Religion Clause

Wednesday, February 18, 2026

Palestinian Authority Unveils New Draft Constitution

Times of Israel reported earlier this month:

Palestinian Authority President Mahmoud Abbas received a draft constitution [on February 5] ... that aims to transition the PA to a full-fledged state, Ramallah’s official Wafa media outlet said....

Abbas ordered that the draft constitution be submitted to the Palestine Liberation Organization’s Executive Committee for review before being made available for public feedback, a process that could take months to over a year, a Palestinian official told The Times of Israel.

It will then have to go through a public referendum and receive a majority support in order to come into effect.

The "Draft of the Temporary Constitution of the State of Palestine" (full text) contains a number of provisions on religion and religious freedom. It provides in part:

Preamble: ... Palestine is the cradle of heavenly religions, where peace was preached and where the Messenger of God travelled; it is the land of prophets, the meeting place of religions, and the cradle of civilizations. From its heart, this constitution draws the essence of humanity, where faith is a guide, tolerance is a lifestyle, and justice and peace are a goal for those who seek it....

Article 3, Sec. 2: The state is committed to preserving its religious character and protecting its Islamic and Christian sanctities, as well as its legal, political, and historical status....

Article 4, Sec. 1: Islam is the official religion in the State of Palestine.

Sec. 2: The principles of Islamic Sharia are a primary source for legislation.

Sec. 3: Christianity has its status in Palestine, and its followers' rights are respected.

Article 37: Freedom of belief is absolute, and the freedom to practice religious rites and establish places of worship for followers of monotheistic religions is a right regulated by law. ...

Article 38 Sec. 3: The law prohibits any call for racial or religious hatred that constitutes incitement to discrimination, hostility, or violence.

Article 69 Sec. 1: The law punishes the crimes of genocide, crimes against humanity, war crimes, aggression, and all serious and systematic violations of human rights. They are not subject to a statute of limitations and may not be pardoned.

Article 132 Sec. 1: Sharia disputes and personal status are handled by Sharia and religious courts.

7th Circuit: "Moral" Objections Not Protected By Title VII

In Bowlin v. Board of Directors, Judah Christian School, (7th Circuit, Feb. 13, 2026), the U.S. 7th Circuit Court of Appeals held that moral objections that are not also religiously based are not protected by Title VII. The court said in part:

In the midst of the COVID-19 pandemic, the Governor of Illinois required all school employees to either receive a vaccination or undergo weekly testing for the virus. Plaintiffs—three employees at different Illinois grade schools—refused to receive a vaccination, citing their religious beliefs. When the schools offered weekly testing as an accommodation, Plaintiffs claimed the testing also violated their moral consciences and refused. As a result, they were either placed on unpaid leave or terminated....

Although “a ‘religious’ objection can sound in both religious and non-religious terms,” ... here, Plaintiffs do not moor their objections to the testing requirement to any religious beliefs. Their only relevant allegation is that their “moral consciences … prevent them from submitting to health care procedures which they, competent adults, do not believe are medically necessary.” This, on its own, fails to plausibly allege that the request is “based in part on an aspect of [Plaintiffs’] religious belief or practice” because Plaintiffs do not identify what belief or practice the testing would violate.,,,

Nevertheless, even assuming Plaintiffs had adequately alleged that Defendants violated their religious beliefs, their claim still fails because the accommodation they request would require Defendants to violate the law, thereby imposing upon them an undue hardship,,,,

HRD reported on the decision.

Suit Challenges Colorado's Blaine Amendment

Suit was filed last week in a Colorado federal district court challenging the Colorado Constitution's ban on use of state funds to support any religious school as violative of the Free Exercise, Equal Protection and Establishment Clauses of the U.S. Constitution. The challenge was brought by a Board of Cooperative Education Services (BOCES), a private entity which contracts with schools to provide them innovative educational services. BOCES can receive and administer state and federal education grants. The complaint (full text) in Education Re-Envisioned BOCES v. Cordova, (D CO, filed 2/13/2026), focuses on the inability of BOCES to contract with religious schools, alleging in part:

24. The Colorado Department of Education (CDE) provides funding to ERBOCES for these contract schools....

33. In August 2025 ... ERBOCES entered a contract with Riverstone Academy to provide tuition-free education to the parents and children of Pueblo County, Colorado.

