Kansas House Condemns Planned Satanic Black Mass at Statehouse

On March 20, the Kansas state House of Representatives adopted House Resolution 6016 (full text) denouncing a Black Mass planned by the Satanic Grotto for the statehouse grounds. The permit that was granted insisted that the event be held outdoors, though the leader of the Satanic Group threatens to try to move it inside in violation of the permit. The House Resolution that passed by a vote of 101-15 reads in part:

WHEREAS, The Kansas House of Representatives acknowledges and respects that the First Amendment to the Constitution of the United States guarantees all citizens the right to assemble and the freedom of speech, even as it expresses its profound disagreement with actions that mock or desecrate sacred beliefs; and

WHEREAS, The planned satanic worship ritual is an explicit act of anti-Catholic bigotry and an affront to all Christians. It blasphemes our shared values of faith, decency and respect that strengthen our communities: Now, therefore,

Be it resolved by the House of Representatives of the State of Kansas: 

That we denounce the planned satanic worship ritual scheduled to take place on the grounds of the people's house, the Kansas state capitol grounds, on March 28, 2025, as a despicable, blasphemous and offensive sacrilege to not only Catholics but all people of goodwill, and it runs contrary to the spiritual heritage of this state and nation; and 

Be it further resolved: That we call upon all Kansans to promote unity, mutual respect and the values that uphold our identity as one nation under God;....

According to the Topeka Capital-Journal:

Kansas City, Kansas, [Archbishop] Joseph Naumann accused the Satanic Grotto of stealing a consecrated host,... in a civil lawsuit. But Naumann dropped the lawsuit after Michael Stewart, president of the Satanic Grotto, testified that the wafers were lawfully purchased.

School's Gender Support Policy Did Not Violate Parent's Free Exercise or Due Process Rights

In Vitsaxaki v. Skaneateles Central School District, (ND NY, March 20, 2025), a New York federal district court rejected free exercise and due process challenges to a school district's policy of referring to students by their preferred names and pronouns without informing parents that the district is doing so.  The court said in part:

Mrs. Vitsaxaki asserts that her free exercise of religion was substantially burdened when she was unable to direct the upbringing and education of her child to “counteract” the school district’s implicit messaging that “people can change their sex.” ...

Mrs. Vitsaxaki asserts that the district’s actions taken pursuant to the Policy— permitting Doe to use a preferred names and pronouns and to receive school counseling regarding gender identity questions—were in direct contradiction of her religious views concerning gender and biological sex....

... [A] Policy that permits students to use preferred names and pronouns cannot be said to promote or endorse a religious message nor establish a particular religious practice.  Nor does Mrs. Vitsaxaki allege that it does.  Mrs. Vitsaxaki merely alleges that the choices available to students who choose to take advantage of the Policy runs afoul of her own religious beliefs....

... [T]he Court is satisfied that the Policy, which enables students to use their preferred name and/or pronouns is rationally related to the school district’s legitimate interest in promoting a safe learning environment for its students. ...

Rejecting plaintiff's claim that the school infringed her parental rights, the court said in part: 

... [W]ithin the Second Circuit, the scope of parental rights has been limited in the education context.  Most recently, ..., the Second Circuit held that “there is not a parental right, absent a violation of the Religion Clauses, to ‘direct how a public school teaches their child.’”  ...

... Mrs. Vitsaxaki’s verified complaint—and copies of the Policy...—describe a Policy that operates more like a civility code that extends the kind of decency students should expect at school: such as being called the name they ask to be called.  This strikes at the heart of the subject and manner of instruction a school district is entitled to implement for its students....

... Mrs. Vitsaxaki does not plausibly allege that the district diagnosed or treated Doe or that the district violated her right to make healthcare decisions on Doe’s behalf.   

Simply put, she remained free to exercise her parent rights at home.

