Suit In Utah Challenges IVF Disposal of Non-Implanted Embryos

Suit was filed late last month in a Utah state trial court against seven fertility clinics challenging the methods they use in IVF procedures. The complaint (full text) in Voice for the Voiceless v. Conceptions Fertility Center, (UT Dist. Ct., filed 4/30/2026), focuses on clinics' practice of discarding embryos that are not implanted, saying in part:

The result is that thousands of embryos-- live human beings-- are killed prior to birth by Defendants.... Defendants could practice IVF in a legal manner that would preserve life and only fertilize eggs that will be implanted into their clients, but they refuse to do so out of convenience and financial gain.

The Complaint's Introduction alleges in part:

The Utah Constitution guarantees the rights of all people to "enjoy and defend their lives and liberties."... However, an entire class of people has been deprived of their right to life and liberty because they cannot defend themselves. This class of people are the unborn minor children whose lives are terminated in violation of Utah law, as a direct result of Defendants' standard practice of how they conduct in-vitro fertilization (IVF).

The Complaint alleges causes of action for intentional infliction of emotional distress, public nuisance, wrongful death, and medical malpractice. Stateline reports on the lawsuit.

Limited Discovery Allowed to Determine If Case Turns on a Religious Question

In Gaskins v. McLean Bible Church, (VA Ct. App., May 19, 2026), a Virginia state appellate court allowed dissident members of a non-denominational congregational church to engage in limited discovery in connection with their challenge to the election of the church's Board of Elders. The Church's constitution provides that members who have not attended church services for eight consecutive weeks “without reasonable excuse” become inactive members who may not vote or hold office in the church. Plaintiffs claim that the Board designated a number of members as "inactive" on an arbitrary basis. The court remanded the case for the trial court to first determine whether disclosure of information sought by plaintiffs would violate association rights of church members, officers or employees. If it would not, the appellate court held that limited discovery on reclassification of members may proceed, saying in part:

The number eight is neutral.  That is the number of consecutive weeks of worship services a member must miss before the Board may deem them inactive.  If a member who has not missed eight consecutive weeks is declared inactive, the Board has violated the MBC constitution.  And that is exactly what the dissenters allege happened here.  This Court, and all other courts in Virginia, are surely able to count to eight without entering a “religious thicket.”... 

MBC counters that the eight-weeks inquiry is not, in fact, neutral because the eight weeks must be missed “without reasonable excuse.”  It argues that what constitutes a reasonable excuse is a purely ecclesiastical question, and thus one outside this Court’s bailiwick (and its jurisdiction).  It may be, of course, that the documents the dissenters seek in discovery reflect that all disenfranchised members missed eight consecutive weeks of worship services and that the Board determined that they did so “without reasonable excuse.”  In that case, this dispute would be at an end; no secular court could second-guess the Board’s earnest opinion as to what constitutes a reasonable excuse.  But until that happens, our courts retain jurisdiction.  And it may also develop that no “reasonable excuses” were sought or tendered and that certain members of the congregation were simply trimmed from the voting lists to influence the outcome of elections.  In sum, an assertion that a dispute might involve a purely religious question is quite different from an assertion that the dispute will turn on such a question.  The latter is a good reason to apply the ecclesiastical abstention doctrine and short-circuit the litigation; the former is not....

We ... find nothing objectionable about allowing limited discovery to determine whether the ecclesiastical abstention doctrine applies....

In ruling against MBC on this point, we embrace the perhaps subtle—but meaningful— distinction between a religious institution being “above the law” and being subject to the law while still wielding significant privileges and protections....

Christian Post reports on the decision.

Washington Foster Care Licensing Agency Modifies Rules in Settlement of Litigation

 As previously reported, in DeGross v. Hunter, (WD WA, April 22, 2026), a Washington federal district court refused to dismiss free speech and free exercise claims against the Washington Department of Children, Youth and Families (DCYF) brought by a Christian couple who objected to the Department's policy on sexual orientation and gender identity. The state has required prospective foster parents to agree to support a foster child's sexual orientation, gender identity and expression (SOGIE), including using their preferred pronouns and chosen name. The parties have now agreed to a settlement in the case and the Washington federal district court yesterday issued a permanent injunction reflecting the parties' agreement. 