34. After ERBOCES contracted with Riverstone, it submitted its annual request for state funding to CDE. ERBOCES included Riverstone Academy’s students in its request.

35. In response to its funding request, ERBOCES received a letter from CDE stating that Colorado law requires ERBOCES to refuse to contract with any religious school....

36. Specifically, the letter informed ERBOCES that providing funding to Riverstone Academy would violate the Colorado Constitution and Colorado statutory law because Riverstone is a Christian school....

73. The Supreme Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Carson, 596 U.S. at 778....

76. State provisions prohibiting aid to “sectarian” institutions date back to the 1870s and were enacted out of hostility to certain religious groups. Such provisions were “born of bigotry” against religion, especially the Catholic church.....

77. Colorado’s Blaine amendment shares this “shameful pedigree.”...

93. To the extent the Colorado Constitution and any implementing statutes require school districts and BOCES to scrutinize contract school applicants’ curricula to determine if they are religious, they violate the Establishment Clause. ...

Christian Post reports on the lawsuit.

Tuesday, February 17, 2026

New ICE Policy Allowing Enforcement Operations at Churches Violates RFRA

In New England Synod, Evangelical Lutheran Church in America v. Department of Homeland Security, (D MA, Feb. 13, 2026), a Massachusetts federal district court issued a preliminary injunction barring immigration officials from enforcing a new policy on enforcement operations at churches. The new policy allows ICE agents to conduct arrests, searches, or interrogations in or near churches and other houses of worship at the agents' own discretion. It replaces a 2021 Policy that allowed enforcement actions near churches only in exigent circumstances or with prior approval from Agency headquarters. The court concluded that the new policy violates the Religious Freedom Restoration Act.

The court first concluded that some, but not all, of the 11 Christian church organizations that brought suit have standing because only they demonstrated injuries of decreased attendance at worship services or at social ministries or financial consequences. In deciding to issue a preliminary injunction, the court said in part:

The prospect that a street-level law-enforcement agent—acting without a judicial warrant and with little or no supervisory control—could conduct a raid during a church service, or lie in wait to interrogate or seize congregants as they seek to enter a church, is profoundly troubling. Indeed, according to the new policy, agents could conduct a raid, with weapons drawn, at any type of church proceeding—including a regular Sunday service, a wedding, a baptism, a christening, or a funeral—subject only to the exercise of their “discretion” and “common sense.”

It hardly requires mentioning that freedom of religion is both a core American value and a basic liberty protected by the First Amendment and laws of the United States. That freedom encompasses not merely the freedom to believe, but the freedom to worship, including the freedom to attend church and to participate in sacraments, rituals, and ceremonies. If government interference with those freedoms is ever justifiable, it is only in relatively extreme circumstances, such as an immediate threat to public safety. The routine enforcement of the immigration laws does not involve such a threat, and cannot justify the harm to religious freedom posed by the new policy.

It is of course true that the presence of millions of illegal immigrants within the borders of the United States justifies a substantial government response. But the need to address that problem cannot override the fundamental liberties on which our nation was founded....

In one important respect, the preliminary injunction is broader than the 2021 Policy.... The preliminary injunction issued by the Court will permit such operations only in exigent circumstances, regardless of supervisory approval. The Court can conceive of no circumstance, outside of a true emergency, in which a law-enforcement operation to enforce the immigration laws inside a church would be justifiable under the First Amendment and RFRA.

The preliminary injunction is also narrower than the 2021 Policy, in that it applies only to the plaintiffs in this case who have standing, and not nationwide.... The preliminary injunction will also, as noted, exempt immigration-enforcement actions taken pursuant to an administrative warrant or judicial warrant.

Democracy Forward issued a press release announcing the decision and linking to the original complaint filed in the case.