Covid Era Mask Mandate Did Not Violate Free Exercise

In Robol v. City of Columbus, (OH App., March 20, 2025), an Ohio state appellate court affirmed the dismissal of plaintiff's claims that the city infringed his free exercise rights when during the Covid pandemic it required individuals to wear a mask in public spaces.  The court said in part:

Ordinance 1643-2020, the City’s mask ordinance, required all persons to wear a mask in public spaces.  The ordinance did not regulate, or even mention, any religious activity, religious creed, or religious affiliation.  Thus, the face mask policies Mr. Robol challenges are both neutral and generally applicable....

Despite the general applicability and neutrality of the mask ordinance, Mr. Robol nonetheless asserts the City violated his rights under the Free Exercise Clause because the ordinance violated his Christian beliefs, forced him to worship a false god, and had the effect of mocking the tenets of his faith.  Though we do not question the sincerity of Mr. Robol’s interpretation of his religion, we are mindful that a government action is not unconstitutional merely because it incidentally burdens religious practices.

Mr. Robol also brought a religious exercise claim under 42 U.S.C. 2000bb, the Religious Freedom Restoration Act....

Not every imposition on religious exercise is a substantial burden....

Without doubting the sincerity of Mr. Robol’s belief that wearing a face mask violates his religious beliefs, we note that Mr. Robol does not allege, much less demonstrate through Civ.R. 56 evidence, that the face mask policies imposed any more than a mere inconvenience to his religious beliefs.....

Mr. Robol argues the City’s face mask requirement violated his freedom of speech and expression because the choice not to wear a face mask is a form of expressing his opposition to the City’s response to the COVID-19 pandemic.  The City’s mask ordinance is content-neutral, and nothing in the terms of the ordinance suggests the purpose is to regulate speech.  And we agree with appellees the face mask policy promotes an important governmental interest in controlling the spread of COVID-19 that is unrelated to the suppression of speech.....

Court Upholds California's Repeal of Personal Belief Exemption from School Vaccination Mandate

 In Royce v. Pan, (SD CA, March 17, 2025), a California federal district court rejected a free exercise challenge to California's removal of the "personal belief" exemption from the state's compulsory school vaccination requirements. The court rejected arguments that the repeal of the exemption evidenced hostility to religion and that the law is not generally applicable because it exempts comparable secular activity.  The court said in part:

First, SB 277 did not specifically repeal a religious exemption.  Rather, it repealed a general personal belief exemption that was secular and neutral on its face.  Repeal of a secular exemption does not demonstrate hostility towards any religion or religious practice.  Second, even if SB 277 could be characterized as repealing a religious exemption, repealing a prior religious exemption is not hostile towards religion per se....

Plaintiffs argue that SB 277 is substantially underinclusive and treats secular activity more favorably than religious exercise by eliminating exemptions for religious reasons but permitting secular exemptions that undermine the State’s interest in a similar way.....  In particular, Plaintiffs highlight medical exemptions, exemptions for home schooled children and children enrolled in independent student programs, exemptions for students who qualify for IEPs, exemptions for students over 18 years of age, and conditional enrollment for migrant, homeless, foster, and military children.....

The court concluded that none of these exemptions are comparable to a religious exemption and that rational basis review applies because the law is neutral and generally applicable.

Most Challenges to Law Protecting Access to Abortion Clinics Are Rejected; One Section Violates 1st and 14th Amendments

In Hulinsky v. County of Westchester, (SD NY, March 14,2025), two women who have engaged in sidewalk counseling at abortion clinics challenged a Westchester County, New York, law that was designed to assure safe access to reproductive health care facilities. The court described the challenged legislation:

Sections 425.31(a) prohibits forms of “physically obstructing or blocking” that amount to interfering with and/or intimidating persons obtaining access at a reproductive health care facility. Sections 425.31(e) and (f) prohibit interfering with and/or intimidating persons obtaining access at a reproductive health care facility “[b]y force or threat of force, or by physically obstructing or blocking[.]” Section 425.31(c) prohibits “knowingly follow[ing] and harass[ing] another person within twenty-five (25) feet of” a “reproductive health care facility.” Section 425.31(h) prohibits “knowingly interfer[ing] with the operation of a reproductive health care facility.”

