The Becket Fund Fights for Religious Liberty: An Interview with Hannah Smith

FOUNDED IN 1994 BY Kevin “Seamus” Hasson, the Becket Fund for Religious Liberty has become one of the premier public-interest law firms working to defend religious freedom from encroachments by government. This year alone, Becket has won two very significant religious liberty cases: one at the Supreme Court beating back an attempt by the Equal Employment Opportunity Commission to interfere in a church’s right to choose its ministers; the other a district court victory that struck down a Washington State regulation requiring pharmacists to dispense the “morning after” pill in spite of any religious objections to abortion. Currently, Becket is also suing the Department of Health and Human Services over its mandate that all employers, including religious charities, hospitals, and schools, must cover contraception and abortion- inducing drugs in their employee health plans. We talked recently with Hannah Smith, Senior Counsel for the Becket Fund about the work of defending religious liberty.

The Insider: Why do we need the Becket Fund for Religious Liberty?

Hannah Smith: The Becket Fund for Religious Liberty was founded in 1994 by Kevin “Seamus” Hasson. Almost 20 years ago now, he saw the need for a non-profit public-interest law firm that would defend the rights of religious groups and individuals against the encroachment of government. We’ve seen in the years since an increasing threat to the ability of people in this country to practice their religious faith freely, to profess their faith through their actions in the public square, and to even talk about religious themes in the public square. The threats are increasing daily, and there’s a real need for the Becket Fund to push back against the rising tide of government coercion against people and institutions of faith.

TI: Why is there a rising tide of coercion against religious expression and religious practice?

HS: Probably lots of factors contribute to it. I think we see in a variety of contexts government increasingly regulating the private sphere of human behavior. And of course it’s not only religious liberty that suffers when that happens, but individual liberty generally. When government tries to take over an increasingly large part of the human experience, it of course encroaches upon individual liberty generally and religious liberty specifically.

TI: Right there in the First Amendment, it says: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …” So what is the problem? Are the courts still figuring out what those clauses mean, do the other branches of government misunderstand them, or do they just not care?

HS: Well, that’s a very complex question. I think the best way to answer that is to say that the First Amendment vigorously protects the free exercise rights of individuals and institutions, and it also protects against the government interfering in religious life through the Establishment Clause. So there is a very rigorous protection for religious individuals and groups enshrined by the Founders in the First Amendment. Of course, there are some in our culture who would try to interpret those protections extremely narrowly and to advocate that other competing values overtake them.

But in January, the Supreme Court announced its decision in Hosanna–Tabor Evangelical Lutheran Church and School v. EEOC in a 9–0 opinion and said quite clearly that—even in the face of federal statutes passed by Congress to protect against discrimination in the workplace—the First Amendment protects the right of religious institutions to choose their own ministers and employees who will personify their beliefs. In that case, the Court said that the First Amendment gives special solicitude to the rights of religious groups and pronounced very robust, broad, and sweeping protections for the rights of religious institutions under the First Amendment. That opinion shows that the Court recognizes the robust protections in the First Amendment despite these other competing claims.

TI: The Hosanna–Tabor case arose after a teacher sued a church school for firing her, right?

HS: Right. There was an elementary school teacher who became ill and then threatened to sue the church school if she didn’t get her job back after the school had repeatedly tried to accommodate her and hold the space open for her but was unable to do so because of her extended illness. The school went above and beyond what disability law required. When she threatened to sue the school, it was a violation of church doctrine against suing in civil court. The Lutheran Church has an internal dispute resolution system within the church that resolves disputes among members, including disputes over the ministry. The teacher’s threat to sue was directly against church doctrine, and so the school released her for insubordination. She sued claiming retaliation under the Americans with Disabilities Act.

The district court held for the church saying the teacher was a ministerial employee. Thus, she was prevented from bringing a lawsuit under a judicial doctrine called the ministerial exception to the federal anti-discrimination laws, which had been recognized by the federal courts of appeals over the last 40 years to protect this very special employment relationship between ministers and their churches. The Sixth Circuit reversed saying she could proceed on the claim, and then it went up to the Supreme Court.

The Supreme Court held 9–0 (including both Obama appointees) that the administration’s view of religious liberty was “extreme,” “remarkable,” and “untenable.” The argument the government put forward was that there should be no ministerial exception at all, and that even if there were a ministerial exception, it should be limited to employees who perform exclusively religious functions. Responding to the administration’s narrow test in oral argument, Chief Justice Roberts said that not even the Pope would qualify as a minister according to the administration’s view! So the Court rejected the administration’s very extreme and narrow view of religious freedom in that case.

TI: How many different faith denominations has the Becket Fund represented in its 17 years?

HS: We’ve represented everyone. We like to say that we’ve represented religious groups from A to Z. Anglicans to Zoroastrians. We’ve represented Christians, Jews, Muslims, Sikhs, Zoroastrians, Santeria, all sincere believers.

TI: Do you have any idea how many cases you’ve won?

HS: We have a very high success rate. I would say it’s probably somewhere between 80 percent and 90 percent. We choose our cases carefully. We choose them based on the legal principle involved. We want to advance the law in a positive direction, to protect religious freedom as much as possible, so we’re careful in the cases that we choose and we select them with an eye toward establishing precedent that’s helpful to religious freedom as well as, of course, to redeem our clients’ interests in those cases.

TI: What would you say are the three most important cases you’ve won so far?

HS: The Hosanna-Tabor case, first. That was our first case before the U.S. Supreme Court, and we won it in a unanimous opinion, which was a great victory.