Monday, February 16, 2026

DOJ Investigating Medical College Over Accommodating Jewish Students When Exams Conflict with Holidays

The Justice Department announced on Friday:

Yesterday, the Justice Department’s Civil Rights Division, in partnership with the U.S. Department of Health and Human Services, launched an investigation into Lincoln Memorial University to determine whether the university is engaged in discrimination against its Jewish students. Among other concerns, the investigation will determine whether the university’s DeBusk College of Osteopathic Medicine is intentionally preventing Jewish students from completing their exams during the Spring semester.

Osteopathic Medicine programs are offered currently on the University's Harrogate and Knoxville, Tennessee, campuses. While DOJ's press release does not give details of the Department's specific concerns that led to its investigation, WBIR News has additional details. It reports that two Orthodox Jewish students in the Osteopathic Medicine program are concerned about changes that were introduced in the doctoral student Handbook for the first time at the beginning of the current Spring Semester. The newly revised handbook says: "Religious holidays and holy days do not qualify for an excused absence from examinations." Previously the students had been able to obtain religious exemptions. A statement from the University said:

Lincoln Memorial University firmly upholds the protections established by Title VI of the Civil Rights Act. We take seriously our responsibility to ensure equal access and non-discrimination in our educational settings.

Friday, February 13, 2026

Court Orders Access for Clergy to ICE Facility on Ash Wednesday

In Coalition for Spiritual and Public Leadership v. Noem, (ND IL, Feb. 12, 2026), an Illinois federal district court issued a preliminary injunction requiring federal immigration authorities to allow plaintiffs, Catholic clergy, access on Ash Wednesday (Feb. 18) to the ICE facility in Broadview, Illinois. The court agreed that denial of access likely substantially burdens plaintiffs' religious exercise in violation of the Religious Freedom Restoration Act. The court said in part:

Plaintiffs argue that prayer and ministry to the migrants and detainees at Broadview is an important religious practice. Defendants concede that “ministering to vulnerable Catholic immigrants is part of [plaintiffs’] religious exercise,” but argue that doing so at Broadview “is itself not essential to the practice.” RFRA requires a court to analyze if a government practice substantially burdens a person’s exercise of religion, not whether the religious practice burdened is “essential.”

The Hill reports on the decision.

Thursday, February 12, 2026

Child Abuse Claim Against Archdiocese Moves Ahead

In Doe XXV v. Archdiocese of New York, (NY Sup.Ct. NY Cty., Jan. 21, 2026), a New York state trial court denied a motion to dismiss a suit under the Child Victims Act in which plaintiff alleged that he was sexually abused as a child by a janitor at a Catholic school operated by the Archdiocese. The court rejected defendant's free exercise defense, saying in part:

Plaintiff’s cause of action asserts liability against the Archdiocese for the negligent hiring, retention and supervision of Tremaroli, a janitor. The Archdiocese fails to demonstrate why the present dispute cannot be adjudicated “solely upon the application of neutral principles of law, without reference to religious principles”....

The court also rejected other defenses raised by the Archdiocese, saying in part:

The Archdiocese further argues that it owed Plaintiff no duty under theories of negligent hiring, retention and supervision because the Archdiocese did not directly hire, retain or supervise Tremaroli. The Court disagrees.

Generally, an element of negligent hiring, retention and supervision is that the defendant was the employer of the alleged tortfeasor. However ... agency relationships between a junior organization and a senior organization may impute liability onto a senior organization when the senior organization could also have been responsible for the hiring, retention or supervision of an employee....

Tremaroli was ... employed as a janitor at the Church; however, his employment as conditional upon the authority of the pastor, who was appointed to the Church by the Archdiocese. The Archdiocese has thus failed to eliminate triable issues of fact that it lacked an employer/employee-like relationship with Tremaroli....

In any event, issues of fact also exist as to the Archdiocese’s notice of Tremaroli’s propensity for abuse or actual abuse of children....

Thus, if certain employees at the Church or School were “acting on the . . . Archdiocese defendants’ behalf” when they learned of the subject abuse, their knowledge would be imputed to the Archdiocese....