A New York federal district court found that Sec. 425.31(h) "burden[s] substantially more speech than is necessary to further the government’s legitimate interests." It also concluded that the section "is vague because it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited." However, the court dismissed plaintiffs' free exercise challenge to the section as well as their free speech and free exercise challenges to other parts of the law. 

Justice Department in Policy Change Files Amicus Brief Supporting Religious Charter School

 As previously reported, the U.S. Supreme Court has granted certiorari in Oklahoma Virtual Charter School Board v. Drummond and the related case of St. Isidore of Seville Virtual Charter School v. Drummond. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. Last week (March 12), the U.S. Acting Solicitor General filed an amicus brief (full text) urging reversal of the Oklahoma Supreme Court. The brief says in part:

... [T]he Free Exercise Clause applies and prohibits Oklahoma from excluding St. Isidore based on its religious observance. 

The United States previously advanced a different view of a charter school’s relationship with a State in Charter Day School, Inc. v. Peltier, 143 S. Ct. 2657 (2023), after this Court called for the views of the Solicitor General regarding whether a charter school’s adoption and enforcement of a student dress code was state action that could potentially violate the Constitution.  The United States contended (Br. 9-14) that the charter school was engaged in state action because it performed an educational function that was traditionally exclusively reserved to the State.  

After the recent change in Administration, the United States has concluded that charter schools do not perform functions exclusively reserved to the State.  More broadly, the state-action inquiry on which the United States focused in Peltier has obvious application to cases asking whether a school violates the Constitution in taking a specific action.  Where, as here, the question is whether a school lacks constitutional protections due to its governmental character, the key consideration is whether the school is itself a governmental entity, created and controlled by the State.  A charter school like St. Isidore does not meet those criteria.

RLUIPA and Free Exercise Claims Rejected in Suit by Native American Who Held Religious Objections to Blood Alcohol Test

In Shash v. City of Pueblo, (D CO, March 14, 2025), plaintiff who was a leader in the southern Colorado Native American Community Church of Aztlan brought a variety of claims against the city, state police and other state agencies growing out of his arrest and DUI charges brought against him after an auto accident. Among the claims were alleged violations of plaintiff's free exercise rights under RLUIPA and the federal and state constitutions. According to the court:

Plaintiffs allege that Trooper Chavez denied Mr. Shash the opportunity to take a breath test and effectively placed Mr. Shash in a position where he had to submit to a blood test or be charged with DUI....  Plaintiffs argue that this constitutes a substantial burden on Mr. Shash’s First Amendment right to free exercise of his religious beliefs, which prohibit blood draws outside a ceremonial context. 

The court dismissed plaintiff's RLUIPA claim, saying in part:

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.”...

Because Plaintiffs allege that Mr. Shash was never taken to jail, ... the Parties dispute whether Mr. Shash was ever “confined to an institution” for RLUIPA  purposes....  [W]hile Mr. Shash raises arguments relevant to a finding that he was in “pretrial detention,”..., he omits any discussion of whether his time in the Trooper Defendants’ custody was spent in a “facility.”  The Court thus agrees with Defendants that Mr. Shash was never “residing in or confined to” a qualifying institution.

The court dismissed plaintiff's 1st Amendment free exercise claim on qualified immunity grounds, saying in part:

While Plaintiffs allege that Mr. Shash made an “inquiry” regarding his right to decline a blood test that was “based on his right to religious exercise,” there is no allegation that Mr. Shash disclosed his religious beliefs to any Defendant, nor that Trooper Chavez was ever aware of Mr. Shash’s religious beliefs.... In other words, Plaintiffs fail to allege that Trooper Chavez purposefully imposed a substantial burden on Mr. Shash’s free-exercise rights....  Because Plaintiffs have not identified a clearly established First Amendment right implicated by Trooper Chavez’s conduct, Trooper Chavez is entitled to qualified immunity.

The court refused to exercise supplemental jurisdiction over plaintiff's state free exercise claim because it poses a novel question of the degree of scienter required for a violation of the state's free exercise protections in a suit against state officials. Colorado has not adopted a qualified immunity defense.

