Cert. Petition Filed Challenging Grant of Qualified Immunity In 1st Amendment Case

A petition for certiorari (full text) was filed with the U.S Supreme Court last week seeking review of the 5th Circuit's decision in Hershey v. City of Bossier City. 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 an arena in which a Christian rock concert was taking place. However, the court affirmed the trial court's qualified immunity dismissal of the claims against police and security guards. (See prior posting.) It is this aspect of the 5th Circuit's decision that is being appealed in the certiorari petition. At issue is whether in free speech and free exercise claims, officers can claim qualified immunity where a reasonable officer should have understood their action to be unconstitutional, but their particular action has not been previously held unconstitutional by a court.

First Liberty Institute issued a press release announcing the filing of the cert. petition.

9th Circuit Grants En Banc Review in Church Autonomy Case

In  Union Gospel Mission of Yakima Washington v. Brown, (9th Cir., June 18, 2026), the U.S. 9th Circuit Court of Appeals voted to review en banc the 3-judge panel's decision that barred enforcement of Washington's Law Against Discrimination against a Christian ministry that gives hiring preference to co-religionists for non-ministerial positions. (See prior posting.)

Judge Bumatay, joined by Judges VanDyke and Tung, filed an opinion dissenting from the grant of en banc review, saying in part:

... [T]he Ninth Circuit has relegated religious liberty to a second-class right.  In case after case, our court has condoned governmental interference with the rights of the religious to practice their faith as they believe. 

Now, with this en banc vote, we continue down this disturbing path.  In what is likely a foregone conclusion, our court steps toward endorsing the view that States can force a religious organization to hire individuals who openly flout its religious beliefs and teachings.  As a matter of constitutional first principles and precedent, that’s wrong.... 

FTC and States Sue Organization Setting Standards for Pediatric Trans Care

The Federal Trade Commission along with the states of Alaska, Iowa, Nebraska and Texas, filed suit yesterday against the World Professional Association for Transgender Health (WPATH) alleging violations of federal and state fraud and consumer protection laws. WPATH develops Standards of Care (SOC) for pediatric medical gender transitioning. Its SOC are relied upon by clinicians and insurance companies. The 123-page complaint (full text) in Federal Trade Commission v. World Professional Association for Transgender Health, Inc., (ND TX, filed 6/17/2026), alleges in part:

9. In addition to representing that the SOC itself, and the life-altering surgeries it recommends, reflect expert consensus and high-quality evidence, WPATH represents in the SOC that these and other transition services are medically necessary and effective at preventing suicide in children, that puberty blockers are fully reversible, that cross-sex hormones improve mental health, and that breast amputations are safe, effective, and consistently and directly increase children’s health-related quality of life....

14. The success of WPATH’s systematic efforts to expand eligibility for transition services to children in order to profit its members is difficult to overstate. Through the SOC and its other efforts, WPATH has created and currently sustains a lucrative industry of pediatric medical transition services. Over roughly the past two decades, the number of pediatric medical transition providers has multiplied rapidly. The first pediatric medical transition clinic in the United States opened in 2007. By 2015, there were at least forty-one pediatric medical transition clinics across the United States, many embedded within major children’s hospitals and academic medical centers. Between 2017 and 2021, the number of children who were diagnosed yearly with distress about their sex traits in the U.S. nearly tripled from around 15,000 in 2017 to about 42,000 in 2021....

18.  WPATH falsely asserts that its recommendations are the result of rigorous scientific procedures and expert consensus, even though WPATH disregarded established guideline‑development standards, ignored the results of its own evidence reviews, and removed age limits in response to external pressure rather than scientific evidence....

The FTC issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit.

State AG's Urge FDA To Investigage Whether Mifepristone Is Contaminating Drinking Water Supplies

In a press release issued on Monday, Liberty Counsel announced that 14 Republican state attorneys general have sent a letter (full text of letter dated June 5) to the Food and Drug Admninistation urging it to investigate whether the abortion drug mifepristone is contaminating drinking water. The letter said in part:

The upsurge in home-setting chemical abortions has serious implications for the Safe Drinking Water Act. The metabolites in mifepristone and its approved generics remain active post-excretion... On top of this, conventional wastewater treatment is not designed to remove these type of contaminants, so there is strong reason to conclude that the compounds persist in both the environment and the water supply.....

We therefore urge this agency to abide by its duty to identify the contaminants most harmful to “sensitive subgroups,” including “pregnant women,” 42 U.S.C. § 300g–1(b)(1)(C), and amend the 6th CCL to include mifepristone and its approved generics. The health of pregnant women and Americans everywhere may depend on it.