Child Evangelism Fellowship Sues School District Over Discriminatory Treatment

Suit was filed this week in an Illinois federal district court by Child Evangelism Fellowship alleging that fees charged to it for after-school use of school facilities and its exclusion from literature distribution forums and Backpack Nights forum violate its rights under the 1st and 14th Amendments as well as the Illinois Religious Freedom Restoration Act. The complaint (full text) in Child Evangelism Fellowship of Illinois, Inc. v. Moline-Coal Valley Unified School District #40, (CD IL, filed 2/10/2026), alleges in part:

For more than five years, Defendants have categorized CEF as a “Category II” church and church-affiliated group, treating them differently than similarly situated nonreligious organizations. Defendants’ discriminatory policies target religious organizations like CEF’s Good News Club, compel them to pay discriminatory facility use fees, prevent them from distributing literature to students to take home to their parents, and bar them from Backpack Nights. In other words, Defendants have unconstitutionally relegated CEF to constitutional orphan status and discriminatory treatment in all forums available for similarly situated organizations in violation of the First and Fourteenth Amendments to the United States Constitution....

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Carrie Prejean Boller Removed from Religious Liberty Commission for "Hijacking" Antisemitism Hearing

Texas Lt. Governor Dan Patrick, chair of President Trump's Religious Liberty Commission announced on X yesterday:

Carrie Prejean Boller has been removed from President Trump’s Religious Liberty Commission. No member of the Commission has the right to hijack a hearing for their own personal and political agenda on any issue. This is clearly, without question, what happened Monday in our hearing on antisemitism in America. This was my decision.

OSV News reported on the aspects of the hearing that led to Boller's ouster, saying in part:

... Prejean Boller, a former Miss California USA, began a tense exchange with witnesses by asking if “speaking out about what many Americans view as a genocide in Gaza should be treated as antisemitic?” ...

Prejean Boller’s line of questioning also included her argument that “Catholics do not embrace Zionism, just so you know. So are all Catholics antisemites?” ...

Prejean Boller, who was wearing a pin that jointly displayed U.S. and Palestinian flags, went on to press witnesses on whether they would consider her an antisemite for not supporting the political state of Israel, which she called “a foreign country.”

Elsewhere in the hearing, Prejean Boller also had a tense exchange with Seth Dillon, CEO of conservative Christian satire website The Babylon Bee. Dillon took aim at conservative media figures who he said have failed to speak out against antisemitism, such as that from podcaster Candace Owens.

When Prejean Boller argued that Owens — who became Catholic in 2024 — was not an antisemite, Dillon replied, “You should look up more of her statements.”...

(See prior related posting.)

UPDATE: In a Feb. 11 response on X, Carrie Prejean Boller said in part:

The Commission was created by Executive Order of President Donald J. Trump. Members were appointed by the President and serve as his appointees. Nothing in the Executive Order grants you the power to remove presidential appointees. Unless and until I receive written notice from the President of the United States requesting my removal, I will continue to defend religious freedom for all religions on this Commission.

Wednesday, February 11, 2026

House Subcommittee Holds Hearing on Supreme Court's Decision in Mahmoud v. Taylor

Yesterday, the House Subcommittee on Early Childhood, Elementary, and Secondary Education held a hearing titled Defending Faith and Families Against Government Overreach: Mahmoud v. Taylor. A video of the entire hearing, written prepared statements of the subcommittee chairman and four witnesses, as well as the Committee's "Hearing Recap" are all available here on the Subcommittee's website. Three of the witnesses strongly supported the Supreme Court's Mahmoud decision, while one of the witnesses argued that Mahmoud went too far in permitting parental opt outs. UPI reported on the hearing, saying in part that "Republicans expressed concern ... about school districts ignoring the ruling, while Democrats voiced fears that the ruling condoned discrimination." [Thanks to Zalman Rothschild for the lead.]

