For the Religious Liberty Legal Community

Image: A good read on religious law in American courts


A good read on religious law in American courts

February 20, 2014

By Eric Rassbach, Deputy General Counsel for the Becket Fund for Religious Liberty

This week Prof. Eugene Volokh of UCLA Law School is serializing his recently published article in the Oklahoma Law Review regarding the use and application of religious law – especially Islamic law – in American courts.  Prof. Volokh points out as the Becket Fund did a few years ago that American courts have long enforced religious contracts or the judgments of religious tribunals, as long as they are treated on the same basis as other “foreign” contracts or tribunals. Prof. Volokh does a great job of explaining why “creeping sharia” is a wrong-headed way to view this longstanding American practice – the series is well worth a read for anyone interested in this issue.

Image: Is Monotheism the Official State Religion of the United States?


Is Monotheism the Official State Religion of the United States?

January 27, 2014

By Eric Rassbach, Deputy General Counsel of the Becket Fund for Religious Liberty

That’s what atheist activist and repeat litigant Dr. Michael Newdow thinks. He’s brought another lawsuit seeking to remove the word “God” from public life, this time from the national motto, “In God We Trust.”  Those are the words that have been written on U.S. coins since the 1860′s, and are based on the fourth verse of the national anthem, The Star Spangled Banner (“And this be our motto — ‘In God Is Our Trust’”). Dr. Newdow believes that this violates the Constitution’s prohibition on an “establishment of religion,” a provision designed to prevent an official government church similar to the Church of England taking root in the United States. Specifically, Dr. Newdow thinks that this establishes the religion of “Monotheism.”

Now Monotheism is not actually a religion outside the confines of Dr. Newdow’s legal briefs. There is no Monotheist liturgy or a Monotheist creed. There are no ministers of Monotheism or a Monotheist Social Services providing aid to the needy. And although the Monotheist Church exists in the Battlestar Galactica universe, it does not appear to have much of a presence in the United States.

What Dr. Newdow is really doing is treating the word “God” as always-and-everywhere religious, picking a particular belief of some religions that use the word “God” and then saying that any use of the word — in the Motto, the Pledge, or the Presidential Oath of Office — therefore creates a religion founded on that belief. This is a fine example of extreme bootstrapping. First, Dr. Newdow is wrong to argue that “God” is a purely religious concept. Indeed, anyone with a basic knowledge of philosophy knows that Aristotle and other ancient philosophers treated God as a philosophical, rather than a religious concept. That’s not to say that “God” isn’t a religious term, just that it is by no means exclusively so. Second, “God” does not always mean small-m monotheism, that is, belief that there is only one God. Many religions, for example Hinduism, use the word “God” without necessarily claiming belief in one God. Third, a single belief of a religion is not itself a religion. For example, some religions say that one should strive to do “good.” If the government then uses the word “good” or says something good about doing good, does it thereby establish a religion of Do-Goodism? What about Antiprevaricationism?

The truth is that Dr. Newdow’s view of what constitutes an “establishment of religion” is fundamentally silly. The Becket Fund recently filed a friend-of-the-court brief in Dr. Newdow’s challenge to the motto pointing out that it represents the “paranoid style” in constitutional litigation. The paranoid style treats every statement, no matter how anodyne, as constitutionally suspicious; there’s an establishment of religion lurking around every corner. It’s not a good basis for deciding fundamental legal questions.

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Image: 10th Circuit Victory for Native American Prisoners


10th Circuit Victory for Native American Prisoners

By Luke Goodrich, Deputy General Counsel of the Becket Fund for Religious Liberty

Do prisoners lose their religious freedom when they go to prison? No—says the Tenth Circuit, in a lucid and important ruling issued a few days ago. If you’ve ever wondered how courts and prisons strike the balance between religious freedom and prison security, this is the case to read.

Judge Gorsuch’s opinion is thoughtful, lively, and correct—he rules that the Wyoming Department of Corrections offered insufficient evidence to prevent a Native American inmate as a matter of law from ever accessing the prison’s sweat lodge.

