As senior counsel for the Becket Fund for Religious Liberty, Lori (Halstead ’01) Windham, J.D., has argued some controversial cases, among them the right of a Santeria priest to conduct animal sacrifice in the garage of his Texas home.
Now as a member of the legal team representing Hobby Lobby’s challenge of the Affordable Care Act contraception mandate, she is at the center of a case that stands to set precedent in the relationship between government and religion. The case is currently before the U.S. Supreme Court with a ruling expected by the end of the month.
The health care act mandates that for-profit businesses with 50 or more employees provide contraception coverage, including “emergency contraception” that can work after conception to destroy embryos. The conservative Christian owners of the Hobby Lobby chain, David Green and his family, believe that once conception has occurred, preventing a pregnancy is the termination of life.
The case is important, Windham said, because it asks whether people give up their religious freedom when they open a family business.
“The government argues that the business has no rights because it is a business, and the Green family has no rights because they are just owners,” she said. “If the government can divide and conquer fundamental rights in that manner, it sets a dangerous precedent.”
Though Hobby Lobby v. Sebelius is perhaps her most publicized legal challenge, Windham has argued other precedent-setting cases for the Becket Fund, a Washington-based civil rights law firm that defends the free expression of all religions against government interference. In addition to the Santeria priest, she has represented Amish builders penalized for their traditional construction practices, evangelical churches unable to use their property for worship and public school districts sued for accommodating religious expression.
In this Q&A, she talks about what it’s like to present a case to the U.S. Supreme Court, her most memorable lawsuits and her thoughts on Christian higher education:
How did you get into the area of religious liberties law?
The relationship between church and state has always fascinated me. It’s been a puzzle Christians have struggled to solve since the first century. We don’t have all the answers, but I believe that the U.S. Constitution is a great blueprint for how to respect religious belief while also promoting freedom for those who disagree. While at ACU, and again in law school, I took internships focused on this issue. I was a research assistant studying this issue during law school, and when I graduated, I had the opportunity to come to the Becket Fund and do religious freedom work full time. I jumped at the chance, and I have been doing this work ever since.
What’s your favorite part of your job? What makes you say, “Wow, I love it when I can do that?”
When we win! In all seriousness, I love it when I can spend time with my clients, hearing their stories. An Amish community in upstate New York ran into problems with a local building code that didn’t accommodate their way of life. The Amish were actually facing jail time for following their religious practices, but we got the town to dismiss all the charges.
While the case was going on, I spent a lot of time in lamplit farmhouses talking to Amish men and women about their way of life, how they understand the Bible, and the steps they take to protect their communities from modern society. (Also, eating their cookies. Did you know you can pay a lawyer in cookies?) The first time I stepped into an Amish home, it was like stepping back in time.
I’m grateful to be part of cases that allow me to meet and learn about communities so different from my own.
What is it like presenting a case before the U.S. Supreme Court? Do you have a sense of being a part of history?
I’ve been part of two Supreme Court cases and written a number of friend-of-the-court briefs. We rely on well-known Supreme Court advocates for the argument itself. There’s something special about being in the courtroom when your own case is being argued. You see things that can’t be conveyed in a transcript, or even a recording. People line up for days in advance to get into an important argument.
The court has a sense of pomp and circumstance that’s different from other places, even here in Washington. There’s excitement in the air when the buzzer rings and the justices start to file in. You’re reminded of how many important issues have been decided in this same room. They still don’t allow cameras, so you have a sketch artist sitting in the press box trying to capture the scene.
The courtroom is small, so you may end up sitting next to one of the parties or lawyers in a case. As the justices ask questions, everyone is trying to guess what they are thinking and how they might vote. It’s fascinating to hear the arguments directly and then watch the media report on your case and draw their own conclusions about everything you just heard.
What do you consider the most pressing religious liberty issue facing our nation today?
The breakdown of the bipartisan coalition supporting religious freedom. In 1993, President Clinton and an almost unanimous Congress enacted the Religious Freedom Restoration Act, designed to protect Americans of all faiths. In recent years, support for that act, and other religious freedom measures, has splintered along partisan lines. Religious freedom shouldn’t be a Republican issue or a Democratic issue, but an American issue. If we lose the consensus that religious freedom matters to everyone, that sets the stage for a host of different problems.
You’ve argued quite a variety of cases. How do you decide which cases to take?
At the Becket Fund, we look for cases that can change the law. We want to set precedent that will help not only our clients but many others. So we look for a combination of things, like a plaintiff with a powerful story to tell, a state or circuit with favorable precedents, or a split among the appeals courts that tells us an issue is ripe for Supreme Court review. We don’t always guess right, but we have a good track record, and we have won most of our cases.
What has been the most memorable and/or significant case in your career?
Hobby Lobby will probably go down as the most memorable. A couple of years ago, we handled a case involving hiring rights for religious schools. It went to the Supreme Court, but did not get a lot of press coverage because the issues were pretty complex. We won a unanimous decision, and it was the first time that the Supreme Court had decided this particular issue.
Although it wasn’t popular or sexy from a media perspective, it upheld an important constitutional principle that the government cannot interfere in the special relationship between a church and its ministers. It was one of the rare cases where “separation of church and state” was used to protect the integrity of churches. It’s the kind of case that will be added to law school textbooks. I’m honored that I was able to be part of such an important decision.
What was the most fascinating case?
In addition to Hobby Lobby and the Amish case, I handled a goat sacrifice case in Euless. That was probably my most controversial case to date. This client was a Santero who sacrificed goats in his garage as part of a religious ceremony. The question was how far a city could go in restricting religious exercise in a person’s own home. We relied on a Texas religious freedom law that had never been interpreted by the courts. We won, and since that time, the same law has been used to protect other religious groups, including a child wearing a religious symbol in public school and Christian ministries housing the homeless.
Why did you choose to attend Abilene Christian University?
Growing up in the Churches of Christ, I was always interested in attending a Christian university. When I visited ACU as a high school student, I loved the people and the classes, and I could see myself living and studying there for the next four years. I was honored that ACU awarded me a scholarship that made that dream possible.
Tell us about your experience as a student at ACU
The political science department has done tremendous work. I had fascinating, thought-provoking courses that forced me to examine my assumptions and taught me how to argue my points. Dr. Mel Hailey (’70), Dr. Neal Coates (’87), Dr. David Dillman (’70) and Dr. Gary Thompson (’60) all challenged me in different ways. I’m indebted to them for a great education and preparation for a top law school.
In addition to the political science department, I had several biblical studies courses that pushed me to study more carefully and develop my faith. I spent a lot of time in the journalism and mass communication department, where professors sharpened my writing skills.
I’ll never forget Sunday night devos, worship in the amphitheater and Spring Break Campaigns. I was blessed to have great classes, great friends and a great experience.
Anything you would like to add?
I’ll always be grateful to ACU for a strong Christian education. Christian education, especially higher education, is critically important because it wrestles with tough questions about faith and how it applies to and interacts with many different areas of study. After I graduated and went on to a secular law school, I realized how much I missed studying our laws through the lens of a rich faith tradition. ACU is doing God’s work, and I’m blessed to be part of that community.
— Robin Saylor
June 5, 2014