Syria Gets New Interim Constitution That Protects Freedom of Belief

AP reports that on March 13, Syria's interim president, Ahmad al-Sharaa, signed an Interim Constitutional Declaration (full text), which will be in effect until a new permanent constitution for the country is drafted and adopted and national elections are held under it. The Interim Constitutional Declaration provides in part:

Article 3 – Islam, freedom of belief, personal status

1. The religion of the President of the Republic is Islam, and Islamic jurisprudence is the principal source of legislation.

2 - Freedom of belief is protected. The State respects all divine religions and guarantees the freedom to perform all their rituals, provided that this does not disturb public order.

3. The personal status of religious sects is protected and respected in accordance with the law....

 Article 10 – Equality  

Citizens are equal before the law in rights and duties, without discrimination based on race, religion, gender or lineage....

 Article 13 – Expression, privacy, movement  

1. The State guarantees freedom of opinion, expression, information, publication and the press....

9th Circuit: Profs Lack Standing to Challenge Addition of Caste Discrimination to University's Anti-Discrimination Policy

In Kumar v. Koester, (9th Cir., March 12, 2023), the U.S. 9th Circuit Court of Appeals held that two Hindu California State University college professors lack standing to challenge the addition of "caste" as a protected class under the university's anti-discrimination and harassment policy. Plaintiffs claim that this addition falsely attributes a caste system to Hinduism. The court said in part:

Appellants allege that the Policy’s inclusion of “caste” stigmatized their religion and caused them to self-censor certain religious practices, like celebrating holidays and discussing religious texts....

The complaint ... alleges that the Policy violates the Religious Clauses of the First Amendment by defining the Hindu religion as including a caste system, and in doing so, “ascrib[es] an oppressive and discriminatory caste system to the entire Hindu religion.”...  

Appellants failed to show that they intend to engage in any religious practice that could reasonably constitute caste discrimination or harassment such that the Policy would be enforced against them....

... How can Appellants be injured by a policy prohibiting conduct that they have no intention to engage in?...

... Appellants have alleged no injury to their ability to exercise their religion.  Rather, their claims only indicate that they are offended by an alleged association of the caste system with Hinduism.  This is the exact “moral, ideological, or policy objection to a particular government action” that the injury in fact requirement is meant to “screen[] out.”...

... [T]he district court made a factual finding that the Policy had no hostility toward religion.  It based that finding on (1) the fact that the Policy does not mention Hinduism; (2) dictionary definitions show “caste” is “readily defined without reference to Hinduism” 

... If the Policy does not stigmatize Hinduism, Appellants have no spiritual injury.  And if there is no injury, there is no standing....  Appellants’ Establishment Clause claim fails for lack of Article III standing....

[Thanks to Dusty Hoesly for the lead.]

Suit Challenges NYPD's Forcible Removal of Hijabs as Crowd Control Tactic

Suit was filed this week in a New York federal district court challenging the practice of the New York Police Department of forcibly and publicly removing Muslim women's hijabs as a method of crowd control at demonstrations. The complaint (full text) in Council on American-Islamic Relations New York v. City of New York, (SD NY, filed 3/9/2025) contends that the practice violates the free exercise and free speech protections of the U.S. and New York Constitutions, as well as the 4th Amendment and other provisions of New York law. CAIR issued a press release announcing the filing of the lawsuit.

6th Circuit: Public Official Engaging in State Action Cannot Assert 1st Amendment Defense

In Emold v. Davis, (6th Cir., March 6, 2025), the U.S. 6th Circuit Court of Appeals upheld a $100,000 damage award to a same-sex couple who were refused a marriage license by Rowan County, Kentucky Clerk Kim Davis who had religious objections to same-sex marriage. The court said in part:

Government officials “have private lives and their own constitutional rights.” ...  But when a public official wields the “authority of the state,” she “engage[s] in state action,” which, by definition, cannot be protected by the First Amendment....

Davis alternatively argues that her Free Exercise rights were violated by a different state action:  Kentucky’s delay in granting her a religious accommodation.  But Plaintiffs had nothing to do with the timing of the accommodation, and Davis’s argument is irrelevant to Plaintiffs’ claim.  Either way, Davis has been found liable for state action—not private conduct—so she cannot raise a First Amendment defense...

