Appellate Court Upholds $1.2M Fine Against Church for Violating Covid Public Health Orders

In People of the State of California v. Calvary Chapel San Jose, (CA App., April 15, 2025), a California state appellate court affirmed the imposition of administrative fines totaling $1,228,700 on defendant church for violating Covid public health orders requiring face coverings and submission of a social distancing protocol. The court rejected Calvary Chapel's Free Exercise defense. The court said in part:

...  [T]he People have met their burden to establish as a matter of law that the face covering requirements set forth in the orders are neutral and of general applicability, and Calvary Chapel has failed to submit admissible evidence sufficient to create a triable issue of fact. 

First, the text of the revised risk reduction order and the safety measures order shows that these orders are neutral because they are not specifically directed at religious practice, do not discriminate on their face, and religious exercise is not the object of the orders....

Having reviewed the very limited exemptions that Calvary Chapel asserts show that the face covering requirements in public health orders are not of general applicability, we decide that Calvary Chapel has provided no evidence to create a triable question of fact regarding general applicability.

The court also rejected Calvary Chapel's due process claims and additionally held:

... [T]he undisputed facts show that Calvary Chapel’s level of culpability due to violating the public health orders requiring face coverings is high, and therefore the fines in the amount of $1,228,700 do not violate the excessive fines clause of the Eighth Amendment.

3rd Circuit Hears Arguments on Whether Religious Motivation of Founders Allows Nonprofit Corporation to Assert Free Exercise Claims

On April 9, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in United States v. Safehouse. In the case, a Pennsylvania federal district court held that a nonprofit corporation that plans to open a safe injection site for those struggling with opioid abuse cannot claim protection from federal prosecution under the free exercise clause or RFRA merely because its founders had a religious motivation. The corporation's articles do not set out any religious purpose. (See prior posting.) Courthouse News Service reports on the oral arguments.

Broad Compelled Discussion of Abortion with Patients Violates Doctors' Free Speech Rights

In Schroeder v. Treto, (ND IL, April 4, 2025), an Illinois federal district court held that one amendment to the state's Health Care right of Conscience Act violates free speech protections but upheld another provision.  The provision struck down requires pregnancy care centers and doctors who have religious objections to abortions to inform pregnant patients of the risks and benefits of childbirth and abortion in order to claim a shield from liability. The court held that the provision compels speech in violation of the First Amendment. The court said in part:

Section 6.1(1) demands a wide ranging, hypothetical conversation unrelated to any procedure or other medical conduct.  Indeed, Section 6.1(1) requires a wide-ranging conversation that might be completely divorced from the reality of the situation; for example, the thrilled patient who is not reasonably likely to encounter medical difficulties because of the pregnancy.  What’s more, that compelled speech isn’t necessary to further future conduct....

... Under strict scrutiny, the State carries the burden of establishing the provision is narrowly tailored; it falls far short in this case.  So, Section 6.1(3) unconstitutionally compels speech, and therefore the State can’t demand such speech in exchange for a liability shield.

The court, however, upheld another provision that requires as a condition of claiming a shield from liability, that physicians and clinics, if requested by the patient, transfer or refer them or furnish a list of other providers to them who offer abortion services, saying in part:

This provision narrowly applies when a patient expressly asks a medical provider for information regarding potential abortion providers.  Stated differently, Section 6.1(3) contains an explicit and mandatory trigger that is directly linked to the action.  And even then, the provider need only comply if he intends to use the HCRCA as an affirmative defense.

From this narrow and purposeful drafting, the Court deduces that Section 6.1(3) doesn’t target speech...

The court found that this provision also does not violate providers' free exercise rights, saying in part: 

Two providers—one a conscientious objector and the other secular—both fail to provide a woman with requested information about abortion providers.  The conscientious objector refuses because of his sincerely held beliefs.  The secular provider doesn’t provide the requested information because he’s too busy.  Both patients sue.  Before the HCRCA, both suits could’ve gone forward, requiring the plaintiff in both cases to show that the health care providers fell below the standard of care. After the HCRCA’s enactment, the conscientious objector—but not the secular provider—is wholly protected, regardless of whether the provider’s actions fell below the standard of care.     

