Religion Clause

Tuesday, September 16, 2025

Hawaii Supreme Court Interprets State Constitution's Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawai'i, (HI Sup. Ct., Sept. 12, 2025), the Hawaii Supreme Court held that the Hawaii state constitution's Establishment Clause invalidates a provision in a 1922 land grant from the Territory of Hawaii to the Church of Jesus Christ of Latter-Day Saints. The land grant provided in part:

The land covered by this Grant is to be used for Church purposes only. In the event of its being used for other than Church purposes, this Grant shall become void and the land mentioned herein shall immediately revert to and revest in the Territory of Hawaii.

The current owners of the land seek a declaratory judgment holding that the reversionary clause is invalid. The majority said in part:

Ultimately, we hold that the State’s action to enforce the Deed Restriction, requiring that the Property be used “for Church purposes only” or else the Property would revert to the State, violates Hawai‘i’s Establishment Clause in article I, section 4 of the Hawai‘i Constitution. We resolve this appeal based on the Hawai‘i Constitution. In doing so, we need not consider the Federal Establishment Clause....

When the Hawai‘i Constitution was framed and subsequently went into effect, three U.S. Supreme Court cases delineated the law under Federal Establishment Clause jurisprudence: Everson v. Board of Educ. of Ewing. Township, 330 U.S. 1 (1947); McCollum v. Board of Educ., 333 U.S. 203 (1948); and Zorach v. Clauson, 343 U.S. 306 (1952). We conclude that these decisions provide appropriate and ample guidance to decide this case....

... The State ... asserts that we should adopt the now-prevailing test for Federal Establishment Clause challenges in Kennedy, 597 U.S. 507. We decline to adopt either the Lemon or the Kennedy tests. ...

We see no reason to adopt the Kennedy test to analyze the Hawai‘i Establishment Clause. We recognize the well-founded concerns raised by Justice Sotomayor’s dissent in Kennedy, highlighting the challenges of unearthing and applying historical practices and understandings from the period around the U.S. Constitution’s adoption in 1787. Further, Appellants make the salient point that applying the Kennedy test in the context of state actions in Hawai‘i is even more fraught with questions and peril. It would be discordant to require that the Hawai‘i Establishment Clause be construed based on the historical practices and understandings of the Founding Fathers given that the Hawai‘i Constitution was adopted by its electorate in 1959, one-hundred and seventy-two years after the U.S. Constitution was adopted. ...

Justice Eddins, joined by Justices McKenna and Devis filed a concurring opinion, saying in part:

Because in my view article I section 4 of the Hawaiʻi Constitution has a pluralistic purpose and secular spirit grander than the majority suggests, and the Department of the Attorney General urges us to interpret our constitution to match recent Supreme Court case law, I write separately....

The delegates intended for Hawaiʻi’s Establishment Clause to reflect Everson’s separationist ideals.... Separation of church and state guided the adoption of Hawaiʻi’s religious clauses....

If the Supreme Court decides a case based on mission, text trickery, originalism, or imagination, then that case may have little value to a state that prefers a more principled way, or an interpretive approach that does not force “contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.”...

The Roberts Court’s off-the-wall jurisprudence reimagines the First Amendment. The Constitution creates a barrier against state support for religion and state involvement in religion. But the Court misshapes the Constitution to require government support of religion.

Two years ago, I feared the Court self-inflicted harm, eroded faith in the courts, and exposed itself to real criticisms about its legitimacy....

Back then in the big games, the Roberts Court called balls and strikes based on the pitcher and hitter. Bad enough for the integrity of our judicial system – national and subnational. But now pitches that bounce to the plate or sail over the catcher’s head are strikes. Just because the ump says so. Pretend law is not law. State constitutionalism makes it easy to consider Roberts Court jurisprudence white noise.

India's Supreme Court Stays Enforcement of Several Parts of Waqf Amendment Act

In In re: The Waqf Amendment Act, 2025. (India Sup. Ct., Sept. 15, 2025), the Supreme Court of India in a 128-page opinion upheld many of the provisions of the controversial Waqf Act Amendments enacted earlier this year but stayed enforcement of several parts of the Act. As explained by The Independent:

Narendra Modi’s Hindu nationalist government passed the Waqf Amendment Act 2025 earlier this year, claiming it would improve the management of waqf properties – religious and charitable assets governed under Muslim personal law....

Critics said it was a thinly veiled attempt to seize Muslim-controlled properties, weaken the autonomy of the 200 million-strong Muslim minority, and increase state control of religious assets. They promptly moved the top court seeking a stay on the changes.