The injunction in the case, now captioned DeGross v. Senn, (WD WA, May 20, 2026), bars DCYF from denying or imposing conditions on a foster family home license solely because of a family's religious beliefs, including speech and actions pertaining to marriage, gender, or sexual relationships. Instead DCYF will amend it rules to require foster parents to either connect, or allow DCYF to connect, their foster child to resources and supports relating to their race, religion, culture, sexual orientation, gender identity and expression, developmental capabilities, tribal affiliations, heightened medical needs, behavioral needs, and any other aspect of the child’s individual identity.

The injunction goes on to provide in part:

3. DCYF is prohibited from requiring foster parents to agree to use prescribed words or language, including chosen pronouns, to express views about sexual orientation, gender identity, or gender expression inconsistent with their sincerely held religious beliefs as a condition of licensure....

6. During the licensing process, DCYF shall be permitted to inquire about an applicant’s views regarding SOGIE. This line of inquiry shall be no different from other information gathering concerning the variety of identities of prospective children in care. 

7. Nothing in this Order prohibits DCYF or a child-placing agency from inquiring about a child’s SOGIE before placement, just as it does for all children for all components of their individual characteristics, including identities. 

8. ... Nothing in this order prohibits DCYF from deciding a child’s placements based on its individualized consideration of the child’s needs and of a foster parent’s concerns or limitations (including where religiously motivated) on their ability or willingness to meet the child’s specific needs, including with regard to their SOGIE....

ADF issued a press release announcing the settlement. 

Kars4Kids Violated False Advertising and Unfair Competition Laws by Not Disclosing Its Religious Ties

In Puterbaugh v. Kars4Kids, LLC, (CA Super. Ct., May 8, 2026), a California state trial court held that Kars4Kids violated California's Unfair Competition Law and its False Advertising Law through "inherently deceptive" omissions in its ads. The organization runs short repetitive television and radio ads featuring young children playing musical instruments and asking for donations of used cars. The ads make no mention of the actual recipients of funds from the organization or of the organization's religious affiliation. The organization's website says: "Because kids are our future. Learn how you can make a difference in the life of a child." The broadcast ads do not make this statement.

The primary function of Kars4Kids is to fund Oorah, an organization that operates Jewish heritage and summer camps in New York and New Jersey. Oorah also funds matchmaking programs for young adults and gap- year trips to Israel for 17- and 18-year-olds. The court said in part:

2. The Court finds that the First Amendment does not shield the Defendant. While charities have free speech rights, the government may regulate misleading commercial speech. Fraudulent omissions in an inducement to donate property are not protected by “free expression.”...

6. The name “Kars4Kids,” the 8-10-year-old actors in the advertisement, and the repetitive jingle all serve to reinforce the belief that donations are used exclusively for the benefit of children. 

7. Under cross-examination, the COO, Esti Landau, admitted that the organization’s primary purpose is to help “Jewish kids and families throughout their lives.”...

The Court finds that the Defendant disseminated public statements concerning... vehicle donations that were misleading by omission. Under the statutory “knew or should have known” standard, the Defendant is charged with the knowledge that California donors would reasonably assume their contributions benefit a general class of children, including those within their own state. The Court finds that the Defendant’s stated intent to make the advertisement “memorable” through extreme repetition, while simultaneously stripping it of all substantive facts, constitutes an actionable strategy of deception....

The Court finds the Kars4Kids “jingle” creates a false sense of a universal, secular, and local charity. The “Kars4Kids” name, when coupled with an advertisement that “does not mention anything” about its specific mission ... is likely to deceive the public. It improperly narrows the perceived beneficiary class to “kids” to elicit emotional and financial responses, while diverting funds to a much broader religious and familial social-service network....

The court ordered Kars4Kids to end all non-compliant broadcasting in California within 30 days. Inside Radio reports on the decision.

California Court Hears Arguments in Defamation Suit Against Jews for Jesus

On May 15, the California state Court of Appeals, First Appellate District heard oral arguments in Amitay v. Jews for Jesus (video of full oral arguments). Liberty Counsel, which represents Jews for Jesus, describes the case:

Following the attacks on October 7, 2023, Jews for Jesus distributed Bibles to Israeli soldiers to provide comfort and support. On its Facebook page, Jews for Jesus used a stock photo of an Israeli soldier from a popular website that provides millions of stock photographs under a worldwide copyright license to download, modify, and use for free. Jews for Jesus blurred the face, never used Amitay’s name, and even used the pseudonymous name “Nachman” in the photo’s caption. Jews for Jesus had no prior knowledge of Amitay.