The Becket Fund has won a variety of similar cases on behalf of inmates from a variety of different faiths. (E.g., here and here.)

Image: New DOD regulations a belated step in the right direction


New DOD regulations a belated step in the right direction

January 23, 2014

Our brave fighting men and women deserve robust protection of the liberties they fight to preserve for us.

For Immediate Release: January 23, 2013
Media Contact: Emily Hardman,, 202.349.7224

“The members of our nation’s military give their lives to protect our liberties. But in recent years, our national commitment to protecting the religious liberty of soldiers, sailors, airmen, and Marines has appeared to waver. As a remedy, Congress passed not one, but two laws instructing the Department of Defense to issue strong legal protections for religious liberty. Yesterday, the Administration took a tardy but welcome step in the right direction.

Under its new regulations, the military is now more respectful of diverse religious viewpoints. It is also signaling a new willingness to accommodate the attire requirements of religious minority groups who, under the previous regulations, were all but barred from access to military service. Further, the military expressly imported the gold standard for religious liberty protection—the federal Religious Freedom Restoration Act—and made it a part of every commander’s toolkit for safeguarding the free exercise of religion.

But there are problems. Most glaring, the regulations redefine RFRA’s shield for religious exercise in a way that forces government officials to make theological judgments about which religious beliefs deserve respect. Courts have overwhelmingly rejected such unwieldy definitions, and the military will both harm our service members and invite litigation until it corrects this error. In addition, the new accommodations for religious attire aren’t accommodating enough—one even requires religious minorities to violate their beliefs before they can obtain protection for those beliefs. This means that the door to military service remains presumptively closed to many religious Americans. We can, and should, do better than that.

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Image: Let the Little Sisters be Sisters


Let the Little Sisters be Sisters

January 22, 2014

By Daniel Blomberg, Legal Counsel at The Becket Fund for Religious Liberty

Since their founding in 1839, the Little Sisters of the Poor have existed for just one reason:  treating the poor, elderly outcasts of society as if they were Jesus Christ. The Little Sisters’ foundress gave up her bed to the elderly poor, begged to get food and shelter for the elderly poor, and started a movement that holds the hands of the elderly poor as they leave this life and are welcomed into the arms of God. As the director of nursing at the Little Sisters’ Washington D.C. home explained, no one dies alone at a Little Sisters home. This commitment to caring for those at life’s end is based on the Little Sisters’ fundamental religious commitment to the God-given dignity of every human life, and particularly those human lives that society doesn’t care to protect.

But after almost 175 years of ministry to the elderly, the federal government demanded that the Little Sisters make a choice: either reject the core of their religious identity by providing drugs and devices that can take innocent human lives, or take millions of dollars away from the elderly poor and pay it to the IRS as the cost of staying true to who they are.

The government allows millions of other Americans, including those who serve at houses of worship, to avoid this impossible choice. But because it doesn’t think that the Little Sisters are sufficiently religious to get an exemption, it refuses to allow them to continue their ministry as they’ve always done it—which has been for longer than the federal government has even had national welfare programs.

To be sure, the government has offered a so-called “accommodation” for religious ministries like the Little Sisters. But, as the Little Sisters and many other religious organizations repeatedly explained to the government, this “accommodation” is morally insufficient. Even taking on faith the government’s promise that the Little Sisters won’t have to pay for life-taking drugs and devices, they still have to participate in providing them. Worse, part of that participation is instructing someone else to provide the drugs and devices, and the Little Sisters can’t in good conscience ask someone else to do what they believe is wrong. That’s particularly true here, where the “someone else” is a Catholic ministry that provides the Little Sisters’ health benefits and shares the Little Sisters’ religious beliefs.

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Image: More Victory for Nonprofits


More Victory for Nonprofits

January 21, 2014

By Diana Verm, Legal Counsel at The Becket Fund for Religious Liberty

The early results are in for nonprofit challenges to the HHS Mandate, and the winner so far is religious liberty.

