Keeping the faith

In September 2020, Vanessa Nosie strapped her four-day-old daughter Shá'yú in a car seat and told her husband to drive west, straight from the hospital in Globe, Arizona, where she had just given birth. They drove to Chi’chil Biłdagoteel, or Oak Flat, the Apache sacred land, where Vanessa prayed, picked acorn and sumac berries with her grandmother, and held ceremonies for women in her family. There, she pressed Shá'yú's tiny bare feet to the ground, her first encounter with Oak Flat. One day, Vanessa hoped, Shá'yú too would have her sunrise dance at Oak Flat, a coming-of-age ceremony inseparable from this land.

The urgency behind Shá'yú's road trip was fueled by the threat of a mining project by Resolution Copper, a subsidiary of two international mining giants, Rio Tinto and BHP, that would shut down access to the land and begin turning Oak Flat into a 1,100-feet-deep and two-mile-wide crater, if the project moved forward. What if her daughter missed her chance? “Our direct connection to God is here, it’s where we listen to the Creator,” Vanessa told me. “Oak Flat is crucial for our survival.”

On a chilly Friday night in January, Vanessa fetched a handful of sticky dough out of a bucket, dipped it in flour, and massaged the mass into a smooth ball. Vanessa’s family — kids, parents, sisters and a few activists — huddled around the fire at the Oak Flat campground, which has become a kind of headquarters for the Apache Stronghold, a group of San Carlos Apaches that coalesced to fight the government to preserve their land. Vanessa’s father and the group’s spiritual leader, Wendsler Nosie Sr., who now lives at Oak Flat in a trailer, has described the land as a Mount Sinai of the Apache people — a place of spiritual rootedness that’s core to being an Apache. I was among a dozen visitors who joined the Apache Stronghold members for the weekend, because I wanted to better understand the significance of Oak Flat for the Apache religion.

A part of Tonto National Forest, Oak Flat has been under threat since 2014, when Arizona Republican Sens. John McCain and Jeff Flake added a late-night “rider” onto a must-pass defense bill, which authorized the government to transfer 2,400 acres of land to Resolution Copper, in exchange for other valuable parcels. But the years of legal battles over Oak Flat ramped up in 2021, after the outgoing Trump administration published the environmental impact statement, revealing troubling effects of the mining project: dewatering, burial damage, over 1 billion tons of toxic waste. The Apache Stronghold filed a lawsuit to stop the land transfer, but the district court struck it down.

Luke Goodrich, a tall and slender-framed attorney from the Becket Fund for Religious Liberty and one of the country’s leading religious liberty litigators, took on the case. To learn about Oak Flat, Goodrich, a devout Christian, camped with the Nosie family, joined them for a Sunrise ceremony, and wandered the craggy landscape, thinking about the case. He filed an emergency brief to the 9th Circuit Court of Appeals, but the three-judge panel ruled against preserving Oak Flat, claiming the land transfer did not constitute “substantial burden” on the Apache religion, the first step under the Religious Freedom of Restoration Act, or RFRA. Five months later, the court agreed to rehear the case before a full 11-judge panel.

A public interest law firm in Washington, D.C., of about 20 attorneys, which now goes by Becket to avoid confusion that they offer funding, has defended religious freedoms of Catholics, evangelicals, Muslims, Sikhs, Jews and Native Americans — all free of charge — for over 30 years, marked by a string of significant Supreme Court wins. With the Apache case, Becket faced an uphill battle: The case lacked favorable precedent, the government argued, and the group had no right to the federal land.

In March 2023, Goodrich stood before the 9th Circuit Court of Appeals judges, arguing that the complete obliteration of Oak Flat would “substantially burden” the practice of the Western Apaches’ faith, a right that RFRA protects. Goodrich started his argument with what appeared to be the point of agreement. “Both parties agree that if the United States government put up no trespassing signs and threatened the Apaches with fines for accessing Oak Flat, that would be a substantial burden,” he told the judges. “Here the government … is not just threatening fines but authorizing complete physical destruction of Oak Flat, barring the Apaches from ever accessing it again and ending their core religious exercises forever.” For about an hour and a half, the judges grilled the two sides about their interpretations of “substantial burden.”