 As Davis sees it, a public official can wield the authority of the state to violate the constitutional rights of citizens if the official believes she is “follow[ing] her conscience.” ...  That cannot be correct.  “The very purpose of a Bill of Rights” is to place certain freedoms “beyond the reach of . . . [government] officials.”  ...  Thus, when an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the Constitution must win out.  The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates....

Davis also argues that Kentucky’s RFRA shields her from liability.  But that statute does not apply here....

Judge Readler filed an opinion concurring in part and concurring in the judgment.  Louisville Courier Journal reports on the decision.

Refusal To Amend Birth Certificate Did Not Violate Plaintiff's 1st or 14th Amendment Rights

In Malone-Bey v. Mississippi State Board of Health, (MS App, March 4, 2025), a Mississippi state appellate court held that plaintiff's religious free exercise, equal protection and due process rights were not violated when the State Board of Health refused to amend his birth certificate to designate his race as “white: Asiatic/Moor.” The court said in part:

[Plaintiff] asserts that “[t]he inability to recognize this information on [his] birth certificate impedes his full expression of his identity.”  He further asserts that the Board is “discriminating against [him] or placing undue burdens on him due to his religious beliefs or status” and has “denied [him] the ability to fulfill religious obligations and affirm his identity.”

These arguments are without merit.  The Board is in no way “discriminating against” Malone-Bey.  To the contrary, the Board’s approved Certificate of Live Birth does not identify the race, nationality, or religion of any child.  The Board has not treated Malone-Bey different from anyone else.  The Board has treated him just like everyone else....

“Just as the [State] may not insist that [Malone-Bey] engage in any set form of religious observance, so [Malone-Bey] may not demand that the [State] join in [his] chosen religious practices by” adding new categories of information to the State’s records....

2nd Circuit Rejects Amish Challenge to Removal of Religious Exemption from School Vaccine Requirements

In Miller v. McDonald, (2d Cir., March 3, 2025), the U.S. 2nd Circuit Court of Appeals held that New York state's removal of a religious belief exemption from its school immunization law did not violate the 1st Amendment free exercise rights of Amish parents or Amish schools. The court held that the public health law is neutral on its face and its legislative history does not reveal an anti-religious bias. It also rejected plaintiffs' contention that the law is not generally applicable, saying in part:

Plaintiffs contend that exempting students for medical reasons treats comparable secular conduct more favorably than religious beliefs.....

Repealing the religious exemption decreases “to the greatest extent medically possible” the number of unvaccinated students and thus the risk of disease; maintaining the medical exemption allows “the small proportion of students” who medically “cannot be vaccinated” to avoid the health consequences that “taking a particular vaccine would inflict.” ...  Exempting religious objectors, however, detracts from that interest.  Religious exemptions increase “the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike.”...   

In sum, Plaintiffs have failed to allege that § 2164 is anything but neutral and generally applicable.  The district court therefore did not err in applying rational basis review. As noted, Plaintiffs have conceded that the law satisfies rational basis review....

[Plaintiffs] claim that the school immunization law mandates two impossible options: inject their children with vaccines, forcing conduct against their religious beliefs, or forego educating their children in a group setting, requiring them to sacrifice a central religious practice.  True, Plaintiffs have shown that § 2164 burdens their religious beliefs and practices; but those burdens are not equivalent to the existential threat the Amish faced in Yoder.  Unlike in Yoder, compliance with § 2164 would not forcibly remove Amish children from their community at the expense of the Amish faith or the Amish way of life. 

Moreover, Yoder’s holding is limited by the state’s interest in protecting public health....