Amitay now says that person in the blurred photo was him, although he has presented no proof of where he saw the photo. Despite the blurred face and never being named, Amitay maintains that the photo created such a false impression of him that it caused his employer to terminate him from his “dream” teaching job.

Liberty Counsel argues in its reply brief that holding Jews for Jesus liable for a religious community’s misunderstanding of the facts, and for its “overreaction” and “theological hostility” to a Christian ministry would be an improper remedy for a “regrettable” situation. 

 Amitay filed the lawsuit on Christmas Eve 2024 seeking no less than $5 million in punitive damages.... 

At issue in this appeal is whether the case should be dismissed under California's anti-SLAPP law. The trial court refused to dismiss plaintiff's defamation, false light, and negligent infliction of emotional distress claims. (Trial Court's June 23, 2025 Order [scroll to Exhibit A]).

HHS Reorganizes Civil Rights Office to Emphasize Religious Liberty, Conscience Protections and Racial Discrimination

The Department of Health and Human Services yesterday announced a restructuring of its Office of Civil Rights into three subject-matter Divisions: the Conscience and Religious Freedom Division, the Civil Rights Division, and the Health Information Privacy, Data, and Cybersecurity Division. The press release announcing the reorganization said in part:

... “This reorganization reinstitutes a structure that rightly prioritizes civil rights and conscience and religious freedom alongside health information privacy and security”...

The new structure will improve OCR’s effectiveness and efficiency to advance the protection of conscience rights, address race-based discrimination in a color-blind manner, eradicate antisemitism and anti-Christian bias, and restore biological truth....

 More information about the reorganization will be published through a Federal Register notice next month....

Bloomberg Law reports on the reorganization. 

Germany Ends 30 Years of Surveillance of Church of Scientology

As reported by Bitter Winter and by a press release from the Church of Scientology, Germany's Office for the Protection of the Constitution has quietly ended its 30-year surveillance of Scientology.  According to Bitter Winter:

The official reason is that the agency needs to focus its efforts on more pressing issues: violent extremism, Russian spying, cyberattacks, and terrorism. All these threats are, to say the least, more credible dangers to public order than the notion of Scientologists in Munich plotting a coup. However, the timing also indicates a realization that surveillance had become a costly routine without a clear purpose.

The roots of this monitoring date back to the 1990s, a time when Germany was still adjusting to reunification and the political elite was particularly receptive to alarming stories about “cults.” Scientology became an easy target. The movement faced accusations of having “anti-constitutional aims,” a phrase in Germany that carries significant weight in national security cases. Yet, the evidence never materialized. What followed were years of observation, reports, and legal battles—none of which resulted in a single validated finding of anti-constitutional actions....

Adversarial Questioning of Employees Claiming Religious Accommodations Violated Title VII

In Matilde M. v. Burgum, (EEOC Federal Sector, May 15, 2026), the EEOC in an appeal from a finding by the Bureau of Indian Education, held that the Bureau had engaged in religious discrimination when it denied religious accommodations to three employees who refused on religious grounds to comply with the agency's Covid vaccine mandate. The employees cited their religious belief in the sacredness of human life and their religious practice of rejecting substances developed using human fetal cells obtained through abortion.

The EEOC said in part:

After careful review, we conclude that testing and masking were a possible alternative reasonable accommodation for Complainants. And we find the Agency has not met its burden to establish by preponderant evidence that testing and masking would have imposed an undue hardship on its operations. Moreover, we find the Agency acted discriminatorily when it subjected Complainants to an unduly adversarial accommodation process....

At the barest minimum, a process to handle religious accommodation requests needs to provide employees with a non-adversarial forum.... The process the Agency imposed was adversarial to the point that we can persuasively infer an underlying discriminatory, even disdainful, motive. The Agency singled out employees with religious objections related to the use of human fetal cells for particularly disfavored treatment. They were summoned to an inquisitorial panel to be quizzed and lectured on their medical history and knowledge of other medicines derived from human fetal cells. We are persuaded that the crucible of invasive gotcha-style questioning was a thinly veiled, and discriminatory, attempt to expose supposed hypocrisy and convince Complainants to recant their objections.... 