Along comes Public Act 99-690—partially restoring the pre-HCRCA universe. Now, as before, all health care providers are amenable to suit for failure to refer, transfer, or provide written information about potential abortion providers.  Relative to each other, the secular provider isn’t in any better position than before the HCRCA and the conscientious objector isn’t any worse for the wear.  

As this hypothetical shows, the latest Amendments to the HCRCA don’t impose additional burdens on conscientious objectors because of their beliefs....

Christian Post reports on the decision.

Denial of Conditional Use Permit to Church Violated RLUIPA and 1st Amendment

In Anchor Stone Christian Church v. City of Santa Ana, (CD CA, April 7, 2025), a California federal district court issued a preliminary injunction allowing a church to operate and make renovations to an office building it had acquired. The city had denied a conditional use permit to the church. The court concluded that the denial violated RLUIPA's equal terms and substantial burden provisions, as well as the Free Exercise clause of the First Amendment. The court said in part:

... [T]he City must do more than identify some similarly situated nonreligious assemblies that are treated as badly as religious assemblies—the City must show that it treats “every” similarly situated nonreligious assembly equally to religious assemblies....

In short, it appears unlikely that the City will meet its burden to establish that the Zoning Ordinance treats religious assembly on equal terms with similarly situated nonreligious assembly uses.... 

The Court concludes that, based upon the totality of the circumstances, Anchor Stone has met its burden to show that the City’s denial of its CUP application substantially burdened Anchor Stone’s religious exercise....

The City’s reasons for denying a CUP to Anchor Stone also appear particularly arbitrary in view of the City’s reasons for granting a CUP to Compass Bible Church....

The Planning Commission and the City Council refused to consider or apply RLUIPA in connection with Anchor Stone’s CUP application.  Multiple commissioners and councilmembers expressed “offense” at the mention of RLUIPA, while the City’s staff affirmed that it was the City’s “position” that RLUIPA was “outside the scope” of the CUP application process.  One councilmember regarded the mention of RLUIPA as a “smack in [his] face” and an attempt to “circumvent [Santa Ana’s] local laws.” Such comments from a government official fall far short of fulfilling the “First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,”....

First Liberty issued a press release announcing the decision.

Georgia Legislature Passes Religious Freedom Bill

On April 3, the Georgia legislature gave final passage to SB36, the Georgia Religious Freedom Restoration Act (full text). The Act requires the government to justify any substantial burden on the exercise of religion by a compelling interest implemented by the least restrictive means. The Act adds:

Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this Code section, the term "granting," used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

If signed by Governor Brian Kemp, Georgia will be the 30th state to enact a religious freedom law.  Baptist Press reports on the bill.

UPDATE: On April 4, Govenor Kemp signed the bill.

Parents Lack Standing to Challenge School District's Transgender Policy

In Short v. New Jersey Department of Education, (D NJ, March 28, 2025), a New Jersey federal district court dismissed a suit by two parents and a third parent who intervened in the lawsuit who object to the transgender policy of their children's high schools. The policy, adopted by the board of education, calls for high schools to follow students' requests regarding their names and pronouns, without necessarily notifying parents. The court concluded that the policy applied to the schools, not to students or parents, so that plaintiffs lacked standing to obtain a declaratory judgment or injunction against the policy. The Intervenor parent particularly focused on free exercise issues, as set out by the court:

Count One of the intervenor complaint asserts equal-protection violations under the Fourteenth Amendments of the United States and New Jersey Constitutions.... Maldonado alleges that the Cherry Hill policy unnecessarily seeks to prevent discrimination against transgender students at the expense of students’ religious beliefs.... Cherry Hill Defendants cannot provide an exceedingly persuasive justification for unequal treatment of students and parents whose religious beliefs are contrary to the policy’s definition of gender.... 

