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A Message from Becket's Executive Director
July 8, 2022
Dear Friend,
This week the country celebrated our nation’s independence, and last week our team celebrated the end of the Supreme Court term. For court-watchers like you, there were five big cases that affected religion this term—all five were winners, and three made particularly big strides in the law. But before I bore (enthrall!) you with the details, I’ll give you the bottom line: The Supreme Court has emphatically declared that religion belongs in the public square, and excluding religious exercise or symbolism uniquely disadvantages religion, which is supposed to have special, protected status under our Constitution.
The cases concerned
a discriminatory Boston city policy<[link removed]> that banned religious symbolism from the public square,
a tuition assistance program in Maine<[link removed]> that excluded religious schools, a football coach
fired for praying after games<[link removed]>, and
a death row inmate<[link removed]> who requested that his pastor lay hands on him and comfort him with spoken prayer at his execution, and of course, a
15- week abortion ban<[link removed]> in Mississippi. All ended in resounding victories for religion and life.
One important note: Becket’s briefs in Kennedy v. Bremerton School District<[link removed]> and
Shurtleff v. City of Boston<[link removed]> were uniquely impactful this term. We asked the Court to do away with—once and for all—
the Lemon test<[link removed]>, a highly subjective judicial standard from the ‘70s which evaluated whether public religious displays amounted to an endorsement of religion. This test soured religious liberty for decades, and led Americans into believing that the Constitution required that religion be stripped from the public square, freedom FROM religion rather than freedom OF religion. Justice Kavanaugh pointed this out to the government lawyers, specifically
citing Becket’s brief<[link removed]>. As Becket explained, the Court’s old (and bad!) Establishment Clause precedents were leading governments to exclude religion, contrary to the Founding understanding that religion was an ordinary and important part of American life—meant to be preserved and protected, not scrubbed away. Thanks to Becket’s briefing, Justice Gorsuch,
writing for the Court in Kennedy<[link removed]>, rendered the Lemon test a relic of the past and reminded us that we can't be both pluralistic and allergic to diverse religious expression in the public square. The opinion read like a chapter in our founder’s book,
The Right to Be Wrong<[link removed]>.
Get ready, next Term is going to be big, too. I will tell you all about it next month. In the meantime, here are some short updates.
What’s happening at Becket
Taking Native American religious liberty to SCOTUS – In
Apache Stronghold v. United States<[link removed]>, the Ninth Circuit Court of Appeals
greenlighted<[link removed]> the destruction of an Apache sacred site, Oak Flat, by a foreign-owned mining company. Becket won’t give up on our clients—we’ll be asking the Supreme Court to vindicate the Apaches’ free exercise rights next term.
Keeping courts out of the business of Catholic schools— Becket’s Luke Goodrich argued before the Indiana Supreme Court last week in
Payne-Elliot v. Archdiocese of Indianapolis<[link removed]>, a case in defense of the right of religious schools to uphold standards of morality for their teachers and administrators. It’s worth
watching<[link removed]>.
Fighting for religious tolerance in the United States Marines– On behalf of our clients in
Toor v. Berger<[link removed]>, Becket is seeking an emergency injunction so that three Sikh recruits to the U.S. Marine Corps can wear their articles of faith, including unshorn hair and a beard, while serving their country. Senior counsel, Eric Baxter argued the case before the United States District Court for the District of Columbia last week.
Becket in the News
“One year after the Supreme Court’s unanimous decision…we can look back and say with confidence that these corporate and technocratic fears were overblown and exaggerated.” Becket’s president and CEO, Mark Rienzi authored a piece in
First Things<[link removed]> in commemoration of the first anniversary of the unanimous SCOTUS ruling in Fulton. Mark observes that the “sky is falling” arguments put forth in an amicus brief by 32 of the nation’s largest companies, including Twitter and Google, were unfounded, and, a year later, remain unsubstantiated.
“And after this ruling, excluding religious schools from school choice should finally be a thing of the past.” Andrea Picciotti-Bayer shouts out
Becket’s amicus brief<[link removed]> in Carson v. Makin in
her analysis<[link removed]> of the court’s decision, which means more options for parents across the country seeking alternatives to public schools for their children.
A Crash Course in Carson– From inside his closet (hiding from his children at 5:30am, your team works hard!) Becket’s Eric Rassbach
gave an interview<[link removed]> to the Washington Journal on C-Span on the significance of the Supreme Court’s ruling in
Carson v. Makin<[link removed]>.
What we’re reading (and listening to)
Fulton’s First Anniversary—Can you believe it’s been one year since Becket’s landmark victory in defense of Catholic foster care at the Supreme Court?! In celebration of the
unanimous SCOTUS victory<[link removed]>, we released a
special edition podcast episode<[link removed]> with interviews from Philadelphia’s Archbishop Perez, arguing attorney Lori Windham, and heroic foster moms, Toni Simms-Busch and Sharonell Fulton. It’s a must-listen.
“Abortion is a gruesome symptom of our collective failure to take care of one another.” Becket Board Member Mary Ann Glendon teamed up with Notre Dame law professor, Carter Snead, to
urge pro-lifers<[link removed]> to do a better job of caring for women, children, and families in the wake of the
Supreme Court’s decision in Dobbs<[link removed]>. We wholly concur, and are proud to defend clients who are doing just that, like the Little Sisters of the Poor, who care for the dying, and religious foster agencies, who step up to help children in need.
“There was only one choice: We couldn’t abandon our clients simply because their positions are unpopular in some circles.” You may have seen
the news<[link removed]>—famous Supreme Court advocate, Paul Clement, and his colleague Erin Murphy were forced to leave their law firm Kirkland & Ellis last month after winning their Supreme Court case, New York State Rifle & Pistol Association v. Bruen. The partners were given the choice: give up your clients, or step away from the firm. Congrats to Paul and Erin—both stalwart champions of religious liberty—on the launch of their new firm,
Clement & Murphy PLLC<[link removed]>.
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Montse Alvarado
Executive Director
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