This is not to say that an employee’s asserted religious views evade all scrutiny. Measured, non-adversarial inquiry may be appropriate to help the employer fully understand the contours and sincerity of the employee’s religious beliefs and practices. But ...the Agency’s inquiry as an employer is ... limited to whether the purported religious conflict “reflects an honest conviction.”... [T]he “veracity [i.e., the correctness] of [the employee’s] religious belief” does not meaningfully bear on the honesty of the conviction....

The EEOC issued a press release announcing the decision.

Certiorari Denied In Christian Day Care's Challenge to California's Licensing Requirements

The U.S. Supreme Court today denied review in Foothills Ministries v. Johnson, (Docket No. 25-802, certiorari denied 5/18/2026) (Order List). In the case, the 9th Circuit Court of Appeals held that a Christian day care center lacks standing to bring a free exercise challenge a California requirement that day care centers ensure that children are free to attend religious activities of their parents' choice. The 9th Circuit held, however, that the day care center does have standing to challenge the state's general licensing requirement and to challenge on free speech grounds required disclosures to parents of the right for their child to attend religious activities of their choice. On the merits, though, the 9th Circuit held that neither of these requirements infringe the day care's 1st Amendment rights. (See prior posting.)

"Rededicate 250" Held on National Mall Yesterday

Crowds of people gathered yesterday on the National Mall in Washington, D.C. for Rededicate 250: A National Jubilee of Prayer, Praise & Thanksgiving. The organizers, Freedom 250, are described by NPR as "a public-private group working with the White House."  A video of the full 8 hours and 45 minutes of the program is available here on YouTube. Speakers included public officials, clergy and authors. (List of speakers.) According to CNN:

Freedom 250, a nonprofit subsidiary of the National Park Foundation, which functions as the National Park Service’s fundraising arm, organized the event....

While organizers invited Americans of every background to attend the event, the long list of faith leaders who attended consisted largely of evangelical Christians — except for one Orthodox rabbi and two conservative Catholic bishops. Brittany Baldwin, White House senior policy adviser and executive of the White House Task Force America 250, described a focus on “our heritage as a Judeo-Christian” nation....

 Experts CNN spoke with were split on whether the event was constitutional....

NPR pointed out:

President Trump, who was golfing on Sunday afternoon, did not attend the event. Trump delivered a video message reading the Biblical scripture 2 Chronicles 7:11-22, which details God's response to King Solomon after he completed the temple in Jerusalem.

Trump administration officials including Defense Secretary Pete Hegseth and Secretary of State Marco Rubio also spoke in video messages....

South Carolina Enacts Student Physical Privacy Act

Last Friday, South Carolina Governor Henry McMaster signed into law H4756, the South Carolina Student Physical Privacy Act (full text). The new law (with narrow exceptions) requires public schools and public colleges and universities to designate multi-occupancy restrooms and changing facilities for use only by members of one sex at a time. "Sex" is defined as "a person's biological sex, either male or female, as observed or clinically verified at birth." The new law also requires all public schools and public colleges and universities to "provide for a single-user restroom and changing facility" or an accommodation by allowing temporary exclusive use of a multi-occupancy rest room.

The new law also provides that during any activity or event sponsored by a public school or college, no student shall be required to share sleeping quarters with a member of the opposite sex. Colleges that provide student housing must provide students the option to be housed only with persons of the same sex.

Recent Articles of Interest

From SSRN:

• Yaoharee Lahtee, Marginal Hegemony in Thailand: Satire, the Muslim Minority, and the Politics of Power-literate Critique, (May 13, 2026).
• Shai Stern, From Classroom to Courtroom and Back: Exit, Voice, and the Struggle Over Public Education in America, (74 Buffalo Law Review 307 (2026)).
• Christopher C. Lund, The Wit and Wisdom of Douglas Laycock, (Journal of Law and Religion, Vol. 41, p. 1, 2026 (festschrift)).
• Guy Baldwin, Positive Obligations to Protect the Population under Human Rights Law, (Judicial Review, volume 30, issue 3, 2025).
• Anna Lukina, Evil Law in St. Thomas Aquinas's Philosophy, (LSE Legal Studies Working Paper No. 7/2026).
• Rachel Kincaid, Deliberately Silenced, (December 31, 2025).
• Thomas Wuil Joo, A Long Story: Queues, Dreadlocks, and Cycles in Civil Rights History, (34 Asian Am. L. J. --- (forthcoming 2027)).
• Bernard W. Bell, Just Talk: Professional Regulation and Medical Malpractice Litigation After Chiles v. Salazar, (Rutgers Law School Research Paper Forthcoming).
• Mimi Marziani & Patrick Archer, Weaponized Oversight: Texas’s Escalating Campaign Against Nonprofit Advocacy & the Chilling Effect on Speech and Association, (45 Rev. Litig. (forthcoming 2026)).
• Egzon Musa, Freedom of Manifestation of Religion and Belief: Considerations from Constitutional Law and the Practice of the ECHR, (January 26, 2026).