At the campground, Wendsler Nosie stepped toward the tables with food and whispered a blessing on the meal: fry bread and acorn soup, made from the acorns picked from the Emory Oak tree hanging over the campsite. Vanessa and her family were anxious about the court decision. Shá'yú, now a boisterous three-year-old with two braids, wrapped herself around her mom’s leg. “Shá'yú is either going to be able to pick up the fight,” Vanessa said, “or she’ll only know the idea of what it is to be Apache.”

For Goodrich and other attorneys at Becket, the freedom to exercise your religion is only partly about belief in God — at the core, it’s about who we are as human beings. “We’re born with the conscience that tells us right and wrong when we’re seeking truth and the only way we can act on that conscience genuinely is when we’re able to act on it freely,” said Goodrich, who is also the author of “Free to Believe: The Battle Over Religious Liberty in America.” “So when the government stops you from acting in accordance with your conscience, and it doesn’t have a justification for doing that, it’s violating who you are as a human being.” Goodrich’s commitment for religious freedom grew out of his personal Christian faith. After graduating from the University of Chicago Law School, he got a job working for Michael McConnell, then a 10th Circuit Court judge and one of the nation’s leading scholars on religious freedom, who had an office in Salt Lake City. “With the legal skills I’d been equipped with, I thought that I might be able to make a difference in the world,” said Goodrich, who joined Becket 16 years ago and now lives in Florida with his wife and eight children.

Since its founding, Becket has won nearly 85 percent of its cases, including eight Supreme Court victories in the past 12 years and over a dozen wins in appellate and trial courts. High-profile victories in defending the right of Hobby Lobby and Little Sisters of the Poor to opt out of contraception coverage mandates under the Affordable Care Act have thrust Becket onto the national legal landscape and, in turn, the media firestorm that followed. In the aftermath of Hobby Lobby, the critics claimed that the exemptions for religious beliefs of company owners shouldn’t trample the rights of the employees. But Becket attorneys believe that individual religious freedom extends into the public sphere and should be accommodated as long as the other side can accomplish their goal through other means. “I think sometimes people fail to understand that your faith is not just what you do in a house of worship,” said Lori Windham, vice president and senior counsel, who’s been with Becket since 2005, back when the firm had only a handful of attorneys. “Protecting religious freedom means protecting people’s ability to go out in public and say what they believe and act on it.”

This ability to live one’s faith in public has become more challenging amid the overall decline of religious commitment in the country. According to Pew Research Center, Christians believe that life in the U.S. has gotten harder for people of strong religious faith. This tension is the backdrop for why religious freedom initiatives have been criticized as a mere political tool and a smokescreen for Christian conservatives to preserve discriminatory practices against minority groups.

But Becket, a small nonprofit law firm in the heart of D.C., has been expanding the way that Americans view religious liberty and shaping the law that will influence legal decisions for years to come.

Even though Becket’s Christian cases have made headlines, the firm’s work spans a gamut of faiths: a Muslim inmate who was denied the right to grow a half-inch religious beard, a Jewish university in a clash with an LGBTQ student group, a fight on behalf of the Sikhs in the military to keep their religious beard and wear a turban during training. Becket even defended a Texas priest who wanted to sacrifice animals in his garage to comply with his Santeria faith, an Afro Caribbean religion.

The attorneys tell me they’re not interested in culture wars or partisan shouting matches: The group is committed to defending free exercise of religion for all faiths by winning precedent-making cases that have the potential to shape robust religious freedom laws. “We’re doing a sophisticated, long-term game of trying to get the law right in this country,” said Mark Rienzi, Becket’s president and CEO. “I want our country to be in a place where our people and our institutions recognize and are OK with the fact that disagreement is a consequence of freedom and it’s OK for us to disagree about important things.”

In 1992, Kevin “Seamus” Hasson burned fervently with this conviction. Irish Catholic with a gentle demeanor and deadpan sense of humor, Hasson had been working at a D.C. law firm, but harbored a dream since law school to start a law firm dedicated to religious liberty. After visiting St. Peter’s Basilica in Rome, he walked to a pay phone across the street and called his wife, Mary, back home in the United States. “Sweetheart, I just decided what we’re going to do,” Hasson recounted in a speech in 2015. “I’m supposed to start a public interest law firm that defends all believers for free.”

