Our Lady of Guadalupe School v. Morrissey-Berru

Our Lady of Guadalupe fights for excellence 

Our Lady of Guadalupe School is a Transitional Kinder-8th grade Catholic school located in Hermosa Beach. A ministry of Our Lady of Guadalupe Parish, the school is committed to providing a faith-based education rooted in the Catholic tradition.  

In 2012, the school was struggling financially and on the verge of closing, with only one student in the graduating eighth grade class. In a bold turnaround effort, the school sought to improve by implementing a new reading and writing program to be taught by all teachers, a healthy diet program, and programs tailored for children with special needs.  

As a teacher at Our Lady of Guadalupe, Ms. Morrissey-Berru was responsible for providing a Catholic education, while implementing the school’s new programs, which were a top priority. However, Ms. Morrissey-Berru soon proved unwilling to follow the guidelines of any of the programs, and her students’ academic performance suffered as a result. Her recurring poor performance prompted complaints from fellow colleagues and parents.  Principal April Beuder decided to move Ms. Morrissey-Berru to a part-time teaching position, and in 2015 chose not to renew her contract. 

Catholic schools must be free to choose who teaches the faith 

As a Catholic school teacher, Ms. Morrissey-Berru held a crucial role of teaching the beliefs and mission of the Roman Catholic Church. She taught religion, led students in daily prayer, and prepared them for mass and other important liturgical activities such as feast days, Lenten services, and an annual performance of the Passion of the Christ. Every subject she taught was infused with Catholic values. The school also paid to have her trained as a certified Catechist. 

Under the ministerial exception, church schools like Our Lady of Guadalupe have the First Amendment right to choose who teaches the faith to the next generation, free from any government interference.

Morrissey-Berru sues Our Lady of Guadalupe 

After her contract term ended, Ms. Morrissey-Berru sued Our Lady of Guadalupe School for age discrimination. A federal judge sided with the school, following the U.S. Supreme Court’s 2012 unanimous Hosanna-Tabor decision protecting the First Amendment right of a Lutheran church school to choose its teachers. Ms. Morrissey-Berru then appealed to the U.S. Court of Appeals for the Ninth Circuit.  

In a two-page order, a three-judge panel of the Ninth Circuit reversed and sided with Ms. Morrissey-Berru. The panel recognized she had “significant religious responsibilities,” and was “committed to incorporate Catholic values and teachings into her curriculum,” yet, still ruled that Morrissey-Berru’s duties were not religious enough to invoke First Amendment protections. 

Nine other judges on the Ninth Circuit criticized the Morrissey-Berru panel’s decision in a dissenting opinion authored by Judge Ryan Nelson in a parallel case also handled by Becket, St. James School v. Biel. The dissenting judges called the alarm, stating that “Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally.”  

Becket defended Our Lady of Guadalupe School, arguing that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith. The case was appealed to the Supreme Court on August 28, 2019. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in Our Lady of Guadalupe, and consolidated the case with another Becket case, St. James School v. Biel. The Court heard oral argument on May 11, 2020. Also representing Our Lady of Guadalupe were Linda Miller Savitt, John Manier, Stephanie Kantor of Ballard Rosenberg Golper & Savitt, LLP, and Margaret Graf of the Archdiocese of Los Angeles. 

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty: 

  • Freedom of religious groups from state intrusion on religious affairs: Religious groups should be fully empowered to select their priests, rabbis, ministers and other religious teachers free from government interference. The Supreme Court has acknowledged this right under the ministerial exception and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry. 

Patterson v. Walgreens

“In a sense attacking my faith and my ability to worship and putting my family’s livelihood at stake was a deeper attack than any that I’ve ever experienced. It was deeper than my race or color, it goes to the very core, my very soul of who I am.”—Darrell Patterson 

Work six days, rest the seventh  

Growing up as a black man in the pre-civil rights south made Darrell Patterson no stranger to discrimination and hostility. But nothing compares to the pain he experienced when he was forced to choose between his job and his Seventh-day Adventist faith.   

Since childhood, Mr. Patterson has felt called to a strong devotion to God. As an adult, Mr. Patterson demonstrated his faithfulness by abstaining from work on the Sabbath day, a practice that is important to people of many faiths—but particularly for Seventh-day Adventists, as indicated by their name. For Mr. Patterson this means retreating from the distractions of everyday life to spend time with family, serve his community and worship God. Whether he is at home singing hymns or ministering to at-risk youth or the homeless, Mr. Patterson is faithful every Sabbath day.   

In 2005, during his interview for a position at an Orlando Walgreens call center, Mr. Patterson made it clear that he wouldn’t be able to work from Friday sundown to Saturday sundown, and he was hired without a problem. For several years, Mr. Patterson loved his job and enjoyed interacting with new hires. He saw his work as an extension of his ministry and treated his colleagues with compassion. He was always available to work all other days of the week, including Sundays, and his colleagues were always more than happy to switch shifts with him on the rare occasion he was scheduled to work on a Saturday.   

Employees shouldn’t be punished for their company’s mistakes  

In 2011, Mr. Patterson’s supervisors scheduled him to work on a Saturday for an extra training session after Walgreens executives made an error that broke Alabama’s pharmacy laws. The training was only two hours long and could have been done Friday, Sunday, or Monday, but Walgreens scheduled Mr. Patterson to do it on Saturday. Unable to work on a Saturday, Mr. Patterson followed protocol and attempted to switch schedules with a colleague, but because it was last minute, he was unsuccessful. Mr. Patterson conducted the training on Monday, ahead of the deadline. But Walgreens swiftly fired Mr. Patterson anyway.  

This attack on both his ability to worship and his family’s livelihood was unlike any other discrimination he had faced before. In 2014, Mr. Patterson sued Walgreens in Florida federal district court, which ruled in favor of Walgreens. On appeal, the U.S. Court of Appeals for the Eleventh Circuit also sided with the company. Both courts claimed that Walgreens had done enough to accommodate Mr. Patterson’s religious beliefs. In 2018, Mr. Patterson brought his case to the U.S. Supreme Court to defend his right to earn an honest livelihood while following his deeply held religious convictions.   

All Americans must be free to practice their faith in the workplace 

Keeping holy days like Christmas, Yom Kippur, or a Sabbath like Mr. Patterson’s is a core religious practice for Americans of many different faith backgrounds. But because of a mistake made by Walgreens executives, Mr. Patterson was forced to choose between providing for his family and practicing a central tenet of his faith—a decision no American should have to make. The Supreme Court should step in to protect Mr. Patterson’s rights and clarify that employers must reasonably accommodate sincere religious practice, just as they do other protected characteristics like disability.  

Along with its partners the Seventh-day Adventist Church and Gene Schaerr of Schaerr | Jaffe, Becket is defending Mr. Patterson and the right of Americans of all faiths to live and work according to their religious beliefs, including the fundamental practice of observing the Sabbath. The Supreme Court denied review in Patterson v. Walgreens on February 24, 2020.

Importance to religious liberty: 

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

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

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

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

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

Texas denies religious rights at death 

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

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

An eleventh-hour voice of reason 

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

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

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

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

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

The Supreme Court took action 

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

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

What changed?  