From SSRN (Abortion Rights):

• Sara Ainsworth & Leigh Goodmark, Defending Imperfect Victims from Self-Managed Abortion Criminalization: Why Evidence of Intimate Partner Violence Matters, (97 University of Colorado Law Review 1267 (2026)).
• Elizabeth Kukura, Abortion, Power, and the Future of Healthcare, (April 01, 2026).
• Miranda McGowan, Dobbs’s Radical Remaking of the Fourteenth Amendment, (April 23, 2026). 

From SSRN (Islamic Law):

• Shahid Mahmood, Stages in the Development of the Principles of Islamic Jurisprudence, (May 13, 2026).
• Azfar Samin, Reassessing Prophetic Literacy and the Written Transmission of Revelation: A Linguistic and Textual Analysis of the Qurʾān, (May 11, 2026).
• Sherifat Ajoke Dauda, An Analytical Study of Zihar and Illa under Islamic Family Law: Safeguarding Women's Dignity under Shariah, (September 30, 2025).
• Shahid Mahmood, The Da'wah Strategy of Prophet Muhammad ‫ﷺ‬ during the Makkan Period, (May 13, 2026).
• Stanislav Ageev, Implementation of AAOIFI Standards as a Legal Basis for Partnership Financing in International Projects Involving Russia, (April 03, 2026).

From SmartCILP and elsewhere:

• Clark L. Hildabrand, Judging Values: Public Confidence in the Federal Courts' Approach to Religion & Morality, 55 University of Memphis Law Review 979-1020 (2025).
• Arvind Kurian Abraham, The Ten Commandments Case: Constitutional Erastianism, Balkinization (May 11, 2026).

Presidential Message on the Feast of the Ascension

Last Thursday, the White House posted a Presidential Message on the Feast of the Ascension (full text). The Message said in part:

Forty days ago, the world celebrated the miracle of Easter, when Jesus rose from the dead following His death on the Cross.  On the Feast of the Ascension, we celebrate yet another great miracle:  His bodily departure from Earth and return to His Father in Heaven.

On this special day, we are reminded that, for millions of Americans, the love of Christ gives our lives—and our country—the deepest meaning, purpose, and identity.  As we celebrate 250 years of American freedom and independence, we remember that America remains a great Nation because the United States has always been a Nation blessed by God.

Texas and DOJ Settle With Texas Hospital Ending Its Gender Transition Services and Creating Detransition Clinic

Last Friday, Texas Attorney General Ken Paxton and the U.S. Department of Justice announced an unusual settlement agreement with Texas Children's Hospital ending the hospital's gender transition services. AG Paxton's press release (full text) describing the settlement says in part:

... [The settlement agreement] compels the creation of the country’s first-ever Detransition Clinic; requires the hospital to pay $10 million for billing Texas Medicaid for unallowable and illegal ‘gender-transition’ interventions, including by using false diagnosis codes; and compels the termination and revocation of privileges of multiple physicians....

Under the terms of this landmark agreement, Texas Children’s will establish the first-ever multidisciplinary clinic designed to provide medical care to patients who were subjected to “gender-transition” procedures. This Detransition Clinic will help patients reverse the damage caused by ideologically-motivated physicians who harmed patients by performing dangerous medical interventions for the purpose of “transitioning” them. For the first five years, all services provided through the Detransition Clinic will be funded by Texas Children’s and be free of charge to patients. 

As part of the settlement, Texas Children’s has also agreed to fire, permanently and irrevocably terminate all existing privileges, and never again hire or credential five woke doctors who performed harmful medical interventions on Texans.As part of the settlement, Texas Children’s agrees not to provide “gender-transition” services; will implement a host of compliance and ethics measures.