Second, Newdow v. Rio Lindo Union School District— the Pledge of Allegiance case in the Ninth Circuit. We were successful in getting the Ninth Circuit to reverse course. Originally, the Ninth Circuit had held that the words “under God” in the Pledge of Allegiance were unconstitutional under the Establishment Clause of the First Amendment. In a later case, we successfully argued that the words “under God” in the Pledge of Allegiance reflected the Founders’ political philosophy that government exists separate from the natural rights that are given to us by God, and that the words “under God” merely reflected the Founders’ political philosophy that our rights derive from God, not from the government. The Ninth Circuit agreed and reversed its previous ruling. Getting the Ninth Circuit to reverse itself is no small feat.

As for the third case, I would say Stormans v. Selecky, the case that we just won up in Washington State in February, was also a huge victory. We represented pharmacists who had a religious conscience objection to dispensing the Plan B morning-after pill. We were co-counsel with a Seattle law firm, Ellis, Li & McKinstry. The district court held that a state regulation requiring pharmacists to dispense Plan B against their religious convictions was a violation of the First Amendment.

TI: How many different clients are you representing against the Department of Health Human Services over its contraception mandate?

HS: Four. The HSS mandate cases began last November when we filed suit in federal district court in Washington, D.C. on behalf of Belmont Abbey College, a Catholic liberal arts school located in North Carolina. Our second lawsuit was filed in December in Denver on behalf of Colorado Christian University, an evangelical nondenominational Christian school. In February, we filed in Alabama on behalf of EWTN, a Catholic global media network. That lawsuit has now been joined by the state of Alabama. We also filed in Florida on behalf of Ave Maria University, also a Catholic school.

TI: HSS says that the mandate on employers to cover contraception and abortion-inducing drugs and sterilization is needed in order to ensure women have access to those services. Is there really an access problem that can be fixed only with an insurance mandate?

HS: It is quite clear that access to contraception is not a problem. The government itself acknowledges that contraception is widely available through community clinics and hospitals with income-based support. You can get it at Planned Parenthood and even over the Internet. It is widely available. In fact, some statistics say that nine out of ten employer-based plans in the United States already cover these drugs and services. It’s just that last 10 percent that the government wants to force to cover these drugs and services, even if it means doing so against their religious convictions. That is impermissible under federal law, and so we have challenged the mandate under both the First Amendment and the Religious Freedom Restoration Act, a federal law that prohibits the government from imposing a substantial burden on religious exercise.

TI: Are religious charities and schools forcing their religious views on their employees when they refuse to cover contraception?

HS: Clearly, that’s not the case. Any employee or student at a religious institution can use contraception if they so choose. The employee or student can go out and buy it and use it. So, the religious institution is not forcing others to change their beliefs about contraception. Rather, the religious institution is simply saying: If you work for us, you do so knowing that you are working at a religious institution that cares deeply about its core convictions and is not going to offer you certain services because of those religious convictions. And so, go ahead, go out there and buy it yourself. Access it yourself. But we’re not going to pay for it because it’s against our religious beliefs. That’s a very fair balance between these two competing interests—the individuals who use it and the institutions who must stay true to their religious convictions.

TI: Is it just religiously affiliated employers whose conscience rights are trampled by these mandates, or would you say that a private employer, say a pizza chain, might have a case if its owners also have religious objections to contraception?

HS: Absolutely. We’ve heard from people around the country who have said: I own a business. I’m a private individual. I’m not a religiously affiliated group, but I’m offended by this mandate because I don’t want to provide these services because of my religious convictions. So, absolutely, this issue is not just a concern for religiously affiliated groups. This issue concerns all Americans who recognized this affront to liberty.

TI: When it comes to other provisions of ObamaCare, the administration has been perfectly willing to grant waivers for reasons that are obviously political. Would you care to speculate why the administration wouldn’t also be willing to accommodate religious freedom at least by making some kind of exemption available?

HS: That’s one of our arguments in the lawsuit. You can’t call this Affordable Care Act a neutral and generally applicable law when the administration has so blatantly carved out exceptions for so many groups. First of all, the Affordable Care Act doesn’t apply to small businesses; they’ve made a judgment that only businesses over 50 employees have to comply with the provisions of the law. They’ve also said that there are certain groups that won’t have to comply with the mandate if they’re grandfathered. If they don’t change their insurance policies past a certain date, then they’ll get a waiver of sorts because they’re grandfathered in. There are other more categorical exemptions that are included in the Affordable Care Act, protecting, for example, health care sharing ministries where people band together for an alternative to insurance. There’s also what we call the “Amish exception,” and an exemption for Native Americans as well. They’ve carved out other exemptions and given other waivers for political and commercial reasons. So there are a whole host of exemptions and waivers from the law which shows it’s not neutral or generally applicable, and unfortunately the government has not seen fit to provide an exemption that sufficiently protects religious groups and individuals.

TI: So are depredations of religious liberty becoming more frequent merely because the government is getting bigger and doing more stuff and that creates all sorts of conflicts and some of those conflicts happen to be over religion, or is there a particular disregard for religious values by those in government?

HS: I think it’s probably a combination of both. I think we’ve seen the increase in the power of the state generally, and when government grows it encroaches upon individual liberty. I think it’s also the case that we are seeing a pretty targeted attack against certain traditional religious values in our country. Those religious values are being marginalized and driven from the public square. That’s un- American. It simply flies in the face of our country’s history. It flies in the face of the values of our Founding generation, and it’s simply not good for our society generally to relegate the practice of religion to the private sphere only. Religious institutions are out there ministering and serving and helping the poor and feeding the hungry and doing all of those wonderful social service works. That’s something we need to think long and hard about before we create laws that have consequences that would drive those religious groups from our civil society.