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

Importance to Religious Liberty

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

Department of Commerce v. New York

People of faith should have a chance to defend their rights 

When religious individuals sue a state or local government for discrimination, they can collect evidence in and outside of the courtroom to prove their case. They can question officials under oath, request government documents, and use every resource available to defend their religious liberty. This legal process known as “discovery” is vital for religious individuals who need to prove wrongdoing by government officials.

Yet when religious individuals sue a federal agency, under a federal statute called the Administrative Procedure Act, they may be limited to using the agency’s own internally compiled evidence to prove that the agency engaged in discrimination. Without the normal process of discovery, and confined to the agency’s own records, the court is left to take the federal agency’s word that it did not violate anyone’s religious liberty. Although Department of Commerce v. New York does not involve religious claims, it presents this same issue—whether individuals suing a federal agency for discrimination are allowed to present evidence other than the agency’s own records. And this issue has the potential to affect people of all faiths, since federal agencies are often indifferent, even hostile, toward religious freedom.

Proving religious discrimination by government agencies 

Becket has defended many religious groups from government actions and policies that were proven during discovery to have been based on intentional religious targeting. For example, in Fulton v. City of Philadelphia,a Philadelphia policy barred a Catholic foster agency the city had partnered with for decades from placing any more children with families. In discovery, the city demonstrated its actions were motivated by religious hostility toward the agency’s Catholic beliefs, by saying it’s “not 100 years ago” and that “times have changed.” In another case, BLinC v. University of Iowa, a public university applied a policy claiming to protect students from discrimination, but in discovery it was revealed that school officials used the policy to illegally target and deregister religious student groups that required their leaders to sign their statement of faith.

All Americans must be able to defend their rights, through legal processes that give them a fair chance to prove a federal agency’s wrongdoing. On March 6, 2019, Becket filed a friend-of-the-court brief urging the U.S. Supreme Court to consider the implications its ruling in Department of Commerce v. New York would have on religious liberty.

In June 2019, the Supreme Court rejected the government’s attempt to limit the evidence the Court could consider in deciding the challengers’ claims against the federal agency. Additionally, Justice Thomas, in a separate dissent, agreed with Becket’s brief that “claim[s] of religious discrimination under the Free Exercise Clause” should be analyzed differently from ordinary challenges to federal agency action.

Importance to Religious Liberty: 

  • Individual Freedom: The Free Exercise Clause of the First Amendment and other federal laws guarantee the right to freely practice one’s faith, and to defend that right fully in court. This includes access to legal processes to prove wrongdoing by the government, and especially federal agencies, which are historically less attentive to religious liberty than other government branches. 

Ricks v. Idaho Board of Contractors

One man’s religious convictions 

George Ricks is a 59-year-old father of four who has worked in construction his entire career. A long-time student of the Bible, George believes it is wrong to provide his Social Security number as a condition of obtaining work. 

In 2014, he tried to become an independent contractor. But in Idaho, where George lives, it is a misdemeanor to work as a contractor without first registering with the state, and registering requires providing a social security number. George was willing to provide any other form of identification, including his birth certificate, but he has a sincere religious objection to using his Social Security number to secure employment. The Idaho Board of Contractors—which makes exceptions for others, and which could obtain Ricks’s Social Security number in other ways if it really needed to—refused to accommodate his religious beliefs and denied his registration. 

No social security number, no job 

The Board’s denial was motivated by money. A federal law dictates that the Board of Contractors will receive extra funding if it collects contractors’ Social Security numbers. The law’s intent is to help the government track down delinquent fathers—something no one could ever accuse George of being, as he has spent his entire adult life providing for his four children. 

Yet the Board’s refusal to register George cost him the ability to find full-time work and provide fully for his family. Government regulations shouldn’t force someone unnecessarily to choose between being employed and practicing their religion. But in Ricks’s case, that is exactly what’s happening. Idaho’s forced choice between faith and work is entirely avoidable: the other licensing laws already grant accommodations to foreign residents who don’t have Social Security numbers; and if Idaho really needs Ricks’s government-issued number, it can consult its own records or ask the federal government to provide it. 

Becket defends free exercise 

Needless bureaucracy should never take precedence over the free exercise of religious beliefs. The Board of Contractors should stop forcing George to choose between his religious beliefs and his ability to provide for his family. In January 2019, Becket stepped up to represent George in his lawsuit against the Idaho Board of Contractors. After the Idaho Supreme Court refused to hear his case, Becket filed a petition in the Supreme Court of the United States on July 10, 2019, asking the Court to hold that the Free Exercise Clause requires Idaho to accommodate George’s religious beliefs. On June 28, 2021, the United States Supreme Court denied certiorari for the case.

Importance to religious liberty

  • Free exercise: Individuals should be free to hold and act on their deeply held convictions, not just in their homes or places of worship, but in their places of employment and the public square.
  • Religious beliefs and employment: When a government regulation bars someone from pursuing employment because of their religious beliefs, the government must prove that there is no other way for it to achieve its goals without banning a private person’s freedom of religion.

St. James School v. Biel

A Catholic parish school since 1918

St. James Catholic School is a K-8 school in Torrance, California, dedicated to educating students while developing their life in the Roman Catholic faith. It is the parish school for St. James Roman Catholic Church. Since its founding in 1918, the school has lived out the parish’s motto “to continue the praise of God.” Parents choose St. James because they know their children will receive a quality academic education rooted in the Catholic faith and infused with Catholic teaching and practice.

As the only fifth-grade teacher at St. James Catholic School, Ms. Biel was the person charged with promoting, teaching, and fostering Catholic identity in the fifth graders at St. James. She carried out this mission by teaching a religion class on the Catholic faith each week; leading students in prayer daily, including the Our Father and Hail Mary prayers; taking them to and supervising them during Mass; and infusing the entire curriculum with the Catholic faith and values. After the school found Ms. Biel’s classroom performance to be below the school’s standards, they worked with her for months to improve. When she did not show signs of improvement, the school decided not to renew her one-year contract.

Ninth Circuit defies U.S. Supreme Court’s unanimous Hosanna-Tabor decision

In 2015, Ms. Biel sued St. James School in federal district court. In January 2017, the district court ruled for St. James based on the U.S. Supreme Court’s unanimous decision in the 2012 Hosanna-Tabor case. In Hosanna-Tabor, the U.S. Supreme Court protected the First Amendment right of a Lutheran school to choose who teaches the faith to the next generation, free from government interference. The Supreme Court decision recognized that religious groups can only operate freely if they are given full autonomy in choosing the individuals who teach their beliefs and embody their faith.

Ms. Biel appealed to the U.S. Court of Appeals for the Ninth Circuit. On December 17, 2018, a divided panel of the Ninth Circuit reversed the district court’s ruling. The Ninth Circuit ruling contradicts Supreme Court precedent, claiming that though Ms. Biel had the same important religious role as the Lutheran teacher in Hosanna Tabor, St. James Catholic School did not have the same right as a Lutheran school to choose who teaches their faith.  

On January 22, 2019, Becket filed its en banc petition for the full Ninth Circuit Court to hear the case on behalf of St. James. On June 25, 2019, the Ninth Circuit denied en banc review. Nine judges joined a dissenting opinion authored by Judge Nelson. In the opinion, the dissenting judges stated that the Ninth Circuit is exhibiting “the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”

On September 16, 2019, Becket asked the Supreme Court to review the Ninth Circuit’s decision and defend the right of St. James School to choose the teachers best able to pass on its faith teachings to the next generation. On December 18, 2019 the Supreme Court agreed to review the Ninth Circuit’s decision in St. James School, and consolidated the case with a similar Becket case, Our Lady of Guadalupe v. Morrissey-Berru. The Court heard oral argument on May 11, 2020. Also representing St. James Catholic School were Jack Sholkoff of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Margaret Graf of the Archdiocese of Los Angeles.