The U.S. Justice Department also issued a press release saying that the settlement resolves federal claims that Texas Children's violated the Federal Food, Drug, and Cosmetic Act, the False Claims Act, and federal fraud and conspiracy laws.  It noted that "At all times during the investigation, TCH remained cooperative, proactive, and solution-driven..."

Houston Public Media reports on the settlement and quotes Texas Childrens' as saying in part: 

Today, we made the difficult decision to settle with the Texas Attorney General and the Department of Justice, closing a chapter that has been wrought with falsehoods and distractions. To be clear – we are settling to protect our resources from endless and costly litigation. This settlement will allow us to redirect those precious resources to focus on the life-saving care and groundbreaking discoveries of our exceptional clinicians and scientists.

[Thanks to Scott Mange for the lead.]

Denial of Burial Permit Did Not Violate 1st Amendment or RLUIPA

In Baxter v. San Berdino County, (CD CA, May 5, 2026), a California federal magistrate judge recommended dismissing plaintiff's challenges to a refusal by the county to grant him a permit to bury the remains of his father on his own property. The court rejected plaintiff's RLUIPA claim. RLUIPA would apply here only if the land use regulation involved the government's making an individualized assessment of the proposed use of the land. According to the court, "Plaintiff's permit was denied pursuant to non-discretionary health and safety statutes."

The court rejected plaintiff's First Amendment free exercise claim because the statute requiring burial of human remains in a cemetery is neutral and generally applicable. It rejected his equal protection argument because there were no facts indicating religious discrimination against him. It rejected his procedural due process claim because Plaintiff did not allege facts that establish a property interest in the human remains.

Court Dismisses Claim That Microchipping Plaintiff's Dog Violated Plaintiff's Free Exercise Rights

In Stokes v. City Dogs Animal Control, (ND OH, May 12, 2026), an Ohio federal district court dismissed a pro se plaintiff's claim that his free exercise rights were infringed when his service dog was microchipped by animal control officers without his consent. When plaintiff's car broke down, he temporarily abandoned it by the side of the road with his dog inside it. Plaintiff was homeless at the time. Police came upon the car and called animal control officers to have them take custody of the dog. A Cleveland ordinance requires animal control officers who recover an abandoned dog to embed a microchip in the dog for future identification. They did so. Plaintiff sued seeking $10 million in damages, contending, among other things, that it violates his religious beliefs to have his dog microchipped. The court said in part:

 “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.”... Courts may not “presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”... Therefore, the Court takes seriously Plaintiff’s religious objection.   

Still, even construing the record in favor of Mr. Stokes, he fails to state a claim for a violation of his Free Exercise rights under the First Amendment or retaliation against them.  At the pleading stage, the record shows that Mr. Stokes objected to Defendant’s actions not for religious reasons, but for a series of other reasons that the Constitution does not protect.  Therefore, the complaint fails to raise his right to relief on these grounds above the speculative level and fails to state a plausible claim for relief on these bases.

Supreme Court, Through Stays While Appeals Continue, Allows Continued Mail-Order Delivery of Mifepristone

The Supreme Court today, in a 7-2 decision in Danco Laboratories, LLC v.  Louisiana, (Sup. Ct., May 14, 2026), granted a stay while appeals continue of the 5th Circuit's decision that had barred telehealth prescribing and mail order delivery of the abortion drug mifepristone. The majority granted the stay in a one-paragraph order.

Justice Thomas filed a dissenting opinion, saying in part:

... [I]t is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using “the mails” to ship any “drug . . . for producing abortion.” 18 U. S. C. §1461.  A neighboring provision makes it a felony to use “any express company or other common carrier or interactive computer service” to ship “any drug . . . designed, adapted, or intended for producing abortion.” §1462(c)....

... Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.

Justice Alito also filed a dissenting opinion, saying in part:

...  What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization ... which restored the right of each State to decide how to regulate abortions within its borders. 

... [W]ithout any current indication that the FDA plans to resume enforcing the in-person-dispensing requirement, there is no reason to believe that the manufacturers could not continue their current distribution practices....

If the FDA were to execute an abrupt about-face and commence enforcement of the in-person-dispensing requirement, the manufacturers could promptly reapply for stays at that time.  But even were that to happen, the manufacturers have not shown that they would suffer irreparable injury....

