T-Shirt Slogans Were Not the Exercise of Religion

In Spihes v. Smith, (D KS, April 29, 2026), a Kansas federal district court dismissed most of the claims brought by a Christian citizen journalist and activist challenging his removal from several demonstrations at the Kansas Capitol Statehouse grounds because of the slogans on shirts he was wearing. He also challenged a new policy on use of the Capitol grounds that has been promulgated by the Kansas Department of Administration.

The court dismissed plaintiff's claim that his removal from two events violated his rights under the Kansas Preservation of Religious Freedom Act. The court said in part:

The complaint alleges Plaintiff was wearing a t-shirt that said “Rolling with Jesus and my AK” to each of the events.... Further, at the March 28, 2025, event Plaintiff carried a sign that said, “Bet these pussies won’t blaspheme Islam next.”  ...  At the June 14, 2025, event, Plaintiff carried a sign that read “Illegals Drain American Resources” and “Deport Feminist Bitches First then Illegals.”...

Signs about immigration policy, much like signs about environmentalism, are not religious expressions.  Additionally, Plaintiff’s sign at the March 28, 2025, event, despite referencing Islam, is not religious exercise either, as it is merely a sign designed to score a political point about how society approaches a religion.  Plaintiff has not demonstrated that this is an exercise of his religion.  

Finally, Plaintiff’s shirt that states he is “Rolling with Jesus and [his] AK” is similarly just a statement about a religion, not the exercise of a religion....

The court also dismissed plaintiff's claim that the new policy on use of the Capitol grounds violates plaintiff's free exercise rights. The court said in part:

Plaintiff claims that the new Capitol Use Policy “requires Dr. Spiehs to impose no limitations or restrictions to participants in his permitted event based upon ‘sexual orientation, gender identity, or genetic information.’” ...  Plaintiff argues that this policy would force him to “use or employ people who are not his coreligionists: those who do not share, and who behave in ways antithetical to, his Christian beliefs and messaging.”... While Plaintiff does not object to having the “identified categories of individuals” present, he complains that the wording of the policy, specifically the use of the word “participate”, prevents him from limiting his usage of “vendors, staff, or volunteers” based upon their sexual orientation... Plaintiff explains that allowing “transgender, LGBTQ, or feminist” individuals to participate in his event would violate his religious convictions.....  

The law before the court is one that is neutral and generally applicable.  The post-July 1st Capitol Use Policy does not “facially target religion” nor is it “established for the purpose of targeting religion” and therefore does not trigger strict scrutiny....  The court does not view the word “participation”, as used in the policy, as imposing a requirement to hire individuals to whom Plaintiff has a religious objection.

The court allowed plaintiff to move ahead only on a 4th Amendment claim and a narrow free speech claim. 

Apache Stronghold Sues Again to Prevent Transfer of Religious Site to Copper Mining Company

Last week, another suit was filed by the Native American organization, Apache Stronghold, challenging the transfer of 2500 acres of National Forest land that includes an Apache ceremonial religious ground to Resolution Copper Mining LLC. The complaint (full text), filed in an Arizona federal district court, in Apache Stronghold v. United States, (D AZ, filed 4/22/2026), alleges in part:

3. The government admits the mine will destroy Oak Flat and that the Apaches will never again be able to access the site or perform sacred rituals there. The government also admits that it has ample alternative sources of copper, and that the copper beneath Oak Flat could be mined without disturbing Oak Flat’s surface. Yet the government declined to utilize these alternatives, or even consider them, because the mining company said they would reduce its profits. Thus, the government has authorized the complete physical destruction of an irreplaceable sacred site solely to increase the profits of a foreign-owned mining company. 

4. This wanton, intentional, and needless destruction of Oak Flat violates multiple federal statutes, the U.S. Constitution, the 1852 Treaty of Santa Fe between the U.S. and Apaches, and the nation’s fiduciary duties to Western Apaches. Accordingly, this lawsuit seeks a declaration that the government’s actions are unlawful and an injunction preventing the destruction of Oak Flat and protecting the Apaches’ right to continue accessing and worshipping at Oak Flat. 