Counts Two, Three, and Four claim violation of free speech and freedom of religion under the First Amendments of the United States and New Jersey Constitutions.... The policy favors speech based on views and ideas, according to Maldonado, and burdens parents’ and students’ free-speech rights by requiring affirmance of its definition of gender.... The intervenor complaint adds that the policy violates students’ and parents’ freedom to hold sincerely held Christian beliefs premised on a biblical worldview by forcing them to affirm that there are more than two genders or that gender may be based on one’s identity.... The policy seeks to compel affirmation of views repugnant to Christian beliefs and its stated goals may be achieved without forcing parents and students to alter or otherwise abandon their religious beliefs.... The policy does not provide for an excusal or opt-out, stressing one moral interpretation over others, favoring a secular view over a religious one, and discarding other views on gender identity as prohibited, worthy of ridicule, bigoted, or the like.... Count Four alleges failure to accommodate religious beliefs and practices....

The Cherry Hill policy implicates complex, sensitive issues that students will no doubt take from the classroom to the dinner table. Ensuing thoughts and conversations may touch upon family, faith, sexuality, and a host of other important topics. I accept Maldonado’s stated concerns as genuine expressions of her faith and related beliefs. However, without the allegedly offending provisions applying to her or her children, her mere perception of harm is insufficient to confer standing....

Antisemitism Claims Against UC Berkeley Move Ahead in Part

In Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, March 31, 2025), plaintiffs allege that UC Berkeley has discriminated against Jewish faculty and students. The California federal district court allowed plaintiffs' free exercise, equal protection and Title VI claims to move forward. However, it dismissed plaintiffs' Sec. 1981 claim for discriminatory refusal to enter contracts. The court said in part:

The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors....  The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish....  The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.... The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment.... Consequently, Brandeis’s claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.  

It bears mention that the FAC repeatedly alleges that “Zionism is a central tenet of the Jewish faith.”...  This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism.  If so, a serious constitutional problem would arise....

The 42 U.S.C. § 1981 claim is dismissed.  The gist of this claim is that members of the plaintiff organizations who are legal academics cannot contract with certain Berkeley student organizations that adopted a bylaw barring invitations to individuals espousing Zionist beliefs....  Brandeis does not dispute it must show standing.... The complaint does not allege that any academic member has sought to contract with the organizations since adoption of the bylaw, been turned away on account of the bylaw, or has otherwise been put at a contractual disadvantage by the bylaw.

Trial Court's Refusal to Delay Civil Trial Because of Yom Kippur Is Upheld

In Dimeo v. Gross, (PA Super. Ct., April 2, 2025), a Pennsylvania state appellate court upheld a trial court's refusal to delay the start of a trial by one day. Defendant sought the delay so he could observe Yom Kippur without missing a day of his trial.  The court said in part:

Preliminarily, we note that the parties’ briefs direct our attention to the various tests employed by the United States Supreme Court upon claims of violations of the Free Exercise Clause of the First Amendment.  Nevertheless, we believe that the issue presented here, i.e., the propriety of the denial of a request for the continuance of a civil trial, can be resolved without reaching the constitutional question. ...

... [O]ur decision should not be interpreted as foreclosing continuance requests based upon religious observances.  Rather, we simply mean to amplify the notion that courts may demand a showing of diligence on the part of the movant before granting such requests.  Here, Appellants knew about their trial date over a year in advance.  A quick calendar search would have revealed the trial’s conflict with Yom Kippur, and Appellants could have moved for a continuance weeks or months in advance.  Appellants, however, waited until the eleventh hour, after the scheduling of expert witnesses, to request a continuance.  Under these circumstances, Appellants failed to act with diligence, and we cannot say that the court abused its discretion in denying the request....  

Supreme Court Will Hear Oral Arguments Today on Tax Exemption for Catholic Charities

The U.S. Supreme Court this morning will hear oral arguments in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission.  In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case. The oral arguments will be broadcast live by the Court at 10:00 AM at this page. An audio recording and a written transcript of the oral arguments will be posted later today by the Court on this page.

UPDATE: Here are links to the transcript and audio recording of arguments in the case.