According to the press release announcing the letter:

The coalition of attorneys general ...  urge the EPA to add Mifepristone to the Contaminant Candidate List (CCL). The CCL is a regulatory tool under the Safe Drinking Water Act that identifies contaminants that are not yet subject to any water protection regulations. Once a substance is on the CCL, it triggers federal safety studies on its health effects whereby the EPA must then decide how to regulate the substance.

Cert. Denied In School's Discipline of Pro-Life Student Group

The Supreme Court yesterday denied review in E.D. v. Noblesville School District, (Docket No. 25-906, certiorari denied 6/15/2026). At issue in the case is a high school's refusal to permit a student pro-life group to post flyers in the school because of the political content of the flyers. The dispute eventually led to the suspension of the pro-life group for several months. The 7th Circuit Court of Appeals upheld the school's action. 

Justice Alito filed an opinion dissenting from the denial of certiorari, saying in part:

Hazelwood ... concerned the regulation of “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  ...  When regulating the content of such activities, the Court held, a school need only meet the low bar of showing that the censorship is “reasonably related to legitimate pedagogical concerns.” 

... “[C]ourts must be very careful when a government claims that speech by one or more private speakers is actually government speech,” because “it can be difficult to tell whether the government is using the doctrine ‘as a subterfuge for favoring certain private speakers over others based on viewpoint.’”...

I would grant the petition to clarify the relationship between Hazelwood and our subsequent government-speech decisions.

Recent Articles and Books of Interest

From SSRN:

• Edgar A. Fernandez-Lopez, Turandot and the Exhaustion of Power: Ritual, Genealogy, Sacrifice, and the Twilight of Civilizations (June 06, 2026).
• Amir Downing, Religious Land Use Exceptionalism: The Meaning of "Substantial Burden" in RLUIPA, (Virginia Law Review, forthcoming March 2027).
• Dwight G. Newman & Kenechukwu Aneke, Associational Freedom in the Contexts of Religion and Sports. (Supreme Court Law Review, 3rd Series, Volume 14 (forthcoming)).
• Johnny Davis, Christian Nationalism, Trump, the Rise of the Far Right vs. a True Biblical Worldview, March 21, 2026).
• Gaston Rey, Magnifica Humanitas as the Constitution of Human Supremacy in the Digital Age, (May 28, 2026).
• Irfan Haroon, Redefining Harassment at the Workplace: A Critical Analysis of the Supreme Court of Pakistan’s Landmark Review Judgment, (May 28, 2026).
• Mahmoud A. El-Gamal, Zakāh as Tithe: Fiscal Engineering in Early Islamic Jurisprudence, (June 11, 2026).
• Stephen Greenway, Distinguishing Religion From Nonreligion After Catholic Charities, (Notre Dame Journal of Law, Ethics, & Public Policy, Volume 40 (forthcoming 2026)).
• Laura Snyder, A Tale of Two Emigrations: Why the Pope Needs Protection from the United States, (May 18, 2026).

From SmartCILP:

• Alex Reed, The Class Action Fairness Act Amendments Act: A Proposal, 46 Berkeley Journal of Employment and Labor Law 271-312 (2025).
• Yael Efron, Religious Conflicts in Disguise: The Limits of the Law in Tackling Conflicts with Religious Dimensions, 27 Cardozo Journal of Conflict Resolution 39-66 (2025).
• Bahman Khodadadi, The Theocratic Agency of the Iranian Legal System at the Legislative and Judicial Levels, 36 Yale Journal of Law & Humanities 251-274 (2025).
• S. Spencer Wells, Disciplining Conscience: Judging Ecclesiastical Courts in the Early American Republic, 36 Yale Journal of Law & Humanities 327-345 (2025).

Recent and Forthcoming Books:

• John Witte, Jr. & Andrea Pin, The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe, (Notre Dame Press, April 2026).
• Mark A. Walters, Imran Awan, Mika Hagerlid, Alexander Kondakov, & Jennifer Schweppe, De Gruyter European Handbook on Hate Crime, (Walter de Gruyter GmbH & Co KG, April 2026).
• John Duddington, The Legal Legacy of the Reformation: Catholic and Protestant Approaches to Law, (Routledge, forthcoming July 2026).
• Donald L. Drakeman, The Free Exercise Clause and the Rights of Conscience, (Harvard University Press, forthcoming November 2026).

President Issues Message on Catholic Bishops' Honoring of US 250th Anniversary

Yesterday the White House posted a Presidential Message on U.S. Catholic Bishops Honoring the 250th Anniversary of American Independence (full text). The Message reads in part:

Today, Melania and I join in prayer with Catholic Bishops gathered in Orlando, Florida, as they consecrate the United States of America to the Sacred Heart of Jesus on the occasion of our 250th year of American Independence—a powerful moment in our national story and a poignant reminder that America has always been guided by the loving hand of God....