NBC reports on the decision. 

4th Circuit Upholds Exclusion of Theology and Religion Majors from Virginia's College Tuition Grant Program

In Hall v. Fleming, (4th Cir., May 13, 2026), the U.S. 4th Circuit Court of Appeals upheld the constitutionality of a Virginia Tuition Assistance Grant Program that denies grants to undergraduate students studying in programs that provide religious training or theological education, The court said that the facts of this case are directly analogous to those in the Supreme Court case of Locke v. Davey which upheld the constitutionality of a Washington tuition grant program with nearly identical exclusions. So, in the court's view, the only question is whether the later Supreme Court decisions in Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin effectively overruled Locke. The court held that the Supreme Court has not overruled or abandoned its decision in Locke, saying in part:

... [I]n the absence of any statement from the Supreme Court questioning or rejecting Locke’s holding, it is still the law.  We must therefore faithfully apply it.

Judge Richardson filed a concurring opinion, saying in part:

I write separately because Locke was wrongly decided.  It betrays the founding generation’s commitment to religious liberty, and the Supreme Court should formally overrule it.  But, until the Court does, Locke binds us—even as a moth-eaten shell of its former self.

Exclusion of Religious High Schools from Vermont's Tuition Payment Program Does Not Violate Free Exercise Clause

In Mid Vermont Christian School v. Saunders, (D VT, May 12, 2026), a Vermont federal district court upheld against constitutional attack a Vermont statute that reduces from 48 to 18 the number of independent schools that are eligible for town tuition payments, i.e. tuition payments for enrollment by students who live in districts that do not have a public high school. The reduction of 30 schools eligible for payments included the elimination of all 14 of the Catholic and Christian schools that were previously eligible. Rejecting plaintiff school's free exercise and equal protection challenges, the court said in part:

If the only issue was whether the language of the statute was neutral, the State would win in a walk....

Mid Vermont has a second string to its bow. Drawing on the "animus" cases such as Masterpiece Cakeshop v. Colorado Civil Rights Comm 'n...., it offers evidence of what it describes as prejudice against public support for religious schools by some of the legislators who voted for Act 73. Whether this court should consider subjective evidence of legislative intent to restrict the free exercise of religious belief is a relatively novel issue....

The statements of the nine legislators identified by Mid Vermont are a thin basis for describing Act 73 - or just Section 21 - as motivated by religious animus. None of the statements were made in floor debate or as part of the Act's legislative history. Instead, most were made in response to an opinion survey and indicate no more than opposition to public funding of religious schools. They cannot reasonably be said to show "pervasive religious intolerance and hostility"....

Finally, Mid Vermont relies on statements by administration officials opposing public funding for religious schools.... It is a step too far, however, to attribute the views of executive officials to state legislators.....

If the court is correct in identifying Act 73 as a statute that is neutral as to religion, then its constitutionality is subject to a rational basis test. It is likely to pass such a test since it addresses multiple issues of educational policy through a program of comprehensive reform....

Agriculture Department Employees Sue Secretary Alleging Establishment Clause Violations

Seven employees of the Department of Agriculture and a federal employees' union filed suit yesterday against the Department and Agriculture Secretary Brooke Rollins contending that:

[The Secretary]  has adopted a practice of sending increasingly proselytizing communications to the entire USDA workforce, promoting her own preferred brand of Christian beliefs and theology to the captive audience of employees that report to her, directly or indirectly. 

The complaint (full text) in National Federation of Federal Employees v. Rollins, (ND CA, filed 5/13/2026), alleges that the Secretary's communications to employees, particularly her highly religious 2026 Easter Message, violate the Establishment Clause. The complaint alleges in part:

52. Individual Plaintiffs feel that the Secretary is pressuring them to believe in her faith or act as if they share the same faith as the Secretary. Given the Secretary’s clear religious preference, Individual Plaintiffs feel intimidated from expressing their own beliefs at work and compelled to shape their behavior accordingly and hide their own beliefs. 

53. Individual Plaintiffs fear being singled out and disfavored for not being religious, not believing in the brand of Christianity that the Secretary espouses, or for having a different religion.... 

54. Individual Plaintiffs also fear retaliation for objecting to the Secretary’s preaching from the public office that she occupies.

Democracy Forward issued a press release announcing the filing of the lawsuit.