Bladensburg decision, and that requiring “the cross’s extirpation” could be hostile, not neutral, toward religion.

Becket has also defended a World War II religious memorial in a Montana ski resort, a historic Pensacola park cross monument, and a 9/11 Ground Zero cross artifact, among others.

Importance to Religious Liberty:

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.     

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (WMATA)

A reminder of the reason for the season

Every Christmas season, the Archdiocese of Washington, D.C., conducts a holiday campaign called “Find the Perfect Gift” to remind people of the religious meaning of Christmas and to invite them to give to those in need. The campaign includes extensive advertising in public spaces as well as on social media. Buying advertisements on the Washington Metropolitan Area Transit Authority’s buses and Metro subway cars is one of the most effective way for the Archdiocese to spread its message of giving and hope to the DC metro area.

Religious speech censored on the metro

But in 2017, as the Christmas season approached, the Metro denied the Archdiocese request to purchase ad space because of the campaign’s religious message. Metro’s 2015 ad policy bans any ad Metro deems controversial, including political, advocacy, and religious advertising. WMATA’s guidelines disqualified the Archdiocese from using ad space simply because the ads are religious. Ads about the secular or commercial meaning of Christmas – such as department store sales – were permitted, whereas religious ads encouraging generosity and service during the holiday season were prohibited. Although a secular organization can post meeting times, addresses, or contact information on a Metro ad, religious groups, including a monastery, were banned from doing the same thing.

In November 2017, represented by former Solictor General Paul Clement of Kirkland & Ellis, the Archdiocese of Washington sued the Washington Metropolitan Area Transit Authority (WMATA) for banning religious speech. The district court denied a preliminary injunction and the Archdiocese appealed to the D.C. Circuit. In January 2018, Becket along with Arizona Senator Jeff Flake and the International Society for Krishna Consciousness, Inc. (ISKCON), filed a friend-of-the-court brief in the U.S. Court of Appeals for the D.C. Circuit defending the Archdiocese’s free exercise rights, arguing that the government does not get to arbitrarily exclude messages from the public square just because they are religious. Targeting and censoring religious messages violates the First Amendment.

Appeal to the Supreme Court

On July 31, 2018, the D.C. Circuit upheld the lower court’s ruling, stating that WMATA was justified in excluding religious advertising. The Archdiocese appealed the case to the United States Supreme Court on May 20, 2019.

Because not all nine justices could hear the case, the Supreme Court decided to not take the case. Along with the denial of certiorari, Justice Gorsuch stated that if they had agreed to intervene, “a reversal would be warranted.” He also stated that the “Constitution requires the government to respect religious speech, not to maximize advertising revenues…The one thing it cannot do is what it did here–permit a subject sure to inspire religious views, one that even WMATA is ‘half’ religious in nature, and then suppress those views. The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.” 

Importance to religious liberty

  • Free speech: Freedom of speech is not only an inherent human right, but also a fundamental building block of our society. The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. This involves religious speech as well.
  • Public square: Religious organizations must be free to operate in the public square according to their beliefs.

BLinC v. University of Iowa

Students integrating faith and work

Business Leaders in Christ (BLinC) is a Christian student organization at the University of Iowa that hosts weekly discussion groups, where students pray, share Biblical messages, and spiritually strengthen one another. At the heart of BLinC’s identity is its mission to form future business leaders who will integrate their religious values such as integrity, service, and compassion into the workplace. BLinC regularly invites Christian business professionals to mentor students on how they can integrate the faith and their careers. As a part of its ministry, BLinC also successfully partners with a local non-profit, after-school program for mentoring at-risk youth. It has also teamed up with a Christ-centered education organization dedicated to teaching low-income children how to become excellent students and leaders in their communities.

As a Christian group, BLinC reasonably asks that group leaders share its Christian faith and beliefs. In this respect, BLinC is no different from the many other student groups on campus that ask their leaders to adhere to certain requirements. For instance, fraternities have only male leaders and members; female sports clubs have only female leaders and members; and political and ideological groups can require their leaders to agree with their mission.

University of Iowa targeted BLinC for its religious beliefs

But in October 2017, school officials at the University of Iowa targeted BLinC because of its religious beliefs. University officials claimed that, because BLinC requires its leaders to sign a Statement of Faith, agreeing that they believe and will follow BLinC’s religious beliefs, it is violating the school’s antidiscrimination policy. BLinC was told that to get back on campus, it would have to change its religious beliefs.

Yet, despite the University’s insistence that BLinC’s Statement of Faith violates school policy, the University supports the rights of other groups to select leaders who share and live by their mission. The University supports the rights of fraternities at the University of Iowa to admit only men. The Feminist Union can require its members to agree on issues of contraception and abortion. The group Students for Life requires its members to be pro-life. All of that is perfectly acceptable, making it more apparent that the school is discriminating against BLinC by barring it from having the same ability to select leaders as other groups.

Federal court to UI: Apply policy to all groups, or stop targeting religious groups

In December 2017, BLinC sued the University of Iowa in federal court to protect its right to select leaders who share its faith and mission. On January 23, 2018, the court ruled in favor of BLinC, reinstating it on campus and giving the University 90 days to either apply its policy as written, which would allow all groups to select leaders who embrace their mission, or stop all groups from selecting leaders based on their ideologies. When the University continued to apply its policy inconsistently, the district court extended its preliminary injunction to cover the life of the case on June 28, 2018.

On December 21, 2018, the United States filed a groundbreaking brief in support of BLINC. The United States explained that the university’s discrimination against BLinC for ‘fail[ing] to confirm to University orthodoxy’ not only harms “the free and open discourse” of the university, but also is “a textbook violation of BLinC’s First Amendment rights” to free association, free speech and the free exercise of religion.

Oral argument was heard in federal district court in Des Moines, Iowa on February 1, 2019. Before the hearing, the university revealed that it had placed virtually every religious student group on campus—and only religious groups—on probation pending the outcome of BLinC’s case. On February 6, 2019, the court ruled that the university must end its unequal treatment of religious student organizations, and allow BLinC permanently back on campus. The ruling states, “The Constitution does not tolerate the way [the university] chose to enforce the Human Rights Policy. Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny, which [the university] ha[s] failed to withstand.” The ruling is the first federal court decision granting equal access to a religious student group in almost a decade.

The Court, however, declined to hold the University officials personally responsible for their wrongdoing, concluding that the law was not clear at the time of their misconduct. BLinC appealed that portion of the Court’s ruling to the U.S. Court of Appeals for the Eighth Circuit. Oral argument was heard on September 22, 2020. On March 22, 2021, the court ruled that the University of Iowa’s unconstitutional conduct was so blatant and clear that university leadership should be held personally accountable for their unlawful actions.

IMPORTANCE TO RELIGIOUS LIBERTY

  • Education: There is a nation-wide trend of curbing free speech and free association—especially religious speech in religious groups—on college campuses. But students do not forfeit their First Amendment rights to freedom of speech, religion, and association by studying at a taxpayer-supported public university.
  • Public square: Religion is a natural part of human culture and should not be scrubbed from the public square. This includes public university campuses, which are reflections of the students who attend them and the taxpayers who support them, including religious students and taxpayers.
  • Religious communities: Becket’s 2012 Supreme Court case Hosanna-Tabor guarantees the right of religious groups to select their own leaders without government interference or entanglement.

California v. Little Sisters of the Poor

WEBSITE for Little Sisters Cases

More information on the history of the HHS mandate and HHS cases can be found here. 

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

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

But the Little Sisters are still in court. Following the new mandate announcement, the state of California sued the federal government to take away the Little Sisters’ religious exemption. California admits that it has many of its own programs to provide contraceptives to women who want them. California never filed suit over the much larger secular exemptions created by the Obama Administration for big corporations—exemptions that applied to tens of millions more people than the religious exemption. California’s own mandate does not even apply to the Little Sisters of the Poor. And California has not identified a single actual person who had contraceptive coverage but will lose it because of this new rule. Despite all this, California asked a judge to find that the Little Sisters should be forced to comply with the federal mandate (not a state mandate) or pay tens of millions of dollars of government fines. 

Becket is seeing the Little Sisters through their fight 

On November 21, 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. Becket has argued all along that the government has many ways to provide services to women who want them as well as protect the Little Sisters. Neither the federal government nor the state governments need nuns to help them give out contraceptives. 

On December 12, 2017, the Little Sisters argued in an Oakland, California district court for their right to participate in the case and receive protection from government fines. On December 29, 2017, the court granted their motion to intervene in the case. In January 2018, the Little Sisters appealed to the Ninth Circuit to overturn a federal judge’s decision to invalidate the new HHS rule protecting the Sisters. Becket’s brief, filed in April 2018, explained why the states have no right to challenge this regulation, and why the new regulation is required by law and the 2016 Supreme Court order in Zubik v. Burwell. 

Ninth Circuit gives CA the go-ahead to continue its fight against the Little Sisters 

Oral argument took place on October 19, 2018. On November 7, 2018 the government issued a new rule finalizing its exemption protecting religious ministries. On December 13, 2018, the Ninth Circuit ruled against HHS’s interim exemption and allowed California to continue its fight against the Little Sisters. The Ninth Circuit ruling did not address the final HHS rules. 

