Religion Clause

Monday, December 22, 2025

5th Circuit 10-7 Denies En Banc Review in Case of Leafleting by Christian Vegetarian Advocate

By a 10-7 vote, the U.S. 5th Circuit Court of Appeals denied a petition for an en banc rehearing in Hershey v. City of Bossier City, (5th Cir., Dec. 18, 2025). In the case, a 3-judge panel in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place. (See prior posting.) Judge Ho filed an opinion concurring in the denial of an en banc rehearing, saying in part:

... As I noted at the outset, the First Amendment violation presented here should be obvious. Of course people have the right to spread the gospel in public spaces. Yet our colleagues deny that this case presents a legitimate religious liberty issue. Richard Hershey claims the right to share religious materials in public spaces. But our colleagues deny that his claim has anything to do with religious liberty....

Judge Oldham, joined by 6 other judges, filed an opinion dissenting from the denial of an en banc rehearing, saying in part:

Richard Hershey is a “vegetarian advocate whose ethical beliefs compel him to share his message with others.”... When security officers told Hershey to stop distributing his leaflets, he sued for “deprivation of his rights of speech.”... Hershey does not allege that the officers even knew of the content of his vegetarianism leaflets—let alone targeted him for his vegetarian views.... Nor does Hershey allege anything about his religion. You’ll look in vain for any mention in Hershey’s complaint about faith, religiosity, the First Amendment’s Religion Clauses, or evangelism....

But you would not know that from the opinion concurring in the denial of rehearing en banc. In that opinion, this case about vegetarian ethics somehow transforms into a battle over street preaching, the Great Commission, hatred of Christians, and religious persecution dating back “thousands of years.”...This quixotic effort does nothing to justify the panel’s badly splintered, three-judge-four-opinion approach to this case. And while it tilts at windmills that appear nowhere in this case, it does nothing to justify our court’s refusal to reconsider the matter en banc....

Bagua Mirror on City Property Did Not Violate Establishment Clause

In Ngo v. City of Westminster, (CD CA, Nov. 26, 2025), a California federal district court held that display of a Bagua Mirror on city property did not violate the Establishment Clause. Plaintiff alleged that the Mirror was a religious symbol displayed outside the mayor's office on a city hall wall, and that as a devout Catholic, he was offended by the display of the Mirror.

The court said in part:

Neither party has briefed in any detail how the Bagua Mirror display fits in the historical understandings and practices of this nation regarding the Establishment Clause. However, the Supreme Court has noted there “is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”...

In Lynch v. Donnelly, the Supreme Court held that a city owned and displayed Christmas nativity scene including the Infant Jesus, Mary and Joseph did not violate the Establishment Clause.... In that opinion, the Supreme Court opined on the long history and tradition of government sponsored and displayed religious symbols. For example, “[a]rt galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith.”...

From the Supreme Court’s recounting, it is clear that government-sponsored and displayed religious symbols have long been part of this nation’s history and practices, without violating the Establishment Clause. Therefore, the Court finds the allegation that a Bagua Mirror was displayed on City property insufficient to state a claim for violation of the Establishment Clause. In addition, the SAC’s allegation that Plaintiff was offended at the sight of the Bagua Mirror does not amount to any degree of governmental coercion. Offense does not equate to coercion.... The SAC’s Establishment Clause Claim is dismissed.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Sunday, December 21, 2025

KY Supreme Court: Denial of Zoning Permit to Church Did Not Violate RLUIPA

In Missionaries of Saint John the Baptist, Inc. v. Frederic, (KY Sup. Ct., Dec. 18,2025), the Kentucky Supreme Court held that RLUIPA was not violated by denying a conditional use permit to a church that wished to build a grotto to honor the Virgin Mary’s appearance at a grotto in Lourdes, France. The Court concluded that denial of a permit and variances did not impose a substantial burden on the church's religious exercise. The court said in part:

Here, St. John ... has presented no evidence of any expenses it incurred due to any mandate from the Board. Indeed, it concedes that in 2021 it “voluntarily” submitted an application for a grotto that was smaller in size than it originally intended.... Additionally, there can be no serious contention that St. John was uncertain of the likelihood that its applications would be denied pursuant to the applicable zoning ordinance. St. John’s own application letter to the Board acknowledged that “the creation of any type of accessory space to the existing church is not directly permitted by the current local zoning ordinance” because the ordinance required it to be located adjacent to an arterial street to obtain a conditional use permit. (Emphasis added). For the same reason, it cannot be said that St. John has not imposed a burden upon itself.... St. John had every reason to know, and in fact explicitly acknowledged, that building the grotto was not permitted by the ordinance.

Justice Thompson filed a dissenting opinion, saying in part:

While I agree with the majority opinion’s conclusion that ... RLUIPA was not violated, this issue was the only issue presented by the motion for discretionary review filed by Missionaries of Saint John the Baptist, Inc. (the Church) and the only matter which should have been considered by this Court.

Since the singular issue to be determined by this Court was whether a RLUIPA violation had occurred, that is where all discussion should have been confined. I therefore must dissent with regard to the majority’s repetition of the Court of Appeals’ erroneous analysis of, and criticism of, the determinations made by the Park Hills Board of Adjustment ... to authorize a variance and issue a conditional use permit.