Hasson described himself as “the kid in the gospels with five loaves and two fishes,” who did what needed to be done. “Religious liberty was facing a grave threat … and I had something I could do about it,” I thought, “and I knew some people who could help,” Hasson said at the Becket gala in 2012, where he was awarded Becket’s annual Canterbury Medal (he stepped down from Becket in 2011 due to Parkinson’s disease). He named the firm after the archbishop of England Thomas Becket, who was martyred for refusing to allow King Henry II to interfere with the church. Hasson rented a small office in Dupont Circle in Washington, D.C., with the door that banged against his desk when you opened it. Then he began hiring cream-of-the-crop lawyers, who combined top-notch legal training with passion for religious liberty.

The firm entered a new chapter when William Mumma, a Wall Street businessman, stepped in as a full-time volunteer CEO in 2011. “Some people say that Seamus was our George Washington and Bill Mumma was our Alexander Hamilton,” said Eric Baxter, vice president and senior counsel at Becket. Baxter described to me a goosebump-inducing Becket fundraiser he attended at the Four Seasons Hotel in Georgetown in 2010 with a gospel choir emerging from the back, and speeches by Robert George, an American legal scholar who teaches at Princeton, and Mary Ann Glendon, a Catholic religious freedom advocate. Baxter, who was working at now-ArentFox Schiff, a white-shoe law firm with about 680 lawyers today, got fired up about Becket’s mission. He started helping out with the firm’s amicus briefs — he drafted one on a religious homeless shelter that provided rehabilitation services to people trying to reintegrate into society after prison, and took a job at Becket in 2011.

Baxter recalled the new continuity and business acumen Mumma brought to Becket. “We moved from a kind of a little bit of an obscure, but powerful shop to a more public presence with even more ability to influence both the culture and the law.”

On a gray wall in Becket’s office in D.C.’s Foggy Bottom area hangs a painting of Thomas Becket, his hand reaching upward toward an angel as the king’s knight is puncturing his stomach with a sword. The office interior is accented with blue, gold and white; colors of the Blessed Virgin Mother Mary that Hasson had chosen for the office. In a series of black-and-white pictures in the conference room, Hasson poses with the Dalai Lama, Elie Wiesel and Pope John Paul. Another wall is lined with court sketches from each one of Becket’s Supreme Court victories.

The firm is small by design and is selective about the cases that it takes on — typically appellate-level and trial-court cases with potential to make a significant mark in the courts. “We’re not trying to catch every religious liberty case that’s out there,” said Windham. “We want to go in and bring the cases that are going to have a big impact and move the law in a good direction.”

To help the judges see how crucial Oak Flat was to the Apache, Goodrich drove home the point that seemed to him a no-brainer: A complete destruction of Oak Flat would most definitely inflict substantial burden on the Apache religion. “Oak Flat is the center of core religious practices that can’t be relocated,” Goodrich told the press after the 9th Circuit Court of Appeals hearing in California. On his chest, he wore a yellow Native American medicine pouch. But the government claimed that under previous cases Navajo Nation v. U.S. Forest Service and Lyng v. Northwest Indian Cemetery Protective Association, the destruction of Oak Flat didn’t fit within RFRA’s narrow definitions of “substantial burden” on religious exercise, which those cases defined as penalties or missed government benefits.

If a mine threatened a Christian cathedral, the government would most certainly halt the destruction, Goodrich told the crowd. “But this is a very unfortunate aspect of our nation’s history, that the government has repeatedly destroyed Apache lives and lands particularly for the sake of mining interests. We think that history should not repeat itself.”

Josh McDaniel from Harvard Law School’s Religious Freedom Clinic, which had filed an amicus brief in support of the Apache Stronghold case, said that Becket’s work is important for advancing a more expansive interpretation of RFRA that also includes minority groups, like the Apache. “Becket has helped to give a voice to the Apache people in the fight for a more robust interpretation of RFRA that would extend a lot of protection to a religious group that does not have … the mainstream conception of a church,” said McDaniel. Becket has helped shape Harvard’s clinic, as well as others within other top law schools like Stanford, Yale and Notre Dame.

Becket began its work at a time of wide bipartisan support for RFRA, which was signed into law in 1993, aiming to reverse the Smith case, in which two native Americans were fired and denied unemployment benefits after ingesting peyote at a religious ceremony. But with the growing polarization along gender-identity issues and abortion laws, support for religious liberty has been receding. In a report for the Center for American Progress, Emily London and Maggie Siddiqi wrote that “religious liberty has increasingly been exploited and misused in order to favor the interests of select, privileged conservative Protestant Christians over the basic rights of the most vulnerable Americans.” In April 2023, House and Senate civil rights leaders reintroduced the Do No Harm Act, arguing that it would restore RFRA to its original purpose of protecting religious exercise without eroding civil rights protections.

