For the Religious Liberty Legal Community

Image: Victory for Nonprofits


Victory for Nonprofits

November 25, 2013

By Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty

On November 21, in Zubik v. Sebelius, a federal judge in Pennsylvania became the first to rule on the HHS Mandate’s so-called “accommodation” for nonprofit religious organizations that, based on their faith, cannot provide insurance coverage for contraception, sterilizations, and abortifacients. The outcome? An order that the government cannot enforce the Mandate—even via the “accommodation”—against Catholic Charities and other social services and educational organizations in the Dioceses of Pittsburgh and Erie.

Under the accommodation, the religious charities could have avoided directly providing the coverage simply by certifying their religious objection to their health plan administrator. But this would have “triggered” an obligation for the administrator to provide the coverage and still required the charities to provide their employees’ names and contact information. Thus, in the charities’ view, the accommodation would do nothing to reduce their moral complicity. And they used a great analogy to explain why providing their employee’s names to the plan administrator—which they have always done in the past—would be morally wrong under the accommodation:

[They] liken this . . . by analogy to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide on the second day.

That explanation was a knife to the government’s claim that the accommodation “requires virtually nothing” of the charities, an argument that the court said “trivialized” the charities’ sincerely-held religious beliefs.

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Image: A Victory for Headscarves – and Religious Freedom


A Victory for Headscarves – and Religious Freedom

November 12, 2013

By Asma Uddin, Legal Counsel for the Becket Fund for Religious Liberty

On October 8, the Turkish government lifted its ban on headscarves for women in state offices. And just a couple of weeks ago, on October 31, four female MPs marked the end of the ban by walking into Turkey’s parliament in Ankara wearing headscarves.

The move was a dramatic one, considering what happened on May 2, 1999, when Becket Fund client and female politician, Merve Kavakci, tried to enter parliament with a headscarf on and was immediately accosted by hundreds of secularist members. Prime minister, Bulent Ecevit, told MPs to “put this woman in her place”; as she left, her colleagues chanted “get out”.

Kavakci lost her seat in 2001. But this was not the end of her ordeal. Then-President Suleyman Demirel labeled her an “agent provocateur” and the media portrayed her as nothing less than a criminal. When she was stripped of her Turkish citizenship, Kavakci had no choice but to flee.

With the Becket Fund’s help, Kavakci successfully appealed to the European Court of Human Rights.  The Court held that Kavakci’s expulsion from parliament violated her human rights. Since then, Kavakci has been a global spokeswoman for religious freedom. In particular, she speaks about the rights of Muslim women to interpret and express their faith free from government coercion.

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Image: Québec Charter of Values: Not Neutral


Québec Charter of Values: Not Neutral

November 8, 2013

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

The furor over Québec’s proposed “Charter of Values” continues to grow: it has been criticised by the Québec Human Rights Commission and linked to a rise in attacks on women wearing the hijab, while on the other side, some Québécoise women have taken to the streets to defend it.

The most controversial aspect of the proposed Charter is the ban on state employees–from doctors to daycare workers–wearing “overt and conspicuous” religious symbols. The Québec government has published a poster to explain what this means: small pendants, rings, and earrings are ok, but turbans, headscarves, kippas, and large crosses are not.

The Québec government touts the Charter of Values as a way to maintain “religious neutrality.” But as McGill University Professor Charles Taylor points out in a recent debate, that promise is illusory.

Taylor argues that proposed Charter’s ban on “conspicuous” religious clothing is not neutral, because “religions are different.” Take Sikhs, for example: for over 300 years, all Sikh men have worn long, unshorn hair covered by a turban. Yet the proposed Charter forbids state employees from wearing a turban. Taylor asks, “if you’re a Sikh, how do you maintain your religion if you take off your turban?” Instead of recognizing this difference and accommodating Sikh employees, the proposed Charter in effect says “to make it appear neutral we will make it in fact non-neutral.” Thus, Taylor concludes, “the neutrality of the state isn’t neutrality at all, because it clearly discriminates between religions.” You can find the entire debate, which is well worth watching, here.

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Image: Does the Constitution Require Least-Common-Denominator Prayer?


Does the Constitution Require Least-Common-Denominator Prayer?

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.

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Image: Coming up at the Supreme Court…


Coming up at the Supreme Court…

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.

Image: Why the Constitution Demands Government-Paid Priests, Imams, Pastors, and Rabbis


Why the Constitution Demands Government-Paid Priests, Imams, Pastors, and Rabbis

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.”

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Image: What do a Baptist and a Mormon have in common?


What do a Baptist and a Mormon have in common?

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.”

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