On January 11, 2019, Becket represented the Little Sisters at oral argument in federal court in Oakland, California to defend their religious exemption from the HHS mandate. On January 14, 2019, the court ruled against them – a decision which the Little Sisters immediately appealed. The Ninth Circuit heard oral arguments on June 6, 2019. On October 22, the Ninth Circuit ruled 2-1 against the Little Sisters, stating it would “welcome guidance from the Supreme Court.”

On July 8, 2020, the Supreme Court ruled 7-2 in favor of the Little Sisters in Little Sisters of the Poor v. Pennsylvania protecting the Little Sisters for the third time, and sent California v. Little Sisters of the Poor back to the Ninth Circuit to be decided in light of the Court’s decision.

Importance to Religious Liberty:

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without fear of government interference.
  • 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.

American Legion v. American Humanist Association

“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it.” –Eric Baxter, vice president and senior counsel at Becket

A beloved symbol of sacrifice and honor

Known locally as the Peace Cross, the Bladensburg memorial was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The memorial was designed by mothers who lost their sons in the war, and they modeled it after those memorialized in the celebrated poem “In Flanders Fields” that stood “row on row” to “mark [the] place” where their sons lay.

Today the Peace Cross stands among a number of other war memorials and, since 1961, it has been owned by the Maryland-National Capital Park and Planning Commission as a historic site.

Atheist activists attempt to tear down history

Yet in 2014 the American Humanist Association sued, arguing that the Peace Cross is a government establishment of religion. But the Constitution does not require religion to be stripped from our nation’s history and culture. The cross is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. Mere disagreement with something one sees should not be confused with a forbidden religious establishment.

In April 2016, Becket filed a friend-of-the-court brief with Sidley Austin LLP at the U.S. Court of Appeals at the Fourth Circuit defending the memorial, stating it “does not violate the Establishment Clause because it bears none of the historical hallmarks of an establishment of religion.” But in October 2017, the Fourth Circuit ruled against the memorial using the notorious Lemon test, a malleable three-part legal test that has been criticized harshly by many Supreme Court justices. The American Legion, represented by First Liberty Institute of Plano, Texas, and the Jones Day law firm, appealed to the Supreme Court.

Defending religion in the public square at the Supreme Court

In December 2018, Becket, represented by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell, filed a friend-of-the-court brief urging the Supreme Court to reverse the Fourth Circuit’s decision and scrap the Lemon test in favor of an approach that returns the Establishment Clause to its historical meaning. Oral arguments took place on February 27, 2019. During oral argument, Chief Justice Roberts raised the argument Becket had urged in brief suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.

On June 20, 2019, the U.S. Supreme Court ruled 7–2 in favor of the Peace Cross, allowing it to remain standing. The Court’s opinion reversed the Fourth Circuit’s decision against the Peace Cross and stated that, for many, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” Becket’s friend-of-the-court brief was cited in concurring opinions by Justice Thomas and Justice Gorsuch.

In Kondrat’yev, et al v. City of Pensacola, Becket is also fighting a militant atheist lawsuit against a World War II-era cross in Pensacola, Florida, that has stood as a symbol of patriotism and fellowship for more than 75 years. On June 28, 2019 the Supreme Court sent the Pensacola case back to the Eleventh Circuit to be reconsidered in light of their Bladensburg decision. In February 2020 the Eleventh Circuit ruled that the cross is constitutional and should remain standing.

Importance to religious liberty: 

  • Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.  

Grussgott v. Milwaukee Jewish Day School, Inc.

The Milwaukee Jewish Day School welcomes a broad diversity of Jewish students from the surrounding community. The school’s basic Jewish beliefs are broadly incorporated into its curriculum, with students attending daily prayer, studying Hebrew, observing Jewish holidays and the Sabbath, and studying the Torah. The Jewish faith drives the school’s mission, and the school’s teachers are an integral part of accomplishing that mission.

But one former teacher claimed the school is not “Jewish enough” to qualify for First Amendment protection from government meddling in the school’s internal religious decisions.  That protection—known as the “ministerial exception”  is the requirement that the government stay out of religious groups’ selection of their own religious leaders. (For a more detailed explanation, see this video.) The teacher taught Hebrew and Jewish studies, taught directly from the Torah, and led the students in daily regular prayer—but she claimed she was not a religious leader or part of the school’s religious mission.

In September 2016, the former teacher sued the school in a Wisconsin federal district court, claiming she had been unlawfully terminated. The court rightly rejected her arguments and ruled that a teacher like her, who regularly led prayer and taught religious studies, qualifies as a minister under the First Amendment’s ministerial exception—and that the school has the right to choose its own religious leaders. Displeased with the court’s decision, the teacher appealed to the U.S. Court of Appeals for the Seventh Circuit. Becket filed a friend-of-the-court brief in October 2017, urging the Seventh Circuit to protect religious schools of all faiths from government interference. In February 2018, the Seventh Circuit ruled in the school’s favor, adopting Becket’s position that the school was without question a religious institution protected by the ministerial exception. And as Becket further pointed out, the Court’s opinion concluded that the plaintiff’s “role as a teacher of [ ] faith to the next generation outweighed other considerations” and showed that she was covered by the ministerial exception. Becket’s amicus brief called for this result, emphasizing that the ministerial exception applied because the plaintiff’s “role required her to perform important religious functions for the school,” particularly because she “taught the tenets of the faith to the next generation.”  In November 2018, the U.S. Supreme Court declined to hear the appeal, leaving the decision in favor of the school in place.

The Seventh Circuit’s opinion in favor of Milwaukee Jewish Day School is significant, because it marks the first time that the Seventh Circuit has defined and confirmed the scope of ministerial exception since the U.S. Supreme Court’s landmark 9-0 decision in Hosanna-Tabor, where Becket defended a Lutheran church school’s right to choose its own teachers.

The school was represented by Kravit, Hovel & Krawczyk (Aaron Aizenberg).

Importance to religious liberty

  • Freedom of religious groups to choose their own leaders: Becket’s 2012 Supreme Court case Hosanna-Tabor set a precedent on this issue for churches.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the state isn’t meddling in the internal religious affairs of a religious ministry.

Kondrat’yev, et al v. City of Pensacola

A historic cross in a historic city 

The City of Pensacola has a rich history older than the U.S. itself. A key seaport connected to the Gulf of Mexico, it is named after the Native American people who lived there as early as the 1100s, and it was one of the first areas to be settled by Spanish explorers. Today, Pensacola is known as the “Cradle of Naval Aviation” and is home to many members of the military.    

On a scenic bayou within the City lies Bayview Park, a popular location for social and civic gatherings. The 28-acre park features a senior center, amphitheater, two dog parks, tennis courts, a bocce ball court, playground, several boat ramps and docks, walking trails, picnic areas, and a memorial to a local citizen who died in a waterskiing accident. Tucked in the northeast corner of the park is the Bayview cross, a monument first erected in 1941 by the Jaycees, a non-profit civic group, to unite the community just months before the U.S. entered World War II.  

A needless lawsuit 

For over 70 years, Pensacola citizens have held community events at the monument, such as sunrise services, Veteran’s Day and Memorial Day remembrances, and other voluntary gatherings. More than a religious symbol, the Bayview cross has become part of the history of Pensacola and a reminder of the many diverse groups, religious and nonreligious alike, that make the City what it is. But in May 2016, four plaintiffs, represented by the American Humanist Association, filed a lawsuit in federal court to remove the cross. Two of the plaintiffs live in Canada; one has held his own ceremonies at the cross; the fourth lives seven miles away from the park. But they all claim that seeing the cross is offensive.  

Becket defends the cross 

 In June 2017, despite recognizing that the cross “is part of the rich history of Pensacola,” and that the cross “might well pass constitutional muster,” the federal court ruled that the cross has a “religious purpose” and must be removed. Becket immediately came to the City’s defense, arguing that that religion is a fundamental aspect of human culture and history, and the Constitution does not require the government to strip every religious symbol from the public square.

In September 2018, the Eleventh Circuit court of appeals ruled that it was “bound” by earlier precedent to rule against the cross. But two of the three judges said the earlier precedent was “wrong” and “needs to be reversed.” They urged the full Eleventh Circuit or Supreme Court to uphold the cross.

In September 2018 Pensacola appealed to the U.S. Supreme Court. On June 28, 2019 the Supreme Court sent the case back to the Eleventh Circuit to be reconsidered in light of American Legion v. American Humanist Association, a case in which the Supreme Court upheld the constitutionality of a World War I memorial in Bladensburg, Maryland. The court decided on February 19, 2020 that the cross is constitutional.

Importance to religious liberty 

  • Public Square: Because religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

Bormuth v. County of Jackson, Michigan

A tradition dating back to the nation’s founding

In the County of Jackson, Michigan, Pagan activist Peter Bormuth tried to stop small-town county commissioners from continuing their tradition of voluntary prayer before their meetings.