This year’s Feast of the Most Sacred Heart of Jesus also fittingly marks the anniversary of one of the most momentous days in Western civilization’s long twilight struggle against atheistic communism.  On June 12, 1987, President Ronald Reagan delivered his historic address at Brandenburg Gate in Berlin, Germany, in which he famously implored Soviet General Secretary Mikhail Gorbachev to “tear down this wall.”

Toward the end of his remarks, President Reagan identified what he called “the most fundamental distinction of all between East and West:  The totalitarian world produces backwardness because it does such violence to the spirit, thwarting the human impulse to create, to enjoy, to worship.”...

Thanks to the moral leadership of President Reagan and Pope Saint John Paul II, the tireless work and determination of free men and women around the world, and the moral witness of millions who endured prolonged suffering within the Captive Nations, the godless forces of Soviet communism were vanquished—and the human spirit triumphed.

Today, nearly four decades later, our Nation and our culture confront a new set of menacing ideologies seeking once again to cast God out from our society.  But today, as Catholic Bishops consecrate the United States of America to the Sacred Heart of Jesus in this 250th year of our Independence, we recommit ourselves, like President Reagan and Pope Saint John Paul II, to defending our spiritual identity and great civilizational inheritance.  Above all, we pray that America will continue for the next 250 years, and beyond, to be a land of faith, a country of miracles, and a light and glory to all nations.

DC Circuit Gives Pleading Leeway to Pro Se Muslim Plaintiff Who Claims Religious Discrimination

 In Naz v. Wright, (DC Cir., June 9, 2026), the D.C. Circuit Court of Appeals in a 2-1 decision reversed a district court's dismissal of a religious discrimination claim brought by a Muslim woman of Pakistani origin who was fired from her position at the Department of Energy.  The majority said in part:

Naz alleged that, in May or June 2019, she asked Gross—who by then had become her supervisor—whether during the month of Ramadan, he could adjust the start time of their weekly team meetings by 30 minutes and grant her a flexible work schedule to accommodate her religious observance....  But “instead of accommodating m[y] request,” Naz alleges, Gross “bluntly replied to me that [the Department] is a workplace, not a religious institution, and he does not believe in Islamic religious extremism.” ...   

The district court’s opinion, though, does not expressly take account of Naz’s allegation about Gross’s statement. Granted, Naz did not include the allegation in her complaint, instead stating it in her opposition to the Department’s motion to dismiss.  But as noted, our precedents generally call for considering a pro se plaintiff’s allegations in an opposition to a dismissal motion even if they are not in the complaint....

Judge Katsas filed a dissenting opinion, saying in part:

... [M]y colleagues vacate the dismissal of the discrimination claims, based on a contestable argument raised neither by Naz nor by the amicus curiae whom we appointed to support her position.  Specifically, my colleagues conclude that the district court erred in not plucking an allegation out of Naz’s 148-page opposition to the government’s motion to dismiss, deeming that allegation to be part of Naz’s complaint, and then considering whether it tipped the balance against dismissal.  Rather than inject that contention into this appeal, I would instead apply ordinary party-presentation principles, which compel an affirmance....

HRD reports on the decision.

European Court of Human Rights Rules in Favor of Jehovah's Witnesses in Two Cases

The European Court of Human Rights has handed down opinions in two cases involving the rights of Jehovah's Witnesses. The official opinion in each is available only in French. Excerpts below are from unofficial translations:

In Velev and Others v. Bulgaria, (ECHR, June 9, 2026), the court held that a Bulgarian town's prohibition on door-to-door religious propaganda violates Article 9 of the European Convention on Human Rights. The court said in part:

67. The Court is prepared to accept that the measure at issue pursued a legitimate aim, namely the protection of the rights and freedoms of others, and in particular the right to respect for the home and private life of the inhabitants of the municipality of Shumen.

68. It therefore remains to be determined whether the interference was 'necessary in a democratic society'....

69. ,,, [T]he prohibition at issue is general and absolute. It is not limited to coercive, intrusive or abusive behaviour, but targets indiscriminately any form of "religious propaganda" in the homes of residents. Door-to-door preaching is an essential manifestation of Jehovah's Witnesses .... . A general prohibition of such a practice therefore calls for a particularly rigorous examination of proportionality.