Friday, December 19, 2025

HHS Proposes Rules to Bar Hospitals from Performing Gender Affirming Care to Minors

The Department of Health and Human Services today published in the Federal Register two Releases proposing rule changes that would effectively ban almost all U.S. hospitals from providing pharmaceutical or surgical gender-affirming care to children and adolescents under 18 years of age. One Release is titled Prohibition on Federal Medicaid and Children’s Health Insurance Program Funding for Sex-Rejecting Procedures Furnished to Children. The second Release is titled Medicare and Medicaid Programs; Hospital Condition of Participation: Prohibiting Sex-Rejecting Procedures for Children. Health and Human Services Secretary Robert F. Kennedy, Jr. announced the Proposed Rules yesterday in a Press Release and in a "Declaration" titled Safety, Effectiveness, and Professional Standards of Care for Sex Rejecting Procedures on Children and Adolescents. According to the Press Release:

The U.S. Department of Health and Human Services (HHS) today announced a series of proposed regulatory actions to carry out President Trump’s Executive Order directing HHS to end the practice of sex-rejecting procedures on children that expose young people to irreversible harm. These procedures include pharmaceutical or surgical interventions of specified types that attempt to align a child’s physical appearance or body with an asserted identity different from their sex.

The Centers for Medicare & Medicaid Services (CMS) will release a notice of proposed rulemaking to bar hospitals from performing sex-rejecting procedures on children under age 18 as a condition of participation in Medicare and Medicaid programs. Nearly all U.S. hospitals participate in Medicare and Medicaid and this action is designed to ensure that the U.S. government will not be in business with organizations that intentionally or unintentionally inflict permanent harm on children....

CMS will release an additional notice of proposed rulemaking to prohibit federal Medicaid funding for sex-rejecting procedures on children under age 18. The same prohibition would apply to federal Children’s Health Insurance Program (CHIP) funding for these procedures on individuals under age 19. Currently, 27 states do not provide Medicaid coverage of sex-rejecting procedures on children....

6th Circuit: Michigan's Ban on Conversion Therapy for Minors Violates 1st Amendment

In Catholic Charities of Jackson, Lenawee, and Hillsdale Counties v. Whitmer, (6th Cir., Dec. 17, 2025), the U.S. 6th Circuit Court of Appeals held that Michigan's ban on licensed therapists engaging in conversion therapy with minors violates the 1st Amendment's free speech protections. The court said in part:

“As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”... The law at issue here does that: it bans counseling “that seeks to change an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behavior or gender expression[,]” among other things. M.C.L. § 330.1100a(20).

Worse, the Michigan law discriminates based on viewpoint... Specifically, the Michigan law forbids counseling that “seeks to change” a child’s “sexual orientation or gender identity” to align with the child’s religious beliefs or biological sex.... But the law expressly permits “counseling that provides assistance to an individual undergoing a gender transition”.... The law omits a similar carveout for sexual orientation. Thus, ...the Michigan law codifies “a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit[s] the therapists from advancing any other perspective.” ...

So HB 4616 finds itself in a constitutional no-man’s land, absent some exception that liberates it from First Amendment scrutiny altogether. The district court thought that exception came by way of “the broad power of States to regulate the practice of licensed professionals[.]” ...

But it takes more than a general tradition of regulation, in some domain of human activity, to validate content- and viewpoint-based restrictions on speech....

For HB 4616 to survive strict scrutiny, the defendants must show that its restrictions on speech are the least restrictive means of achieving a compelling government interest.... The defendants have not come close to making that showing; indeed they have hardly tried....

Judge Bloomekatz filed a lengthy dissenting opinion, saying in part:

The majority opinion overrides Michigan’s judgment about the efficacy and harms of conversion therapy by declaring that regulations of medical treatments are subject to “the strictest of scrutiny” whenever the regulated treatment is delivered via words.... The majority opinion reaches that result by saying that psychotherapy consists of “spoken words and nothing more,” and then affords it the same protection as speech in the public square or a conversation between friends.... I disagree.

Not all words receive the same First Amendment protection, as is evident from the law’s long tradition of subjecting speech that administers a medical treatment to lesser First Amendment scrutiny. Far from being “words and nothing more,” psychotherapy is an evidence-based medical intervention provided by trained licensed professionals, and it falls within the state’s historic power to regulate medicine. By affording the words therapists say while providing psychotherapy the highest constitutional protection possible, the majority opinion ties states’ hands as to medically-repudiated practices like conversion therapy, and its reasoning threatens to subject wide swaths of medical regulations to strict scrutiny.

What’s more, the majority opinion reaches this result even though all agree that the Supreme Court is poised to resolve the same issue in Chiles v. Salazar....

AP reports on the decision.