On July 8, 2020 the Supreme Court ruled 7-2 in favor of Our Lady of Guadalupe and St. James Catholic schools, finding that the government cannot control a church school’s decision about who teaches its religion classes.

Importance to religious liberty

  • Freedom of religious groups from state intrusion on religious affairs: Religious institutions should be fully empowered to select their priests, rabbis, ministers and other religious teachers. The Supreme Court has acknowledged that right and all courts should respect that decision. Both church and state benefit when the state is not evaluating the internal decisions of a religious ministry.

Gundy v. United States

In Gundy v. the United States the U.S. Supreme Court had the opportunity to decide whether Congress violated the “nondelegation doctrine” by giving to the U.S. Attorney General Congress’s constitutionally-assigned task of defining the scope of criminal liability. The nondelegation doctrine is an important principle for maintaining our government’s three-branch structure of checks and balances, and it is particularly important for protecting religious liberty.

The “nondelegation doctrine” is part of our checks and balances

The “nondelegation doctrine” says that Congress cannot vaguely delegate its powers to administrative agencies. Doing so undermines the purpose of our governmental structure. Our nation’s founders divided our government into three branches—legislative, executive, and judicial—so that these branches would “check” and “balance” each other. Without those checks and balances, one branch of government can grow in power to the point of eclipsing the others—exactly what our founders wanted to prevent.

Without the nondelegation doctrine—religious liberty is at risk

Allowing Congress to delegate its constitutionally-assigned powers to the Executive Branch increases the already far-too-extensive powers of the administrative state. On top of that, historically, administrative agencies are less attentive to safeguarding religious liberty than Congress. Once an agency has trampled on a religious group’s rights, it can be a long and difficult process to win them back, especially for minority groups. Pastor Soto, for example, a Native American and member of the Lipan Apache tribe, spent ten years fighting in court to get back sacred eagle feathers confiscated by an undercover federal agent from the United States Fish and Wildlife Services. The Federal Emergency Management Agency (FEMA) unconstitutionally denied funding to severely damaged houses of worship simply because they are religious, even as the houses of worship are providing assistance to others impacted by the same natural disasters. And the HHS Mandate cases Burwell v. Hobby Lobby and the Little Sisters of the Poor clearly demonstrated the disastrous consequences of Congress delegating broad powers to an administrative agency—Congress did not impose a contraceptive mandate, HHS bureaucrats did.

In June 2018, Becket filed a friend-of-the-court brief in Gundy v. United States highlighting the specific importance of the nondelegation doctrine to religious liberty. Without the nondelegation doctrine, religious groups—particularly minority ones—are at risk of losing their rights.

The U.S. Supreme Court heard oral arguments in Gundy v. United States on October 2, 2018. On June 20, 2019 the court ruled against Gundy, deciding that the delegation of powers in Gundy’s case did not violate the nondelegation doctrine. Gundy is represented by Sarah Baumgartel of the Federal Defenders of New York, Inc.

Importance to religious liberty

  • Religious communities: The “nondelegation doctrine” is particularly important for protecting religious liberty of religious communities, especially minority ones. Administrative agencies are historically less attentive to religious liberty rights than Congress.

Knick v. Township of Scott, Pennsylvania

Government cannot take private property without “just compensation”

Rose Mary Knick lives on 90 acres of farmland in the Township of Scott, Pennsylvania, which her family has owned for nearly 50 years. In April 2013, Township officials entered and searched Ms. Knick’s private property without a warrant, saw a few stones that appeared to be grave markers, and claimed that Ms. Knick’s private property was considered a cemetery, and therefore must be made accessible to the public. Ms. Knick challenged the Township, since, by requiring her property to be open to the public, it had violated the Fifth Amendment’s Takings Clause, which forbids that “private property be taken for public use, without just compensation.”

The district court dismissed her case—not because Ms. Knick was wrong, but because, under an old Supreme Court precedent called Williamson County, Ms. Knick had to complete a lengthy bureaucratic process before she could assert her constitutional rights in court. Ms. Knick continued appealing her case all the way to the Supreme Court.

Takings Clause interpretation leaves houses of worship vulnerable

The Williamson County rule is bad enough when applied in takings cases like Ms. Knick’s. But some courts have extended the rule to apply also to claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a bipartisan congressional law passed to protect property rights for houses of worship and minimize the unfair delays, expenses, and hurdles they often suffer at the hands of zoning officials. Houses of worship are particularly vulnerable to this kind of abuse, and RLUIPA has played a critical role in ensuring that religious groups are not discriminated against as they find a space to gather for worship and religious exercise.

Becket has stood up for churches, a Jewish synagogue, a Sikh temple, a Buddhist temple, a mosque and even a Hawaiian agricultural Christian community that have faced zoning discrimination. But application of the Williamson County rule to RLUIPA cases undermines RLUIPA’s protection of religious groups, particularly minority faiths, allowing local governments hostile to religious groups to simply strangle it with red tape.

Becket steps in to protect RLUIPA standards

In October 2017, Ms. Knick appealed to the U.S. Supreme Court in order to protect herself and others from the harmful Williamson County rule and ensure that Takings Clause cases are brought to court without years of bureaucratic delay. In March 2018, the Supreme Court agreed to hear her case. On June 5, 2018, Becket filed a friend-of-the-court brief with the Supreme Court, pointing out how some lower courts have expanded the Williamson County rule to RLUIPA cases and arguing that this application undermines RLUIPA and unjustly harms religious groups. When their property rights are violated, houses of worship should be free to challenge the government under RLUIPA instead of spending time and money they do not have on a burdensome bureaucratic process.

Oral argument took place on October 3, 2018. On June 21, 2019 the Supreme Court ruled in favor of Ms. Knick. Chief Justice Roberts announced that the precedent from Williamson County was overruled in part, writing, “Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” Ms. Knick is represented by Pacific Legal Foundation.

 

Importance to religious liberty

  • Property rights: Houses of worship and religious organizations are particularly vulnerable when it comes to property rights. When their rights are violated, they should be free to challenge the government without spending time and money they do not have on a burdensome bureaucratic process.

Sharonell Fulton, et al. v. City of Philadelphia

Faith-Based Foster Care Fact Sheet

A history of heroic service in the City of Brotherly Love

Sharonell Fulton and Toni Simms-Busch each have decades of experience in the foster care system. Sharonell has fostered 40 children, and Toni spent years working as a foster care social worker and child advocate before fostering and adopting herself. These two Catholic women chose to partner with Catholic Social Services because they wanted to work with a faith-affirming agency and were impressed by its excellent reputation.

The Catholic Church pioneered foster care in Philadelphia over 200 years ago when it founded an agency to help mothers, children, and families in need. Inspired and motivated by its religious identity, Catholic Social Services has been providing critical foster care services to children ever since. It is one of the most successful foster agencies in the city and has a great reputation. Catholic Social Services’ faith (and its ability to recruit foster families who are inspired by their own faith) is a big part of its success. It’s also proved excellent at supporting and retaining foster families. Catholic Social Services’ caseworkers build strong relationships with both foster kids and their families, and are available any time—day or night. When Sharonell took in new foster kids on Christmas Eve, Catholic Social Services’ caseworkers delivered wrapped presents to her door.