The practice of legislative prayer can be traced back to the time of the Founding Fathers, who did not see it as a forbidden “establishment of religion” but rather as a powerful reminder of their own limited political authority: the people’s inalienable rights did not come from government or its officials, but from a divine source that superseded government.

In May 2017, Becket teamed up with leading religious liberty scholar and Stanford Law School Professor Michael McConnell to file a friend-of-the-court brief in the Sixth Circuit, arguing that the Founding Fathers would never have viewed legislator-led legislative prayer as creating an official state church, which the First Amendment prohibits.

What is an establishment of religion?

The job of the First Amendment’s Establishment Clause is to prevent the government from establishing a state church, but determining what establishes a state church has been notoriously difficult for courts.

In 1971, the Supreme Court created a three-part test that attempted to answer that question in the notorious Lemon v. Kurtzman case. The Lemon test was immediately a disaster. Its malleable approach ignored what the Founders considered to be an establishment of religion, invited anti-religious activists to file lawsuits against anything that looked vaguely religious, and led to unpredictable outcomes.

Justice Scalia famously compared the Lemon test to a zombie that frightened small-town America with arbitrary rulings and massive attorneys’ fees. Lemon’s reign toppled memorials to police officers, ended services to prisoners, and censored historic landmarks.

Three years ago, the Supreme Court finally put Lemon in its grave. In its Town of Greece v. Galloway ruling, the Court replaced Lemon’s subjective test with a command that any Establishment Clause test must start with an objective evaluation of our nation’s history. Town of Greece said that because legislative prayer was nothing like what the Founders considered to be an establishment of religion, and in fact was something the Founders approved and practiced, it didn’t violate the Establishment Clause.

The court rejects Lemon and takes the historical approach

Bormuth tried to resurrect the Lemon test and ignore the Town of Greece ruling in two ways: his arguments ignored the history that legislators have opened meetings with prayer since before the founding of the country, and it ignored that Town of Greece explicitly protected legislative prayer.

The full Sixth Circuit rejected both elements of Bormuth’s gambit—following Town of Greece, it ignored Lemon and took history seriously. And because the Sixth Circuit follows Town of Greece, its ruling directly conflicts with another legislative prayer case, Lund v. Rowan County, recently decided by the entire Fourth Circuit Court of Appeals.

On January 5, 2018 Bormuth petitioned the Supreme Court to hear his case but the petition was denied in June 2018. The Sixth Circuit denied rehearing the case on August 24, 2018.

Importance to Religious Liberty:

  • Public square: Because religious exercise is natural to human beings, it is natural to human culture. Religious expression, including legislative prayer, should not be treated as dangerous or scrubbed from our public discourse.

Newdow v. United States of America (Second Circuit)

God is not a dirty word. The Founders believed this and courts have continually upheld their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government. The motto is based on the national anthem and first appeared on U.S. coins in 1864. So far, his lawsuits have all been rejected.

In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the national motto violates the Constitution’s Establishment Clause by “establishing a monotheistic religion.” Becket’s amicus brief countered those arguments, explaining that for the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state – and that honoring our nation’s religious heritage on our coinage is not one of them.

Newdow’s latest two lawsuits in his crusade against the word God are in the Sixth Circuit and Eighth Circuit courts of appeals. These lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. Becket’s briefs in the Sixth Circuit and Eighth Circuit explain to the courts that if Newdow succeeds here, church-state conflict will balloon, and we will see a lot more litigation against God around the country.

US Attorney’s Office, Southern District of New York is counsel in this case.

New Doe Child # 1 v. United States of America (Eighth Circuit)

“God” is not a dirty word

God is not a dirty word. The Founders believed this and courts have continually protected their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government in courts across the country. The motto is based on the national anthem and first appeared on U.S. coins in 1864. Newdow’s lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. So far, his lawsuits have all been rejected.

In 2017, Newdow filed two separate lawsuits in the Sixth and Eighth Circuit Courts of Appeals to erase “God” from the public square, demanding “In God We Trust” literally be scrubbed from all U.S. coins and bills. In each case, Newdow represented a group of atheists claiming that the national motto violates their practice of atheism under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The Department of Justice represented the government to defend the motto. Becket filed friend-of-the-court briefs defending the government’s use of “In God We Trust” in both cases.

“In God We Trust” does not violate the First Amendment

In April 2017, Becket’s brief in the Eighth Circuit countered Newdow’s argument that the motto establishes a religion. For the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state. As Becket’s brief pointed out, “Virginia’s earliest settlers attended twice-daily services on pain of losing daily rations, whipping, and six months of hard-labor imprisonment…” While that constituted an establishment of religion, “[t]he motto’s presence on currency, of course, does not involve church attendance, compulsory or otherwise.”

This is not the first time Becket, or the courts, have weighed in to protect the national motto. In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the motto violates the First Amendment by “establishing a monotheistic religion.” As Becket wrote in our friend-of-the-court brief in that case, it is not an establishment of religion simply to pay tribute to our nation’s religious heritage.

Court protects “In God We Trust”

On March 13, 2018, the Eighth Circuit Court of Appeals held oral argument in St. Paul, Minnesota. On August 28, 2018, the Court rejected the atheists’ attempt to strip the national motto from U.S. coins and bills and adopted Becket’s argument that recognizing our national heritage does not violate the First Amendment by establishing a religion.

On October 12, 2018, Newdow sought a rehearing by the full Eighth Circuit Court. On November 26, 2018, the Court shut down Newdow’s case when it denied the request.

Newdow then sought review from the Supreme Court, which denied his request on June 10, 2019, ending the case.

Importance to Religious Liberty:

  • Public square: Religion is a natural part of human culture and has a natural place in the public square. “God” is not a dirty word, and paying tribute to our nation’s heritage in a national motto does not violate the First Amendment. 

Fifth Avenue Presbyterian Church v. City of New York

The homeless in New York can always count on Fifth Avenue Presbyterian Church to find a place to rest.

For years, the church has welcomed homeless people to sleep on the steps and sidewalk of its property as part of its religious mission. The church also operates a homeless shelter inside its basement, but that space is limited to just ten elderly people. Thirty more homeless individuals regularly sleep outside the church doors. The church has a sign that says “This is God’s House, All are Welcome.” And they mean it.

But in 2001, city officials decided they could no longer tolerate the church’s policy. They roused the homeless people from their sleep and cleared the steps and street. Represented by Sidley Austin Brown & Wood, LLP, the church sued the city for violating their right to put their faith into practice by serving those less fortunate – as protected in our Constitution and by the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In January 2002, a judge ruled that the city could not remove the homeless on the steps of the church, but that they could remove homeless who were on the sidewalk, which the church also owned. Not taking no for an answer, the city appealed.

In March 2002, Becket filed an amicus brief on behalf a number of religious groups, including the Baptist Joint Committee on Public Affairs, the Christian Legal Society, the General Assembly of the Presbyterian Church (USA), the Council of Churches of the City of New York, the General Conference of Seventh-Day Adventists, the Interfaith Assembly on Homelessness and Housing, the Queens Federation of Churches, and the Rutgers Presbyterian Church.

In June 2006, the court protected the church, stating that providing homeless with outdoor sleeping space is sincere religious practice, which is protected by the Constitution.

New Doe Child # 1 v. The Congress of the United States (Sixth Circuit)

“God” is not a dirty word

God is not a dirty word. The Founders believed this and courts have continually upheld their view.

Yet atheist activist Dr. Michael Newdow has sued again and again to scrub “God” from the public square. For years, he has repeatedly attacked our national motto, “In God We Trust,” by suing the government. The motto is based on the national anthem and first appeared on U.S. coins in 1864. So far, his lawsuits have all been rejected.

Newdow’s latest two lawsuits in his crusade against the word God are in the Sixth Circuit and Eighth Circuit courts of appeals. In each case, he has led a group of atheists claiming that the national motto violates their practice of atheism under the Religious Freedom Restoration Act (RFRA) and the First Amendment. Becket filed a friend-of-the-court brief to defend the government’s use of “In God We Trust” in both cases.

Becket’s Sixth Circuit amicus brief, filed in February 2017, stated: “Plaintiffs want to have it both ways. They want to reject any notion of religious belief and transcendent truth and yet call it an ‘exercise of religion.’ Neither the English language nor the law can stretch that far.”

“In God We Trust” does not violate the First Amendment

In April 2017, Becket filed an amicus brief in the Eighth Circuit in St. Louis, Missouri. In that case, Newdow argued not only that the motto violates atheists’ religious freedom, but that it establishes a religion as well. Becket’s amicus brief countered those arguments, explaining that for the Founders who wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, government control, and fusion of church and state – and that honoring our nation’s religious heritage on our coinage is not one of them. The brief states, “Virginia’s earliest settlers attended twice-daily services on pain of losing daily rations, whipping, and six months of hard-labor imprisonment … . The motto’s presence on currency, of course, does not involve church attendance, compulsory or otherwise.”

