November 6, 2013
By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty
Today’s oral argument before the U.S. Supreme Court in Town of Greece v. Galloway revealed a stark choice between allowing government to include diverse religious views and forcing government to exclude all but one governmentally approved religious view. At issue was the centuries-old practice of legislative bodies opening their meetings with prayer. The Founders’ understanding of that practice was the subject of the Becket Fund’s amicus brief, which the Town’s counsel cited at today’s argument. Even though the Supreme Court gave its constitutional blessing to legislative prayer decades ago, advocacy groups have tried to chip away at it by intimidating small municipalities into prayer-less silence. In 2008, though, the Town of Greece called the groups’ bluff, and has vigorously litigated against them ever since.
The Town has a prayer policy that invites anyone in the community, regardless of their faith or lack thereof, to open a Town Board meeting with a brief prayer that reflects that person’s own religious beliefs. In short, the Town embraces and celebrates religious diversity by opening its doors to everyone.
But today, the advocacy groups openly argued for a constitutionally mandated rule that excludes huge swaths of the community. They want government officials to allow only a kind of least-common-denominator prayer—that is, prayers using religious words and ideas that the current majority of faith groups find generally pleasing. The plaintiffs admitted that this rule would automatically exclude whole minority faith groups and anyone whose faith instructed them to pray in a faith-specific way. Their approach would ban Muslims from praying to Allah, Christians to Jesus, or Jews to the God of Abraham, Isaac, and Jacob. Only government-approved prayers to the government-approved god would be permitted. In short, the advocacy groups want to force the government to privilege majoritarian religious feelings over open forums for authentic expressions of faith (or non-faith).
Many of the Justices found this troubling. Several warned that it would “very heavily” involve bureaucrats in parsing prayers, which would likely be unconstitutional. Another noted that the advocacy groups’ constitutionally dubious standard operated on a sliding scale, excluding all prayers but those that reflect a given majority of beliefs at a certain time. That malleable, litigation-inviting standard would most likely force government entities (starting with towns with strapped budgets) to ban legislative prayer altogether—a result that one Justice commented would “misrepresent who we really are” as a people, and which another Justice worried could make the Court appear “hostile” to religion generally. Two Justices also noted that plaintiffs’ intentionally exclusionary approach would run contrary to the religious and social harmony that the First Amendment fosters.
November 5, 2013
By Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty
This is an important week in the Supreme Court for religious freedom. This Wednesday, the Justices will hear argument in Town of Greece v. Galloway. The case asks whether a municipal board unconstitutionally “establishes” an official religion merely by allowing volunteer chaplains from a variety of religious faiths to pray before the opening of board meetings. The Court has not considered this issue since its 1982 decision in Marsh v. Chambers, which upheld our nation’s two-centuries-old tradition of such invocatory prayers before federal and state governmental bodies. Town of Greece gives the Court an opportunity to reaffirm Marsh and explain in greater depth why invocations like these violate no one’s rights and bear no resemblance to the religious “establishments” outlawed by the First Amendment. Lyle Denniston at Scotusblog provides an excellent preview of the case here. The Becket Fund’s amicus brief contains a wealth of original historical research supporting the constitutionality of the prayers.
This week also sees the completion of briefing in the HHS mandate cases currently pending before the Supreme Court. In three separate cases, petitioners have asked the Court to review whether religious business owners can be coerced by a federal regulation into providing insurance coverage for contraceptives, sterilization, and abortion-inducing drugs. In one of those cases, the Becket Fund obtained a landmark victory before the full Tenth Circuit Court of Appeals on behalf of the Green family and their businesses, Hobby Lobby Stores and Mardel Christian. The U.S. Solicitor General and Hobby Lobby have agreed that the issues presented in the case are exceptionally important, implicate a rapidly deepening circuit split, and should be resolved by the Court. (Indeed, just last week, the D.C. Circuit issued an opinion in yet another HHS mandate challenge, Gilardi v. Sebelius, agreeing in part with the Tenth Circuit and splitting the lower courts even further). The Solicitor General’s final brief, filed today, agrees that Hobby Lobby “presents an excellent vehicle” for resolving the critically important religious freedom issues presented by these cases.
The Supreme Court will consider these petitions at its November 26 conference.
November 1, 2013
By Daniel Blomberg, Legal Counsel at the Becket Fund for Religious Liberty
How can the U.S. Constitution, with its rejection of state-supported religion, permit the existence of military chaplains? After all, chaplains are government-paid employees from specific faith groups who are hired to preach and teach their religious beliefs on the job. At first blush, that seems to be a governmental establishment of religion, which would violate the Establishment Clause.
But the reality is that faith-specific chaplains aren’t just constitutionally permitted—they’re constitutionally compelled. The first reason has to do with the nature of military: Soldiers, Sailors, Airmen, and Marines have unique religious needs because the government can snatch them away from their religious communities at a moment’s notice and for indefinite periods. Thus, courts have recognized that chaplains are crucial to “accommodat[ing ] . . . religious practice by members of the military.” Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). Indeed, “[u]nless the [military] provided a chaplaincy, it would deprive the [service member] of his right under the Establishment Clause not to have religion inhibited and of his right under the Free Exercise Clause to practice his freely chosen religion.” Katcoff v. Marsh, 755 F.2d 223, 226-34, 236-37 (2d Cir. 1985).