But because of the city’s discriminatory actions, loving foster families that partner with Catholic Social Services (like Sharonell and Toni) were stuck on the sidelines—their homes sitting empty—even though the government has admitted that there were kids in immediate need of their love and support.

Making room for diversity

When someone wants to become a foster parent, the first step is to contact a private foster agency (there are 30 in Philadelphia) and complete a home study. Home studies are deeply personal and require the agency to send someone into the family’s home to assess things like the strength of their personal relationships, their physical and mental health, and their relationships with their children. Only once this is completed can an agency partner with the foster family to help care for a child in need.

As part of the Catholic Church, Catholic Social Services cannot partner with and endorse same-sex or unmarried couples. Instead, it will help that couple to find a match from among the 29 other nearby foster agencies that can provide the same endorsement and partner with that couple to serve kids in need. Three of these other agencies are even recognized for their excellence in serving the LGBTQ community.

Agencies help foster families find a better match all the time (like, for example, if a family lives too far away, or the agency has a long waiting list, or a couple is seeking to foster kids with special needs). But this wasn’t enough for city officials, who demanded that if a same-sex couple ever approached Catholic Social Services (none had), the agency had to endorse their relationship and partner with them.

Catholic Social Services’ religious beliefs and traditions aren’t a policy or set of guidelines it can change. The agency walks with the Catholic Church in its teachings about marriage and family as well as its commitment to serving the local community—and all parts of the human family—as best it can. As a majority of the Supreme Court Justices acknowledged, Catholic Social Services is “an arm of [the Catholic Church].” Its Catholic convictions are why the agency is committed to serving all children in need—regardless of their race, religion, or sexual orientation.

Sidelining all-stars while kids are left hanging

In Philadelphia, there are dozens of private agencies that partner with LGBTQ foster parents. And same-sex couples have been fostering kids in Philadelphia for years with their help. Nothing about this case would change that. Instead, Catholic Social Services wants to continue serving vulnerable kids and foster families without compromising its beliefs (as it has done successfully for the last 200 years) alongside a diverse network of other agencies also serving the Philadelphia community. Catholic Social Services has loving families ready to care for kids today, but the government is keeping them on the sidelines.

Foster moms asked the Supreme Court to protect the agency that affirms their religious identity

In May 2018, Becket stepped in to represent children, families, and Catholic Social Services in their lawsuit against Philadelphia’s government. In June 2018, Becket asked a federal court to end the government’s discriminatory actions and let Catholic Social Services serve foster kids and families. In July 2018, the district court denied the request, and Becket immediately appealed to the Third Circuit Court of Appeals.

In April 2019, the Third Circuit ruled against Sharonell Fulton, Toni Simms-Busch, and Catholic Social Services in a controversial decision that split with several other appeals courts. Becket then asked the Supreme Court to take up their case and protect the freedom of faith-affirming foster agencies nationwide to maintain their deeply held beliefs while serving those most in need. On February 24, 2020, the Supreme Court agreed to hear this case. Oral argument took place on November 4, 2020 and on June 17, 2021, the U.S. Supreme Court unanimously ruled in favor of “exemplary” foster mothers Sharonell Fulton and Toni Simms-Busch, allowing these foster care heroes to continue serving children in need in partnership with the Catholic foster ministry that has been serving Philadelphia for over 200 years. As the Supreme Court unanimously confirmed, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Importance to religious liberty

  • Religious Freedom: Religious organizations must be free to act according to their faith, including when caring for children in need. The government cannot exclude religious groups by demanding they give up their religious beliefs in order to continue providing much needed social services.
  • Public Square: Faith-affirming organizations serve their neighbors and provide benefits to the community when they are able to operate in the public square. Religion in the public square is not a threat, but rather the expression of a natural human impulse.

Janus v. American Federation of State, County, and Municipal Employees

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued his union—the American Federation of State, County and Municipal Employees. Janus argued that mandatory union fees forced him to subsidize the union in taking negotiating positions against the government with which he disagreed. After losing in the district court in September 2016 and again at the Seventh Circuit Court of Appeals in March 2017, Janus appealed to the U.S. Supreme Court. In December 2017, Becket filed a friend-of-the-court brief emphasizing that government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom. On June 27, 2018, the Supreme Court ruled for Janus when it clarified that mandatory fees are a form of government coercion that violate workers’ rights.

Pay no attention to the government behind the curtain

Pay no attention to the government behind the curtain! At least that’s what supporters of mandatory union fees for government workers wanted in Janus v. AFSCME. Unions can be protective forces for government workers—but not when they use the force of the government to exact mandatory fees from government employees, to support speech with which the employees disagree.

In 2015, Mark Janus, a government employee at the Illinois Department of Healthcare and Service, sued the American Federation of State, County and Municipal Employees in federal court, claiming that mandatory union fees force him to subsidize the union in taking positions against the government with which he disagrees. Janus asked the district court to protect his First Amendment rights and make public sector unions earn the trust of government employees, rather than using government power to force them to support union speech with mandatory fees. In September 2016, the district court ruled against Janus. On appeal in March 2017, the Seventh Circuit Court of Appeals again ruled against Janus. Janus appealed to the U.S. Supreme Court, which agreed to hear his case.

Becket argues that mandatory fees threaten religious liberty

In December 2017, Becket filed an amicus brief in support of Janus, arguing that the government is engaging in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will by using unions to hide the coercion.

Our brief showed that this issue has far reaching consequences, especially for religious liberty. For instance, the government uses private accrediting agencies as gatekeepers for federal funding like Pell Grants. Accreditors should not be allowed to use their funding authority to suppress religious speech any more than the government itself could. There are many other situations where the government relies on private entities to provide government benefits or to perform government services. When acting on the government’s behalf, these organizations should be required to respect constitutional rights the same way the government is. Just like “money laundering” (passing illegitimate funds through a legitimate business) cannot remove the taint of criminally obtained funds, “coercion laundering” (allowing a private party to force someone to do something the government could not force them to) cannot remove the taint of unconstitutional coercion.

U.S. Supreme Court: Mandatory union fees are form of government coercion

On February 26, 2018, the U.S. Supreme Court heard Janus’ case. On June 27, 2018, the U.S. Supreme Court ruled in favor of Janus in a 5-4 decision, striking down mandatory union fees for government workers. The ruling clarified that mandatory fees are a form of government coercion that violates workers’ rights.

This ruling has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices. Janus was represented by Liberty Justice Center and National Right to Work Legal Defense Foundation.

Janus was represented by Winston & Strawn, Liberty Justice Center, National Right to Work Legal Defense Foundation.

Importance to religious liberty

  • Individual freedom: When acting on the government’s behalf, private entities should be required to respect constitutional rights the same way the government is. Government workers must be allowed to opt out of mandatory fees to protect their freedom of speech and religious freedom.
  • Free speech: The government engages in “coercion laundering” when it gives unions power to force government employees to support speech they don’t like, even though the government could not force them directly. The government shouldn’t be excused from forcing employees to speak against their will just because it is using unions to hide the coercion.
  • Education: The U.S. Supreme Court’s ruling in Janus v. AFSCME has significant impact for religious colleges and universities, suggesting that private accrediting agencies that are delegated government authority cannot use that authority to infringe on the schools’ religious speech and practices.

