Religion Clause

Monday, May 18, 2026

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.

Sunday, May 17, 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.]

Friday, May 15, 2026

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.

Thursday, May 14, 2026

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.

Wednesday, May 13, 2026

DHS Seeks Land Near Catholic Shrine for Border Wall Construction

As reported by Axios, the Department of Homeland Security is seeking to take by eminent domain 14 acres of land belonging to the Catholic Diocese of Las Cruces, New Mexico. According to the complaint (full text) in United States v. 14.259 Acres of Land, (D NM, filed 5/7/2026), the land is being acquired to use for roads, fencing, vehicle barriers, security lighting, cameras, sensors, and structures that will be part of President Trump's border wall. The land is at the base of Mount Cristo Rey. At the top of the mountain is a 29-foot-tall limestone statue of Jesus. Each Fall, on the Feast Day of Christ the King, thousands climb the mountain to participate in a Mass. According to Mint, the Diocese will raise defenses under the Free Exercise clause and the Religious Freedom Restoration Act.

UPDATE: In a May 14 post on X, the Department of Homeland Security says in part: "The cross is located approximately A QUARTER MILE — 1,300 to 1,400 feet — north of the border ON TOP OF THE MOUNTAIN. Access to the shrine will NOT be affected, as all attendees enter from the U.S. side."

Noise Ordinance Arrest Did Not Violate First Amendment or State RFRA

In Acevedo v. Zatora,(ND IL, May 11, 2026), an Illinois federal district court dismissed plaintiff's claims that police officers violated his free speech and free exercise rights when they arrested him for violating Chicago's noise ordinance. The ordinance prohibits amplified sound on public property that is louder than average conversational level at 100 feet distance. Acevedo and six others set up a microphone on a public sidewalk across from a Planned Parenthood clinic. Acevedo contends that his amplified speech was no louder than permitted under the Ordinance. The court said in part:

Acevedo’s First Amendment grievance ... is not with the noise ordinance’s constitutionality, either facially or as applied to his circumstances. He instead challenges defendants’ decision to arrest him for violating the noise ordinance despite his compliance with it and purportedly owing to his protected speech. This claim is indistinguishable from Acevedo’s First Amendment retaliation claim ... where he alleges that he was unjustly arrested in retaliation for his protected speech, despite his compliance with the noise ordinance....

In dismissing Acevedo's retaliation claim, the court concluded that Acevedo was arrested for disobeying an officer's order to stop using the microphone, not because of the religious or political content of his speech.

The court also dismissed Acevedo's claim against the city of Chicago. Acevedo contended that the city has a policy of "preventing Christian street preachers (and presumably others) from using voice amplification on the public way by misapplying the noise ordinance to prohibit all amplified religious speech (and possibly other speech) regardless of volume or compliance with the ordinance’s actual requirements." The court said that the complaint did not give the city fair notice of the action Acevedo was challenging. The court said in part:

Do officers involved in the allegedly problematic practice exclusively target Christian street preachers engaged in religious speech, or do the officers also target street preachers of “all” faiths and other individuals not engaged in religious speech at all? Do officers consistently invoke the noise ordinance when they encounter Christian street preachers, or do they arrest Christian street preachers for other alleged infractions and without invoking the noise ordinance at all.

Dismissing Acevedo's claim under the Illinois Religious Freedom Restoration Act, the court said in part:

Acevedo has not alleged that he faced a “coercive choice” between abandoning his religious convictions or complying with a City regulation. Rather, Acevedo alleges that he did comply with the City’s ordinance while exercising his religious convictions.

The court allowed Acevedo to move ahead on his 4th Amendment false arrest claim.

Tuesday, May 12, 2026

Ohio AG Resigns to Take Position with Christian Legal Advocacy Organization

Dayton Daily News last week reported that term-limited Ohio Attorney General Dave Yost has resigned, effective June 7, in order to take a position with the Christian legal advocacy organization Alliance Defending Freedom. ADF issued a press release last week announcing Yost's appointment, saying in part:

Alliance Defending Freedom CEO, President, and Chief Counsel Kristen Waggoner announced Thursday that Ohio Attorney General Dave Yost will join ADF as Vice President of Strategic Research and Innovation.

ADF is the world’s largest legal organization committed to advancing every person’s God-given right to live and speak the truth. With litigation and public policy spanning six continents, ADF fights in the most consequential legal and cultural battlegrounds of our time—preserving free speech, religious liberty, the sanctity of life, marriage and family, and parental rights....

In his new role, Yost will focus on expanding ADF’s strategic research capabilities and developing innovative approaches to advancing freedom globally....

USCIRF Urges President to Fill Position of Ambassador at Large for International Religious Freedom

The U.S. Commission on International Religious Freedom yesterday issued a statement (full text) urging President Trump to select a nominee to fill the position of Ambassador at Large for International Religious Freedom, and urging the Senate to swiftly confirm the nomination. The USCIRF Statement says in part:

President Trump has engaged in some important IRF policy decisions, including the designation of Nigeria as a Country of Particular Concern and the expansion of visa restrictions against IRF violators and their families.... However, the present lack of ambassadorial leadership on IRF matters prevents the U.S. government from fulfilling its potential in leading global efforts to advance this vital issue—a problem that can be solved through a swift nomination and confirmation process.

As previously reported, in April 2025, President Trump nominated Mark Walker, a former Baptist minister and former congressman, to be Ambassador at Large for International Religious Freedom. However, the Senate failed to hold a hearing on his nomination which was being blocked by North Carolina Senator Tedd Budd who defeated Walker in the 2022 Republican primary for U.S. Senate. So last January, Walker withdrew his name from consideration for the ambassadorship and instead accepted an appointment by President Trump as Principal Advisor on Global Religious Freedom to the State Department. His term in that position expired last month.

Monday, May 11, 2026

Nebraska Supreme Court Rules on Non-Custodial Parent's Right To Influence Children's Religious Upbringing

In Munsell v. Munsell, (NE Sup. Ct., May 8, 2026), the Nebraska Supreme Court modified a trial court's divorce decree in a dispute over who could decide whether the divorced couple's children would attend a church camp. The trial court's decree had allowed the mother (Libby) who had sole custody to prevent the father (Jacob) from enrolling the children in church camp during his parenting time. The Nebraska Supreme Court disagreed. The court said in part:

Jacob and Libby were raised in the same religion as that of the church Jacob currently attends. Jacob testified the church follows the tenet that women should be “subservient” to men and that the church should be led by men. During their marriage, the parties and the children attended the church. However, Libby testified that she “left the church” about 5 months before filing for divorce, no longer agreed with some of the church’s teachings, and did not like that ... wom[e]n were silenced and subjugated.” She also testified that she did not like the “culture of fear and shame that the church brings on”....

Jacob’s parents live on the church camp’s property as care takers. Jacob testified the church camp was a “huge part” of his life....

As this appeal illustrates, the state-law right of a legal custodian to make fundamental decisions about a child’s educational and religious upbringing can conflict with the non-custodial parent’s fundamental right to influence the religious upbringing of the child during his or her parenting time. The U.S. Supreme Court has not weighed in on the difficult question of how to properly balance these conflicting rights in the context of divorce proceedings....

... [I]in our de novo review, we see an absence of evidence that allowing the children to attend the church camp would pose “an immediate and substantial threat to a child’s temporal well-being.”...

Accordingly, we see no basis to restrict Jacob’s ability to enroll the children in the church camp during his parenting time.