11th Circuit: Jail's Requirement for Religious Verification to Get Kosher Diet Is Not Substantial Burden

In Logsdon v. Woods, (11th Cir., March 28, 2025), the U.S. 11th Circuit Court of Appeals refused to allow a pre-trial detainee to proceed with an appeal of a district court's denial of a preliminary injunction in a challenge to a jail's religious verification policy. The court said in part:

Here, Logsdon has no nonfrivolous arguments that the district court abused its discretion in denying his motion for a preliminary injunction. The policy with which Logsdon takes issue does not substantially burden his free exercise of religion.... While the verification policy may be considered inconvenient, as it requires that Logsdon undertake the additional step of having his religious affiliation confirmed before he is given a kosher diet, such a requirement is not enough to constitute a substantial burden on Logsdon's religious practices....

5th Circuit: Prison's Punishment for Inmate's Religious Observance Can Violate RLUIPA

In Johnson v. Jefferson Parish Sheriff Office, (5th Cir., March 25, 2025), the U.S. 5th Circuit Court of Appeals reversed and remanded to a Louisiana federal district court a prisoner's lawsuit alleging violations of RLUIPA and the 1st Amendment. The district court had dismissed the suit at the initial screening stage. The court explained:

Pro se plaintiff and pretrial detainee Damien Johnson follows the Rastafarian religion and took a religious vow that prevents him from cutting his hair.  Adhering to that vow, Johnson refuses to cut his hair to comply with Jefferson Parish Sheriff’s Office’s (“JPSO”) policy.  As a consequence, he is not allowed to go into the yard, use the phone, or buy items from the commissary.  Instead, he alleges he is confined to an unsanitary unit infected with toxic mold....

Here, the district court concluded that Johnson failed to allege a substantial burden on his religious exercise because he “is in fact still exercising his vow to continue growing his hair.” But this conclusion has the problematic result of decreasing protection for the staunchest religious observers who have to face severe punishment to continue exercising their religion.  Indeed, the district court is wrong—an individual can face a “substantial burden” on religious exercise based upon limitations and punishments in the prison while continuing to exercise their religion....

Diocese and Pregnancy Center Challenge Illinois Ban on Employment Discrimination Because of Reproductive Health Care Choices

Suit was filed last week in an Illinois federal district court by a Christian Pregnancy Care Center and a Catholic diocese challenging the requirement that they comply with recent amendments to the Illinois Human Rights Act that prohibit discrimination against employees based on their reproductive health care decisions. The complaint (full text) in Pregnancy Care Center of Rockford v. Bennett, (ND IL, filed 3/20/2025), alleges in part:

198. Because they wish to carry out their respective missions and spread their pro-life messages successfully, Plaintiffs hire and retain employees who avoid reproductive decisions that undermine their identity, mission, and message. For Plaintiffs, the credibility of their messengers is as important as the message. 

199. The Act’s Employment, Offensive Speech, and Notice Clauses severely burden Plaintiffs’ freedom of expressive association by forcing them to form associations and assemblies with employees whose reproductive decisions undermine their mission and message....

209. The Act substantially burdens Plaintiffs’ right to the free exercise of religion by prohibiting faith-based speech and conduct related to reproduction, interfering with their faith-based employment decisions, and forcing Plaintiffs to revise their statements of faith, positional statements, codes of conduct, employee handbooks, and other policy documents....

235. [The] right to religious (or “church”) autonomy safeguards a religious organization’s decision about which officers, board members, employees, and volunteers are best suited to advance its religious mission and purpose. 

236. This freedom extends to Plaintiffs’ ability to hire and employ only those who believe—and live out—the beliefs of their organizations about reproductive health decisions such as abortion, sterilization, and contraception....

259. The Act also restricts Plaintiffs’ right to free speech because it compels them to speak a message contrary to their beliefs not only to their current employees but also to prospective employees and the public in general....

281. Defendants’ application of the Act’s provisions about reproductive decisions to Plaintiffs’ religious speech and conduct violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Catholic Vote reports on the lawsuit. 

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....