Johnson v. Fleming

Supporting religion on the front lines 

America’s military chaplaincy has religious roots and predates the birth of our nation. During the French and Indian War, then-Colonel George Washington—believing in religion’s importance and beneficial influence on soldiers—urged the Governor of Virginia and Virginia legislative leaders to finance a chaplain for the Virginia regiment. Later, as General of the Continental Army, Washington worked to expand and professionalize the chaplaincy to meet the religious needs of his religiously diverse troops. He also was instrumental in persuading the Continental Congress to preserve and fund the chaplaincy for future generations. 

That historical tradition is also a constitutional duty: under the First Amendment’s Religion Clauses, because the government removes service members from their faith communities as part of military service, it must also furnish the means for religiously diverse servicemembers to access worship and spiritual care while serving. Today, military chaplains carry out that duty by leading religious services, officiating burials, and guiding servicemembers through long separations, high stress, dangerous assignments, trauma, and loss. Chaplains are not generic counselors. They are representatives of religious traditions endorsed by their respective church, synagogue, mosque, or religious community to provide pastoral care to the brave men and women who serve our country.  

Virginia backs the chaplaincy—but only to a degree 

The Virginia National Guard is a dual-status military force that serves as a combat reserve for the U.S. Army and Air Force while also answering the call of the Virginia Governor to defend the Commonwealth. Crucial to the Virginia National Guard’s mission is the chaplaincy, which is tasked with providing “the highest levels of religious support” across military operations. Virginia supports that mission by maintaining a formal chaplaincy structure, paying chaplains when they are called into state active duty, and requiring chaplains to complete advanced religious training, including theology coursework.  

Yet Virginia excludes Guard members who want to become chaplains from its tuition-assistance program. Any Guard member committed to two years of service can get tuition assistance toward a college degree. But if a Guard member studies to become a chaplain, Virginia denies aid. This is as unconstitutional as it is illogical: the Guard requires its chaplains to have a master’s degree with at least 36 credits in theology, but signing up for a theology degree gets them cut from the tuition assistance program.  

Becket urges Fourth Circuit to protect the military chaplaincy 

A student in the Virginia National Guard is seeking a Master of Divinity to become a chaplain, but the Commonwealth denied him tuition assistance because it said his degree was too religious. He then filed a lawsuit against Virginia in federal court. After the district court allowed Virginia’s policy to stand under a Supreme Court decision known as Locke v. Davey, the students appealed to the Fourth Circuit. On June 2, 2026, Becket filed a friend-of-the-court brief on behalf of retired Chaplains Douglas L. Carver and Thomas J. Solhjem, who both retired at the rank of Major General and served as the Army’s 22nd and 25th Chief of Chaplains, respectively.  

Becket argues that Locke—a narrow decision about state funding for devotional theology degrees for anyone—does not apply to chaplain candidates seeking to serve in the military chaplaincy. The government has a constitutional duty to support and provide the military chaplaincy. While states need not provide tuition-assistance to all postsecondary education, they certainly cannot target chaplain candidates for disfavor among a generally available tuition-assistance program. Here, Virginia already funds and relies on chaplains, requires theological training, and subsidizes some religious coursework. Virginia is not required to provide tuition assistance for postsecondary education. But having chosen to offer such assistance, Virginia cannot exclude Guard members pursuing chaplaincy-related degrees simply because their degrees are religious. Allowing Virginia to decide which religious training is too “religious” for funding would let the government discriminate among the religious needs of servicemembers themselves. These are threats to baseline First Amendment protections and the very logic of a government-supported military chaplaincy.  

Importance to Religious Liberty:  

  • Individual Freedom: Religious exercise encompasses more than just thought or worship. Religious individuals must be free to follow their faith in all aspects of life, especially those who serve in our military to defend the freedom of all Americans.
  • Public square: Because religion is natural to human beings, it is natural to human culture. Consistent with our constitutional history and tradition, religious exercise can, and should, have a special place in the public square.   

 

U.S. v. Sterling

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

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

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

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

Abeles v. Metropolitan Washington Airports Authority (MWAA)

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

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

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

Gloucester County v. G.G.

Title IX was enacted in 1972 to promote equality for men and women in education by prohibiting discrimination on the basis of “sex.” But in May 2016, the U.S. Department of Education unilaterally announced a sweeping change: going forward “sex” would mean an individual’s “current, internal sense of whether the individual is male, female, neither, or a combination thereof.” Relying on this new definition, transgender student Gavin Grimm sued the Gloucester County School District in Virginia, challenging a school rule that requires all students to use the restroom that aligns with their biological sex. The Fourth Circuit Court of Appeals ruled in Gavin’s favor, and the School District appealed to the Supreme Court. The county was represented by Gene Schaerr and Jonathan Mitchell.

In January 2017, Becket filed a friend-of-the-court brief urging the Supreme Court that the new proposed definition of sex—if implemented—would harm religious organizations and individuals even beyond the field of education under Title IX. There are many laws that prohibit sex discrimination in other areas, including employment, health care, and social services. Many of those laws follow Title IX’s definitions. If “sex” were redefined in Title IX, it would be redefined in many other areas where Congress has not had opportunity to consider the consequences.

For example, if the Department of Education’s definition of “sex” under Title IX were adopted, the definition of “sex” in the Affordable Health Care Act would also be impacted. As a result, some religious health care providers could be required to perform gender transition surgeries on children against their best medical judgment. For instance, multiple lawsuits have already been filed against religious healthcare providers who believe that gender transition surgeries are harmful to children. Laws that regulate homeless shelters would also be affected so that church-run emergency shelters would be unable to respect their guests’ faith-based privacy or safety concerns by assigning sleeping quarters based on their biological sex. Religious organizations could be restricted from hiring employees who share and observe the organizations’ teachings about human sexuality and gender.

In late 2016, the Department of Education withdrew its definition of sex that supported Gavin’s lawsuit. As a result, the Supreme Court decided not to resolve the case, and instead sent it back to the Court of Appeals to see if the Department’s change of position should affect the outcome of the case.

In the meantime, Gavin graduated from high school. On August 2, 2017, the Court of Appeals sent the case back to the district court to determine whether Gavin’s graduation now makes a court ruling unnecessary. The District Court concluded Gavin’s claim was still viable and ruled that Gloucester County’s policy that student’s use bathrooms according to their biological sex violated the Equal Protection Clause and Title IX. The Fourth Circuit Court of Appeals affirmed and the Supreme Court denied review.   

The case finally ended in August 2021, when Gloucester County agreed to pay the ACLU $1.3 million dollars in attorney fees for representing Gavin.