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Friends,
Earlier this month we received what may very well be the best Free Exercise decision ever handed down by the Ninth Circuit. It was in a case I’ve written about before: Fellowship of Christian Athletes v. San Jose Unified School District. Back in 2019, school district officials derecognized a high school chapter of the Fellowship of Christian Athletes (FCA) and forced the student group off campus after a teacher attacked the group’s Christian beliefs in his classroom, encouraged students to harass their peers, and even supported the formation of a Satanic Temple Club whose sole purpose was to mock FCA.
What was FCA’s crime? Requiring its student leaders to share the club’s Christian beliefs.
The Ninth Circuit’s decision made clear that, far from a crime, the First Amendment’s Free Exercise Clause triply protects FCA here—and so does the Free Speech Clause. The ruling was so strong that it overturned a previous bad precedent which had been used to exclude religious student groups from high school and college campuses across the circuit.
What’s more, the Ninth Circuit’s decision relied on Becket’s landmark 2021 unanimous Supreme Court victory in Fulton v. Philadelphia in which the Court was clear that religious ministries must be granted appropriate exemptions from generally applicable laws when similar exemptions are granted for secular reasons. The Court called Fulton First Amendment “bedrock.”
The young women who were courageous enough to stand up for their club back in 2019 despite harassment from their peers and teachers are almost finished with college now. But their courage has finally paid off and has inspired other young women to take up the mantle. Earlier this year, after the court ordered the school district to allow the club to meet while a final resolution was pending, the club convened on campus to near-record breaking turnout (see the photo above)!
It's still possible the school district will appeal the case to the Supreme Court. Whether or not this is the final victory, religious liberty (and common sense) is winning!
What's happening at Becket
How to save a life. Last week three Colorado medical boards decided that prescribing the naturally occurring hormone progesterone to save a baby whose mother regrets taking the first abortion pill will be considered unprofessional conduct. Colorado had promised not to enforce its law prohibiting life-affirming clinics like Bella Health from helping women save their babies until the boards made their final decisions. Now, the case is heating up again. Becket is running back to court, seeking permanent protection for our client.
Negotiating surrender. Last week Becket VP & Senior Counsel Luke Goodrich argued Billard v. Diocese of Charlotte before the Fourth Circuit Court of Appeals. It was remarkable because the argument largely focused on how we ought to win, rather than whether we ought to. This isn’t dumb luck, it’s the result of over a decade of hard work defending church autonomy, especially for religious schools. Even opposing counsel from the ACLU seemed more focused on drawing up the terms of his surrender than scoring a victory. You can listen to the argument here.
Recess is over. This week the Supreme Court reconvened for the new Term with what’s known as “long conference”, when the Justices consider all the petitions filed during the summer recess. Becket has one petition currently before the Court and many more in the pipeline (likely to be filed later in the Term). Check out this resource to learn about the cases already on the docket as well as the pending petitions with implications for religious liberty. Or, if you prefer you can watch this FedSoc webinar where I chat with my colleague at CUA’s Columbus School of Law, Prof. William L. Saunders, about the 2023-24 Term!
Becket in the news
“Does Mass. give religious people a fair shot at adoption?” The Boston Globe features our case defending Mike and Kitty Burke, who were denied a license to foster and adopt children due to their Catholic beliefs, even while the state is in the midst of a crisis with thousands of children needing foster homes.
Free speech on public sidewalks. A bad Supreme Court decision in Hill v. Colorado allowed abortion clinics to establish buffer zones preventing pro-life sidewalk counselors from offering help to women. Becket is asking the Supreme Court to overturn this precedent and restore First Amendment rights in our Vitagliano v. County of Westchester case. I recently discussed the case on EWTN.
A fast pass from the Fourth Circuit. This week the Fourth Circuit Court of Appeals decided to fast-track Montgomery County parents’ case asking to opt their children out of lessons based on LGBTQ storybooks. Becket VP and Senior Counsel Eric Baxter was quoted in National Review saying, “By shortening the litigation timeline, the Fourth Circuit has demonstrated the importance of the issues at stake… All children deserve their parents’ guidance on how they are introduced to complex issues around gender identity, gender transition, and human sexuality.” To learn more about the case, check out Bethany Mandel’s deep dive in The Free Press.
What we’re reading (and listening to)
George Washington’s Jewish Letters and Creation of a Constitutional Republic. “Genuine equality means entering society, entering the legislature, entering the public square, as neighbor and stranger, as an American, without in any way being forced to amputate one's faith, one's religious identity, from oneself.” For Constitution Day, Becket board member and Canterbury Medalist Rabbi Meir Soloveichik gave a speech at Stanford Law School on letters written between American Jews and George Washington that show how both the American Jewish community and Washington embraced the Constitution’s promise of religious liberty. Watch the speech here.
The Arizona Diamondbacks hit it out of the park! In the past, when we’ve brought you sports news it’s largely been to report that religious accommodations were denied to players who needed them to practice their faith. This time, it’s to give kudos to the Arizona Diamondbacks who drafted the first ever Orthodox Jewish player for an MLB franchise, Jacob Steinmetz, in 2021 and has kept its promise of accommodating his Sabbath observance and kosher diet ever since—even when it means he cannot play. Yahoo Sports has Steinmetz’s story.
"An independent and freestanding right.” John Inazu argues for the necessity of the often-neglected freedom of assembly. A recent Sixth Circuit panel dismissed a lawsuit brought by churches and religious schools over Kentucky’s shutdown of religious education during COVID-19. To support the appeal, Inazu worked with Pepperdine’s Religious Liberty Clinic to submit a friend-of-the-court brief pointing out that the judges ignored the right of assembly and why this core First Amendment right is so important. Becket also submitted its own brief backing the appeal for this case.
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