In 2024, the U.S. 9th Circuit Court of Appeals sitting en banc affirmed by a vote of 6-5 the denial of a preliminary injunction against the land transfer sought by Apache Stronghold. (See prior posting). The Supreme Court, over the dissent of two justices, denied review. (See prior posting).  Also, last month the 9th Circuit in a suit brought by different plaintiffs again rejected challenges to the land transfer (see prior posting) and the Supreme Court denied petitioners' application for an injunction pending appeal.

In a press release, Becket Fund, which represents Apache Stronghold, explained the new lawsuit in part as follows:

After the Supreme Court’s denial, Apache Stronghold’s case returned to the lower courts, while three other emergency appeals were still pending to protect Oak Flat. But before those appeals could be resolved, the government earlier this year illegally transferred the sacred site overnight, moving Resolution Copper one step closer to permanently destroying Oak Flat. Apache Stronghold is now back in district court seeking to reverse that illegal transfer before Oak Flat is destroyed forever.

1st Amendment Challenges to State's Foster Care Licensing Policy Move Ahead

In DeGross v. Hunter, (WD WA, April 22, 2026), a Washington federal district court refused to dismiss free speech and free exercise claims against the Washington Department of Children, Youth and Families brought by a Christian couple who object to the Department's policy on sexual orientation and gender identity. The state requires prospective foster parents to agree to support a foster child's sexual orientation, gender identity and expression (SOGIE), including using their preferred pronouns and chosen name. The DeGrosses were granted only a limited foster care license because they would not agree to fully implement the state's policy. The court said in part:

The DeGrosses have plausible alleged that Policy § 1520 draws distinctions based on the message the speaker conveys....  Policy § 1520 restricts certain speech by prospective parents on the topic of SOGIE, while requiring speech that aligns with the state’s perspective.... 

In essence, the Department has forced the DeGrosses to choose between forfeiting their freedom of speech to obtain an unrestricted license, or upholding their beliefs surrounding SOGIE, and receiving a less-favorable license subject to certain restrictions.   

The DeGrosses have carried their burden to show that the Department’s enforcement of Policy § 1520 plausibly constitutes impermissible viewpoint discrimination.  Thus, the DeGrosses alleged sufficient facts to show a First Amendment violation unless the government can satisfy strict scrutiny....

... [T]he DeGrosses plausibly allege the Department’s policy at issue here puts the DeGrosses in an unfair predicament: they may obtain an unrestricted foster care license but only if they disavow their religious beliefs.... "[S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." ...

... “A law is not generally applicable if it ‘invites’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions.’”... 

... [T]he DeGrosses have carried their burden, at the motion to dismiss stage, to show that § 1520 is neither neutral nor generally applicable.  Thus, the DeGrosses alleged sufficient facts to show a First Amendment violation of freedom of religion unless Defendants can satisfy strict scrutiny.  Based on the limited record before it, the Court is unable to determine at this time whether Defendants can satisfy strict scrutiny.  Thus, the DeGrosses’ freedom of religion claim survives the motion to dismiss.

The court however dismissed plaintiffs' equal protection claim.

5th Circuit En Banc Upholds Texas Law Requiring Posting of 10 Commandments In Classrooms

In Nathan v. Alamo Heights Independent School District, (5th Cir., April 21, 2026), the U.S. 5th Circuit Court of Appeals sitting en banc upheld the constitutionality of the Texas law requiring the posting of the Ten Commandments in every public-school classroom. By a 9-8 vote, the court found that the law did not violate the Establishment or Free Exercise clause. But 3 of these 9 judges thought that the plaintiffs lacked standing. However, all eight of the judges who dissented as to the constitutionality of the law thought plaintiffs had standing, so 14 judges in all held that the case was justiciable.

Judge Duncan's majority opinion on the merits said in part:

... Plaintiffs primarily claim we are bound by Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which invalidated a similar Kentucky law decades ago. We disagree. Stone applied an analysis—the “Lemon test”—which confounded courts for decades.... Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago. See Kennedy v. Bremerton Sch. Dist..... With Lemon extracted, there is nothing left of Stone. 

In place of Lemon, courts now ask a question rooted in the past: does the law at issue resemble a founding-era religious establishment? ...

