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.

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.

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....

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."

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.”

Recent Articles of Interest

From SSRN:

• Muhammad Hasan Naqvi, Contemplating the Jirga System: Between Tradition and Justice, (August 04, 2025).
• Jorge Barrera-Rojas, From Mahmoud v. Taylor to Strasbourg: The Substantial-Interference Test in Public Education, (September 01, 2025).
• Christopher D. Hampson, The Ten Commandments, Stripped of Slavery, Exodus & Jubilee, (83 Washington and Lee Law Review Online (forthcoming 2026)).
• Neil Weinstock Netanel, Wrongful Competition, Product Design, and Trade Secrets: Comparing Jewish and Secular Law, (forthcoming in Intellectual Property and Religion, (Nicola Lucchi, Enrico Bonadio, and Bryan Khan eds., Hart Publishing 2026)).
• Mathew Pelham, A Clash Between RFRA and the Department of Homeland Security: Does a Rescission of the Sensitive Locations Policy Substantially Burden the Free Exercise of Religion?, (Volume 47, No. 1, Mitchell Hamline Law Journal of Public Policy and Practice, forthcoming).
• Robert C. Blitt, From Zero to Holy War: The International Community's Failure to Confront the Russian Orthodox Church's Escalating Support for War Against Ukraine, (15(3) Wake Forest Journal of Law and Policy (2025) 1).
• Helen Alvare, Religious Freedom as Freedom, (Brigham Young University Law Review, Vol. 50, pp. 1191–1216 (2025)).
• Aziz Z. Huq & Tom Ginsburg, Family, Faith and Nation: The Roberts Court and the Global Pivot Against Legal Liberalism, (forthcoming, Boston College Law Review).
• Zachary D. Fasman & Samuel Estreicher, Antisemitism, Anti-Zionism and Title VI: A Less From Perplexing Guide, (U of Michigan Public Law Research Paper Forthcoming).

From SmartCILP and elsewhere:

• Brett G. Roberts, Native Americans in the Clutches of Catholicism: How Catholicism and Native Rights Connect via Natural Law in a World That Wants You to Believe Otherwise, 22 Ave Maria Law Review 44-93 (2024).
•  D. Brian Scarnecchia, Are Prenatal Children like Child Soldiers Who May Be Killed in Self-Defense? Should Abortion to Save the Mother's Life Be Legal after Dobbs v. Jackson?, 22 Ave Maria Law Review 94-111 (2024).
• Samantha Barbas, How American Civil Rights Groups Defeated Hate Speech Laws, 6 Journal of Free Speech Law 94-111 (2024).

6th Circuit: Transgender Bathroom Rule Did Not Violate Objecting Parents' or Students' Free Exercise Rights

In Jane and John Doe No. 1 v. Bethel Local School District Board of Education, (6th Cir., Aug. 26, 2025), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of claims that a school's policy on use of communal bathrooms by transgender students violated the free exercise rights of Muslim and Christian students and their parents. The court dismissed as moot plaintiffs' request for a declaratory and injunctive relief because while the case was pending, the school changed its policy pursuant to a new Ohio law that mandated bathroom access based on biological sex. However, plaintiffs' claim for damages from past violations was not moot. Nevertheless, the court found no 1st Amendment violation, focusing on the Supreme Court's recent decision in Mahmoud v. Taylor. The court said in part:

The Supreme Court acknowledged that “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” ... But the Court situated Mahmoud in line with Wisconsin v. Yoder, ...  as an exception to the general rule because “[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” ...

This exception does not apply here.  The bathroom policy does not impose a burden “of the [] same character as the burden in Yoder.”...  Unlike the challenged state law in Yoder, which compelled Amish families to send their children to public or private schools, and the curricular requirement in Mahmoud, which required elementary school students to attend classes where certain LGBTQ+-inclusive storybooks that “unmistakably convey a particular viewpoint about same-sex marriage and gender” were taught, the bathroom policy was not an educational requirement or curricular feature, and the policy did not require students to use the communal restrooms.... [Single occupancy bathrooms were available to students.]

Because the policy was neutral and generally applicable, it is subject to rational basis review, which it survives....

On appeal, the parent plaintiffs specifically argue that the School District infringed on their right to direct the upbringing of their children by (1) modifying the School District’s bathroom operations, (2) increasing their children’s risk of physical danger, and (3) choosing not to answer questions about implementing the bathroom policy.  We are unpersuaded by their arguments, and thus, we affirm the grant of judgment on the pleadings on plaintiffs’ Fourteenth Amendment claim....