The amended legislation requires all waqf properties to be registered on a centralised digital portal. Failure to register can lead to the property being classified as “disputed” and referred to a tribunal....

A Supreme Court bench led by Chief Justice Bhushan R Gavai suspended the new provisions allowing the local collector to determine the ownership of a waqf property....

The court also stayed the provision requiring that only individuals who have been practising Islam for at least five years may dedicate a waqf property, pending the creation of state-level rules for determining a person’s adherence.

Another contentious amendment allowed for the appointment of non-Muslims in the management of waqf institutions. The original law mandated that all waqf board members must be Muslim, including at least two women and elected representatives.

The new law enables state governments to nominate members, including non-Muslim lawmakers, judges, and “eminent persons”. The top court said the Central Waqf Council should not include more than four non-Muslim members, and state waqf boards no more than three. It suggested that the chief executives of waqf boards should ideally be Muslim, although this is not legally mandated.

Monday, September 15, 2025

California Legislature Passes Law Aimed at Combatting Antisemitism and Other Bias in Schools

On September 12, the California legislature gave final passage to AB 715 (full text) which amends the state Education Code to create a state office of Civil Rights. The new Office is to work directly with local educational agencies to address discrimination and bias. It is to provide educational resources to identify and prevent antisemitism and other forms bias. The bill also requires the Office to employ an Antisemitism Prevention Coordinator who is to provide antisemitism education to school personnel and make recommendations to the legislature on legislation that is needed to prevent antisemitism in educational settings. The bill provides in part:

The United States National Strategy to Counter Antisemitism, published by the Biden Administration on May 25, 2023, shall be a basis to inform the Antisemitism Prevention Coordinator on how to identify, respond to, prevent, and counter antisemitism.

The bill also provides in part:

51500. (a) (1) A teacher shall not give instruction and a school district shall not sponsor any activity that promotes a discriminatory bias on the basis of race or ethnicity, gender, religion, disability, nationality, or sexual orientation or because of a characteristic listed in section 220....

(2) Discriminatory bias in instruction and school-sponsored activities does not require a showing of direct harm to members of a protected group. Members of a protected group do not need to be present while the discriminatory bias is occurring for the act to be considered discriminatory bias.

(3) If the governing board or body of a local educational agency finds that instruction or school-sponsored activities are discriminatory pursuant to this section, corrective action shall be taken.

(b) Teacher instruction shall be factually accurate and align with the adopted curriculum and standards ..., and be consistent with accepted standards of professional responsibility, rather than advocacy, personal opinion, bias, or partisanship.

The bill now goes to Governor Gavin Newsom for his signature. JNS reports on the passage of the legislation. KQED reports on the controversy that surrounded the bill.

Friday, September 12, 2025

9th Circuit Upholds Requirement to Use Only Secular Curricular Materials in Charter School Home Instruction Programs

In Woodlard v. Thurmond, (9th Cir., Sept. 11, 2025), the U.S. 9th Circuit Court of Appeals rejected First Amendment challenges to California's refusal to purchase and permit the use of religious curricular materials in home-based independent study programs of two charter schools. The court said in part:

Plaintiffs ... argue that the defendant charter schools’ independent study programs are really homeschooling and that the schools’ provision of curricular materials should be treated as a generally available public benefit in aid of homeschooling, access to which cannot be denied based on Plaintiffs’ religious beliefs. The argument is premised on three recent Supreme Court decisions holding that when a state creates a generally available public benefit, it cannot exclude a potential recipient from the benefit because of religious status or religious use....

... [N]ot all government decisions that engender religious objections impose burdens on religion that fall afoul of the Free Exercise Clause. As the Supreme Court made clear in Carson, a state’s decision to provide a “strictly secular” public education does not do so....

... [I]n contrast to private homeschooling, parents in independent study programs can teach only under the supervision of state employees. The extensive legal requirements applicable to the defendant charter schools’ independent study programs make the programs sufficiently public to defeat Plaintiffs’ free exercise claim....

Plaintiffs’ compelled speech claim fares no better. It is premised on the argument that “[w]hen parents in the Blue Ridge and Visions programs select a diverse array of curricula for their children’s diverse needs,” the parents are speaking, not the government. However, we have held that a public school’s curriculum is an “expression of its policy,” ... and that “information and speech ... present[ed] to school children may be deemed to be part of the school’s curriculum and thus School District speech,”

11th Circuit En Banc: Exclusion of Sex-Change Surgeries from Health Care Coverage Is Not Facially Discriminatory Under Title VII

In Lange v. Houston County, Georgia, (11 Cir., Sept. 9, 2025), the U.S. 11th Circuit Court of Appeals, sitting en banc, in an 8-5 decision, held that a county's employee health insurance plan is not facially discriminatory under Title VII by reason of its exclusion of coverage for "sex change surgery." The case generated 8 opinions spanning 108 pages. The majority opinion relied in large part on the U.S. Supreme Court's decision in United States v. Skrmetti. The majority said in part:

The Supreme Court’s reasoning in Skrmetti applies equally here. The County’s policy does not pay for a sex change operation for anyone regardless of their biological sex....