First Resort, Inc. v. Herrera

A mission to care for women 

Support Circle is a non-profit clinic and counseling center dedicated to providing support for women facing unplanned pregnancies. At no cost to the women they serve, Support Circle has for decades provided pregnancy tests, ultrasounds, medical care, emotional support, and career counseling to women in the San Francisco Bay Area. Through the many services they offer, Support Circle seeks the well-being of each woman and child that comes to them for help. But because of their belief that abortion is harmful both to women and their unborn children, Support Circle does not offer or refer for abortions. This pro-life viewpoint has resulted in San Francisco trying to stop women in need from even finding out about Support Circle in the first place.  

City ordinance restricts speech—and women’s options 

 In 2011, the City of San Francisco introduced an ordinance that prohibits “limited services pregnancy centers” from making false or misleading statements about the services they offer. But there is hypocrisy built into the ordinance: Support Circle is considered a “limited service” pregnancy center because it does not provide or make referrals for abortion, yet centers that do not offer or refer for other services—like ultrasounds or adoption—are not considered “limited service” centers. Essentially, San Francisco created a one-sided false advertising law, targeting pro-life pregnancy centers, but not abortion providers, for restrictions on their speech. 

Worse, the City says that centers are violating its new ordinance if search engines like Google display their website when the terms “San Francisco” and “abortion” are entered into the search engine together. But Support Circle counsels women considering abortion, and also offers post-abortion counseling, while making clear to all women it serves that it does not offer or refer for abortions. The end result of the city’s ordinance is that women looking for information about abortion on the internet won’t get a chance to see the options available through Support Circle. Instead, they’ll hear only one side of the story—the abortion providers’ side.  

Becket defends free speech for all 

Women facing an unplanned pregnancy have a right to know all their options. And pro-life pregnancy centers have the right to attempt to reach women in need using the same online marketing tools available to every other organization, without being targeted for their viewpoint. 

Thus, in 2012, Support Circle sued the city to stop this unnecessary and unconstitutional ordinance. After a loss at the Ninth Circuit Court of Appeals, in February 2018, Support Circle appealed its case to the Supreme Court. Becket joins Locke Lord in defending Support Circle’s right to provide necessary options to women in need without being silenced for its pro-life views. 

In June 2018, the Supreme Court declined to hear the case.

On January 16, 2018 Becket filed a friend-of-the-court brief on behalf of Support Circle at the U.S. Supreme Court in NIFLA v. Becerra, another case involving a government attempt to target pregnancy centers’ speech. On June 26, 2018, the Supreme Court ruled 5-4 to protect pro-life pregnancy centers’ right to serve women and children according to their religious mission.

Importance to religious liberty: 

  • Free speech: Governments cannot restrict speech because of the speaker’s beliefs. This principle is especially important for speech relating to deeply important and controversial moral and religious issues, like abortion. San Francisco’s law is a one-sided false advertising law that violates this principle and amounts to viewpoint discrimination.  

National Institute of Family and Life Advocates v. Becerra

A mission to provide essential care

For over twenty years, the National Institute of Family and Life Advocates (NIFLA) has provided education and training to hundreds of pregnancy clinics across the country. Driven by faith, NIFLA provides essential legal resources and counsel to clinics that share their commitment to life-affirming support for vulnerable women and their families.

Free speech—unless the government favors the other side

In 2015, California enacted the FACT Act, joining a number of other state and local governments that have passed laws to target pregnancy centers that do not recommend or refer for abortion services. The FACT Act requires licensed pregnancy centers, which offer free services to pregnant women, to post in their waiting rooms a disclosure explaining that the state of California provides free or low-cost abortion and contraception services. This licensed disclosure must also include a phone number for a county office that refers women to clinics that provide abortion services. Under the law, other pregnancy centers, too, would have to post burdensome disclosures, not only on site but in all of their advertisements. The FACT Act thus would have forced NIFLA centers to advertise messaging that violates their deeply held beliefs and undermines their mission to offer life-affirming care to women and children.

NIFLA challenged the FACT Act in court. After losses in the district court in January 2016 and at the Ninth Circuit Court of Appeals in December 2016, NIFLA appealed to the U.S. Supreme Court, which agreed to hear the case. In January 2018, Becket filed a friend-of-the court brief on behalf of Support Circle, supporting NIFLA and defending their right to continue to serve women and children according to their religious mission.

Victory for free speech

The Supreme Court heard the case in March 2018. During oral argument, California admitted to the Court that some applications of the law were unconstitutional, and the Justices spent much of the argument focusing on the law’s obvious attempt to target pro-life clinics. On June 26, 2018, the Court ruled 5-4 protecting pregnancy centers’ right to serve women and children according to their religious mission. NIFLA was represented by Alliance Defending Freedom.

The ruling affirms that the First Amendment protects individuals that may hold viewpoints different from those of the government. On issues as deeply important as abortion, it is vital that the government does not silence one side of the debate.

Importance to religious liberty

  • Free speech: The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government does not silence one side of the debate.
  • Public square: Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.

Espinoza v. Montana Department of Revenue

A scholarship program for low-income Montana students 

Children in Montana have been stripped of their right to participate in a modest scholarship program simply because some of them might attend religious schools.

In 2015 the state legislature passed the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit of up to $150 of contributions to privately-run scholarship programs. However, the Montana Department of Revenue refused to implement the program, and in an ensuing lawsuit, the Montana Supreme Court struck down the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids any aid—direct or indirect—from going to schools owned or operated by a “church, sect, or denomination.” Because some scholarships might be used at religious schools, the Montana Supreme Court said no students could have them.

Treating religious school students as second-class citizens

By denying religious schools’ right to participate in a widely available public program, the Montana Supreme Court ignored the Supreme Court’s June 2017 decision in Trinity Lutheran v. Comer that ruled religious groups cannot be barred from participation in widely available public programs simply because they are religious. And the Montana court can’t excuse away the underlying religious bigotry by barring all students the program’s benefit.

Institute for Justice, along with Holland & Hart LLP, represents three low-income Montana mothers who would like to participate in the program by using the scholarships to help send their children to religious private schools.

Becket supports equal treatment of religious schools in public programs

In January 2018, Becket filed a friend-of-the-court brief at the Montana Supreme Court in support of the parents, arguing that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs and that courts can’t strike down entire benefit programs just to keep religious kids from benefitting from them. Oral argument was held on April 6, 2018, at the Montana Supreme Court, which in December 2018, ruled against the scholarship program, striking down the entire program because some funds would go to kids who chose to use them at religious schools.

On March 13, 2019, the Montana parents appealed to the U.S. Supreme Court and the Supreme Court agreed to hear the Montana mothers’ case. Becket filed a friend-of-the-court brief arguing that the discriminatory history of the Blaine Amendments renders them unconstitutional, and that religious organizations cannot be treated as second-class citizens when it comes to widely available public benefit programs. Becket’s brief also argued that relying on Blaine Amendments to shut down entire programs only extends the religious bigotry that motivated the enactment. Oral argument took place January 22, 2020. On June 30, 2020, the Supreme Court decided that children in Montana cannot be stripped of their right to participate in a scholarship program simply because they attend religious schools. The Court also recognized that Blaine Amendments are “born of bigotry.” In a concurring opinion, Justice Alito addressed more thoroughly the history of discrimination behind the Blaine Amendments, repeatedly referring to Becket’s brief.  

