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A Message from Becket's Executive Director
February 26, 2021
Dear Friend,
Back in 2016, the Department of Health and Human Services issued a mandate that would force doctors to perform gender transition procedures on any patient referred by a mental health professional, even if the doctor believed the procedure could harm the patient. Becket stepped in and stopped this rule from taking effect through a nationwide court order vacating the rule <[link removed]>. But the agency won’t back off and insists that it still has the power to coerce healthcare providers. So now, it’s once more up to the judges—and thankfully federal courts are striking down the legality of the mandate on religious liberty grounds, protecting the conscience rights of religious medical professionals and institutions around the country.
This was a huge Becket victory, let me explain. Becket has two cases on this matter, one in North Dakota <[link removed]> and another in Texas <[link removed]>. The Texas case is the one that provided the nationwide protection in 2016. Last month, a North Dakota federal judge once again struck down the federal transgender mandate, becoming the second federal court to decide that healthcare decisions surrounding gender transition procedures should remain free from government interference, and shouldn’t target healthcare professionals who cannot perform these procedures because of their deeply held faith convictions. Now the Texas case is back up to bat, with oral argument coming up next Wednesday. I’ll keep you in the loop on that.
The Transgender Mandate <[link removed]> is disturbing on many levels. To begin with, it threatens the integrity of medical professionals whose duty is to weigh all risks and benefits and decide, with their patients, on the best course of action. I think we should all be wary of government stepping into that space, especially when it comes to controversial medical procedures (and there is currently plenty of debate among doctors about gender transition procedures). Of more relevance to Becket, though, is the threat to religious liberty. A healthcare worker with no conscience protections will be forced to forfeit either their livelihood or their faith. What will they choose? We are more aware than ever that healthcare workers are essential. Do we really want to thin their ranks?
What’s happening at Becket: COVID edition
From a big outlier to a small one. Up until a few weeks ago, California maintained the strictest COVID restrictions on houses of worship of any state in the union, enforcing an all-out ban on indoor worship. Unsurprisingly, Governor Newsom wasn’t able to make a compelling public health case for keeping Californians out of church while throwing open the doors of shopping malls. On February 5, the Supreme Court knocked Governor Newsom off his high horse <[link removed]>, ordering him to reopen houses of worship like every other state. The very next day, California changed its unconstitutional worship restrictions. But Santa Clara is the new hold out <[link removed]>, refusing to recognize the essential nature of worship and religious freedom.
“Please, court, stop me from discriminating!” In a bizarre move only attributable to the collapse of the New York Health Department regime, Governor Cuomo asked a federal court to rule in favor of Agudath Israel, the Orthodox Jewish advocacy organization suing him over his discriminatory “cluster action initiative” aimed at restricting worship for New York City’s Jewish community. The court did just that, issuing a permanent injunction <[link removed]> protecting the right to worship on February 9.
New and improved COVID tracker map. Just when you thought Becket’s research team couldn’t get any more sophisticated, it launched a new and improved version <[link removed]> of the COVID tracker map. This map tracks state government restrictions on in-person worship across the country and has been cited in major publications such as the Washington Post and the Wall Street Journal, and used by courts across the country to evaluate the constitutionality of COVID policies. In its most recent iteration, the map even more clearly reflects the types of restrictions (or lack thereof) imposed in each state.
Becket in the News
You can’t cancel baby Jesus! Better late than never, last month the United States Court of Appeals for the Seventh Circuit protected a nativity scene outside of an Indiana county courthouse from the predations of the Indiana ACLU. This latest victory for religious symbols in the public square, and blow to the notorious Lemon Test, received coverage in The Hill <[link removed]>.
Planning for the future. Becket senior attorney Eric Rassbach spoke with Plough <[link removed]>, the publishing house of the Bruderhof community, about emerging religious liberty issues in the new presidential administration. The courts, the Equality Act, and RFRA were topics du jour, as well as the role that Americans of faith must play in making the case for religion in society.
The clergy and the condemned. Despite Texas’ strong record on religious liberty, it falls short in one important area—prisoners’ rights. Becket attorneys Eric Rassbach and Chris Pagliarella published an article in NRO <[link removed]> calling on Texas to allow members of the clergy into the death chamber to pray with prisoners in the moments leading up to their death. The timely article was published just a couple of weeks before Becket filed a friend-of-the-court brief at SCOTUS in defense of an Alabama prisoner’s right to the comfort of the clergy, the result of which was a win for religious liberty!
What we’re reading:
“Self-government requires self-government, and the freedom of religious institutions to form individuals in virtue is crucial to that end.” For a fascinating read on our namesake Saint Thomas Becket’s life and the true meaning of freedom, see this excellent piece <[link removed]> by Becket lawyer Will Haun.
Does federal law allow censorship by big tech? It’s not so clear. Philip Hamburger, constitutional law scholar, Columbia Law School professor, and president of the New Civil Liberties Alliance, explains <[link removed]> why the oft-cited federal statute Section 230 shouldn’t be considered carte blanche for big tech companies to censor whoever offends the idea of the day.
Religious liberty isn’t enough? Ryan Anderson calls on conservatives <[link removed]> to argue their “culture war” points based on the truth of the beliefs, not the protections of religious liberty. It’s precisely because of these cultural disagreements that religious liberty is of the utmost importance. When people cannot agree on morality—when people can’t even agree whether a hot-button topic is a question of morality or science or a combination of the two—religious liberty is the one defense that can safeguard minority viewpoints. We will never stop fighting for it, and people of faith should continue both to fight for their religious liberty and to exercise it by making their arguments about fundamental truths in the public square.
Gratefully,
Montse Alvarado
Executive Director
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