Because the “safe harbor” for nonprofits expired on January 1st, religious objectors whose health care plans started on that date were in a rush to seek relief leading up to the New Year. They were faced with the prospect of violating their religious beliefs by taking part in a scheme to provide drugs and devices they consider morally reprehensible, or racking up millions of dollars in fines starting January 1.

There were twenty such cases before the courts nationwide that were decided on and before December 31st. Out of the twenty cases, nineteen resulted in injunctions. The most notable injunction came not from a district court, but from Justice Sonia Sotomayor of the Supreme Court. The Little Sisters of the Poor, an order of nuns dedicated to caring for the elderly poor, were denied relief in the Colorado district court and the Tenth Circuit. But at the eleventh hour—9:30 pm on New Year’s Eve, to be precise—Justice Sotomayor granted a temporary injunction to the Little Sisters and asked for further briefing from both sides.

What this means is that the non-profit cases are now on the Supreme Court’s radar with the for-profit Mandate cases, Hobby Lobby and Conestoga Wood. The Little Sisters and one other group of non-profit plaintiffs, led by the Roman Catholic Archbishop of Washington, have asked the Supreme Court to take the cases on their merits, even before the courts of appeals have ruled. This would make sense because the nonprofit cases and the for-profit cases both rely on the Religious Freedom Restoration Act, and raise many of the same legal questions. Moreover, the lower courts are split on the issue, with two circuits (the Seventh and Tenth) ruling against non-profits regarding emergency relief and two others (the D.C. and Sixth) ruling for them. If the Little Sisters joined Hobby Lobby at the Supreme Court, the Court would have a chance to resolve all the unanswered legal challenges to the HHS Mandate in one fell swoop. The Supreme Court has not yet responded to these requests, or to the briefing on the Little Sisters’ injunction.

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Image: Remembering our First Freedom


Remembering our First Freedom

January 16, 2014

By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty

Today is Religious Freedom Day – observed each year on the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom. After a misstep last year, this year President Obama issued a proclamation calling religious freedom a “critical foundation of our Nation’s liberty,” and quoting Thomas Jefferson, who “declared religious liberty a natural right and any attempt to subvert it ‘a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.’”

Over at the blog for the White House Office of Faith-based and Neighborhood Partnerships, Melissa Rogers and Eric Treene joined in, reminding everyone of the great gains made for religious freedom under RLUIPA, the federal law that protects “the ability of religious communities to build places of worship and other religious institutions, and the ability of prisoners and other persons confined to institutions to continue to practice their faiths.” They noted that RLUIPA was “passed by unanimous consent in 2000 with the support of a religiously and ideologically diverse coalition of groups” and that the law had a “dramatic impact in its first ten years on protecting the [freedom of religion] and preventing religious discrimination.” They could easily have said the same about the Religious Freedom Restoration Act (RFRA), a 1993 law that provides even broader protection for religious freedom at the federal level. RFRA passed the House unanimously, passed the Senate 97-3, and was signed into law by President Clinton. For over twenty years, RFRA has played a pivotal role in protecting religious freedom for Americans of all faiths.

Back to the day: President Obama was right to praise religious freedom as a “critical foundation of our Nation’s liberty”—and to urge “every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.” As U.S. Commission on International Religious Freedom chair and vice chair Robert George and Katrina Lantos Swett wrote today, “Freedom of religion or belief is … intimately bound up with other freedoms, including expression, association and assembly” and is “associated with vibrant political democracy, rising economic and social well-being, and diminished tension and violence.” And as Justices Alito and Kagan wrote in 2012, “[R]eligious bodies have been the preeminent example of private associations that have ‘act[ed] as critical buffers between the individual and the power of the State,’” and  “the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 712 (2012).

Cases like Little Sisters of the Poor and Hobby Lobby where the government is seeking to compel religious business owners and nuns to pay for contraceptives and potentially life-terminating drugs and devices remind us that the work of defending religious freedom is never done. But as the bipartisan voices raised this Religious Freedom Day remind us, it is also a right that unites far more than it divides.

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