Thursday, December 18, 2025

Oklahoma Supreme Court Invalidates Religion-Based Social Study Standards

In Randall v. Fields, (OK Sup. Ct., Dec. 16, 2025), the Oklahoma Supreme Court in a 5-4 decision held that the Oklahoma State Board of Education violated the Open Meeting Act when it approved the 2025 Oklahoma Academic Standards for Social Studies. Plaintiffs had objected to the new Standards because of their religious content. According to the Court:

¶4 Petitioners are Oklahoma taxpayers who object to their tax dollars being used to promote religion in a public school. They allege the 2025 Standards interfere with their ability to direct and control the upbringing of their children including moral religious training and education they teach their children. They allege the 2025 Standards favor Christianity over all other religions in violation of the religious freedoms guaranteed by statutes and the Oklahoma Constitution. Petitioners allege that promotion and favoritism of Christianity will cause their children to feel ostracized and harm their education. Petitioners raising their children in the Christian faith allege the 2025 Standards promote theological doctrines and ideas contrary to the parents' Christian beliefs and their children will also be similarly harmed.

¶5 Petitioners object to the 2025 Standards requiring teachers to teach and students to learn that events depicted in a Bible are historical facts. Petitioners allege historicity of these events is disputed. Petitioners object to 2025 Standards requiring teachers to teach and students to learn that the validity of results in the 2020 Presidential Election should be questioned, and that the COVID 19 virus was caused by a leak in a laboratory in China. Petitioners point to Superintendent Ryan Walters' public statements asserting that the 2025 Standards were created and adopted to promote Judeo-Christian values and to teach a Bible as a "foundational text, helping students understand its undeniable influence on our nation's history and values." Petitioners allege the 2025 Standards require teaching stories and events depicted in a Bible to first and second grade students, and the material is not appropriate for students who are usually 6-8 years of age.

Oklahoma Voice reports on the decision. (See prior related posting.)

Wednesday, December 17, 2025

Firing of Synagogue Religious Teacher for Anti-Israel Blog Post Is Upheld By NY's Top Court

In Sander v. Westchester Reform Temple, (NY Ct. App., Dec. 16, 2025), the New York Court of Appeals (New York's highest court) affirmed the dismissal of a suit alleging that plaintiff was fired from her position with a synagogue in violation of §201-d of New York's employment discrimination law. That section prohibits, among other things, discharging an employee because of the person's legal recreational activities. Plaintiff was fired from her teaching position at a Reform synagogue less than three weeks after she began because of a blog post critical of Israel and Zionism that she co-authored. Plaintiff claimed that her firing was because of blogging which is a lawful recreational activity. The majority opinion by Judge Halligan, joined by 4 other judges, held that her suit should be dismissed under the ministerial exception doctrine. The opinion said it was unnecessary to decide whether of not blogging is a "recreational activity" under §201-d.

Judge Rivera filed a concurring opinion relying on the exclusion in §201-d for activities that create a material conflict of interest relating to the employer's business interest.

Judge Troutman concurred in the result for the reasons stated by the appellate court below, namely that plaintiff was not discharged for the activity of blogging, but for the content of the blog post.

CAIR Sues Florida Over Terrorism Designation

As previously reported, earlier this month Florida Governor Ron DeSantis issued an Executive Order designating CAIR (the Council on American-Islamic Relations), as well as the Muslim Brotherhood, as terrorist organizations under state law. Now CAIR has filed suit in a Florida federal district court challenging the consitutionality of the Governor's action. The complaint (full text) in CAIR-Foundation, Inc. v. DeSantis, (ND FL, filed 12/15/2025), alleges in part:

By issuing this order, Defendant DeSantis has violated the U.S. and Florida Constitutions, as well as federal and state laws. He has usurped the exclusive authority of the federal government to identify and designate terrorist organizations by baselessly declaring CAIR a terrorist organization. He has violated the Constitution’s guarantee of due process by unilaterally declaring CAIR a terrorist organization and then ordering immediate punitive, discriminatory action against CAIR and its supporters....

The designation in the Executive Order imposes burdens on Plaintiffs’ speech and expressive activities by attaching an unauthorized terrorism designation, directing law enforcement agencies to “undertake all lawful measures” pursuant to that designation, and altering Plaintiffs’ legal status with respect to the State in a manner that chills and burdens protected expression. Such burdens are unconstitutional viewpoint-based penalties.....

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

Tuesday, December 16, 2025

2nd Circuit Upholds Prison's Restriction of Inmate's Access to Smudging Ritual

In Baltas v Jones, (2d Cir., Dec. 15, 2025), the U.S. 2nd Circuit Court of Appeals upheld the dismissal of a prisoner's free exercise claim. The court said in part:

Baltas argues that Defendant Jones (a Garner Deputy Warden) violated Baltas’s First Amendment right to free exercise of his religion by forbidding him from engaging in the Native American “smudging” ritual while in Garner’s restricted housing unit (“RHU”). ... [T]his claim also fails for want of clearly established law....

We “judge prisoners’ free exercise claims under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.”...

... [I]t was not clearly established that prison officials wou ld be “unreasonable” if they prevented prisoners who had “been deemed to present various safety and security concerns” from having “access to a lighter” in a religious ceremony. Baltas cites no cases involving similarly risky practices. Summary judgment was properly granted as to this claim.