Importance to Religious Liberty: 

  • Education: Religious schools should be able to participate in publicly available programs without discrimination, and religious school students should be able to participate in these programs on equal footing as students who attend non-religious schools. 
  • Dismantling discriminatory state laws:  So long as anti-religious laws from the mid-19th century called Blaine Amendments remain in the books, people of all faiths can face discrimination, simply because they choose to attend a religious school. 
  • Reinforcing precedent set by Trinity Lutheran v. Pauley: In June 2017, the U.S. Supreme Court ruled 7-2 that the state of Missouri can’t prevent a religious school from participating in a publicly available program that provides shredded-tire resurfacing to make playgrounds safer for kids on equal footing with other schools. 

Little Sisters of the Poor v. Commonwealth of Pennsylvania

WEBSITE for Little Sisters Cases

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

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

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

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

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

In November 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. The Pennsylvania court refused to let the Little Sisters intervene in the case, or even argue in court. A week later, the Pennsylvania court temporarily blocked the new rule that gave the Little Sisters a religious exemption. Becket immediately appealed both rulings.  

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

Supreme Court protects the Little Sisters, again 

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

Pennsylvania continues its bully campaign against the Little Sisters 

Despite losing at the Supreme Court, Pennsylvania and more than a dozen state governments kept pushing in the lower courts to strip away the Little Sisters’ protection. On August 13, 2025, in a nationwide ruling against a Trump Administration religious conscience rule, a federal district court in Philadelphia sided with Pennsylvania. The Little Sisters have once again appealed to the Third Circuit.  

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 the government discriminating among sincere religious. 
  • Individual freedom: Religious individuals and organizations are free to follow their faith in all aspects of their lives, including in the workplace and not just in houses of worship. 

Masterpiece Cake Shop v. Colorado Civil Rights Commission

An artist’s livelihood at stake

Jack Phillips is a Christian and a baker. For almost 25 years he has run Masterpiece Cake Shop in Denver, creating artistic, custom-designed cakes for his customers. As a Christian and an artist, he believes his work should only promote messages that align with his religious beliefs.

In July 2012, a same-sex couple asked Phillips to bake a cake for their wedding. Phillips explained that he could not, in good conscience, participate in a wedding ceremony he disagreed with. Although the couple quickly received a cake from another bakery, they filed a complaint against Masterpiece with the Colorado Civil Rights Commission. In June 2014, the Commission ruled against Masterpiece.

Forced to violate his beliefs—or forfeit his business

The Commission’s ruling would have required Phillips to create whatever cakes customers requested, regardless of his religious views. Phillips appealed to the Colorado Court of Appeals, which again ruled against him in August 2015. Phillips appealed the decision to the U.S. Supreme Court, and in September 2017, the Court agreed to hear his case. Phillips was represented by Alliance Defending Freedom.

In September 2017, Becket filed a friend-of-the-court brief supporting Phillips and defending his right to decline to participate in wedding ceremonies that he religiously objects to. Becket separately asked the Court to hear his case in tandem with another religious wedding vendor case, Ingersoll v. Arlene’s Flowers.

Victory for free speech and religious liberty

In a diverse and pluralistic society, individuals of different faiths and backgrounds will disagree on many issues, and we must allow for these differences to flourish without the threat of government forcing a religious individual to violate his or her conscience. Weddings are important and sacred events to many Americans. Religious dissenters shouldn’t be forced to participate in a wedding ceremony they do not agree with.

On June 4, 2018, the U.S. Supreme Court ruled in favor of Masterpiece Cake Shop. The Justices ruled 7-2 that the Free Exercise Clause of the Constitution protects Jack Phillips from unfair treatment based on his religious beliefs.

Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace.
  • 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, Jack Phillips’ artistic expressions were a form of speech, and the government should not force him into expression that violates his religious beliefs.

Trump v. International Refugee Assistance Project

In March 2017, President Donald Trump issued an executive order banning entry for ninety days by citizens from six majority Muslim countries, raising serious religious freedom concerns. Plaintiffs brought lawsuits against the executive order, and the lawsuits have traveled all the way to the U.S. Supreme Court.

Becket has a long track record of defending people of all faiths, including Muslims. In 2015, Becket won the historic Supreme Court victory in Holt v. Hobbs, which protected the religious freedom rights of Muslim prisoners. We believe that to protect people of faith, particularly religious minorities like Muslims, Native Americans, and Sikhs, it is vital that legal precedent is set properly. But the ACLU and other groups in Trump v. International Refugee Assistance Project have litigated their case under the wrong part of the Constitution. They are challenging the travel ban using the notorious Lemon test – a widely discredited set of criteria that creates confusion – and weak law— for important religious freedom cases. The Lemon test is particularly disliked by the Supreme Court because it forces judges to psychoanalyze the intent of policymakers at the time they wrote the law.

Instead, when the government targets a religious group for punishment or mistreatment, courts should use the laws that are designed to deal with burdens on religious exercise, namely the Free Exercise Clause of the First Amendment. Unlike Lemon, these laws have objective tests designed to root out religious targeting and protect religious minorities.

It is only possible to get cases like this right if courts are using the correct legal standards. Deciding religious freedom cases using the correct laws is the best way to achieve a truly just outcome both for the Muslim plaintiffs and for all Americans who have First Amendment protections. 

In June 2017 the Supreme Court announced that it would hear Trump v. IRAP and Trump v. Hawaii as a consolidated case. After oral argument was scheduled for October 10, 2017, the executive order expired and the Court dismissed both cases as moot, vacating the lower courts’ decisions including any Lemon test analysis.

Wheaton College v. Azar

A college with a mission of faith

Wheaton College’s mission expresses its commitment to do all things “For Christ and His Kingdom.” Founded in 1860 by the prominent abolitionist Jonathan Blanchard, Wheaton’s history is marked by the stories of students and alumni whose faith drives them to affect the church and society for good.

An unconstitutional federal mandate 

In 2010, the federal government issued a mandate, regulated by the Department of Health and Human Services (HHS), that forced Wheaton College to include services like the week-after pill in its insurance plans, which violated its deeply held beliefs. Despite Wheaton’s expressed religious objections, the government refused to grant the College a religious exemption. In July 2012, Wheaton College sued the government to protect its right to operate according to its religious mission without the threat of government fines.

Wheaton College’s first lawsuit was delayed for over a year by the government’s promise of a religious accommodation—but the government still insisted that Wheaton College was not a “religious employer” and was ineligible for an exemption. In the meantime, though, Wheaton’s lawsuit forced the federal government to rewrite its one-year “safe harbor” condition to include Wheaton, giving the College another year to comply with the mandate or face crippling fines. As a result of the change, a federal judge for the U.S. District Court for the District of Columbia dismissed Wheaton College’s lawsuit as premature. In September 2012, the U.S. Court of Appeals for the D.C. Circuit granted a motion for expedited appeal, which later handed an intermediate victory to the religious colleges by ordering HHS to act quickly to fix the existing HHS mandate.