Rienzi tells me he doesn’t discount the pain that comes with disagreement around the deeply held beliefs and values. “But we shouldn’t consider it an affront that our neighbor has a different belief about something really important, whether it’s God, or sex or politics,” he told me. “This is what it means to be free that my neighbor is allowed to think that.”

In an effort to create safeguards for religious freedom protections on a state level, 23 states — most recently West Virginia and North Dakota — have codified the federal Religious Freedom Restoration Act into state law. In the debate over clashing rights and the government’s attempts to uphold equal rights and defend religious liberty, Becket is trying to “level the playing field in court,” as their website says, for people of religious belief.

People on both sides of the aisle take issue with religious freedom when it doesn’t align with their worldview, Goodrich explained. “Folks of a more progressive political orientation often view religious freedom as a threat to other things they value, like often it’s LGBTQ rights or abortion rights,” he said. “Those who are more conservative leaning might be quick to claim religious liberty for Hobby Lobby and Little Sisters of the Poor, but aren’t always standing up the way they should for the Apaches.”

Thomas Berg, professor at the School of Law at the University of St. Thomas, told me that Becket uniquely positions itself within a polarizing landscape. “Some of the other nonprofit organizations besides Becket tend to be on one side of the culture wars or the other,” Berg told me. He is the author of “Religious Liberty in a Polarized Age.” “If religious freedom is going to be meaningful, it should only be limited when the harms are serious and unavoidable,” Berg said. “And often there are ways to accommodate and protect freedoms while minimizing the effects on others.”

The research conducted by Becket this year shows that maybe the idea of religious liberty is not as controversial as it’s purported to be. In Becket’s Index report published in January, 62 percent of participants said they agree with the current protections safeguarded by RFRA — 12 percent thought that RFRA went too far. “I think that the live and let live idea is actually alive and well in America,” Rienzi said. “It gets drowned out by the screechiest yellers.” To build up strong religious freedom laws, it’s important that people have the correct perception that religious liberty is for everyone, Berg said. “And Becket’s record in protecting non-Christian and non-conservative faiths … is really strong,” he said.

Rienzi sees the pushback Becket receives as an avenue for strengthening the legal foundation for religious freedom. “It actually creates good opportunities for what we do — which is making good law,” Rienzi said. Winning consistently and “strongly enough” is a path to an endgame, he said, where religious freedom is so entwined in our society’s fabric that Becket has no cases to take on. “In a very polarized time, I think religious liberty can actually lead us a little bit to how to live in peace despite all the disagreements,” Rienzi said.

On a recent morning, Vanessa and her father, Wendsler Nosie, led a group made up of the Nosie family, Christian supporters and activists on a hike to Apache Leap, a part of Oak Flat, where, in the 1880s, a group of Apache warriors chose to jump to their death instead of surrendering to the U.S. cavalry. For the Apache, the hike is a spiritual communion with the rich terrain of the sacred land. Along a steep, bouldery path up the mountain, flower stalks of yucca plants, sacred in Apache faith, shoot up in the air. Some are beaten to the ground, scorched by the wildfires. A group of men sang Apache spiritual songs, the thunder of their water drums echoing through the valley.

Wendsler Nosie, a former chairman of the San Carlos Apache Tribe of the Apache Stronghold, has worked with a lot of attorneys. Goodrich’s approach was different, he told me by the campfire at Oak Flat. “Luke told me, ‘Don’t worry, Wendsler, you will lead the fight,’” Wendsler explained. “He puts me on the witness stand and that’s a big difference.” Goodrich acknowledges that Becket has only joined the latest chapter in the fight for Oak Flat that spans centuries. “There is a whole history of trauma that the government has inflicted here. You can’t really understand the latest chapter if you’re not familiar with the first seven-eighths of the book.”

Having an attorney who shares her most personal and important beliefs has been important to Kitty Burke, who along with her husband, Mike, were denied a foster child by the Massachusetts Department of Children and Families because of concerns about their views on traditional marriage and how they may impact their child should they come out as gay. “Getting a phone call saying, ‘Oh nope, you guys are no good, we don’t want you’ was shocking,” said Burke. She got a tip to turn to Becket and has been working with Windham to make the case that they would be loving parents no matter what, especially amid Massachusetts’ severe foster care crisis. “To have a group like Becket in our corner who not only understand the legal side, but has been there to support us, has been absolutely priceless,” said Burke. Baxter told me they take on clients “for life,” even after the representation is over, fostering a community of support.