RLUIPA Claim for Polluting Burial Sites of Enslaved Ancestors May Move Ahead

In Inclusive Louisiana v. St. James Parish, (ED LA, Feb. 9, 2026), a Louisiana federal district court refused to dismiss claims against St. James Parish contending that plaintiffs have been harmed by land use decisions that have concentrated polluting industrial sites in majority black areas between Baton Rouge and New Orleans. The affected area has a particularly high cancer rate. Plaintiffs are an advocacy organization, a Baptist church whose members claim descent from formerly enslaved people, and a faith-based organization advocating for an end to petrochemical industries in the area. The court allowed plaintiffs to move ahead with claims under the 13th Amendment, 14th Amendment and the Louisiana Constitution. It also allowed plaintiffs to move ahead with their claim that defendants' actions have violated the Religious Land Use and Institutionalized Persons Act, saying in part:

... Plaintiffs in the case allege that Defendants “have implemented land use regulations in a manner that imposes a substantial burden on Plaintiffs’ religious exercise.” ... Plaintiffs specifically designate three of Defendants’ acts that “have burdened Plaintiffs’ members’ ability to pray upon the unmarked cemeteries of enslaved ancestors by permitting the construction of industrial facilities upon these cemeteries.”...

Defendants contend that Plaintiffs do not meet the definition of “claimants” under the statute because they have not alleged an ownership or other property interest in the land at issue in the case....

... Plaintiffs allege that “plantation owners were legally required to set aside land for burying the people they enslaved, . . . that graves were often marked by trees to identify them for loved ones and descendant communities, and preserved by laborers and farmers.”.... These allegations are more than sufficient to create a plausible claim that these pieces of land were “dedicated” as cemeteries for their ancestors, cemeteries which have since “been transformed into an industrial site, to be exploited for material gain.” However, even absent these specific and well-researched allegations, the fact that the plantation owners buried the bodies of the people whom they enslaved on these plots of land seems sufficient to constitute an intention to dedicate. Therefore, the Court agrees that Plaintiffs have a property interest in the plots of land at issue—the unmarked cemeteries of enslaved people on the Formosa and SLM plots—to assert a plausible claim under the RLUIPA’s Substantial Burden clause....

The second claim under RLUIPA has been brought against Defendants by only one Plaintiff, Mount Triumph Baptist Church. Specifically, Mount Triumph alleges that Defendants have implemented land use regulations that protect Catholic and majority-white churches from industrial development through required buffer zones, but that also permit such development in the immediate vicinity of majority-black churches with no such protection. Because Defendants have not specifically moved to dismiss this claim, the Court does not feel the need to discuss this claim, other than to say that Mount Triumph has alleged sufficient facts to state a claim for relief that is plausible on its face....

Suit Challenges Michigan Ban on Discrimination Because of Pregnancy Termination

Last week, two pro-life organizations filed suit in federal district court against Michigan officials challenging on 1st and 14th Amendment grounds 2023 amendments to state anti-discrimination laws that prohibit employment discrimination on the basis of termination of pregnancy. The law already included a ban on discrimination on the basis of pregnancy or childbirth. The 82-page complaint (full text) in Right to Life of Michigan v. Nessel, (WD MI, filed 2/6/2026) alleges in part:

Recent changes to Michigan’s employment law force religious and pro-life groups to employ and associate with persons who do not share or live by—and may even oppose—the organizations’ beliefs on human life. This violates the First Amendment. Plaintiffs Right to Life of Michigan (Right to Life) and Pregnancy Resource Center (PRC) recruit, hire, and retain only employees who adhere to, agree to abide by, and can effectively communicate their pro-life views. This employment policy puts them at odds with Michigan’s new law. Right to Life and PRC bring this suit to ensure they can continue to serve Michiganders without diluting their pro-life views through the lukewarm or hostile hires Michigan’s law demands....

The complaint alleges seven causes of action ranging from infringing free speech and free exercise rights to infringing the right to refrain from taking human life. Zeale reports on the lawsuit.