These are not the first cases to consider the national motto, which has been upheld in court before. In 2014, the Second Circuit Court of Appeals rejected Newdow’s argument that the national motto violates the Constitution’s Establishment Clause by “establishing a monotheistic religion.” Becket filed an amicus brief defending the motto, arguing that it is not an establishment of religion to simply pay tribute to our nation’s religious heritage.

Newdow’s lawsuits are an attempt to create a heckler’s veto for atheists—a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. Becket’s briefs explain to the courts that if Newdow succeeds here, church-state conflict will balloon, and we will see a lot more litigation against God around the country.

Court protects “In God We Trust”

The Sixth Circuit heard oral argument in June 2017 in Cincinnati, Ohio. Newdow and the Department of Justice argued on each side. On May 29, 2018, a divided panel of the Sixth Circuit ruled 2-1 against the challenge to the national motto. On August 8, 2018, the Sixth Circuit denied en banc review.

Importance to Religious Liberty:

  • Public square: Religion is a natural part of human culture and has a natural place in the public square. “God” is not a dirty word, and paying tribute to our nation’s heritage in a national motto does not violate the First Amendment. 

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore

An honest commitment to care for women 

The Greater Baltimore Center for Pregnancy Concerns, which operates on Catholic Church-owned property, helps more than 1,200 women each year. The Center provides women with basic services like pregnancy tests, baby and maternity clothes, parenting books, diapers, bottles and formula, and sonograms—all free of charge. The Center also counsels more than 8,000 local women per year through its 24-hour helpline.

The Center’s staff and volunteers are motivated by their faith to help women and children during a vulnerable time in their lives. Displayed in each waiting room is a “Commitment of Care,” a document that explains the Center’s promises of nondiscrimination, honesty, and confidentiality, and also states that the Center “does not offer, recommend, or refer for abortion or birth control, but we are committed to offering accurate information about abortion procedures and risks.”

The government’s discriminatory double standard

In 2009, the City of Baltimore targeted the Center, demanding they display government signs about the services they do not offer. The city mandated that the Center display signs on the walls of their church-owned property stating that they “do not provide or make referrals for abortion or birth control services.” Yet, the only centers targeted by this discriminatory law were pro-life centers. The city of Baltimore did not require abortion clinics to display signs about services they do not offer, such as adoption or prenatal care.

The city claimed that the government-mandated abortion message did not alter the Center’s speech, because the Commitment of Care already notified women that the Center did not offer referrals for abortion. But this reasoning completely missed a crucial part of the First Amendment promise of free speech: that people, not the government, know best what they want to say and how they want to say it.

Defending free speech for all

In March 2010, the Center sued the mayor and city counsel of Baltimore in district court for the right to continue to serve and communicate with women who come to them for help, in a way that respects each woman’s choice and circumstances as well as the Center’s mission. The Center already accurately informs women about the help they provide in a way that is in line with their mission; that should be enough.

In January 2011, the Center won. But the government wouldn’t take no for an answer. On appeal at the U.S. Court of Appeals for the Fourth Circuit, the city again lost in January 2018. In its opinion, the Fourth Circuit explained that the city’s law essentially forced the Center to portray “abortion as one among a menu of morally equivalent choices”—a message “antithetical to the very moral, religious, and ideological reasons the Center exists.” The law therefore violated the First Amendment.

In March 2018, the city made a final appeal to the U.S. Supreme Court. On June 21, 2018, the U.S. Supreme Court rejected the city’s appeal, definitively protecting the Center’s free speech rights.

The Center was represented by Becket, by David Kinkopf and Steve Metzger from Gallagher, Evelius, and Jones LLP, and by Peter Basile from Ferguson, Schetelich & Ballew, P.A.

Importance to Religious Liberty

  • Free speech: The government cannot control the way an individual or organization speaks about its own beliefs. People, not the government, know best what they want to say and how they want to say it.

Belmont Abbey College v. Sebelius

Unconstitutional mandate threatens a Benedictine college

Founded by Benedictine monks, Belmont Abbey College celebrates a rich thousand-year-old monastic tradition of dedicated prayer and learning. Since 1876, the college has striven to carry out a clear mission: “That in all things God may be glorified.” But in 2011, Belmont Abbey’s right to live out its Catholic values was threatened by the federal government.

A new federal mandate by the Department of Health and Human Services (HHS) required the Catholic college to provide services such as the week-after pill in its insurance plans. The HHS mandate forced Belmont Abbey to either violate the Catholic values that drives its mission or pay massive fines to the IRS.

Becket defends religious groups from government interference

As a Catholic liberal arts college, Belmont Abbey upholds the teachings of the Catholic Church, including the respect for all human life. Participating in a system to provide services such as contraception, sterilization, and abortion pills would contradict the Catholic mission it seeks to advance.

Although the government exempted certain religious employers, the requirements were extremely narrow, limited only to religious employers who primarily serve and employ those of their same faith. Belmont Abbey had no choice but to go to court to defend its right to remain true to its Catholic convictions. With Becket’s help, Belmont Abbey challenged the HHS mandate in federal court in November 2011.

In September 2012, the US Court of Appeals for the DC Circuit, granted a motion for expedited appeal. In December, the court handed an intermediate victory to Belmont Abbey when it commanded HHS to act quickly to fix the HHS Mandate. But after the government’s new promised accommodation still infringed on the Catholic university’s beliefs, Becket refiled Belmont Abbey’s lawsuit in November 2013. In January 2014, the D.C. Circuit stayed the case pending decisions in similar cases before the same court.

After joining a class-action lawsuit, Belmont Abbey College voluntarily dismissed their own case in November 2014.

On October 6, 2017, Health & Human Services issued a new rule with an exemption that protects religious ministries, in compliance with the Supreme Court’s 2016 ruling and a Presidential Executive Order. In its new rule, the government admitted that it broke the law by trying to force religious groups to provide services in their health plans that violated their religious beliefs like the week-after pill. On November 7, 2018, the government finalized that rule, continuing to protect religious ministries.

Importance to religious liberty 

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal.  
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without fear of government interference.
  • 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.

U.S. v. Sterling

Our nation’s military was practicing religious liberty even before our country recognized it’s inherently beneficial traits: solving religious conflicts and advancing the human right to freely seek God. If there is one lesson our military history has taught us it’s that religious diversity works.

A recent military court ruling threatens that heritage. A member of the Marine Corps, Monifa Sterling, was forced to take down a Bible verse from her desk despite other soldiers’ permission to decorate their workspaces. The court ruled that the verse, “No weapon formed against me shall prosper,” was not “religious” enough to be protected under the Religious Freedom Restoration Act. The ruling also noted that religion was “divisive” and “contentious” and government is allowed to censor it to avoid the risk that other Marines might be “exposed” to it.

But scripture is religious, and religion is not some sort of toxic cousin of profanity that deserves suppression instead of protection. The court’s ruling is very dangerous, particularly for minority religious groups with lesser-known faiths, who will more likely be targeted for “preemptive” censorship. The ruling also forgets the lesson of history: respectful religious pluralism enhances both individual rights and the military mission. To correct these errors, a diverse coalition of experts on military religious liberty joined the Becket’s amicus brief explaining why the lower court’s ruling must be overturned. The experts include military veterans, chaplains, and senior-level military commanders who have extensive personal and professional experience supporting soldiers’ free exercise of faith. They come from a variety of religions: Jewish, Catholic, Sikh, Southern Baptist, Muslim, Presbyterian, Mormon, Lutheran, Anglican, and Assemblies of God. Bancroft PLLC (Paul Clement), Liberty Institute, and Major John Stephens represented Ms. Sterling.

On August 10, 2016, the military’s highest court ruled against Monifa Sterling.

Reaching Souls International v. Azar

Evangelical ministries challenge a federal mandate

In 2013, an orphan care ministry, a Christian college, and a 100-year-old Baptist ministry went to court to challenge the HHS mandate, which forced them to violate their beliefs or pay crippling IRS fines. The mandate required employers to provide services like the week-after pill in their health insurance plans but did not accommodate religious ministries like Reaching Souls International, Truett-McConnell College, and GuideStone Financial Resources.

Reaching Souls International is a nonprofit evangelistic ministry that has preached the Gospel to over 20 million people and rescued hundreds of orphans in Africa, India, and Cuba by placing them into loving homes. If Reaching Souls does not comply with the government’s mandate, it will face each year in IRS fines.

Truett-McConnell College is a Georgia Baptist college committed to training students to share the Gospel by providing a biblically-centered education. If Truett-McConnell does not comply with the mandate, it will face millions of dollars each year in IRS fines.

GuideStone Financial Resources has been the benefits arm of the Southern Baptist Convention for over 100 years and provides retirement and health benefits to thousands of Southern Baptist churches and evangelical ministries like Reaching Souls and Truett-McConnell College.

Defending their religious mission and beliefs

These evangelical ministries simply could not comply with the mandate to provide free access to abortion-inducing drugs and devices through the GuideStone health plan because doing so would violate their Christian beliefs about the sanctity of human life. While the government exempted churches and church-controlled ministries from the mandate, it refused to exempt religious ministries like Reaching Souls and Truett-McConnell College.

