L. Martin Nussbaum would know. The Colorado Springs attorney founded the religious institutions practice at Rothgerber, Johnson and Lyons, a group of 12 attorneys who represent religious groups of all stripes and beliefs across the nation.
“The attack is coming from a number of fronts,” he said. “Individuals and government actors are working toward ending religious freedom.”
Others, however, say the recent onslaught of court cases about religious liberty are a necessary part of the Bill of Rights, needed to set legal precedents in the separation of church and state.
Nussbaum has one of the nation’s largest such practices. His team represents churches, denominations, religious schools and other ministries.
He also serves as litigation counsel, First Amendment counsel, amicus counsel and consulting counsel for trial and appellate courts in several jurisdictions. He started the practice in 1997 when he joined Rothgerber because he believes in the importance of religious freedom.
“I still believe it,” he said. “When America launched this great experiment called democracy and included religious freedom as part of it — that was new to the world. And it’s a vital part of our economic and social fabric. We cover the whole range of religious groups. Religious expression is a critically distinct and important part of America and it deserves to be protected.”
Nussbaum’s practice not only covers First Amendment issues, it also deals with church property rights, tax law, secession issues and other legal cases that are unique to religious institutions.
“The whole subject of the intersection of church and civil law — it’s a huge issue,” he said. “Many things fall under it, because of the special protections under the First Amendment.”
For example, he was the lead attorney in the case to keep property within an Episcopal church after a secessionist group laid claim to it.
“That was a highly important religious freedom principle,” he said. “The freedom to discipline a minister and operate according to canon law was at stake.”
The case involved longtime minister Rev. Donald Armstrong at Grace Episcopal Church in downtown Colorado Springs. Armstrong was accused of embezzling money from the church. The main body removed him, but a section of the congregation chose to retain him — and tried to retain church property as well.
The secessionist group lost the case, and the church was able to move back into the property on Tejon Street.
These days, churches are becoming more litigious, Nussbaum said. At the U.S. Conference of Catholic Bishops, there were 12 lawsuits discussed involving 23 organizations. Most cases involved the federal government requiring all organizations to provide health insurance that also covers contraceptives for women. The policy goes against Catholic canon law, he said.
“It’s unprecedented that so many were filed,” he said. “There’s a highlighted sense among the religious groups that freedom should not be taken for granted — that it needs to be decided in court.”
Focus on the Family’s policy arm, CitizenLink, is also paying attention to the case, said Bruce Hausknecht, judicial analyst for the organization.
“I think religious liberty took a turn for the worse Aug. 1,” he said. “That’s the most egregious violation of religious freedom. It’s a conscious violation of the right of people of faith.”
Focus founder James Dobson also founded a group of attorneys who specialize in legal cases for evangelical Christians. Called the Alliance for Defending Freedom, the group files amicus briefs opposing contraceptive requirements, the cases surrounding the definition of marriage, and abortion lawsuits.
“And we do our part by publicizing the cases, explaining to constituents about what the lawsuits are all about in terms that are easy to understand,” Hausknecht said.
While Hausknecht is worried religious freedoms are deteriorating, others believe that drawing the lines between church and state is the legal system’s responsibility.
“First and foremost, the boundaries between church and state absolutely have to be defined in court,” said Kristy Milligan, executive director for Citizens Project, a local nonprofit organization focused on equality, religious freedom and diversity. “That’s a great thing about the court system. It doesn’t matter how we feel about an issue, they draw the line based on the law.”
Milligan says religious freedom is a largely contemporary issue — and she’s seeing a change in behavior.
“Even the dominant religious groups are facing bullying, harassment,” she said. “We got a call about a boy who took a Bible to school — that’s totally legal. But he faced bullying, harassment. People telling him he was a bigot. We have to fight those kinds of issues as well. Religious intolerance isn’t something we should accept.”
Milligan draws the line at supporting religious groups that discriminate based on their beliefs. Nussbaum believes that exclusions based on religious convictions are protected under the law.
The U.S. Supreme Court, however, disagrees with him.
The University of Hastings Law School banned the Legal Christian Society after the group’s charter banned people based on sexual orientation. The law school said that that was discrimination, and withdrew funding.
“This group of people only wanted to meet, discuss their Christian faith and their legal studies,” he said. “But the Supreme Court in a 5-4 decision upheld the school — they said they couldn’t ban people.”
For Milligan, no discrimination should be allowed, regardless of the reason behind it.
“This isn’t liberty under attack,” she said. “This is discrimination against a group — It’s not OK to use your religious convictions as a basis for oppressing another group. I don’t think they should receive taxpayer dollars if they are discriminating.”
Milligan also parts company with Hausknecht on the issue of the definition of marriage.
The Supreme Court is set to hear arguments about the California marriage amendment, known as Proposition 8. For Hausknecht, it’s a religious freedom issue. For Milligan, it’s one of basic civil rights.
“The battle, the cultural conflict between traditional marriage components and same-sex proponents, has a net effect of religious freedom,” he said. “The winner of that battle will be important for continuing religious freedom in this country.”
Not true, says Milligan.
“Discrimination based on religion conviction is antithetical to what religion is all about,” she said. “No one should be harassed, bullied or excluded because someone else has a particular belief about something.”
Regardless of which side of the battle they’re on, Nussbaum believes the religious legal cases go far beyond political grandstanding.
“All Americans should support religious liberty,” he said. “Some people believe this is all about politics — it’s a different between conservatives and liberals. It isn’t. It’s about basic freedoms.”
A Denver judge issues a temporary restraining order exempting a private business from implementing the contraceptives provision of the Affordable Care Act, based on the owner’s religious beliefs against contraception.
Douglas County’s school board decides to create a voucher system allowing parents to choose which school their children attend — public schools, magnet schools, home-school support or charter religious schools. Several groups file suit against the school board, saying the new rules violate the state constitution against supporting religious institutions with tax dollars.
Grace Episcopal Church in Colorado Springs tries to fire its priest, causing a division in the church. The secessionist congregation claims it has a right to the church property. The court rules that the property should remain with the main church body.
Rocky Mountain Christian School in Boulder tries to expand inside the county limits. The county refuses to allow the expansion, leading to litigation, and a judge says the county has violated the religious land use and institutionalized persons act.