10th Circuit Upholds State Insurance Regulator's Closure of Christian Health Care Sharing Ministry

In Renteria v. New Mexico Office of the Superintendent of Insurance, (10th Cir., Feb. 27, 2025), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, upheld a trial court's refusal to preliminarily enjoin the enforcement of a New Mexico cease and desist order issued by the Office of the Superintendent of Insurance against a Mennonite church's health care sharing ministry. The ministry claimed that the order violated its free exercise rights.  The court said in part:

OSI’s enforcement action here was not because of Gospel Light’s religious beliefs, it was because they operated outside of the bounds of the NMIC [New Mexico Insurance Code] that applied to their business activities. In other words, OSI’s asserted interests were to protect New Mexico consumers by regulating the insurance industry, not to burden or regulate religious conduct. That other organizations, not entirely secular and not comparable to Gospel Light, merit partial exemptions under the NMIC does not carry the water for Plaintiffs that the NMIC treats a secular activity more favorably than a comparable religious activity. Consequently, rational-basis review applies.....

OSI sought to enforce the NMIC to protect consumers. The “regulation and licensure of insurance producers” are “important state interests,”... and OSI’s final order, which enforces the NMIC against Gospel Light, is rationally related to the regulation of health insurance. As such, the government action here satisfies rational-basis review, and Plaintiffs have not shown a substantial likelihood of success on the merits on their Free Exercise claims....

Judge Carson dissented, saying in part: 

State governments must enforce statutes in a neutral and generally applicable manner.  In this case, that means the New Mexico Office of the Superintendent of Insurance (“OSI”) cannot regulate Gospel Light Mennonite Church Medical Aid Plan (“Gospel Light”), a religious organization, more stringently than it regulates similarly situated secular organizations like labor unions and fraternal organizations.  But the district court reached the opposite conclusion when it allowed the OSI to impose statutory restrictions upon Gospel Light while exempting similarly situated secular organizations.  The majority upholds the OSI’s impermissible action.  Because the district court’s and the majority’s conclusions run contrary to established Tenth Circuit and Supreme Court precedent precluding discrimination based on religious views, I respectfully dissent.

8th Circuit: Damages Available Under RLUIPA When Defendant Received Federal Funds

In Barnett v. Short, (8th Cir., Feb. 28. 2025), the U.S. 8th Circuit Court of Appeals reversed in part the dismissal of a suit brought by a former inmate who alleges that while in administrative segregation in the Jefferson, Missouri County jail he was denied access to a Bible. The court held that damages are available in suits under the Religious Land Use and Institutionalized Persons Act, at least where the defendant does not enjoy sovereign immunity, saying in part:

Though damages against a defendant that enjoys sovereign immunity may not be "suitable" or "proper," damages against those that don't are the norm....

We therefore conclude that the district court erred in dismissing Barnett's RLUIPA claim against the county.

The court however affirmed the dismissal of the suit against the jail administrator in her individual capacity, saying in part: 

RLUIPA permits claims against a "government," see 42 U.S.C. § 2000cc–2(a), and it defines "government" to include county officials and "any other person acting under color of State law." ... That language permits suits against individual defendants in both their official and individual capacities....

But we conclude that Congress's authorization of suits against non-recipients of federal money in their individual capacities exceeds its spending power. That's because "the legitimacy of Congress' power to enact Spending Clause legislation rests not on its sovereign authority to enact binding laws, but on whether the recipient voluntarily and knowingly accepts the terms of that 'contract.'"...

The court also reversed the dismissal of plaintiff's free exercise claim against the jail administrator, but affirmed dismissal of that claim against the county because " Short did not possess the authority needed to render the county liable for her decision."

Judge Loken dissented in part, saying that he would affirm the decision to dismiss the free exercise claim against the jail administrator, agreeing with the trial court that the deprivation of the Bible did not impose a substantial burden on plaintiff's religious exercise.

7th Circuit: Visa Regulations for Temporary Religious Workers Do Not Violate RFRA or 1st Amendment

In Society of the Divine Word v. U.S. Citizenship and Immigration Services, (7th Cir., Feb. 24, 2025), the U.S. 7th Circuit Court of Appeals held that USCIS regulations that makes the process for obtaining a immigrant worker status and subsequent permanent residence more difficult for temporary religious workers than other categories of temporary workers does not violate the Religious Freedom Restoration Act or the 1st Amendment.  The court said in part:

Plaintiffs do not identify a belief or set of beliefs they have to violate because of the regulation. Instead, they offer a broader, structural argument—that the regulation places a substantial burden on their religious exercise because it allows for “undue Government interference” with their ability to “select and employ their own ministers.” Taking this claim on its own terms, it does not rise to the level of a substantial burden for purposes of stating a RFRA violation. There is no assertion that the regulation prevents Plaintiffs from practicing their religion. It does not require them to select or refrain from selecting any particular minister. And it does not otherwise pressure or coerce Plaintiffs into violating any tenet of their religion, as far as we can tell from the complaint and declarations. We agree with the district court that, at most, the regulation “requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly.” ... That is not a substantial burden on religious beliefs or practice....