Faced with no choice but to defend their beliefs, the ministries filed suit in October 2013, representing over 187 ministries that both relied on GuideStone for health benefits and faced massive IRS fines for refusing to violate their beliefs.

In December 2013, their case became the first class-action suit to win relief from the government’s HHS mandate. But on July 14, 2015, the Tenth Circuit reversed the district court decision and ruled against the evangelical ministries. On July 23, 2015, GuideStone, Reaching Souls, and Truett-McConnell appealed to the Supreme Court.

The Supreme Court and a new federal rule protect ministries

Reaching Souls, Truett-McConnell, and GuideStone’s fight brought them all the way to the Supreme Court, which on November 6, 2015 agreed to hear their case along with several other religious ministries. The U.S. Supreme Court issued its decision in the landmark case, Zubik v. Burwell. Zubik granted a victory to religious non-profits by directing the government to find another way to achieve its goals without violating religious liberty. Because of that ruling, the Tenth Circuit threw out its previous ruling against Reaching Souls, Truett-McConnell, and GuideStone, instead ordering the ministries and the government to address possible alternatives to the mandate.

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

Becket and Locke Lord LLP represented Reaching Souls, Truett-McConnell, and GuideStone in their fight for religious freedom. This was the second class action filed challenging the administration’s mandate; the first was filed by Becket and Locke Lord LLP on behalf of the Little Sisters of the Poor and hundreds of Catholic ministries participating in the Christian Brothers Employee Benefit Trust, a national plan for Catholic employers. Becket also represented Eternal Word Television Network, Houston Baptist University, and others in similar lawsuits against the HHS mandate.

Importance to religious liberty:

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

Moussazadeh v. Texas Department of Criminal Justice

Prisoners are people too

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

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

A Texas-sized denial of dignity

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

Victory and freedom

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

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

 

Baker v. Hands On Originals

A Christian printer ordered to violate his faith

Blaine Adamson owns Hands On Originals, a small screen printing shop in Kentucky that creates promotional materials like shirts, hats, blankets, and mugs. Blaine serves everyone regardless of their race, gender, or sexual orientation. But he doesn’t print messages that are contrary to his faith, such as messages promoting violence. As printers across the country have agreed, it is standard industry practice for printers to decline messages that contradict their core beliefs. Blaine has operated this way for years without a problem.

Until 2012, when the Gay and Lesbian Services Organizations (GLSO) asked Blaine to create t-shirts promoting the local Pride Festival. Because the message of the t-shirts conflicted with Blaine’s religious beliefs, he offered to connect GLSO with other printers who would match his price. GLSO received numerous offers to print the t-shirts and ultimately received them for free. But GLSO filed a complaint with the local human rights commission, which ordered Blaine to print the shirts and attend “diversity training” to change his views.

Support from the LGBT community

Two different Kentucky courts have ruled that this sort of coercion is illegal. Blaine has also received strong support from the printing industry and LGBT business owners.

“This isn’t a gay or straight issue. This is a human issue. No one really should be forced to do something against what they believe in. It’s as simple as that,” said Kathy Trautvertter & Diane DiGeloromo of BMP T-shirts.

Becket defends Blaine’s free speech

The human rights commission has now appealed the case to the Kentucky Supreme Court. In February 2018, Becket and University of Virginia Law Professor Doug Laycock, together with Stoll Keenon Ogden PLLCS, filed a friend-of-the-court brief supporting Blaine. The brief argues: “Just as a pro-choice printer has a right to decline to print a religious message attacking Planned Parenthood, and a gay photographer has a right to decline to photograph a religious anti-gay rally, a Christian printer who believes in traditional marriage has a right to decline to print materials contradicting that view. The law protects the freedom of individuals in a pluralistic society to disagree.”

On October 31, 2019, the Kentucky Supreme Court ruled in favor of Hands On Originals, further protecting free speech and our pluralistic society.

Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. In this case, the government is forcing Blaine Adamson to choose between his deeply held religious convictions and his livelihood.
  • Free speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. In this case, Blaine’s artistic expressions are a form of speech, and the government should not force him to create something that violates his religious beliefs.

Franciscan Alliance v. Becerra

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

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

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

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

Back at the district court, in August 2021, the judge granted the permanent relief the doctors and hospitals sought. The federal government and ACLU appealed. Then, on August 26, 2022, the Fifth Circuit unanimously affirmed the district court, permanently protecting the freedom of doctors and hospitals to care for all patients in accordance with their conscience and experienced professional judgment.  

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.

Eternal Word Television Network v. Azar

An unconstitutional mandate threatened nun-founded Catholic television network

Thirty years ago, a cloistered nun named Mother Angelica started a small television network in her monastery garage to spread the teachings of the Catholic church. Today, the network she started, Eternal Word Television Network (EWTN), continues her mission. But in 2011, EWTN’s ability to remain to its Catholic faith was threatened by the federal government.

In August 2011, the Department of Health and Human Services (HHS) issued a federal mandate that required employers to provide services like the week-after pill in their health insurance plans, free of cost. Because the government refused to grant religious exemptions to religious non-profits like EWTN, the mandate would force the nun’s network to authorize and take part in providing contraceptives, sterilization, and abortion drugs to EWTN’s employees—fundamentally violating EWTN’s Catholic beliefs and mission. If EWTN did not comply with the mandate, it would face millions of dollars in fines from the IRS.

To continue its religious mission, EWTN spent seven years in court

EWTN refused to be part of the government’s plan to provide contraceptive services and drugs that destroy human life. In February 2012, Becket stepped in to represent EWTN in federal court.

What followed was nearly seven years of constant litigation. In June 2014, an Alabama district court ruled against EWTN days before the non-profit was due to face millions of dollars in IRS fines. Becket filed an emergency appeal to the U.S. Court of Appeals for the Eleventh Circuit, which granted EWTN emergency protection from the fines while its case was still ongoing. Then, in February 2015, the Eleventh Circuit ruled against EWTN—but it gave them shelter from the mandate until the U.S. Supreme Court issued its decision in the landmark case, Zubik v. Burwell. The Supreme Court’s decision in that case granted a victory to religious non-profits by directing the government to find another way to achieve its goals without violating religious liberty. Because of that ruling, the Eleventh Circuit threw out its previous ruling against EWTN and instead ordered EWTN and the government to address possible alternatives to the mandate.

A hard-won victory, at last

On October 6, 2017, the government issued a new rule with a broader religious exemption, and on November 7, 2018, HHS issued a rule finalizing the exemption. On November 29, 2018, the U.S. Court of Appeals for the Eleventh Circuit finally granted EWTN a hard-won victory when it ruled to end EWTN’s seven-year legal battle.

Importance to religious liberty:

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

Dermody v. Presbyterian Church (U.S.A)

Churches must have the right to follow their own religious rules, even if some church members disagree with how those rules apply to them. In this case, a disgruntled minister who had failed a church financial audit, threatened that right by asking the court to override the church’s enforcement of its internal financial guidelines against him.

The Presbyterian Church (U.S.A)’s “1001” movement” is a mission project aimed at creating 1,001 new worshiping communities. Under watch of the project executive, a church minister, two employees violated church financial policy when they transferred $100,000 from the church’s accounts into a private entity they had set up. Although the employees did not intend to misuse the money and the money was ultimately recovered, the minister was cited by the church for his failed oversight. The Presbyterian Church immediately published the audit findings on its website and detailed the corrective measures it was taking. Although the church initially never published the minister’s name, he publicly admitted responsibility and then sued the church for defamation.

The minister’s lawsuit was filed in May 2015, and sought monetary compensation for the church’s allegedly defamatory statements. Last September, the trial court denied relief because the church’s statements appeared to be true and the First Amendment barred the court from second-guessing the church’s decision to enforce its standards of ethical conduct for religious leaders. The minister then appealed to the Kentucky Court of Appeals.

Becket filed a friend-of-the-court brief in June 2016 on behalf of the church, arguing that, under the Free Exercise and Establishment Clauses of the First Amendment, courts cannot interfere with churches’ statements to their members about the conduct of their religious leaders. In July 2017, the Kentucky Court of Appeals ruled in favor of the Presbyterian Church (U.S.A), protecting the right of churches to operate their internal affairs without government intrusion. The church was represented by Stoll Keenan Ogden PLLC.

Congregation Jeshuat Israel v. Congregation Shearith Israel

Centuries ago, the famous Jewish silversmith Myer Myers crafted sacred rimonim, finials that ornament the Torah scroll in a Jewish synagogue. Today these ancient religious artifacts remain safe under their rightful ownership according to Jewish law, thanks to a court victory protecting the right of houses of worship to make property contracts, just like all Americans.

A tale of two congregations

The case involves both the nation’s oldest Jewish synagogue—Congregation Shearith Israel—and the oldest Jewish synagogue building in the U.S., the Touro Synagogue building in Newport, Rhode Island. Shearith Israel was founded in 1654, and the Touro Synagogue building was built in 1763.