At the peak of the Apache Leap, a vista speckled with shrubs opens up, blue hills on the horizon silhouetted against hazy grayish sky. The wind whooshed, as men and women kneeled and offered blessings to the sacred crosses symbolic of the connection between the Creator and Mother Earth positioned against a stone wall. “This is a holy place, this is where our deities and angels live — this is what we were vacated from to not be here anymore, to destroy our religion,” Wendsler told the hikers. “But we made our way back.”

Resolution Copper, which would expand on the existing Magma Copper Mine, promises new jobs and clean energy from copper, but would also cause disastrous environmental harm, the Nosie family says. The mine will use the underground block cave mining method and would carry the pipelines with mine waste through nearly 20 miles of rugged territory to the pristine Dripping Springs Valley. The mine would also significantly deplete groundwater ecosystems from the surrounding area and destroy native species. But Rio Tinto has vowed to minimize environmental effects and closely monitor water usage.

“The information collected and the two-way dialogue with Native American tribes and communities has significantly reshaped the project,” according to a statement from Rio Tinto, Resolution Copper’s parent company. “Resolution Copper has agreed to forego portions of the ore body and major facilities have been completely relocated to avoid dozens of areas of cultural significance and hundreds of ancestral sites, medicinal plants, seeps and springs.” The company said it would preserve Apache Leap and the Oak Flat campground, which “will remain open and accessible for decades and may never be impacted,” according to the statement. As required by law, Resolution Copper said it will closely monitor groundwater and surface water usage and promises to recycle 70 percent of water used by the mine. But to the Apaches, the mine would change Oak Flat forever, impacting their spiritual practices and their way of life.

Vanessa’s oldest daughter, Naelyn Pike, told me taking away the Apache roots and the spiritual connection to the land is a kind of killing of her people. “It’s a reminder that our religion as Native People is not seen by the government,” she said. “They’ll have to be accountable to our people for everything they did to us in the past.”

On March 1, a divided 9th Circuit Court of Appeals ruled 6-5 to allow the federal land transfer that will let Resolution Copper begin construction. In the decision, the majority didn’t dispute that the mine will prevent the Apaches from exercising an essential part of their religion. But relying on past cases involving Native American land, the court ruled that preventing religious exercise on federal land like Oak Flat didn’t fall under the legal definition of substantial burden.

“It’s certainly disappointing when the court fails to protect religious liberty and fails to give Native Americans the same protection that everybody else has,” Goodrich said. “This ruling carves out an exception from the broad principle of religious freedom and from the Religious Freedom Restoration Act that specifically disadvantages Native Americans when they seek to exercise their religion on what is now federal land.”

The dissenting five judges wrote that the majority “tragically errs” in rejecting the protection of the Apaches and “categorically preventing the Western Apaches from ever again communing with Usen (the Creator) and the Ga’an (a sacred mountain spirit), the very foundation of the Apache religion.” The question of whether the obliteration of the site would inflict substantial burden on the religious exercise of the Western Apaches is straightforward. “Under any ordinary understanding of the English language, the answer must be yes,” Chief Judge Mary Murguia wrote in her dissent.

Vanessa, who works as an archeology aide for the San Carlos Apache tribe, was in Flagstaff, Arizona, for a meeting with the National Park Service on March 1. After the meeting, she got a call from Wendsler about the ruling. “When we heard the outcome, it was disappointing — there was a moment where I wanted to cry,” she told me. She thought about her kids. “What does the future hold for them?” she said. Her older daughters have picked up the fight, but would Shá'yú even remember her time at Oak Flat when she’s older? “To exclude us from our religious rights — that doesn’t make sense, why are we any different?”

But the fight doesn’t stop with the recent ruling, Vanessa said, and that brings her hope. Goodrich and the Nosie family plans to appeal to the U.S. Supreme Court and he believes the court will take the case. “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths,” Goodrich said, “and we fully expect the court to uphold that same freedom for Native Americans.” After all, it’s not just about the Apache religion and Oak Flat. “The bigger fight here is that if my religion is at stake,” Vanessa said, “so is everybody else’s.”

This story appears in the April 2024 issue of Deseret Magazine. Learn more about how to subscribe.