Neither the Supreme Court nor this Court has held that transgender status is separately protected under Title VII apart from sex. And Bostock did not add transgender status, as a category, to the list of classes protected by Title VII. To the contrary, the Court expressly denied that it was answering any question other than “whether an employer who fires someone simply for being . . . transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex’” within the meaning of Title VII’s plain terms....

Although the plaintiffs’ claim in Skrmetti arose under the Equal Protection Clause, the Court expressly held that the state statute at issue did not discriminate based on transgender status under the same Title VII precedents that we must apply here....

In short, the County’s plan does not facially violate Title VII. The County’s plan draws a line between certain treatments, which it covers, and other treatments, which it does not. That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status.

Judge Newsome filed a concurring opinion, saying in part:

I write separately simply to emphasize that I don’t take either Skrmetti or today’s en banc opinion to collapse the separate analyses that apply to claims under Title VII and the Fourteenth Amendment’s Equal Protection Clause....

Judge Rosenbaum filed an opinion concurring in the judgment

... I haven’t found a meaningful way to distinguish Houston County’s healthcare plan—which excludes from coverage certain surgeries, but only if they involve (in the words of the plan) a “sex change” (a procedure one would have only to address gender dysphoria)—from the law at issue in Skrmetti. So Skrmetti requires me to conclude that the plan doesn’t classify by sex.

I say this with deep regret for three reasons. First, ... the record compellingly reveals that Houston County precludes sex-affirming surgeries for discriminatory reasons..... Second, most respectfully, Skrmetti’s conclusion that the law there didn’t discriminate by sex or transgender status ... conflicts with decades of Title VII jurisprudence.... And third, Skrmetti’s determination that the law there didn’t discriminate by sex or transgender status ... effectively imports the reasoning of Geduldig v. Aiello ... into Title VII jurisprudence. But Congress expressly amended Title VII to reject the holding and reasoning of Geduldig....

Judge Jill Pryor, joined by Judges Jordan, Abudu, Kidd and Wilson, filed a dissenting opinion, saying in part:

The majority opinion concludes that the County health plan’s exclusion of medical care related to a “sex change” does not discriminate based on sex or transgender status because it merely “draws a line between certain treatments, which it covers, and other treatments, which it does not.” ... This is the exact same reasoning that both Congress and the Supreme Court rejected for Title VII claims....

The Skrmetti majority’s discussion of Bostock does not bind us. No Title VII claim was before the Supreme Court. Skrmetti therefore did not and could not decide whether an employer’s insurance plan that bases coverage of medical treatments on sex or transgender status violates Title VII. Nor did Skrmetti address the use of equal protection precedent in the Title VII context in commenting on Bostock.... Although we do not take lightly Supreme Court dicta, we simply are not free to follow it in the face of binding Supreme Court authority to the contrary. After all, “[t]he Supreme Court has told us, over and over again, to follow any of its decisions that directly applies in a case, even if the reasoning of that decision appears to have been rejected in later decisions and leave to that Court ‘the prerogative of overruling its own decisions.’”...

Judge Abudu filed a dissenting opinion, saying in part:

I write separately to acknowledge the ongoing cultural war in which this Court, like courts before us, has had to participate. Our role is to ensure that, regardless of religious, political, or other ideologies, the law applies equally to all. The majority’s decision, unfortunately, undermines that goal and sets us up for yet another episode in our Circuit’s legal history where the majority just gets the outcome wrong, and the short- and long-term implications of its flawed decision cannot be ignored....

The majority reaches its conclusion without acknowledging the elephant in the room—transgender rights have come to the forefront of debate in recent years, shining a necessary light on areas of society still rife with discrimination....

... [L]ike the early work of eliminating explicit sex- and gender based distinctions in the law, we only are tasked with reading Houston County’s healthcare exclusions to decide whether they, on their face, treat Deputy Lange worse because she is transgender, i.e., that her sex was the “but-for cause” of Houston County’s decision to deny her medical coverage. The healthcare exclusions do just that....

Judge Wilson, joined by Judges Abudu and Kidd, filed a dissenting opinion, saying in part:

... Because the majority manipulates Bostock’s but-for test to obfuscate the discrimination apparent on the face of the plan, I dissent....

