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A Message from Becket's Executive Director

April 1, 2021

Dear Friend,
Free exercise of religion means being able to worship when, how, and where one’s faith requires. For many mainstream faiths, this last piece—“where”—is easily defined: a church, a temple, a synagogue. For many Native Americans, though, the “where” can be more expansive. Apaches, for example, hold Oak Flat, part of the Tonto National Forest in Arizona, to be a sacred site. It is a site for worship, prayer, and religious ceremonies, and the geography itself provides sacred water and plants. Despite this, the U.S. Forest Service agreed to a deal signing over Oak Flat to a foreign mining company, whose plans for the land will destroy the site.
This is bad (and, sadly, predictable) news. The U.S. government has a history of mistreating Native Americans and violating their free exercise. Becket is representing Apache Stronghold in the Oak Flat case <[link removed]>, arguing that destroying the site is a clear violation of RFRA, the Religious Freedom Restoration Act.
We believe the First Amendment should be enough to safeguard the right to religious liberty, but history has shown that the government finds ways to trample on religious freedoms. For the last 30 years, RFRA has been a crucial defense for religious minorities, including Native Americans. But RFRA is on thin ice now, and it’s because of the Equality Act. The Equality Act’s stated purpose is to ban discrimination based on sexual orientation and gender identity, but it goes further. If Congress passes the Equality Act, it would explicitly forbid RFRA protections in this area.
RFRA has been a critical piece of religious liberty defense for decades, a great piece of legislation—passed by Congress almost unanimously—that avoids a “winner take all” mentality by encouraging government to find ways to achieve its goals that don’t involve violating Americans’ free exercise. If RFRA goes by the wayside, we’ll only see more problems—and fewer compromises.
Before I share what’s going on at Becket, I want to exercise my own religious freedom on this Holy Week for Christians and Catholics around the world and tell you that, this Easter, I am most grateful that I will be able to attend Mass in person in our nation’s capital. The last of the COVID-related numerical caps on in-person worship was defeated last week here in D.C., where the Basilica, which can hold the Statue of Liberty lying down, was capped at 250 people. No more. As Becket President Mark Rienzi writes <[link removed]>, these COVID worship restriction cases are a great primer on the importance of judicial scrutiny: “When courts simply defer to governments about the need to restrict liberty, governments will restrict more liberty.... But when courts scrutinize government claims—when they ask questions and require support before allowing governments to restrict liberty—then constitutional rights are far more secure.” I will be grateful to celebrate the Resurrection of Jesus Christ with my community at St. Thomas Apostle Parish.
What’s happening at Becket

Equality for me, but not for thee. Becket submitted written testimony <[link removed]> to the Senate Judiciary Committee outlining the ways in which the Equality Act, if passed, will directly threaten religious freedom. The threat to women’s sports and private spaces are important issues that should be discussed, but they shouldn’t overshadow the threat to religious organizations, houses of worship, and faith-based ministries—all of which would have to give up their religious beliefs in order to continue performing their vital civil service under the proposed law.
The potato on the fork. You read that right—the Court’s next bite is sure to be Dalberiste v. GLE Associates <[link removed]>. It’s been a while since you’ve heard me talk about this case because the Court has been kicking it down the road for months now. However, we at Becket are confident that Dalberiste presents SCOTUS with the perfect vehicle to overturn bad precedent set in Hardison , and secure labor rights for religious minorities. Keep an eye out (and fingers crossed) for a possible grant in the coming weeks.
What’s (still) happening at Becket: Slockish. Becket began representing the Klickitat and Cascade Tribes in their case <[link removed]> against the U.S. Federal Highway Administration in 2008 after the government needlessly bulldozed their sacred burial grounds to expand U.S. Highway 26. After being stalled in the courts for over a decade, the case is finally moving forward. Just last week, Becket filed an appeal to the Ninth Circuit arguing that the government must remedy its denial of religious freedom. But the justice system’s neglect of this case for over a decade—during which time one of the lead plaintiffs, Johnny Jackson, passed away—raises the question: is justice delayed justice denied?
Becket in the news

Better than the elites? The Juris Lab featured an interesting (and flattering) analysis of cert petitions <[link removed]> this month. Of 17,000 attorneys who sought cert over the last decade, just 66 of them account for almost half of the petitions granted by the Supreme Court. Among their ranks are Becket attorneys Eric Rassbach and Luke Goodrich. Now that’s some elite company!
Nothing a dollar can’t solve. This month SCOTUS delivered a major victory for government accountability in Uzuegbunam v. Preczewski , the case of a student who was threatened with arrest for sharing his faith on the campus of his public college. Chike Uzuegbunam sued his college to ensure that it couldn’t enforce the unjust policy in the future. But to avoid repercussions, the school simply changed the rules. The case was about whether, by asking for just a single dollar in nominal damages, Uzuegbunam’s case could move forward and the school could be held accountable. Uzuegbunam prevailed with help from our friends at ADF and an amicus brief <[link removed]> from Becket! The Washington Post has the story <[link removed]>.
The Supreme Court’s spooky “shadow” docket. Becket’s president, Mark Rienzi, authored a piece <[link removed]> for NRO responding to criticism that the Supreme Court tarnishes its legitimacy when it grants requests for emergency relief (pertinent to emergency relief from onerous COVID restrictions granted to houses of worship). Mark eloquently argues that without granting emergency relief to those who need it, the Court could risk allowing infringements on fundamental constitutional rights to go on unchecked for years—the typical lifespan of a case before it even arrives for consideration by the High Court.
Becket helps strengthen religious liberty abroad with our COVID worship cases. On March 24, the Scottish Court of Session struck down <[link removed]> the Scottish government's ban on in-person worship during the COVID-19 pandemic. The decision, authored by Lord Braid, was based on Scottish and European precedent but invoked U.S. Supreme Court decisions on COVID-related worship restrictions, including directly quoting a Becket case and laying out arguments consistent with Becket’s past year of work fighting COVID worship restrictions across the United States.
What we’re reading

“[T]he Equality Act is a bludgeon, not an instrument...” Gabrielle Girgis presents <[link removed]> the Equality Act as an example of the Left’s inconsistent (even hypocritical) focus on third-party harms. There’s no question that religious people will be harmed by the Equality Act—but so will women and children, regardless of their beliefs.
Don’t throw the baby out with the bathwater. An Amish community in Minnesota is challenging <[link removed]> the state’s insistence that they install septic systems to dispose of “gray water” from laundry, dishwashers, and baths. Becket has been involved in similar cases representing the Amish—notably a case that settled out of court when Becket helped the town of Morristown, New York, learn to accommodate Amish building practices without imposing state building codes that would make them violate their faith (for an interesting listen, here’s our podcast <[link removed]> episode on that case). The takeaway? Compromise is possible—and crucial—in our pluralistic society.
What the Supreme Court left unfinished in Espinoza. The SCOTUS ruling in Espinoza <[link removed]> was a landmark decision, no question. But as the Institute for Justice’s Michael Bindas explains <[link removed]>, the Chief Justice chose an “incremental” approach and "left open whether the state could, in making exclusions, delve into whether a student’s scholarship might be used for religious activity.” Predictably, the First Circuit recently ruled that the state of Maine could do just that. Now, the Supreme Court has the chance to give the final word.

Gratefully,

Montse Alvarado
Executive Director



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