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Faith firm racks up court wins

Greg Nash

Lori Windham is at the vanguard of a movement to change how the legal system treats religion.

Windham, senior counsel at the Becket Fund for Religious Liberty, is best known for her role representing the owners of Hobby Lobby in their successful challenge to ObamaCare’s birth control coverage mandate.

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That case ended June 30 with a divided Supreme Court rejecting the mandate for closely held for-profit corporations in a decision of “startling breadth,” according to one dissenting justice.

The win catapulted the Becket Fund and its lawyers into the headlines and put a spotlight on the firm’s cases and approach.

Windham, a Texas native and graduate of Harvard Law School, has worked for the fund for seven years, starting as a law student.

“Religious liberty is an incredibly small area of law,” she said in an interview with The Hill. “I was eager to find a place in it, and that’s what drew me to the Becket Fund.”

“We’re small. We know we’re small, but we want to do one thing and do it really well.”

The firm launched in 1994, distinguishing itself from other legal shops concerned with religion by representing plaintiffs of all faiths.

The fund frequently touts its all-faith approach as a way to push back against critics who charge that the bulk of its time is spent defending conservative Christianity.

In addition to litigating familiar culture war fights — like the presence of “under God” in the Pledge of Allegiance — the fund has defended the religious practices of Muslims, Sikhs and Native Americans.

Windham emphasized a peculiar case from 2009 in which a Santería priest in Euless, Texas, was prohibited by the city from conducting animal sacrifices that were part of his faith.

“The city of Euless had said he could not sacrifice more than chickens,” she said. “This was a problem because it meant there was no way he could initiate new believers or priests. Imagine having a religion with no ability to initiate new clergy! That was a hardship for him.”

The Fifth Circuit Court of Appeals ultimately ruled in favor of the priest.

The case centered on the Texas Religious Freedom Restoration Act (RFRA), a version of the federal statute partly at issue in the birth control cases.

Opponents of the Becket Fund say its concept of religious liberty is overly broad.

“Religious freedom is the right to religious belief. It does not, however, give anyone the right to impose those views on others or to discriminate,” said Louise Melling, deputy legal director for the American Civil Liberties Union, in a written statement.

“That’s what we’re really talking about here [with the contraceptive coverage cases] — bosses imposing their beliefs on their employees. ... If those entities prevail, women will literally be paying a price for their employers’ religious beliefs.”

Since the summer, the Becket Fund has been identified as an increasingly powerful player in debates over religious liberty.

The team’s successes lie not only in representing diverse clients but also in picking and shepherding cases likely to gain traction in higher courts and in the press.

Windham said the chance to establish certain legal principles on religious liberty can sometimes lead her to take on specific cases.

“We do our work pro bono,” she said. “When you do legal work for free, your phone rings a lot. Sometimes we seek people out. Sometimes we see something that could set a good precedent.”

Windham initially honed her interest in the law at Abilene Christian University, and later interned with the Justice Department’s Civil Rights Division while at Harvard.

She said her own religious faith helps shape her approach to the job.

“I’m a Christian, and my faith has always been important to me,” Windham said. “Even though I’m working on issues that may never impact me personally, it’s wonderful to have the sense that I can make the law better and protective.”

Religious affiliation is something that binds the staff at the Becket Fund, which was founded by Catholic lawyer Kevin Hasson. While sometimes incisive in its rhetoric, the organization tries to distance itself from the political debates associated with its work.

Windham said it is critics of the Hobby Lobby case who are missing the point of statutes like the federal RFRA.

“I think the politicization of religious liberty is one of the biggest threats to religious liberty,” she said.

“When RFRA was passed, you had broad bipartisan agreement. Everyone came together. Now you see a case like Hobby Lobby and people want to separate and break down along different lines in how they react. ... [The law] is not the tool of one side or another.”

There are 54 nonprofit challenges to the birth control mandate moving through the courts.

While the Supreme Court has granted temporary relief to two plaintiffs, no appellate courts have yet sided with the challengers.

Windham believes this is about to change, as several circuits prepare for hearings in the next month. A split could prompt the Supreme Court to take up the issue next fall.

“I think the threats [to religion] are piling up and the wins are piling up too,” she said. “We’re seeing government encroachment in a variety of different arenas. We’re also seeing a lot of great victories in the courts.”

“I definitely see bureaucrats who don’t see the big picture and don’t understand that religion contributes to our society. It might not always contribute to the tax base, but it does good for our people,” she said.