The government’s proposed “accommodation” turned out not to be much of a fix, and it still required Wheaton to choose between its belief in the sanctity of life or millions of dollars in government fines. So in December 2013, Becket refiled its lawsuit on behalf of Wheaton. In June 2014, the district court denied Wheaton’s request for relief. Wheaton appealed. In July 2014, while the case was on appeal, Wheaton received last minute protection from the Supreme Court against IRS fines. In July 2015, the Seventh Circuit Court of Appeals denied Wheaton College relief from the mandate. Finally, in May 2016, the Supreme Court decided the related case Zubik v. Burwell. The Supreme Court’s decision ordered the government to explore alternatives that would protect religious freedom. On October 6, 2017, the government issued a new rule with broader religious exemption, admitting that the mandate was illegal as applied to religious objectors, including Wheaton College.

A five-year fight ends in resounding victory

On February 22, 2018, Wheaton’s five-year legal battle finally came to an end when the district court ruled in Wheaton College’s favor, protecting the College from any current or future application of the mandate.

Importance to religious liberty:

  • Individual freedom: Government cannot force religious individuals or groups to violate their deeply held beliefs to further a government goal when there are other ways for the government to accomplish that goal.
  • Religious communities: Faith-based organizations, including schools, have the right to operate according to their religious mission free of government interference.
  • HHS mandate: For years, the federal government has refused or delayed relief from the HHS mandate to religious organizations. The 2018 victory for Wheaton is a critical step in securing robust religious liberty protections from the mandate for all religious non-profits. 

Trinity Lutheran Church v. Comer

The state of Missouri wants to make sure children run on safe playgrounds – unless they attend a religious school.

The Trinity Lutheran Church Learning Center is a Christian preschool that wanted to improve its playground surface, which consisted of gravel and grass. To facilitate the needed upgrades, the school applied to a state program in 2012 that provides grants to use recycled shredded tires for a softer and safer playground surface. Trinity Lutheran ranked fifth of 44 applicants based on overall quality of the intended project, the number of people who would benefit from the improved playground, and the quality of the school’s recycling education programs. However, despite the school’s high ranking, the state denied the grant solely because it was associated with a church.

The state used the Blaine Amendment, a 19th century anti-Catholic and bigoted law that prohibits religious organizations, such as a Florida prisoner ministry, a Catholic orphanage and several religious schools, from participating in public programs. Trinity Lutheran sued the state of Missouri in 2013 for this blatant discrimination. Becket, along with Stanford Professor Michael McConnell, submitted a friend-of-the-court brief defending Trinity Lutheran’s right to participate in the state’s tire recycling program on equal footing as all other applicants. Trinity Lutheran, represented by Alliance Defending Freedom, has fought all the way to the U.S. Supreme Court, which heard the case on April 19, 2017.

In June 2017, the U.S. Supreme Court ruled 7-2 that Missouri can’t discriminate against the school in a program that provides shredded-tire resurfacing to make playgrounds safer for kids.

*Photo Credit: Flickr

 

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.

Little Sisters of the Poor v. Azar

An unconstitutional federal mandate 

In August 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act. The mandate required employers to provide all FDA-approved contraceptives in their health insurance plans, including the week-after pill, free of cost. Despite the obvious religious liberty issues with a contraceptive mandate, HHS included only a narrow religious exemption—one that did not include religious non-profits like the Little Sisters of the Poor, a Catholic order of nun that runs homes for the elderly poor across the country.  

The Little Sisters’ Catholic beliefs about life and contraception meant that complying with the mandate was impossible. The Little Sisters initially tried to communicate their concerns with the federal government. In good faith, they believed that the government would grant them an exemption. After all, HHS already exempted thousands of other secular employers whose plans were “grandfathered” in under the new rule—including Exxon, Pepsi Bottling, and Visa—and even exempted the healthcare programs for the U.S. military. Instead, HHS doubled down, continued to refuse to exempt the Little Sisters, and threatened them with ruinous fines of tens of millions of dollars if they did not comply with the mandate.  

Five years of litigation—including at the Supreme Court 

In September 2013, represented by Becket, the Little Sisters of the Poor went to court against the federal government to protect their religious freedom. After a district court ruled against them, the Little Sisters appealed to the U.S. Court of Appeals for the Tenth Circuit, which again ruled against them. However, on December 31, 2013, Justice Sotomayor of the U.S. Supreme Court granted the Little Sisters emergency protection against the rule, temporarily protecting them from fines. The entire Court then granted the Little Sisters a longer-term injunction in January 2014, and sent the case back to the Tenth Circuit for reconsideration. 

But after the Tenth Circuit ruled against the Little Sisters once more, the U.S. Supreme Court again agreed to review the Little Sisters’ case. In March 2016, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, a consolidation of six cases brought by religious non-profits against the mandate, including the Little Sisters of the Poor. At the Supreme Court, the Obama administration admitted to the Court that the mandate required the Little Sisters’ participation and the use of their health plan, and that the government could provide contraceptive services in other ways that didn’t require using the Little Sisters. These key admissions cleared the path for the Supreme Court to find a solution.

In May 2016, the Supreme Court unanimously overturned the lower court rulings against the Little Sisters, ordered the government not to fine the Little Sisters, and instructed the lower courts to provide the government an opportunity to find a way to provide services to the women who want them without involving the Little Sisters.  

Resolution at last, and a win-win outcome 

The Supreme Court decision was a victory, but one that would take another two years to reach completion. In May 2017, President Trump issued an Executive Order directing HHS and other federal agencies to protect the Little Sisters of the Poor and other religious non-profits from the mandate.  

On October 6, 2017, the government issued a new rule with a broader religious exemption. In June 2018, the Little Sisters’ original case was finally resolved with an order by the U.S. Court of Appeals for the Tenth Circuit. And on November 7, 2018, HHS issued a rule  finalizing the Little Sisters’ religious exemption.  

The unanimous decision by the Supreme Court and the President’s executive order were big wins for the Little Sisters. But that does not mean anyone lost. As the Little Sisters had argued all along, the solution in no way bars the government from providing these services to women who want them. In fact, any alternative delivery method the government chooses could likely be applied not only to women in religious plans, but to the tens of millions of women in corporate and government plans HHS had previously exempted from the mandate. In the end, the government was able to both provide the mandated services free of charge to any woman who wanted them and accommodate the Little Sisters’ religious beliefs.  

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 the government dictating their beliefs.
  • Individual freedom: Religious individuals and organizations must be free to follow their faith in all aspects of their lives, both privately and publicly, at home and in the workplace.

Matal v. Tam

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

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

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

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

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

Holt v. Hobbs

Protecting religious expression for prisoners is important, see why:

Religious freedom restricted for prisoners in “unnecessary ways”

Nearly two decades ago, Congress found that government bureaucrats routinely trample on religious liberty in prison. As the joint statement of Senators Hatch (R-UT) and Kennedy (D-MA) put it: “Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”

These religious liberty restrictions affected people of many faiths. Many prisons barred Jewish inmates from wearing yarmulkes, denied Catholics access to the sacraments of communion and confession, and shut down Evangelical Bible studies. Many prisons also banned religious diets such as kosher food, confiscated and destroyed sacred texts, such as the Bible, the Koran, the Bhagavad Gita, and often banned religious objects, such as rosaries, prayer shawls, and yarmulkes. One prison prohibited various religious holidays, restricting prisoners’ ability to fast, pray, and worship God on special occasions. And in one extreme instance, prison officials violated the seal of the confessional by bugging inmates’ confessions to their priests.