Foster Parent Requirements for Affirming Transgender Children Are Upheld

Last week, a Vermont federal district court in a series of opinions in two cases focused on challenges to the state's rules on licensing of foster parents. The suits were brought by couples who objected on religious grounds to the state's requirement that they be willing to accept any child regardless of sexual orientation or gender identity.

In Antonucci v. Winters I, (D VT, Feb. 20, 2025), the foster care license of plaintiffs was withdrawn because of their inability to comply with the state's non-discrimination requirement that included a commitment to facilitate the social and medical transition of a hypothetical future foster child. Plaintiffs asserted that complying with the requirement would violate their Christian religious beliefs about gender and sexuality. They sued seeking a preliminary injunction, contending that the requirement violated their free speech and free exercise rights. The court denied the preliminary injunction, saying in part:

Plaintiffs argue that, in this case, the state’s interest is not compelling because there is national, and even global, disagreement about the propriety of medical transitioning....

Evaluating the efficacy or safety of a particular procedure is not within this Court’s purview.  The Court’s role is to determine whether the Rules and Policies enforced here, which pertain to medical and social transitioning as well as the use of gender-appropriate pronouns, serve a compelling state interest.  At this stage in the case, Defendants have submitted sufficient evidence of the benefits of those policies to satisfy that portion of the strict scrutiny test....

The Court ... finds, based upon the current record, that the Rules and Policies established and implemented by DCF and Defendants serve the compelling interest of protecting the health and welfare of LGBTQ youth, and are narrowly-tailored to necessarily address that interest....

In Antonucci v. Winters II, (D VT, Feb. 20, 2025), the court on qualified immunity grounds dismissed plaintiffs' claim for damages for free exercise and free speech violations. It allowed plaintiffs to proceed on claims for injunctive and declaratory relief. The court did not dismiss plaintiffs' retaliation or equal protection claims because defendants had not offered specific arguments that they were covered by qualified immunity.

In Wuoti v. Winters, (D VT, Feb. 20, 2025), two couples whose foster parent licenses were not renewed challenged the state's foster parent policy on free speech, freedom of association and free exercise grounds. The court denied their motion for a preliminary injunction, saying in part:

Plaintiffs argue that Defendants are compelling them to “speak the State’s views while prohibiting them from expressing their religious views.”...  Compliance with DCF Rules and Policies, however, is different from speech.  Defendants did not compel Plaintiffs to change their beliefs, or to make any statements that disavowed those beliefs.  Instead, Defendants were pursuing their mission of ensuring a welcoming, affirming, and safe home for each child....

Plaintiffs further argue that Defendants were compelling them to use preferred pronouns and to otherwise speak in ways that are contrary to their religious beliefs about gender and sexuality, while at the same time restricting them from expressing their own views on those issues.  The DCF Rules and Policies at issue, however, are based upon research and feedback regarding outcomes for LGBTQ youth.  The record does not establish that they are targeted at any religious viewpoint.  Indeed, the alleged restrictions are at most incidental to rules of conduct designed to promote healthy and affirming homes....

Nothing in the record indicates that Defendants are compelling Plaintiffs to associate with any specific person or group.  Plaintiffs protest that their license denials were based in part on their professed inability to associate with certain events, as in a pride parade.  When DCF raised the possibility of attending a gay pride parade, however, the suggestion was merely hypothetical.  Indeed, while Policy 76 suggests that staff “encourage” such activities, there is no requirement that foster families engage in them.  Nor are Defendants preventing Plaintiffs from associating with others who share their beliefs, as in attending church.  What foster parents may not do is require children in their care to engage in activities that are non-affirming....