Georgia Recorder reports on the decision.

Thursday, September 11, 2025

5th Circuit: Baptist Mission Board Can Claim Church Autonomy Defense

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (5th Cir., Sept. 9, 2025), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that the church autonomy doctrine bars civil courts from adjudicating tortious interference, defamation and infliction of emotional distress claims by a Baptist minister who was fired from his position as Executive Director of the Baptist Convention of Maryland/ Delaware (BCMD). In that position he was to implement a strategic partnership between the North American Mission Board (NAMB) and BCMD. NAMB became dissatisfied with the way that plaintiff was carrying out the evangelical mission of the strategic partnership agreement, and plaintiff claims that NAMB was behind his firing by BCMD.

The court said in part:

... [T]he church autonomy doctrine prohibits far more than civil judges telling religious institutions what to believe or how to worship. To help clarify the wide-ranging scope of the doctrine, we identify some areas where church autonomy has barred judicial interference. These include (a) the selection and dismissal of clergy and faith leaders (the so-called “ministerial exception”); (b) the meaning of religious beliefs and doctrines; (c) the determination of religious polity, such as membership, matters of discipline and good standing, and the identification of the “true church” amidst internecine disputes; and (d) internal church communications regarding any of the aforementioned activities....

... [T]he church autonomy doctrine has numerous features of a jurisdictional bar. It limits the powers of federal courts. It immunizes ecclesiastical organizations from suit, not just liability. And, when it is denied, it gives rise to an immediate appeal. But ... the fact that some religious questions are beyond our judicial power does not mean that all church-autonomy disputes are properly dismissed under Rule 12(b)(1). Nor does it preclude federal courts from rendering judgment on the merits in cases like this one. ...

On the merits, the church autonomy doctrine bars all of McRaney’s claims against NAMB. Although his claims are facially secular, their resolution would require secular courts to opine on “matters of faith and doctrine” and intrude on NAMB’s “internal management decisions that are essential to [its] central mission.”...

At the outset, McRaney argues that the church autonomy doctrine cannot apply in this case because “NAMB is not a church,” “BCMD is not a church,” and “[t]here is no Baptist church; only Baptist churches.” ... He argues his case “does not involve an intra-church dispute in any respect, nor is it about church governance.”... Our dissenting colleague agrees..... On the dissent’s view, the church autonomy doctrine only protects religious entities “in which there are superior ecclesiastical tribunals”.... Having branded Baptists ecclesial anarchists, the dissent subjects the NAMB and BCMD’s actions to searching judicial scrutiny—as if this were just an ordinary employment dispute.

We respectfully disagree....

The church autonomy doctrine is triggered by the subject matter of the dispute, not the organizational structure of the disputants. The subject matter of this dispute is an evangelism project. Its stakes are eternal not judicial. And it matters not one bit that the particular evangelicals before us happen to be Baptists from different non-hierarchical congregations instead of soul-saving Presbyterians from a singular hierarchical one. ...

Judge Ramiriz filed a dissenting opinion, saying in part:

William McRaney sued a board of an organization for which he did not work, alleging interference with contract, interference with prospective business relations, defamation, and intentional infliction of emotional distress. Because his secular claims against a third-party organization do not implicate matters of church government or of faith and doctrine, I respectfully dissent....

Because they do not implicate matters of faith and doctrine, McRaney is entitled to continue pursuing his secular claims regarding NAMB’s pre- and post-termination conduct....

Baptist News Global reports on the decision.

Wednesday, September 10, 2025

2nd Circuit: Christian School Wrongly Disqualified for Refusing to Play Against Team That Had Trans Athlete

In Mid Vermont Christian School v. Saunders, (2d Cir., Sept. 9, 2025), the U.S. 2nd Circuit Court of Appeals held that a Christian school was entitled to a preliminary injunction reinstating its membership in the Vermont Principal's Association. The court summarized its decision:

Mid Vermont Christian School forfeited a girls’ playoff basketball game to avoid playing a team with a transgender athlete. The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs. In response to the forfeit, the Vermont Principals’ Association (“VPA”) expelled the school from all state-sponsored extracurricular activities.

Plaintiffs Mid Vermont and several students and parents sued, bringing a Free Exercise claim and seeking a preliminary injunction to reinstate the school’s VPA membership and for other relief. The district court ... denied the motion. We conclude that Plaintiffs are likely to succeed in showing that the VPA’s expulsion of Mid Vermont was not neutral because it displayed hostility toward the school’s religious beliefs; Plaintiffs are therefore likely to prevail on their Free Exercise claim.

MyNBC5 reports on the decision.