Religious Land Use and Institutionalized Persons Act (RLUIPA)

In response to these and many other displays of religious suppression, an overwhelmingly bipartisan Congress enacted a landmark civil rights statute, which was signed by President Clinton in 2000: the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA embodies a very simple principle: Prison officials should not impose egregious and unnecessary restrictions on religious liberty. Of course, prisoners lose many of their physical rights when they enter prison, but they cannot be forced to surrender peaceful expressions of their humanity due to the arbitrary whims of prison officials. Just as the Constitution prevents dehumanizing forms of cruel and unusual punishment, RLUIPA prevents stubborn bureaucrats from stripping inmates of human dignity by denying them the ability to seek God.

Despite RLUIPA, prisoners still face religious liberty violations

Despite the promise of RLUIPA, some inmates still experience persecution for peaceful displays of religious devotion. In June 2011, Abdul Muhammad, an inmate in an Arkansas state prison, sued in federal court for the right to wear a beard in accordance with religious beliefs. The Arkansas prison had denied Mr. Muhammad’s request to grow the ½ inch beard his Muslim faith commands, citing security and safety concerns, even though Arkansas already allowed inmates to grow beards for medical reasons, and even though Mr. Muhammad’s ½ inch beard would be permissible in 44 state and federal prison systems across the country.

Representing himself, Mr. Muhammad lost in federal trial court and in the Eighth Circuit Court of Appeals in St. Louis. He then submitted a handwritten petition for an injunction to the Supreme Court. On March 3, 2014, the Supreme Court granted his petition and said that it would hear his appeal in full.

Unanimous victory at the Supreme Court

Becket and Professor Douglas Laycock of the University of Virginia School of Law stepped in to represent Mr. Muhammad at the Supreme Court. On January 2015, the Supreme Court ruled unanimously in favor of Mr. Muhammad, saying Arkansas had clearly put Mr. Muhammad in an impossible choice: to violate his beliefs or suffering disciplinary sanctions. The Court rejected Arkansas’s defenses, pointing out that because so many other states were able to accommodate inmates required to grow a beard for both medical and religious reasons, Arkansas had to explain why its situation was different.

Becket has long defended prisoners’ religious liberty, including protecting prisoners’ rights to kosher diets in Florida, Georgia, and Texas. Defending prisoners from arbitrary restrictions on their religious freedom strengthens religious liberty for all.

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.

For the in-depth story, listen to the Stream of Conscience podcast episode about this case, Conviction and Confinement.

East Texas Baptist University & Houston Baptist University v. Azar

Two Christ-centered Texas universities share a mission

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

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

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

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

Challenging the HHS mandate

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

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

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

Unanimous win-win outcome at the Supreme Court

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

In May 2017, President Trump issued an Executive Order directing HHS and other federal agencies to protect the Little Sisters of the Poor and other religious ministries from the HHS mandate. Following the order, HHS Secretary Tom Price said that HHS “will be taking action in short order” to protect the Little Sisters and other religious ministries harmed by the mandate.

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

Importance to Religious Liberty:

  • HHS Mandate cases: Winning the HHS mandate cases sets an important precedent, confirming that federal agencies cannot unnecessarily force religious people to violate their beliefs in order to further a government goal. 
  • Religious communities: Religious communities have the right to organize and operate according to their beliefs without the government dictating their beliefs.
  • Individual freedom: Religious individuals and organizations must be free to follow their faith in all aspects of their lives, both privately and publicly, at home and in the workplace.

Douglas County School District v. LaRue

In 2011, Douglas County, Colorado created the Choice Scholarship Program to help low-income families send their children to a private school that best suits their child’s needs, some of which are religious schools.

But in June 2011, the ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued to stop the scholarship program. The court ended the program, ruling that it violated the state constitution’s Blaine Amendment, an arcane anti-religious provision adopted in the mid-19th century and originally used to discriminate against a growing wave of Catholic immigrants in the U.S.

To this day, Blaine Amendments remain in dozens of state constitutions and prohibit the use of state funds at “sectarian” schools.  They have an ugly history. Beginning in the mid-nineteenth century, the U.S. endured a rash of anti-Catholic and anti-immigrant bigotry known as the “Know-Nothing” movement—decried at the time by Abraham Lincoln and in recent years throughout the courts. The movement unleashed a wave of religious discrimination in the form of Blaine Amendments, which were adopted in numerous state constitutions in the late 1800s and early 1900s and were designed to suppress Catholic schools in favor of Protestant-dominated public schools.

In April 2012, Becket filed an amicus brief in the Douglas County School District appeal, shining a spotlight on the Colorado Blaine Amendment’s ugly past and its unconstitutional treatment of children in religious schools who simply wish to be treated the same as children in secular schools. The Institute for Justice defended the county.

In February 2013, the Colorado Court of Appeals ruled in favor of the scholarship program. The court wisely avoided relying on the Colorado Blaine Amendment, refusing to invoke its nefarious history. Yet in June 2015, the Colorado Supreme Court overturned the court of appeals decision, interpreting the Blaine Amendment to prevent scholarships from going to students who wanted to attend a religious school. In October 2015, Douglas County appealed to the Supreme Court.

Advocate Health Care Network v. Stapleton

Advocate Health Care Network v. Stapleton
St. Peter’s Healthcare v. Kaplan
Dignity Health v. Rollins
Overall v. Ascension Health

Status: On June 5, 2017, U.S. Supreme Court voted unanimously 8-0 protecting religious hospitals.

Faith-based hospitals draw inspiration from their religious heritage. Driven by their faith to provide compassionate care, these hospitals treat people of all faiths and backgrounds, and their wellness services go beyond just providing medical care. For example, Saint Peter’s Family Health Center also serves juvenile victims of abuse, economically disadvantaged families and mentally disabled or violence-prone youth. And Catholic Health Initiatives provides millions annually to benefit programs and services for the poor, such as free clinics.

These faith-driven hospitals also provide generous benefits to their employees, including pensions through the hospitals’ comprehensive church pension plans. Yet their beliefs and the charitable work they do are being threatened for no reason: a group of plaintiffs’ lawyers are targeting these hospitals for a payoff, dragging them to court and demanding that they pay their attorney fees. Their argument? That hospital ministries are not religious enough to have a tax-exempt church pension plan under The Employee Retirement Income Security Act (ERISA). However, it is not the job of lawyers to decide that hospitals can’t be part of a church, and the IRS has rightly viewed these ministries as part of a larger church for over 30 years.

The legal campaign against faith-based hospitals began in 2013. In 2015, the case Overall v. Ascension Health was settled. In 2016 three other cases were appealed to the Supreme Court, while almost a hundred more are waiting in lower courts across the country. On August 15, 2016, Becket filed a friend-of-the-court brief at the Supreme Court supporting the hospitals and their right to freely exercise their religious-based mission to provide compassionate and excellent healthcare according to their faith.

The Supreme Court heard oral argument in March 2017. On June 5, 2017, the U.S. Supreme Court voted unanimously 8-0 to protect religious hospitals founded and run by nuns, allowing them to continue providing generous benefits for their employees as well as free health services to their inner-city communities.

Walker v. Texas Division, Sons of Confederate Veterans

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

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

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

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

Importance to Religious Liberty: 

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