S.B. 10 looks nothing like a historical religious establishment. It does not tell churches or synagogues or mosques what to believe or how to worship or whom to employ as priests, rabbis, or imams. It punishes no one who rejects the Ten Commandments, no matter the reason. It levies no taxes to support any clergy. It does not co-opt churches to perform civic functions. These are the kinds of things “establishments of religion” did at the founding. S.B. 10 does none of them. 

Plaintiffs counter that, like historical establishments, S.B. 10 is “coercive” because it pressures children to honor the Ten Commandments. Not so. S.B. 10 requires no religious exercise or observance. Students are neither catechized on the Commandments nor taught to adopt them. Nor are teachers commanded to proselytize students who ask about the displays or contradict students who disagree with them. 

Most importantly, the “coercion” characteristic of religious establishments was government pressure to engage in religious worship.... Yes, Plaintiffs have sincere religious disagreements with its content. But that does not transform the poster into a summons to prayer....

Second, the Free Exercise Clause. Plaintiffs rely heavily on the Supreme Court’s decision in Mahmoud v. Taylor....

To Plaintiffs, merely exposing children to religious language is enough to make the displays engines of coercive indoctrination. We disagree. The curriculum in Mahmoud went far beyond books sitting silently on classroom shelves. Those materials were deployed by teachers with lesson plans designed to subvert children’s religiously grounded views on marriage and gender. S.B. 10 authorizes nothing of the sort.

Judge Ho filed a concurring opinion but disagreed as to standing, saying in part:

Our Founders didn’t just permit religion in education—they presumed that there would be religion in education.

Judge Oldham, joined by Judge Willett, filed an opinion concurring in part, but expressing reservations about justiciability, saying that: "This case is a textbook offended observer case."

Judge Ramirez, joined by 6 other judges filed a dissenting opinion, saying in part:

Although Kennedy “abandoned Lemon and its endorsement test offshoot,” it did not cite, much less purport to “abandon” or overturn, Stone—despite the opportunity to do so.... This court must follow Supreme Court precedent even if that “precedent . . . appears to rest on reasons rejected in some other line of decisions.”... 

Stone is dispositive. But even if it was not, S.B. 10 independently violates the Establishment Clause under Kennedy....

The “subtle coercive pressure” Texas students will feel is precisely the type that Lee identified and that Kennedy labeled “problematic[]” under the Establishment Clause.... And S.B. 10 implicates a far greater risk of putting students “who object[]” to the Ten Commandments “in an untenable position.”... Unlike Lee, which concerned prayer only at a graduation ceremony that students were not required to attend or participate in, students’ attendance at school is mandatory, and they will be subjected to religious scripture all day every day—with no educational function....

The displays required by S.B. 10 threaten to “undermin[e] the religious beliefs that parents wish to instill in their children” and “pressure” students “to conform,” and Defendants have not satisfied strict scrutiny.... As a result, Plaintiffs have established a Free Exercise Clause violation.....

Judge Southwick, joined by 5 other judges filed a dissenting opinion, saying in part:

My objective here is to sift through the Establishment Clause jurisprudence left by Kennedy and determine what still applies.  The sifting leads me to conclude that, under still-binding Supreme Court precedent, the Texas statute here is violative of the Establishment Clause.  The Supreme Court may change the law further, but it has not done so yet.  This inferior court judge concludes we are doing so.  That is not our role....

... The school prayer cases — which I see as largely resolving the case before us and on which Stone primarily relied — are still good law....

Judge Haynes filed a brief dissent.

Judge Higginson, joined by 4 other judges filed a dissent, saying in part:

The Framers intended disestablishment of religion, above all to prevent large religious sects from using political power to impose their religion on others.  Yet Texas, like Louisiana, seeks to do just that, legislating that specific, politically chosen scripture be installed in every public-school classroom.

Our court accommodates their unconstitutional request, supplanting decades of Supreme Court precedent merely because of a single decision the majority deems outdated.  In doing so, the majority defies foundational First Amendment concepts, ignores the harms students will face, and usurps parents’ rights to determine the religious beliefs they wish to instill in their own children....

 CBS News reports on the decision.

