The New York Legal Blog Round Up
The New York Legal News Round Up

Religious liberty for some, not all


This week's Daily Record column is entitled "Religious liberty for some, not all."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Religious liberty for some, not all

“Hypocrisy is oftenest clothed in the garb of religion.”

I was intrigued when the Becket Fund for Religious Liberty, a public interest law firm that purports to protect all religious expression, recently confirmed it would be filing a religious discrimination lawsuit against the Town of Morristown in U.S. District Court for the Northern District of New York on behalf of Amish residents.

The lawsuit will allege Morristown’s enforcement of building codes against the Amish, including a requirement that all homes have fire alarms, violates the sect’s constitutional rights.

In a letter to the members of the town board dated March 18, the fund states:

We are writing you to express our deep concern over Morristown’s decision … to engage in selective prosecution of 10 Old Order Amish men for alleged violations of the Town’s building code. … As an international, interfaith, public interest law firm, the Becket Fund is dedicated to protecting the free expression of all religious traditions and the freedom of all people of faith to participate fully in public life without discrimination. (Emphasis in original).

The position asserted in the letter is in keeping with the fund’s statement of beliefs found, on its Web  site: “What Do We Believe":

Freedom of religion is a basic human right that no government may lawfully deny. … Religious expression (of all traditions) is a natural part of life in a free society, and religious arguments (on all sides of a question) are a normal and healthy element of public debate. Religious people and institutions are entitled to participate in public life on an equal basis with everyone else, and
should not be excluded for professing their faith.

Upon delving deeper, however, it appears that the fund’s assertion that it serves the interest of all religious traditions is disingenuous, at best. Rather, the fund represents only the interests of politically and socially conservative religious groups.

The apparent disingenuousness is most evident in the fund’s ardent opposition to gay marriage. Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in at least three state courts —Maryland, Connecticut and Iowa.

In the brief filed in the pending Iowa lawsuit, Varnum v. Brien, Case No.: CV5965, the fund admits in footnote 3 that it does not represent the interests of all religions, but rather those whose beliefs conform to the fund’s conservative agenda:

Notably, the signatories to that brief consist exclusively of persons and groups that ‘support the dignity of loving, committed same-sex couples, and believe that same- sex couples should be permitted to enter civil marriage.’ See, Brief Amici Curiae of Iowa Faith Leaders at 8. These signatories, who have faced no threat to their religious liberty under the traditional legal definition of marriage, would face no greater threat if that definition changed since their theology supports same-sex marriage. But their brief ignores the many interests of religious groups (perhaps the majority) that theologically oppose same-sex marriage. And it is precisely those more traditional religious institutions whose religious liberty is threatened.

It is clear, then, that despite empty assertions to the contrary, the fund does not support the interests of every faith, since all religious institutions do not oppose gay marriage.

In fact, a number of religious organizations openly support same sex relationships as a matter of policy, including the Universal Fellowship of Metropolitan Community Churches, Ecumenical Catholic Church, Church of God Anonymous, the Alliance for Jewish Renewal (ALEPH), Reconstructionist Judaism, Reform Judaism and the Unitarian Universalist Association.

Others, including United Church of Christ and various Quaker groups allow clergy, congregations and local governing bodies to determine the appropriate level of support for gay marriage.

The Becket Fund for Religious Liberty is but a caricature of a true public interest law firm. While purporting to represent religious liberty for all, the fund supports only those religions that conform to its conservative agenda, rendering its litigation efforts selective at best, and hypocritical at worst.


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Why attack the Becket Fund about issues you disagree with when protecting the traditional Old Order Amish religion and lifestyle are laudable. Regardless of who champions the cause, it is something that must be done.

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