At the expense of seeming to crow, the Becket Fund for Religious liberty has taken the lead on both of these efforts, and precisely because this is (unfortunately) the emerging front in religious liberty litigation. We sponsored the scholars’ conference on the religious liberty impacts of same sex marriage that has garnered so much coverage lately. (Links to all of the available draft papers, and to all of the coverage, are both available here ) We also briefed and argued the Ursuline Academy case on behalf of the Wilmington Diocese. (More info on that is available here.) The right to control leadership and membership of religious organizations is an indispensable element of religious freedom, and it’s increasingly under attack. But oddly, it is usually protected by the right of expressive association under the Free Speech Clause, and not the Free Exercise Clause. One hopes that the Supreme Court will move back in the direction of recognizing the additional and distinctive dangers that arise when the government meddles with religious institutions in particular (as opposed to expressive associations generally). These are the dangers that the Free Exercise Clause exists to prevent. It is precisely the reluctance to acknowledge any special protection for religious exercise under the constitution that has led to decisions undermining the protections of church autonomy. I have particularly in mind the Third Circuit’s decision last month in Petruska v. Gannon (available here ), which was written by Judge Becker and issued several days after he died. The only upside of this awful and unexpected decision is that it is an outlier among the federal circuits, so it’s a strong candidate for certiorari review, giving the Court the chance to clean up the mess it’s made in this area.