When Newport’s Jews faced persecution during the American Revolutionary War, they fled Newport and the synagogue building, many for New York. Without a congregation in Newport, Shearith Israel took over ownership of the synagogue, along with sacred ritual items such as the rimonim. When Jews returned to Rhode Island in the late 19th Century, Shearith Israel began leasing the synagogue and its sacred artifacts to a new congregation, Jeshuat Israel, under the agreement that they follow Shearith Israel’s religious practices.

In 2011, Jeshuat Israel wanted to sell the rimonim to the Boston Museum of Fine Arts, which Shearith Israel believed violated Jewish law and their longstanding lease agreement.

A property battle over the nation’s oldest synagogue

Jeshuat Israel went to court and in 2016 a federal district court judge ruled against Shearith Israel, saying that they were not the owners of the synagogue or the rimonim, and gave control of both to Jeshuat Israel. Instead of reviewing the two congregations’ legal agreements, the district court put its own spin on the relationship between the two congregations, ignoring the First Amendment principles that guarantee religious groups the right to make legally binding agreements.

Shearith Israel appealed to the First Circuit Court of Appeals in Boston, and in October 2016, Becket filed a friend-of-the-court brief in support of Shearith Israel. Becket argued that the lower court should not have tried to decide issues concerning Jewish religious practice and instead should use secular legal documents to determine religious property disputes just as it would for any other organization. Houses of worship have the right to establish enforceable contracts, just like any other property owner.

The court heard oral argument in the case in March 2017, and in August, the court adopted the arguments in Becket’s brief and ruled in favor of Shearith Israel. Written by retired Supreme Court Justice David Souter, Judge Lynch, and Judge Baldock, the opinion ruled that Shearith Israel’s ownership of the colonial-era building and centuries-old artifacts should be enforced. In June 2018, the First Circuit let stand its decision in favor of Shearith Israel.

In March 2019, the Supreme Court declined to hear the case, leaving in place Shearith Israel’s victory.

Colorado Christian University v. Azar

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

An unconstitutional mandate threatens a Christ-centered university

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

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

CCU fights back

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

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

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

Importance to Religious Liberty

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

Abeles v. Metropolitan Washington Airports Authority (MWAA)

Like millions of Jews worldwide, Susan Abeles celebrates the religious festival of Passover, considered one of the most important holidays in Judaism. For 26 years as an employee of the Metropolitan Washington Airports Authority (MWAA) Susan would take four days off to observe the religious holiday. Each year she would submit the request with ample notice and send multiple email reminders of her upcoming time off. But in 2013, when she returned to work following Passover, her supervisors accused her of following leave protocol improperly. They eventually drove Ms. Abeles to retire early.

Ms. Abeles sued the MWAA for violating her right to observe her religious faith. In a friend-of-the-court brief Becket argued: The Metropolitan Washington Airports Authority claims that it is not strictly a government entity and so does not have to follow the Religious Freedom Restoration Act (RFRA), giving it free rein to avoid all anti-discrimination laws and even terminate Jewish employees without consequence. But Becket and additional amicus the American Jewish Committee argue that MWAA is not above the law. Their brief states, “Can a governmental entity wielding the full force of law, armed with police and eminent domain powers and tasked with the oversight of two of the busiest airports in the country, properly declare itself exempt from the reach of both state and federal anti-discrimination law? …the law says no.”

A Virginia federal district court ruled against Ms. Abeles, and she appealed to the Fourth Circuit Court of Appeals. In June 2016 Becket and the American Jewish Committee filed a friend-of-the-court brief on behalf of Ms. Abeles, who is represented by Nathan Lewin of Lewin & Lewin. In January 2017, a panel of the Fourth Circuit ruled against Susan Abeles. She appealed that ruling to the entire court, but was denied. In July 2017, she appealed to the U.S. Supreme Court. In August 2017, Becket and Jews for Religious Liberty filed a friend-of-the-court brief urging the high court to take up the case, reverse the Fourth Circuit’s decision and hold MWAA accountable to RFRA. In October 2017, the Supreme Court declined to hear the case.

Sisters of Mercy v. Becerra

In May 2016, the federal government began implementing a mandate that would require a doctor to perform gender transition procedures on any patient, including a child, even if the doctor believed the procedure could harm the patient. The mandate required virtually all private insurance companies and many employers to cover gender reassignment therapy or face severe penalties and legal action.

But there were two major insurance plans exempted from HHS’s mandate—the plans run by HHS itself: Medicare and Medicaid. Why? Research shows that not only are there significant risks with gender reassignment procedures – especially in childhood – such as heart conditions, increased cancer risk, and loss of bone density, but studies of children with gender dysphoria found that fewer than 1-in-4 children referred for gender dysphoria continued to experience that condition into adulthood. The government’s own panel of medical experts concluded that these therapies can be harmful and advised against requiring coverage of these medical and surgical procedures under Medicare and Medicaid. 

Becket filed the lawsuit in federal court in November 2016 on behalf of the Sisters of Mercy, the University of Mary, and SMP Health System. The State of North Dakota also joined Becket’s legal challenge. In December 2016, two different federal courts ruled that the policy was an unlawful overreach by a federal agency and a likely violation of religious liberty. The decision to undergo gender reassignment therapy is a difficult and deeply personal one, and it is especially complicated and sensitive in the case of children. It is a healthcare decision that should be left between a family and their doctor, and not decided by politicians and government bureaucrats. 

In 2020, the government attempted to fix the unlawful rule, but that effort was blocked by other courts. On January 21, 2021, a court struck down the mandate. The court’s decision protects patients, preserves the integrity of the doctor-patient relationship, and vindicates crucial conscience rights in medicine.  

The federal government appealed to the Eighth Circuit, which heard oral argument on December 15, 2021. On December 9, 2022, the appeals court affirmed the lower court’s ruling, protecting religious doctors and hospitals by blocking the government mandate. The ruling was the second appellate ruling to do so, following the Fifth Circuit’s decision in Franciscan Alliance v. Becerra a few months earlier. 

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.

Fratello v. Archdiocese of New York

A school dedicated to teaching Catholic values

For over 200 years, Catholic schools in New York have provided top-notch elementary schools for ethnically and economically diverse students. And for over 60 years, St. Anthony’s Parish has run a school that is an integral part of that community of schools. Like other Catholic schools, St. Anthony’s is dedicated to create a Christ-centered, academically excellent and welcoming communities by teaching students to pursue knowledge in keeping with their Catholic faith. Every day at St. Anthony’s is infused with Catholic values.

Choosing the leaders of its faith

We all know schools don’t run themselves. For St. Anthony’s to be true to its Catholic teachings, it must have leaders who will respect and protect its Catholic identity. At St. Anthony’s, this all starts with the principal. The principal guides the religious mission of the school, ensuring that the school teaches its faith to its students on a daily basis. The principal exercises her leadership in many ways, including by offering daily prayer, attending the School’s monthly mass and annual feasts, encouraging students and faculty to participate in religious observances, and ensuring that the school curriculum embraces Catholic tradition.

The Supreme Court upholds the ministerial exception 

For decades, courts have ruled that religious schools can require their teachers to share their faith. In fact, in 2012 the Supreme Court unanimously agreed in EEOC v. Hosanna-Tabor that a 4th grade teacher at a Lutheran religious school is a minister for their faith, and a school has a right to select their ministers without permission from a government bureaucrat.

That right clearly applies to St. Anthony’s. As a Catholic school, St. Anthony’s has the right to choose its religious leaders free from government interference. But a former principal of the school, Joan Fratello, recently challenged that right after St. Anthony’s declined to renew her contract because of insubordination. She thinks that allowing St. Anthony’s to select its own leaders will aid “malevolent organizations and potential terrorists” and contribute to the “destruction of our future” as a country. Sadly, she’s supported by a group of trial lawyers who make money off of litigation and by an anti-religious academic who has long opposed what every justice on the Supreme Court supported in 2012.

Ms. Fratello not only personally provided religious prayer, guidance, and instruction, she also supervised all the teachers with the same duties. Under the law, that means she was a minister. A religious leader who supervises a religious school’s ministries is herself a minister.

Becket stepped in to represent St. Anthony’s. The Court of Appeals for the Second Circuit heard oral argument in the case in March 2017. In July 2017, the court protected the right of St. Anthony School and the Roman Catholic Archdiocese of New York to choose their own leaders.

In August 2017, Fratello’s lawyer filed a frivolous request for the full Second Circuit to reverse its unanimous ruling, which he compared to the infamous Dred Scott decision while comparing the church to “slave owners.” Becket opposed his attempt to prolong the lawsuit and urged the court to put an end to his abusive attacks on the church and the court. The Court denied Fratello’s petition shortly after Becket filed its opposition.

Importance to Religious Liberty:

  • Freedom of religious groups to choose their own leaders: This case set an important precedent, confirming the principle of “ministerial exception” that ensures religious groups have the right to choose their own leaders.
  • Freedom of religious groups from state intrusion on religious affairs: Both church and state are better off when the government isn’t meddling in the internal religious affairs of a religious ministry, including a religious school.