Judge Larsen filed an opinion concurring in the judgment but saying that the majority had read the Mahmoud case too narrowly. He said in part:

... [T]he ultimate question Mahmoud poses is whether a school policy “substantially interfere[s] with the religious development of the child or pose[s] a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child.”...  All sorts of non-curricular school rules—which aren’t clearly “educational”—can interfere with parents’ religious upbringing of their children.  Imagine, for example, a school that provides free school lunch to all students, regardless of income, to remove the stigma associated with accepting free or reduced-price meals.  If the school neither provided Kosher meals nor permitted parents to pack brown-bag lunches, that might well impose a Yoder-like burden on Jewish parents and students, even though the policy would neither be obviously “educational” nor involve the curriculum.  If the school cannot require Jewish students to read books “designed to” undermine their commitment to keeping Kosher, why would the school be able to more directly compel them to eat a grilled ham and cheese?...

... In this case, Bethel’s policy allowed religious students to “opt out” by using single-stall restrooms instead of the communal ones to which they objected.  That important fact distinguishes this case from both Yoder and Mahmoud....

Buckeye Flame reports on the decision.

Texas AG Urges Introducing the Lord's Prayer in Classrooms

As previously reported, in May 2025 the Texas legislature passed Senate Bill 11. The bill took effect on September 1. The new law creates an elaborate structure that school districts may adopt to provide for a daily period of prayer and reading of the Bible or other religious text in each school, with parental consent for students to participate. On Monday, Texas Attorney General Ken Paxton issued a press release recommending that schools adopt a policy that calls for recitation of the Lord's Prayer.  The press release said in part:

“In Texas classrooms, we want the Word of God opened, the Ten Commandments displayed, and prayers lifted up,” said Attorney General Paxton. “Twisted, radical liberals want to erase Truth, dismantle the solid foundation that America’s success and strength were built upon, and erode the moral fabric of our society. Our nation was founded on the rock of Biblical Truth, and I will not stand by while the far-left attempts to push our country into the sinking sand.”...

... [Senate Bill 11] directs the Office of the Attorney General to defend any school district or charter school that adopts such a policy. In addition, the Attorney General is empowered to recommend best practices for implementation.

For Texas students considering how to best utilize this time, Attorney General Paxton encourages children to begin with the Lord’s Prayer, as taught by Jesus Christ.

The press release then sets out the text of the Lord's Prayer as it appears in the King James Version of Matthew 6:9-13.  Texas Tribune reports on Paxton's action. [Thanks to Scott Mange for the lead.]

Christian Families Challenge Foster Care Rules on Support of Transgender Children

Two families, asserting Christian religious beliefs, filed suit yesterday in a Massachusetts federal district court challenging on 1st and 14th Amendment grounds a policy of the Massachusetts Department of Children and Families that requires foster parents to agree that they will "[s]upport, respect, and affirm the foster child’s sexual orientation, gender identity, and gender expression." The complaint (full text) in Jones v. Mahaniah, (D MA, filed 9/3/2025), alleges in part:

3. Both families will provide a loving and respectful home for any child, including transgender, gay, or lesbian foster children. But that is insufficient for Massachusetts....

4. ... [T]he State requires the Joneses and the Schrocks to promise to use a child’s chosen pronouns, verbally affirm a child’s gender identity contrary to biological sex, and even encourage a child to medically transition, forcing these families to speak against their core religious beliefs. 

5. Second, DCF infringes on Plaintiffs’ free-exercise rights through a policy that is not neutral or generally applicable,,,,  A foster parent must promise in advance to use opposite-sex pronouns and encourage a hypothetical child’s gender transition, even if they never have and never will host a child who struggles to accept their natural body....

120. Because DCF compels applicants to speak and express the DCF’s preferred views on human sexuality while prohibiting speech expressing other views it regulates speech based on content and viewpoint, it engages in unconstitutional viewpoint discrimination....

134. 110 C.M.R. 7.104(1)(d) is not neutral nor generally applicable because it imposes special disabilities based on religious beliefs, categorically excludes people from foster-care licenses based on religious beliefs, prefers certain religious and secular beliefs over the Plaintiffs’ religious beliefs, and provides for categorical and individualized exemptions without extending an exemption to religious persons like Plaintiffs.

ADF issued a press release announcing the filing of the lawsuit.