Supreme Court Grants Review on When Religious Schools Can Be Excluded from General State Programs

The U.S. Supreme Court this morning granted certiorari in St. Mary Catholic Parish in Littleton v. Roy, (Docket No. 25-581, cert. granted 4/20/2026). (Order List). In the case, the U.S. 10th Circuit Court of Appeals held that the nondiscrimination requirements of Colorado's Universal Preschool Program do not violate the free exercise or expressive association rights of Catholic schools that are excluded from the program because they insist on considering the sexual orientation and gender identity of a student and their parents in making decisions on who will be admitted. (See prior posting.) In granting review, the Court limited it grant to Questions 1 and 2 in the petition for certiorari:

1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct.

2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.

It excluded from the grant petitioner's third question:

3. Whether Employment Division v. Smith should be overruled.

Catholic Hospice Sues Over NY Standards for Care of Transgender Patients

Last week, Dominican Sisters who operate a home that provides palliative care for indigent, terminally ill cancer patients filed suit in a New York federal district court challenging New York's requirements for care of transgender patients. The complaint (full text) in Dominican Sisters of Hawthorne v. Hochul, filed 4/6/2026) alleges in part:

New York’s LGBTQ Long-Term Care Facility Residents’ Bill of Rights ...  require long-term care facilities to assign patients to rooms based on stated “gender identity” rather than biological sex even over the opposition of the roommate, to permit residents and their visitors of one sex to access bathrooms set aside for those of the opposite sex, to use patients’ “preferred pronouns” even when the patient is not present, to use language and to “create communities” affirming patients’ sexual preferences, to accommodate patients’ desire for extramarital relations, and to post notices affirming compliance with these requirements....

... The Dominican Sisters of Hawthorne and Rosary Hill Home operate in accordance with the Ethical and Religious Directives and the teachings of the Catholic Church. They cannot comply with the Mandate without violating these sincerely held religious beliefs.....

Requiring a person to identify another by a sex other than his or her God-gifted sex would therefore require such a person to act against central, unchangeable and architectural teachings of the Catholic faith. It would contradict the teachings of the Bible concerning God’s creative sovereignty, contradict reason and truth, and betray our sacred obligation not to knowingly harm other persons, particularly the most vulnerable. The implications are so much greater than whether to utter the words “he” or “she.” Indeed, to demand that a Catholic deny another’s sex is to require him or her to affirm another religious worldview....

The complaint alleges 7 counts: Free Exercise; Religious Autonomy Doctrine; Ministerial Exception; Establishment Clause; Equal Protection; Free Speech; and Expressive Association.

NewsNation reports on the lawsuit.

Church Challenges Injunction Barring Use of Its Property for Worship Services

Suit was filed last week in a Florida federal district court by members and elders of the Coastal Family Church challenging a temporary injunction that was issued in January barring the Church from using large space it purchased in a shopping center under a condominium agreement. The owner of the remaining units in the shopping center brought suit citing the provision in the condominium agreement that prohibits use of units as "a place of public assembly." Plaintiff alleged that this includes use for church services. The trial court issued a temporary injunction barring use of the Church's unit for any public assembly while the case is being litigated. (Background.) Now, in Tilton v. Upchurch, (MD FL, filed 4/2/2026) (full text of complaint), the Church sues the judge who issued the temporary injunction, alleging that the injunction violates plaintiffs' 1st and 14th Amendment rights. The complaint alleges in part:

40. The state-court injunction, temporarily enjoining the state-court defendant from utilizing the building in Flagler-Square for religious worship services and other activities protected by the First Amendment, has “effectively barr[ed]” unnamed parties in the state-court proceeding, and Plaintiffs here, “from attending religious services, [and] strike[s] at the very heart of the First Amendment’s guarantee of religious liberty.”...

64. As a result of the state-court injunction, Plaintiffs’ pastor faces the crippling punishment of contempt and sanction for merely attempting to exercise constitutionally protected First Amendment rights and sincerely held religious beliefs....

201. The state-court injunction’s prohibition on religious services and religious gathering at Flagler Square violates the Establishment Clause because it demonstrates blatant hostility towards Christians and churches who must worship in person....

Liberty Counsel issued a press release announcing the filing of the lawsuit. 