Central Rabbinical Congress v. New York City Department of Health & Mental Hygiene

This case involves an unprecedented government regulation of Jewish religious circumcision practices. Last year the New York City Department of Health and Mental Hygiene issued a new circumcision regulation. It penalizes Jewish rabbinical officials known as mohels who engage in the millennia-old circumcision practice of metzitzah b’peh unless the mohels force the infant boy’s parents to sign a form stating the City’s disapproval of the religious practice. The mohels believe the form to be both factually false and an unwarranted interference in a religious practice that has gone on for literally thousands of years.

Represented by Jones Day, several rabbis who act as mohels, along with several Orthodox Jewish rabbinical and community organizations, sued in Brooklyn federal district court, raising both freedom of speech and freedom of religion claims. The federal district court denied the rabbis’ request for an injunction against the city’s regulation, holding that as long as there was some plausible rational basis for the regulation, it would be valid. The rabbis then appealed to the Second Circuit Court of Appeals in New York.

Becket filed an amicus brief in the appeal along with Prof. Michael McConnell of Stanford Law School, arguing that because New York City’s regulation targeted a specific religious practice, the highest form of judicial constitutional review — “strict scrutiny” — was required under the Free Exercise Clause of the First Amendment. That is especially so because of documented levels of strong hostility towards Orthodox Jews and their religiously motivated practices in New York and surrounding municipalities. Becket did not offer an opinion on whether New York City’s regulation was justified by the health interests it is claiming to protect, only that because of the weighty interests involved, the proper level of constitutional scrutiny should have been applied by the district court judge. The brief has engendered much discussion within New York and elsewhere, particularly because it puts a spotlight on increasing government attacks on Orthodox Jewish practice in New York City and elsewhere.

On August 15, 2014, the Second Circuit ruled in favor of the Orthodox Jewish mohels, largely adopting the arguments made in Becket’s brief. The court sent the case back to the district court for the application of “strict scrutiny.”

U.S. v. Florida Department of Corrections

Prisoners are not popular, but they are human. That is why Becket defends religious freedom for prisoners.

In 2000, Congress discovered that government bureaucrats were routinely trampling religious freedom in prison. They were needlessly confiscating sacred texts, breaking up worship meetings, and banning religious diets. So Congress unanimously passed a law that forbids arbitrary restrictions on religious freedom in prison.

Invoking that law, Becket defended the rights of religious prisoners in Florida for over a decade. Until July 2016, Florida’s was one of the last prison systems in the country that denied its inmates religious appropriate diets. Becket sued Florida twice over the denial of a kosher diet—first in 2002, then in 2012. Both times it received a favorable result on behalf of one Jewish prisoner. Then represented by the Department of Justice, the United States government itself sued the Florida Department of Corrections on behalf of all observant prisoners.

In 2015, a federal district court ordered Florida to begin providing kosher meals for all observant Jewish inmates, and the Department appealed to the Eleventh Circuit Court of Appeals. Becket, represented by the global law firm Jones Day, filed an amicus brief in March 2016 urging the protection of the religious rights of all prisoners. The brief points out that at least 35 states and the federal government provide kosher diets to Jewish prisoners, and there is no reason the Florida Department of Corrections can’t do the same. The court heard oral arguments in July 2016, and two days later it affirmed the district court’s order to provide religious diets for observant Jewish prisoners. In October 2016, in another case that Becket supported with an amicus brief, the Court ruled that the Department must provide a religious diet for a Muslim inmate.

Becket, which has successfully represented or supported religious prisoners in Georgia, Texas, Indiana, and in past Florida cases, has never lost a case concerning a prison system’s denial of religious diets. In 2015, it won a landmark, 9-0 ruling in favor of prisoners at the U.S. Supreme Court.

Freedom From Religion Foundation v. Weber (Big Mountain Jesus)

A mountain memorial to honor fallen soldiers

Since 1954, a statue of Jesus has stood atop a Montana ski slope as a monument to soldiers who died in World War II.

After World War II, soldiers from the Army’s 10th Mountain Division returning to Montana sought to commemorate their fallen comrades with a monument that evoked memories of the shrines and statues they had seen in their battles through the mountains of Europe. To honor these soldiers who had sacrificed so much for their country, the Knights of Columbus (Kalispell Council No. 1328) commissioned the statue of Jesus and applied to the United States Forest Service for a permit to place it on Big Mountain. Since 1954, the statue has stood on a 25’ x 25’ plot of Forest Service land, near the top of Whitefish Mountain Resort—which also leases the plot and the surrounding land from the Forest Service for its ski slopes.

Atheists seek to scrub religion from our history

The Knights’ permit had been renewed every ten years without incident until 2010. Then, the Wisconsin-based FFRF threatened to sue the Forest Service for offending its supposed right to be free from seeing anything religious—even across the country in Montana. The Forest Service, buckling under pressure, initially denied the permit. Amidst the public outcry that followed, it eventually recognized the statue’s historical and cultural significance to the local community. In February 2012, FFRF sued to have the statue permanently removed.

Becket defends “Big Mountain Jesus”

Just after Memorial Day in May 2012, Becket joined the lawsuit to represent the Knights of Columbus and several individuals who had voluntarily maintained the statue for more than sixty years. Becket argued that religious symbols should be treated on fair grounds with other commercial, historical, and cultural symbols that abound on public land.

In June 2013, the district court ruled in Becket’s favor and dismissed the case. FFRF appealed to the Ninth Circuit Court of Appeals, which heard oral argument in July 2015. In August 2015, the Ninth Circuit agreed with Becket that “Big Mountain Jesus” can remain standing.

FFRF’s deadline to appeal the Ninth Circuit’s decision passed in February 2016, protecting the war memorial in place for good.

Importance to religious liberty:

  • Public Square: Because religious exercise is natural to human culture, it has a natural place in the public square. Religious symbols should not be treated as dangerous expression, scrubbed from society. Instead, the government can and should recognize the important role of religion in our history and culture.

For the in-depth story, listen to Becket’s Stream of Conscience podcast episode about this case, “Slopes and Statues.”

Romeike v. Holder

In January 2010, the Romeikes were presented with a choice no parents should have to make: abandon their religious beliefs, or lose custody of their children.

The Romeike family is from the German state of Baden-Württemberg, and chose to educate their children at home in order to follow their Evangelical Christian beliefs. However, state authorities refused to accept this and sent police to march the Romeike children to the local public school, invoking the Schulpflichtgesetz, or School Duty Law. The family fled from their homeland to Tennessee, and sought asylum in the United States.

In July 2010, Becket submitted an amicus brief to the United States Board of Immigration Appeals. It described the disturbing Nazi-era background of the School Duty Law, and explained that the original purpose of the law was to suppress “the development of religiously and philosophically motivated parallel societies.” The Romeikes were not evading their duty to educate their children, only the state’s attempt to indoctrinate their children against their religious beliefs.

An immigration judge granted the Romeikes’ request for asylum, but the federal government appealed that decision, and in May 2013 the Sixth Circuit Court of Appeals ultimately ruled against the Romeikes.

Watch Becket’s Daniel Blomberg discuss the religious liberty implications of this case at FRC University (starts at 22:00 min).

daniel

 

Watch Becket’s Luke Goodrich debate Does Germany’s Ban on Homeschooling Count as Religious Persecution? at the University of St. Thomas.

http://www.frc.org/eventregistration/should-the-state-raise-your-kids

American Atheists v. Port Authority of New Jersey and New York

Two days after the September 11 attacks, a recovery worker discovered something in the rubble: a steel cross beam shaped like a Latin cross. It was a comforting sign for many Americans who saw it as a symbol of hope and healing as they cleared debris in search for survivors.

The 17-foot cross was to be displayed as a historical artifact in the National September 11 Museum as part of an exhibit called “Finding Meaning at Ground Zero,” which portrayed how rescue workers at Ground Zero struggled to deal with their harrowing circumstances. But in 2011, angry members of the American Atheists, Inc. sued the Museum and the Port Authority of New York and New Jersey, arguing that displaying the cross would offend them as citizens and taxpayers, in violation the First Amendment’s Establishment Clause. Though the Museum is a private foundation making a private decision, the American Atheists argued that no religious symbol should ever be allowed on property leased by the government.

Over and over again groups like the American Atheists have tried removing all traces of religion from the public square. Now they wanted to go so far as scrubbing it from our nation’s history.

Thankfully, the federal district judge ruled in favor of the cross, saying that it helps tell the 9/11 story. The American Atheists then appealed in August 2013. In February 2014, Becket filed an amicus brief stating that as a historical artifact, the cross rightfully belongs in a historical museum. For the first time in the case, we also pointed out that the American Atheists had no right to sue in the first place, since taking personal offense over the role that religion actually plays in American life is not grounds for suing.

Separating church and state does not mean separating religion from public life. By removing the cross from the Museum, the American Atheists would deny future generations what was spiritually significant to many Americans during those terrible days. No matter how hard they try, they cannot write religion out of our nation’s history.