70. ... [T]he domestic authorities have not demonstrated the existence of specific or repeated disturbances of such gravity as to justify such a broad measure.... [I]n a democratic society characterized by pluralism and tolerance, the mere fact of being exposed to religious ideas or convictions that one does not share cannot in itself justify a general prohibition of peaceful missionary activities.

The court issued a press release announcing the decision. EWTN also reports on the decision.

In Jehovah's Witnesses Christian Congregation v. Italy, (ECHR, June 11, 2026), the court held that the refusal of Italy to enter into an agreement with Jehovah's Witnesses that would allow it to share in tax revenues constitutes religious discrimination in violation of Articles 9 and 14 of the European Convention on Human Rights.  The court rejected the government's arguments that Jehovah's Witnesses' positions on blood transfusions, military service and voting justify the state's refusal. The court said in part:

62. ... [W]hile freedom of religion does not imply that churches or their followers must be accorded a tax status different from that of other taxpayers...,  the Court has already held that where the national authorities grant tax privileges to certain communities without necessarily being bound to do so by Article 9 of the Convention, they must also comply with Article 14 of the Convention.... Thus, once the State voluntarily decides to grant religious organizations a right to subsidies and other benefits – which right then falls within the broader scope of Articles 9 and 11 of the Convention – the measures it takes to grant such benefits cannot be discriminatory....

75.... [T]he Court considers that the applicant is in a situation comparable to that of registered religious communities which have concluded an agreement with the State under Article 8 of the Constitution. It therefore remains to be determined whether the difference in treatment at issue is based on an objective and reasonable justification under Article 14 of the Convention....

95.... The Court considers that it has not been shown that the difference in treatment between the applicant and the religious cults which may have concluded agreements with the Italian State was based on an 'objective and reasonable justification'.

Two judges filed a concurring opinion saying in part that "the Court should ... have focused ... on the lack of sufficient safeguards against discriminatory treatment...."

The court issued a press release announcing the decision and providing additional information on the court's reasoning. Courthouse News Service also reports on the decision.

Ministry Gets TRO To Allow It to Distribute Food in Park to Homeless Individuals

In St. Herman's Table v. City of Phoenix, (D AZ, June 10, 2026), an Arizona federal district court granted a temporary restraining order barring the city of Phoenix from enforcing against plaintiff a requirement that it obtain a permit for its food distribution in Cave Creek Park. A permit is required for events in which food is distributed in Phoenix parks to the general public for charitable purposes. Only a limited number of permits are available. The court said in part:

St. Herman’s Table, a ministry and nonprofit corporation, and ... its founder, allege the new ordinance violates their right to practice their religion by providing meals, water, and Bibles to homeless people....

The ordinance at issue appears neither neutral nor generally applicable. Neutrality requires conduct be proscribed “regardless of motivation.”... But the ordinance plainly categorizes food distribution with specific regard to motivation, requiring a permit only for those events undertaken for “charitable or similar humanitarian purposes.”... Although subtle, charitable purposes certainly correlate with religious ones....

Similarly, the ordinance is not generally applicable because it permits secular activities that “undermine[] the government’s asserted interest in a similar way.”... [O]rganizations are permitted to distribute food when it is not for public consumption or not for charitable or humanitarian purposes ..., even when their events are equally large, noisy, and trash-producing....

Because it is neither neutral nor generally applicable, the ordinance is subject to strict scrutiny.... [E]ven if Phoenix had identified compelling government interests, it seems likely those interests could be furthered by less-restrictive or more narrowly-tailored means, for instance requiring permits based on an event’s size, trash levels, or noise levels....

Arizona Republic reports on the decision.

Florida AG Says Schools Must Allow Students to Attend Released Time Programs

On Tuesday, Florida Attorney General James Uthmeier provided a legal opinion (full text) to a member of the Florida legislature concluding that public schools must accommodate parental requests for their children to participate in release time for religious instruction. The opinion cited Florida statutes requiring schools to adopt policies authorizing parents to request and be granted permission for their students to be absent from school for religious instruction.  Then he added:

Crucially, RTRI [Released Time for Religious Instruction] enables parents to honor their sacred duties to raise their children in the faith.  The LORD—author of our natural rights and duties—requires nothing less: “And these words that I command you today shall be on your heart.  You shall teach them diligently to your children, and shall talk of them when you sit in your house, and when you walk by the way, and when you lie down, and when you rise.”

Parents’ exercise of these rights and duties redound to the State’s benefit. First, it relieves the State of the primary cost and responsibility of shaping the civic and moral character of succeeding generations.  Second, it ensures that succeeding generations of citizens are properly shaped in terms of civic, moral, and religious character—an ingredient essential to the maintenance and longevity of our republican system of government. ...

CBS News 12 reports on the AG's legal opinion.