The law firm behind the Hobby Lobby win
WASHINGTON — Fewer than a dozen attorneys work for the Becket Fund for Religious Liberty, a 20-year-old public interest law firm based in Washington, D.C.
But even with a small corps of lawyers, the firm is making its mark by seeking out — and often winning — cases that set law-changing precedents. On Monday, it added another precedent-setting ruling to its credit with a 5-4 Supreme Court decision in favor of Hobby Lobby Stores, supporting religious rights of for-profit corporations.
The narrow ruling marks the first time the nation's top court specifically extended religious freedom protections to a corporation, rather than just individuals. And even if the high court had come down against Hobby Lobby, it was the kind of high-profile case that has set the Becket Fund apart since its founding. The firm looks specifically for opportunities to represent believers of all faiths — Muslims or, in the most recent case, evangelical Christians — who see their freedom to live their faith in jeopardy, with an eye toward not just protecting individuals, but also changing the law and the debate on issues of religious liberty.
"I think Becket has been quite successful in teeing up issues that press the boundaries of the religious liberty claim," said Linda Greenhouse, a professor at Yale University's Law School who spent 30 years reporting on the high court for The New York Times. "The notion that a corporation could claim a faith-based right not to obey a federal law would not have been taken seriously even a few years ago. The ACLU wouldn't have argued it."
Shaping the law
The firm — named for former Archbishop of Canterbury Thomas à Becket (1118-1170 A.D.), martyred for defending his eccliastical office from interference by King Henry II — rejects cases that are unlikely to set the kind of legal precedent that advances religious freedom.
"When I was there, we turned away 15 cases for every one we took," Kevin J. "Seamus" Hasson, Becket Fund founder and now its president emeritus, told the Deseret News in 2012. "On the other hand, we have won 85 percent of our cases."
At that time, Hasson asserted "giving people the freedom to follow the dictates of their conscience and exercise their faith, as long as it doesn't threaten public health, safety or morals, is critical for a pluralistic society to peacefully function."
He wrote, in the 2012 edition of his book, "The Right to Be Wrong," that, as a society, "we can, and should, respect others' duty to follow their consciences even as we insist that they're mistaken. Why? Because others have the same duty to follow their presumably mistaken consciences as we do to follow our presumably correct ones."
Among other cases in which Becket has been involved are a 2011 case involving the right of a Christian homeless center to serve clients with a religious emphasis; a 2010 case reversing an earlier 9th Circuit decision striking "under God" from the Pledge of Allegiance; and a 2009 case supporting the right of a Santeria priest in Texas to perform religious rituals in his own home.
But the firm's strategy of selecting cases is about more than a scorecard.
"The mission of the Becket Fund is to shape the law, so that the broadest possible base of support for religious liberty can be generated by the American people and embodied in American law and court decisions," said William P. Mumma, the firm's current president and board chairman.
To that end, the firm is blind to the faith of its clients, Mumma said.
"The Becket Fund engages in cases that affect Jews and Christians and Muslims and many other people of many other faiths," said Nathan J. Diament, executive public policy director for the Union of Orthodox Jewish Congregations of America. "They help portray, very vividly, that religious liberty is something that everyone has a stake in, even if it's not a person of their particular religion."
Another element of their strategy is handling only appellate-level cases, Mumma explained, which puts the Becket Fund in a better position to influence higher court decisions and, by extension, subsequent laws.
Specializing in appellate cases, Mumma said, also helped Hasson manage the burgeoning firm's limited time and money.
Until the Hobby Lobby decision, the Becket Fund may have been best known for winning a unanimous 2012 U.S. Supreme Court decision against the federal government over the firing of a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School. Indeed, it's No. 1 on the group's list of "Top Ten" legal victories.
The case pitted the federal Equal Employment Opportunity Commission against the Lutheran Church-Missouri Synod congregation in Michigan over which employees can be designated as clergy. Cheryl Perich, a commissioned minister who taught at the congregation's school, was dismissed when she threatened legal action over a pending termination.
The EEOC contended Perich was fired for threatening to make a claim concerning a medical condition and an alleged violation of the Americans with Disabilities Act. The church argued the EEOC suit was invalid due to the "ministerial exemption" allowed in employment matters between a church and its ministers.
In a rare 9-0 ruling, Chief Justice John Roberts wrote, "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."
After the ruling, University of Notre Dame law professor Richard W. Garnett wrote in USA Today the court's ruling "does not put churches 'above' the law; it simply reminds us that the law's reach is limited, that there are some matters and relationships to which it does not apply, that there are, in a free society, some things that are not Caesar's."
Becket took that thinking overseas to contribute in a case that involved the dismissal of a Catholic religion teacher who had campaigned against the church's teaching of celibacy for priests. On June 12, the European Court of Human Rights decided 9-8 "the autonomy rights of religious institutions trump the rights of religion teachers to mount a public attack on church teachings."
Eric Rassbach, Becket's deputy general counsel and an expert consultant in this case, said in a statement after the ECHR verdict: "If government can dictate who teaches a particular religion, then government can dictate what the content of that religion is."
Moving beyond tradition
Before the Becket Fund took on cases involving government rules and regulations encroaching on the religious exercise and individual conscience, the battles over religious liberty typically involved cases of prayer in public schools or Nativity scenes in city halls.
Such cases of "specific" relief may be satisfying one-by-one, Mumma said, but Becket founder Hasson, and his successors, wanted "to see how the pieces go together to affect the big structure, as opposed to going retail, one-at-a-time to solve the problem. It seems obvious that rather than going to the mouth of the river to stop the water, you'd go way upstream to build a dam."
There are, of course, other legal groups taking on cases at various spots along the river, such as the Arizona-based Alliance Defending Freedom, which represented Conestoga Wood Products in a case joined with Hobby Lobby; as well as the American Center for Law and Justice, which also tackles international religious freedom issues alongside its legal arguments; and Liberty Counsel, whose president, Mat Staver, is dean of Liberty University's law school.
If politics is known for creating unusual (and often temporary) alliances, the religious liberty field doesn't lag far behind. Consider: Becket is sometimes on the same side of a court case as Americans United for the Separation of Church and State, which bills itself as "a nonpartisan organization dedicated to preserving church-state separation to ensure religious freedom for all Americans."
That hasn't stopped Americans United and Becket from aligning on cases as diverse as the 2006 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, which involved the use of a hallucinogenic tea in worship services; or 2005's Cutter v. Wilkinson, concerning prisoners' religious freedom rights. Both groups are also aligned on the upcoming Holt v. Hobbs, another prison-related case, this time involving the rights of a prisoner to grow a beard for religious reasons.
At the same time, Becket and Americans United were on opposite sides of Elmbrook School District vs. Doe, in which the Supreme Court June 16 refused to hear the case, handing Americans United a victory.
Americans United executive director the Rev. Barry W. Lynn, in a statement to the Deseret News, said Becket "has a vision of religious freedom and American society and culture that is grounded in bygone days," and doesn't reflect changing societal attitudes.
And in the healthy debate that characterizes issues like religious liberty, Mumma contends that it's Americans United that is out of step with "fresh perspective on religious freedom."
"The truth is the organization was founded in 1947, has made the same arguments for decades," he said, "and in the 22 years Barry has headed the organization, has seen the American public and the Supreme Court turn decisively away from American United's faded arguments."
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