In July 2014, the Second Circuit Court of Appeals rejected the effort by American Atheists, Inc. to force the National 9/11 Museum to remove the Ground Zero Cross from its display or to include a plaque honoring atheists alongside the cross. The museum was represented by Paul, Weiss of Rifkind, Wharton & Garrison LLP.

Rich v. Buss

A prisoner’s choice: Faith or food

What if you had to choose between practicing your faith and receiving adequate nutrition? That choice confronted Bruce Rich, an Orthodox Jewish prisoner. The reason? Mr. Rich is a Florida inmate, and Florida was one of the last remaining states in the country to deny kosher diets to Jewish prisoners.

Mr. Rich has kept kosher his entire adult life. In prison, he observes the Sabbath and is seen as a rabbi to other Jewish prisoners, teaching the Torah and serving as cantor during religious services. Mr. Rich believes that keeping a kosher diet is not a voluntary endeavor, but a fundamental tenet of his faith. Because he was denied a kosher diet, on two different occasions Mr. Rich was forced to go without regular meals for over a month. Mr. Rich sued in 2010 in federal district court, which ruled against him in 2012.

Becket defends religious liberty behind bars

In 2012, Becket filed an appeal on behalf of Mr. Rich, arguing that denial of a kosher diet violates the Religious Land Use and Institutionalized Persons Act (RLUIPA)—a landmark civil rights law designed to protect religious freedom in prison. Congress enacted RLUIPA unanimously in 2000, finding that, “[w]hether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”

In response to Mr. Rich’s lawsuit, Florida claimed that denying a kosher diet was necessary to control costs and maintain security. But at the time, 35 other states and the federal government already provided kosher diets without problems of cost or security. And from 2004 to 2007, Florida itself provided a Jewish dietary program that cost only a fraction of one percent of its annual food budget and did not result in any security problems.

Unanimous victory for Jewish inmates

In May 2013, the Eleventh Circuit Court of Appeals ruled unanimously in Mr. Rich’s favor, finding that “the evidence submitted by [Florida] … is insubstantial.” The court said that Florida made only “meager efforts to explain why Florida’s prisons are so different from the penal institutions that now provide kosher meals.” It then sent the case back to the district court.

Shortly after, a district court in a separate case, relying on the Eleventh Circuit’s decision, ordered Florida to begin providing a kosher diet to all observant Jewish inmates, including Mr. Rich, no later than July 1, 2014. In response to this victory, Mr. Rich voluntarily withdrew his lawsuit.

In addition to winning Mr. Rich’s appeal at the Eleventh Circuit, Becket has won previous kosher diet cases against Florida, Georgia, and Texas, and assisted in a similar victory against Indiana. In fact, Becket has never lost a kosher diet case against a prison system.

Importance to religious liberty:

  • Individual freedom: Individual religious freedom encompasses more than just thought or contemplation—it involves action. Individuals must be free to follow their religious convictions into practice, including when they are incarcerated.
  • 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.

Atheists of Florida v. City of Lakeland

The Atheists of Florida hauled the City of Lakeland into court for opening their meetings with Christian prayer – a practice that dated back more than 60 years. After the city commission opened the invocation to all faiths, the district court ruled that the legislative prayer practice was permissible. The Atheists of Florida then appealed the case to the Eleventh Circuit Court of Appeals, where they argued that some prayers contained language that was “too” Christian.

The city’s formal policy was elaborately developed to ensure that all faiths have an opportunity to participate and no favorites were picked. In fact, the city developed an exhaustive list of congregations in the county to invite to give the invocation. They created a list of more than 600 diverse religious organizations, spending approximately $1,500 a year to ensure that the net was cast as wide as possible.

Nevertheless, the Atheists still wanted all “sectarian” references stripped from the prayers. In other words, don’t say “Jesus.”

But Supreme Court precedent is clear that legislative prayer – which traces its roots to the Continental Congress in 1774 – is constitutional as long as the prayer is not used to proselytize, advance one faith, or disparage another. So, groups that want to put an end to this American tradition are trying a new tactic. They’re saying that legislative prayer is okay as long as it is stripped of any specific religious references.

GrayRobinson, P.A. represented the City of Lakeland. Becket filed an amicus brief providing the Eleventh Circuit with a thorough historical analysis of legislative prayer. The brief noted that the Atheists essentially wanted to hollow out Supreme Court precedents “to exclude prayers that reflect the faith of the person praying” and that their approach would actually “invite courts to engage in amateur theological inquiry that could itself violate the Establishment Clause.” The court reached a similar conclusion and upheld Lakeland’s policy.

Sac and Fox Nation v. Borough of Jim Thorpe

Jim Thorpe, a living legend

Arguably one of the greatest athletes of the 20th century, Jim Thorpe won two Olympic gold medals and played three different professional sports – football, track and field, and baseball. In the course of his career, he was inducted to ten Halls of Fame and in 1950 the Associated Press called him the “greatest American football player” and the “greatest overall male athlete.”

Jim Thorpe’s athletic prowess undoubtedly has something to do with the Sac and Fox Nation Indian blood that ran through his veins. Born with the Indian name Wa-Tho-Huk or “Bright Path,” Jim Thorpe carried the spirit and customs of his tribe until his death in 1953.

A violation of Native American customs

Thorpe’s remaining two sons, along with the Oklahoma-based Sac and Fox Nation, have been fighting since his death to return his remains to the family grave site on sacred Sac and Fox land in Stroud, Oklahoma. The struggle began after a family dispute cut short the burial ceremony.

Thorpe’s body was taken and auctioned off to the highest bidder—a small Pennsylvania town he’d never even visited. Jim Thorpe has been buried there ever since; not next to family, not on sacred Native American land, but commercially on display in Jim Thorpe, Pennsylvania, where his remains have been mocked, vandalized, and desecrated.

Now his sons—themselves now elderly—want to bring him home, burying him near his parents and other family members in Oklahoma. Conner & Winters, LLP and Stanford Law School Supreme Court Litigation Clinic represented them. But the town refused, envisioning major tourist attractions that would come from the deal – an Olympic stadium, football shrine, a Jim Thorpe themed sporting goods store, and even a hotel named “Jim Thorpe’s Teepees.”

The relocation of Thorpe’s remains to Pennsylvania violates the Sac and Fox Nation’s beliefs that a sacred burial ceremony must take place to allow a body’s spirit to successfully complete its spirit journey. It also violates the federal Native American Graves Protections and Repatriation Act (NAGPRA), which was specifically passed to defend Native American religious beliefs and help these communities reclaim sacred items and remains that were unjustifiably taken from them.

However, the Third Circuit Court of Appeals rejected the sons’ request, saying the protections in the statute would lead to “absurd outcome.” This is a dangerous precedent putting courts in the business of deciding what religious beliefs are valid and which are not.

Becket defends the Sac & Fox Nation’s religious freedom

In our country, courts should not be in the business of rejecting religious protections simply because they think protecting those beliefs is “absurd.” Given the history of mistreatment of Native Americans by government officials, they take special care to protect the Native Americans’ religious practices.

In July 2015 Becket led a diverse coalition of religious groups to the Supreme Court, filing a friend-of-the-court brief to help honor the religious beliefs and final wishes of Jim Thorpe and his remaining family. Members of the coalition included Becket, the Church of the Lukumi Babalu Aye, the International Society for Krishna Consciousness, the Muslim Public Affairs Council, the National Council of Churches, and the Queens Federation of Churches. The coalition was represented at the Supreme Court by Becket, along with attorneys Troy Eid and Harriet McConnell of prominent international law firm Greenberg Traurig LLP, which has a nationally-renowned Indian Law practice.

However, in October 2015 the Supreme Court denied to hear the case, thus ending the battle to bring Jim Thorpe’s body back to Oklahoma.

Moss v. Spartanburg County School District No. 7

In 2006, South Carolina passed legislation to allow public school students to take outside religious classes and receive elective credits. Thousands of public school children across the nation receive religious education through released-time classes, and the Supreme Court has allowed it since 1952.

The classes are provided off-campus by third parties unaffiliated with the public schools. South Carolina’s Released Time Credit Act (RTCA) made it easier for public schools to accommodate the religious interests of their students. In 2007, Spartanburg County School District No. 7 passed its own policy permitting released-time programs in compliance with state law.

In 2009, the Freedom From Religion Foundation sued the School District, claiming that the school’s policy violates the Establishment Clause. Becket successfully defended the school district in district court and in appeal, where the Fourth Circuit unanimously upheld the program saying, “[T]he program properly accommodates religion without establishing it, in accordance with the First Amendment.”

In November 2012, the Supreme Court denied FFRF’s final appeal. “This is a big win for public school students and for religious education,” said Lori Windham, Senior Counsel at Becket, who argued the case at the Fourth Circuit. “The Supreme Court’s rejection of this case is a blow against anti-religious legal theories that would treat religion with suspicion.”

The court’s decision has implications for released-time programs across South Carolina and throughout the country. It also affirms that private schools and public schools can work with each other for their students’ benefit.