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Dear Friend,
The summer wrapped up with a bang—in August, we won a major ruling from an Indiana district court in our Starkey case, where the court protected a Catholic school’s right to choose its guidance counselors. At stake were the ministerial exception and church autonomy, the principles by which a religious school—just like a church—must be free to make its own decisions when it comes to choosing its religious leaders, including employees whose duties include passing on the faith to the next generation. As we argued while representing the Catholic school in this case, a guidance counselor at a Catholic school clearly does just that. The district court agreed. The ruling stated that, as “[o]ne may reasonably presume that a religious school would expect faith to play a role in [the] work” of a guidance counselor, the ministerial exception clearly applied. The school won.
It’s no secret that we like to win our cases. But while I frequently write to you on the immediate significance of those victories, I’d like to share this win through the lens of strategy.
Becket has been leading the wave of ministerial exception and church autonomy cases for years. We have had two stunning Supreme Court victories for the ministerial exception, along with many circuit court wins, and wins in cases where we filed influential friend-of-the-court briefs. In fact, the Indiana district court’s ruling in Starkey cited seven cases where Becket was counsel or amicus. None of that happened by chance. Our goal is to change the law by winning precedent-setting cases, but it’s not a “one and done” approach. The courts must continue to reinforce important principles, like the ministerial exception, and that means bringing great cases to the lower courts, to build deep and lasting case law. This Starkey win is proof that ours is a winning strategy.
Of course, none of this would be possible without our friends and supporters. I truly believe religious freedom is the fight of our generation, and there is a vast mountain of work ahead of us. Our team punches above its weight, but we can’t do it alone.
I don’t normally lean into this newsletter to ask for help, but I am asking now: if you feel called and are able to support our work, it is a rewarding and worthy cause, and we could use every last contribution.
What’s happening at Becket
SCOTUS on the mind. Summer is officially over, and that means the Supreme Court will soon be in session. Last term, the Court repeatedly strengthened religious liberty, and the next term could be just as significant. The Justices will have the opportunity to protect rural families and their children’s access to religious private schools, prisoners’ right to comfort of clergy in the death chamber, and goat-herding nuns from mandated abortion coverage in their insurance plan. More “SCOTUS preview” to come in our next newsletter.
More nuns at the Supreme Court? Becket is waiting to see if the Supreme Court will take our case, Diocese of Albany v. Emami. This time, an order of Anglican nuns is among a coalition of religious groups fighting a New York state abortion mandate that would force them to cover abortion in their health plans. The mandate does have a narrow religious exemption—but Jesus himself wouldn’t qualify because Jesus served people of all faiths. That’s a problem for the Sisterhood of St. Mary, because they perform social work for people of all faiths. We’ve been down a similar path before (more than once) with the Little Sisters of the Poor; let’s see if SCOTUS will set the record straight.
The chance to right a wrong. When the Supreme Court decided the 1973 landmark abortion case, Roe v. Wade, and the subsequent case, Planned Parenthood v. Casey, it reached beyond the Constitution to establish a right to abortion. That decision has haunted religious liberty law and led to religious liberty conflicts around the country where abortion advocates seek punish Americans with moral and religious objections to abortion and contraceptive drugs. Now the Supreme Court has the chance to address the Roe framework with a case from Mississippi. Becket filed a friend-of-the-court brief in Dobbs, highlighting the religious liberty argument for replacing the Roe framework. This case will be heard on December 1.
Do you want to hear a story? How about ten? Our new season of Becket’s Stream of Conscience podcast takes you behind the scenes of major religious liberty cases. Outstanding interviews tell the stories of the people who stood up for freedom, while Becket lawyers and legal experts offer fresh and digestible explanations of religious liberty principles. It’s a deep-dive, must-listen follow-up to our first season. (If you haven’t listened to our first season, go ahead and binge those episodes too!)
Becket in the news
Is it getting warm in here? Becket has made the National Law Journal’s “Appellate Hot List” for the second year in a row. Last year, we became the first non-profit law firm to make the list. This year, we are again the only non-profit to make the list. It’s simply a confirmation of what we at Becket already know—that passion for our mission only enhances the quality of our work. Oh, and that we are on FIRE!
“This order solves nothing and wrongfully endangers Catholic Charities’ religious mission to care for migrants...” Deseret News featured Becket’s case defending a Catholic Charities respite center for migrants waiting to be processed by the U.S. Border Patrol. Governor Abbott’s order prohibiting transportation of migrants would prevent the center from fulfilling its crucial Catholic mission—to serve those in need according to Christ’s example.
Becket “seeking genuine consistency across otherwise very different cases.” The New York Times’ Ross Douthat writes on how shifts in the in-group/out-group can affect people’s perception of different laws and constitutional approaches, using the notorious Smith ruling as an example. But he recognizes Becket as different, standing on firmer principle that enables us to defend people of all faiths.
What we’re reading
Religion in the execution chamber. The Supreme Court stopped the execution of a Texas inmate whose request—to have his pastor pray with him at the time of execution—was denied by the State of Texas. SCOTUS has now seen several of these “comfort of clergy” cases, but the outcomes have varied—it finally decided to hear this case on its merits on November 1. Becket has requested to file a friend-of-the-court brief in the case to illustrate the clear right of prisoners to “comfort of clergy” at time of death under religious liberty law.
Chief “none.” Harvard University has a new chief chaplain, and he’s an atheist. The decision has, predictably, met with a mix of positive and negative reactions—for one take, see this New Yorker piece. I keep hearing that more and more people are identifying as “nones” when it comes to religious affiliation, but if our Harvard Law School clinic is any indication, there’s plenty of respect and interest for religion, even at an Ivy.
“[I]f I say that my conscience requires me not to be vaccinated, then no one else is in a position to tell me that my conscience is wrong…What I believe right now is what matters.” Since we’re talking about Harvard…Harvard Law Professor Noah Feldman took a strong position on why religious exemptions—specifically for COVID vaccines—should be granted across the board.
“Sometimes they arrive in a trickle, sometimes in a flood.” This piece by Bishop Flores is both deeply persuasive and deeply moving. Bishop Flores writes about the Catholic Charities Humanitarian Respite Center, which gives temporary care and shelter to migrants waiting to be processed by the U.S. government. Governor Abbott’s order prohibiting transport of migrants would make the Center’s crucial work impossible.
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Gratefully,
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Montse Alvarado
Executive Director |
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