The second reason for faith-specific chaplains has to do with the rich, varied, and diverse nature of religion. The government does not—and cannot—hire generic “religious” chaplains because there are no generic “religious” service members. Instead, the military provides chaplains who meet the specific religious needs of service members. This means having authentic representatives of service members’ various faiths—priests, imams, pastors, rabbis, and more—serving as chaplains. As an active-duty chaplain put it in an excellent recent article, the chaplain corps teaches its members “to be the best and most faithful Southern Baptist, Evangelical Lutheran, Catholic, Jewish, or what have you, chaplain/minister they can be.” And he has found that “the chaplains with the best reputations among their colleagues, as well as the troops, follow that guidance faithfully.”
October 23, 2013
By Diana Verm, Legal Counsel at the Becket Fund for Religious Liberty
On Monday, October 21st, Dr. Albert Mohler, president of The Southern Baptist Theological Seminary, addressed the faculty of another school, Brigham Young University, an institution run by the Church of Jesus Christ of Latter-day Saints. This occasion was a sign of a growing relationship between religious groups that have historically been—and remain—at odds theologically. In his speech, Dr. Mohler addressed the moral ground common to Evangelical Christianity and Mormonism in the context of growing societal affirmation of secularism. He pointed out that society has evolved from the Modern Age, where it was “possible not to believe,” to a “Late Modern Age” in which it is, for many, “impossible to believe.”
But what does this have to do with religious liberty? With the growth in popularity of intellectual secularism that is often hostile to belief, Dr. Mohler pointed out that one thing that draws Mormons and Baptists together is religious liberty. Dr. Mohler said: “I do not believe that we are going to heaven together, but I do believe we may go to jail together.” It is because of this common threat that he called on different groups to work together to promote religious liberty.
For religious liberty defenders like us at the Becket Fund, this is welcome news. Religious liberty works best when folks from widely different theological, moral, and cultural perspectives stand up for one another’s religious liberty. We at the Becket Fund have seen this happening more openly and often in recent years, but inter-religious cooperation in religious liberty is not new. Every year for almost twenty years we have had a physical reminder of this phenomenon at the Becket Fund’s annual Canterbury Medal Dinner, where supporters of religious liberty from all faiths sit together at a meal and celebrate their common goals. But we know that the Dinner isn’t the only time our clients get along. They see the long term benefits of working towards greater recognition of religious liberty without our help, and what’s more, they do it without sacrificing or watering down their doctrines or beliefs.
Thus, we applaud Dr. Mohler’s broad view when he says to Mormon educators: “I am urgently ready to speak and act in your defense against threats to your religious liberty, even as you have shown equal readiness to speak and act in defense of mine.” His statements affirm that Baptist and Mormon leaders share something with the Becket Fund: a “common vision of a world where religious freedom is respected as a fundamental human right that all are entitled to enjoy and exercise.”
October 8, 2013
By Lori Windham, Senior Counsel at the Becket Fund for Religious Liberty
This week marks the start of the Supreme Court’s 2013 term. It also marks the return of the Christmas wars, that special time of year when we repeat our nation’s annual argument over the meaning of the First Amendment’s ban on “establishment of religion.”
The Christmas wars got an early start this year. They were kicked off by a news report that a school district in Wisconsin was cancelling Christmas and Hanukkah concerts and requiring that any religious song be paired with four secular songs. That report has created a public firestorm, and provoked a lengthy clarification from the school district. It all began when local bureaucrats, fearful of doing anything that might invite the ire of the Freedom From Religion Foundation, declared that holiday concerts could only occur if religious songs were offset by a number of secular songs—say, a four-to-one ratio. The rules were so onerous that the high school’s Master Singers choir canceled their Christmas concerts entirely.
The school’s solution won’t satisfy hypersecularists like Freedom From Religion Foundation, who want no mention of the religious nature of religious holidays. It won’t satisfy religious believers, who don’t want faith to be treated like some sort of contagion in the public square. It’s a solution only a bureaucrat could love.
The start of the 2013 Christmas wars and the start of the Supreme Court’ s new term are not unrelated. That’s because this term, the Supreme Court might have the opportunity to fix some of the judge-made law that sparked these controversies in the first place. In November, the Court will hear arguments in Town of Greece v. Galloway, a case over the legality of prayers before town council meetings. At first blush, that might not have much to do with the fate of a school concert. But at stake is nothing less than the meaning of the Establishment Clause itself—a confused and confusing area of law. The muddled decisions of the Supreme Court have created uncertainty over when, exactly, a Christmas concert ought to become a federal case.
September 30, 2013
By Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty
Founded by three Augustine nuns, L’Hôtel-Dieu was the first hospital in North America.
In 1639, Québec’s famous Hôtel-Dieu hospital was founded by three Augustine nuns who came from France to provide medical care for the colonists and the First Nations communities who lived near them. L’Hôtel-Dieu, which still operates as a teaching hospital, was not only the first hospital in Canada, it was the first in North America.
But if the Augustine sisters arrived to provide medical care for the people of Québec today, they would face a new obstacle: the Québec government’s proposed “Charter of Québec Values.” The new Charter would prevent anyone employed by the government—be they Jewish, Sikh, Muslim, or members of Catholic religious orders—from wearing “ostentatious” clothing that reflects their faith. Since the Augustine nuns wore religious habits that covered them from head to toe, they would be forbidden from working in a government hospital.