School Rules on Non-gendered Pronouns Do Not Violate Free Exercise or Free Speech Rights

In Hyland v. State Board of Education, (NJ App., Sept. 9, 2025), a New Jersey state appellate court rejected a 1st and 14th Amendment challenge to amended Board of Education rules that, among other things, eliminated gendered pronouns in the rules. The court said in part:

Hyland argues the State Board may not establish a "religion of secularism" by adopting amendments that define gender as "indeterminate," which can be decided based on the student's feelings, resulting in the treatment of comparable secular activity more favorably than religious exercise. He further argues the amendments force students who adhere to a "Biblical worldview," to act and operate under a law that directly contradicts those beliefs, and the students or parents are not allowed to opt out of the imposition of those beliefs....

A fair reading of the amended chapter demonstrates the State Board does not seek to promote a "religion of secularism," nor does it create a constitutionally prohibited entanglement. The students and parents retain the right to opt-out of any instruction related to health, family life education, or sex education or educational activity that violates their religious beliefs.... Thus, the amendments do not violate either the Free Exercise or Establishment Clauses, as they apply uniformly to all students and do not seek to regulate religious conduct or belief.,,,

We are satisfied that the record establishes there is no violation of the First Amendment free speech rights. Here, the amendments to Chapter 7 do not regulate or target the speech of students or parents. While the amendments define gender identity, they neither compel nor coerce students or parents to endorse this definition. Nor do they prevent students or parents from publicly expressing a different view....

Tuesday, September 09, 2025

Religious Liberty Commission Hearing Features Remarks by President Trump

Yesterday, the Religious Liberty Commission that was created in May by an Executive Order of Donald Trump held its second hearing (Video of full hearing). The hearing was held at The Museum of the Bible. President Trump was a featured speaker (video of Trump's remarks) (transcript of Trump's remarks). His wide-ranging speech began with the President saying, in part:

... America was founded on faith, as we know and I've been saying it for a long time. And when faith gets weaker, our country seems to get weaker. When faith gets stronger, as it is right now, we're having a very good period of time after some rough years, good things happen for our country. It's amazing the way it seems to work that way. And under the Trump administration, we're defending our rights and restoring our identity as a nation under God. We are one nation under God, and we always will be....

... I'm pleased to announce this morning that the Department of Education will soon issue new guidance protecting the right to prayer in our public schools and its total protection....

During his remarks, the President invited Housing and Urban Development Secretary Scott Turner to speak about developments. Turner said in part:

How many know we have a godly, faithful cabinet? And a cabinet that prioritizes prayer. On July 3rd, Mr. President, of this year, you kicked off the year-long celebration of America's 250th birthday in Iowa. You invited America's faith communities to come together to pray for our country. Well, Mr. President, America's faith communities are responding with overwhelming enthusiasm.... Today, more than 70 major faith organizations and churches have joined together to participate in what we're calling America Prays....

... What if 1 million people prayed for our country every single week between now and next July 4th? ... What if believers all across this great nation got together with 10 people, friends, family members, colleagues, work associates, ten people each week to pray for our country and for our fellow citizens.... Think about the transformation that you and I could witness in communities all across the land. Sons returning to their fathers. Daughters returning to their mothers. Families coming back together. Health being restored. Financial needs being met. Mountains being moved.... We're a nation that has always believed in the power of prayer....

... Lord, not just Democrat, not just Republican, but all American people will come together under the banner of Yahweh of God Almighty. And Lord God, we praise you. And we thank you. And we love you. In Jesus name, Amen. [Audience members respond "Amen"]

The White House posted a press release summarizing the main points of Trump's speech. USA Today reports on the hearing. The White House yesterday also issued a press release titled "President Trump’s Top 100 Victories for People of Faith."

Monday, September 08, 2025

11th Circuit: Government Can Insist on Secular Presenters in Intervention Program for Domestic Abusers

In Nussbaumer v. Secretary, Florida Department of Children and Families, (11th Cir., Sept. 4, 2025), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise challenges to Florida's requirements for becoming certified as a provider in the state's batterers' intervention program. Anyone convicted of domestic violence is required to complete the intervention program offered by a certified provider. Nussbaumer is a Florida minister and licensed clinical Christian psychologist. He was denied certification because state rules require that the program's curriculum not include any faith-based ideology associated with a particular curriculum and not identify poor impulse control as a cause of domestic violence or suggest anger management techniques to prevent domestic violence. The court held that plaintiff's free speech rights were not violated because the curriculum and its presentation are government speech. Similarly, it held that his free exercise rights were not infringed, saying in part:

“the government’s own speech cannot support a claim that the government has interfered with a private individual’s free exercise rights.”... “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”