Tuesday, February 10, 2026

Court Rejects Free Exercise Defense Raised by Protesters Charged With Trespass

In Hubersberger v. State of Arizona, (AZ App., Feb. 9, 2026), an Arizona state appeals court, rejecting a free exercise defense, refused to dismiss complaints charging four protesters with criminal trespass. According to the court:

... Appellants, motivated by their sincerely held religious beliefs, participated in a protest against Raytheon because of its role as a weapons supplier to Israel and the bombings occurring in Gaza. Appellants’ demonstration occurred on private property, and their stated purpose was to disrupt Raytheon’s daily operations by blocking Raytheon workers from entering the facility....

Appellants moved to dismiss the complaints against them pursuant to FERA [Arizona's Free Exercise of Religion Act], arguing that because their protest was motivated by their religious faith, their arrest and prosecution substantially burdened their free exercise of religion....

Appellants do not dispute on appeal that the government had a compelling interest to protect the peace and Raytheon’s private property rights. We therefore only address the second prong of the FERA analysis: whether the arrest and prosecution of Appellants was the least restrictive means in which the government could have furthered its interests in this case....

We, like the superior court, find nothing on the record to indicate that Appellants would have left Raytheon’s private property without state intervention....

Appellants next assert ... that the arrest alone was sufficient to further the government’s interest, therefore their continued prosecution necessarily does not meet the least restrictive means test....

We also conclude that analyzing whether the prosecutor should or should not bring charges “would plunge courts far too deep into the business of reviewing the most basic exercises of prosecutorial discretion.”...

Religious Liberty Commission Holds Hearing On Antisemitism

The Religious Liberty Commission yesterday held a hearing on combating antisemitism and upholding religious freedom. A video of the full 5-hour hearing, held at the Museum of the Bible, is available here from C-Span. JNS reported on the hearing, saying in part:

A U.S. Religious Liberty Commission hearing on antisemitism in Washington, D.C., on Monday featured testimony about the challenges facing Jews in American society that digressed, at times, into questions about whether it is antisemitic to oppose Israel.

The commissioners, whom U.S. President Donald Trump appointed in May, questioned witnesses from religious organizations, college campuses and the administration about their experiences and possible legal and cultural remedies to Jewish bigotry during four hours of panels.

One of the commissioners, Carrie Prejean Boller, a former Miss California who is now a conservative activist and commentator, peppered witnesses about Israel’s conduct in Gaza and her interpretation of the Roman Catholic position on Zionism....

Lawsuit Challenges Makeup and Operation of Trump's Religious Liberty Commission

Yesterday, Muslim, Sikh, Hindu and Interfaith organizations filed suit challenging the legality of the Religious Liberty Commission that President Trump created last May. The complaint (full text) in The Interfaith Alliance v. Trump, (SD NY, filed 2/9/2026), contends that the Commission violates the Federal Advisory Committee Act, alleging in part:

3. This case challenges the composition and secrecy of the Religious Liberty Commission. While this body is ostensibly designed to defend “religious liberty for all Americans” and celebrate “religious pluralism” it actually represents only a single “Judeo-Christian” viewpoint. It held its first three meetings at the Museum of the Bible and has closed its meetings with a Christian prayer “in Jesus’ name.” Only one of its members is not Christian and the Christian members do not represent the full diversity of the Christian faith. The Commission’s meetings have repeatedly referenced the belief that the United States was founded as a “Judeo-Christian nation” and the membership reflects that viewpoint. All members of the Commission advocate for increased religiosity, and specifically their brand of “Judeo-Christian” religiosity, in public life....

8. The Commission has also disregarded basic transparency requirements, including by failing to disclose transcripts, agendas, and other materials that would allow Plaintiffs and the public to follow and understand the Commission’s work.....

The suit asks the court, among other relief, to:

Order Defendants to employ good faith efforts to appoint a properly qualified representative from the excluded viewpoints; ...

Enjoin Defendants to attach to any reports or recommendations produced by the Commission a disclaimer stating that the report was produced in violation of FACA’s requirement that the Commission’s membership be fairly balanced in terms of the points of view represented....

Interfaith Alliance issued a press release announcing the filing of the lawsuit.