Here, nothing on the face of DCF’s Rules and Policies targets religious practices or religious applicants....

... [T]he Court finds that Rules and Policies at issue are generally applicable, and that Plaintiffs are unlikely to succeed on their free exercise claim....

Plaintiffs are concerned about foster families whose religious beliefs are not consistent with DCF policies, DCF does not compel such families to change or reject their beliefs.  What it does require is the provision of an affirming environment for children who are, or who come to identify as, LGBTQ.  

ED's Title IX Rule Violates 1st Amendment

 In Carroll Independent School District v. U.S. Department of Education, (ND TX, Feb. 19, 2025), a Texas federal district court invalidated the Department of Education’s rule that interprets Title IX as prohibiting discrimination based on sexual orientation and gender identity. The court had previously issued a preliminary injunction barring enforcement of the rule against plaintiff school district.  The court now permanently vacates the Rule, finding, among other things, that it violates the First Amendment. The court said in part:

Because “misgendering” could, under this broad standard, constitute hostile environment harassment, teachers will “assume they should use subjective gender terms to avoid discipline under the Final Rule.”

As a consequence, recipients of Title IX funds, including teachers, are forced “to be an instrument for fostering public adherence to an ideological point of view [they] find[] unacceptable.”... The Final Rule functionally turns recipients of federal funds into federally commandeered censors of speech, forcing schools to require engagement in or, at a minimum, to prohibit certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.

ADF issued a press release announcing the decision.

Refusing to Allow Minister To Wear Collar At His Criminal Trial Was Not Reversable Error

 In People v. Johnson, (CA App., Feb. 18, 2025), a California state appellate court held that a trial court's refusal to allow a criminal defendant, an ordained minister, to wear his clerical collar and have a Bible with him during his trial was not reversable error. Defendant was charged with gross vehicular homicide while intoxicated. The court said in part:

Assuming only for purposes of argument that the trial court erred in not allowing defendant to wear a collar, we must determine whether the error would have been prejudicial.  Federal constitutional error requires reversal unless the beneficiary of the error can show it was “harmless beyond a reasonable doubt.” ...

... [P]rohibiting defendant from wearing a clerical collar did not result in a structural defect in the constitution of his trial.  Nothing in the record indicates his inability to wear a collar impacted the outcome of his trial, interfered with his fundamental trial rights, or in any way impacted the trial’s structural truth-finding process.  Any error by the trial court in not allowing defendant to wear a collar was not structural. 

We thus must determine whether the assumed error was harmless beyond a reasonable doubt...  Defendant offers no argument on this point.  As a result, he has forfeited the issue....  Any error by the trial court denying defendant his request to wear a clerical collar was harmless beyond a reasonable doubt and not prejudicial.

The trial court sentenced defendant to 25 years to life under California's Three Strikes Law. The Court of Appeals however remanded the case for resentencing, finding that defendant did not receive fair notice that a three-strike sentence would be sought.

Parent May Proceed on Some Challenges to School's Policy on Transgender Students

In Landerer v. Dover Area School District, (MD PA, Feb. 13, 2025), a mother challenged a school board's policy Directive that prohibits parental notification without student consent when a student asks to socially transition and be called by a different name or pronouns. The court held that plaintiff lacked standing to obtain injunctive or declaratory relief because she had withdrawn her children from the Dover School District. The court also dismissed plaintiff's free exercise claim, saying in part:

... [T]he policy here is rationally related to the legitimate interest of protecting transgender students. Even though the policy is alleged by Plaintiff to impact or burden her religious beliefs, the Directive survives rational basis review.

The court however refused to dismiss plaintiff's claim that a teacher interfered with her right to direct the care (including medical and mental health care), custody and control of her child. It also refused to dismiss plaintiff's claim that she was denied procedural due process because the Directive failed to provide for notice to parents of their children's request to use a different name and pronoun. The court allowed plaintiff to proceed only against the school board and not against the individual defendants on these claims because of qualified immunity.