California's Marriage Laws Survive Unusual 1st Amendment Challenge

In Hunter v. State of California, (CD CA, March 31, 2026), a California federal district court accepted the findings, conclusions, and recommendations of the United States Magistrate Judge in Hunter v. California, (CD CA, March 5, 2026). In the case, in an unusual challenge to the state's domestic relations law, Kathryn Rose Hunter sued challenging California's "authority to impose and maintain marital status" and "maintenance of marital records." She contended that this violates the 1st Amendment's Establishment and Free Exercise Clauses. According to the federal Magistrate's opinion:

Plaintiff alleges that by "authorizing" her marriages and issuing certificate as proof of her married status, the State was "participating" in her marriages, which is "equivalent to polygamy."... This violates Plaintiff's right to freely exercise of her religious belief that a marriage should only involve "two persons and God."... She asserts a right to be free of any "State-imposed marital status," but she cannot obtain a divorce "without further State involvement." ... Plaintiff contends that by conditioning marital dissolution on "further State participation, the State creates an excessive entanglement between authority and religious doctrine," violating the Establishment Clause...

The Free Exercise Clause absolutely protects the right to believe in a religion; it does not absolutely protect all conduct associated with a religion....

California's statutes concerning civil marriage are neutral and of general applicability. They neither refer to religion nor aim to suppress religious beliefs. They do not restrict or condition civil marriage rights on affirming particular religious beliefs. They do not provide for individualized exemptions, and they operate independently of any religious ceremonies in which a couple getting married or divorced might choose to engage. Since the challenged statutes are neutral and generally applicable, rational basis review applies.... Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal."... California's Family Code, which establishes a legal framework for recognizing the creation, existence, and dissolution of civil marriages, is rationally related to this legitimate government interest...

"[T]he Establishment Clause must be interpreted by reference to historical practices and understandings."... Courts must draw the line between what is permissible and impermissible in accordance with "the understanding of the Founding Fathers."...

State involvement in civil marriages by enacting laws that define how one becomes legally married or dissolves a legal marriage was permissible in the days of the Founding Fathers.... The California statutes at issue align with this historical tradition. They neither endorse nor coerce the practice of any particular religion....

Extra Airport Screening from Placement on Selectee List Does Not Violate Religious Freedom

In Maniar v. Noem, (D DC, April 1, 2026), a D.C. federal district court dismissed a suit brought by plaintiffs, husband and wife, who are U.S. citizens of Pakistani national origin, and are practicing Muslims. Plaintiffs were originally placed on the federal government's no-fly list. They were subsequently removed from it but remain in the Terrorist Screening Data Set and the Selectee List subset. They allege that the difficulties they have encountered in their air travel violate their due process and religious exercise rights. The court said in part:

... Ms. Shaikh has failed to allege any burden to her air travel beyond having to obtain her boarding pass from a ticketing agent and the boarding pass being designated for secondary screening.... Compared to delays faced by everyday air travelers, ... Ms. Shaikh’s allegations are mere inconveniences....

As to Mr. Maniar’s travel experience, Defendants argue that the bulk of his allegations stem from actions of foreign agents, and “the actions taken by [other countries] are not redressable by this Court.”...

Moreover, Plaintiffs alleged status on the Selectee List does not affect their ability to travel within the United States by any other mode of transportation....

Plaintiffs allege that because of the treatment that Mr. Maniar was subject to in Pakistan, he and his wife are concerned that they will be subject to similar treatment if they were to attempt to travel internationally to fulfill their religious obligations.... 

... Plaintiffs cite no authority to support their argument that a fear of traveling violates their right to religious expression. Thus, for the same reasons that Plaintiffs failed to allege a deprivation of their right to travel, they have failed to allege any deprivation of their right to practice their religion freely....

Here, Plaintiffs’ claim is premised on the assertion that they will be unable to travel to complete Hajj. However, ... Plaintiffs have failed to allege that their status on the Selectee List has resulted in significant, frequent travel delays, let alone an inability to travel at all....

... Plaintiffs have failed to allege facts supporting the claim that their freedom of movement is burdened, much less substantially burdened.... Since they have failed to do so, they have failed to plausibly allege a violation of the RFRA....

Exclusion of Religious Training from College Grant Program Is Upheld

In Johnson v. Fleming, (ED VA, March 31, 2026), a Virginia federal district court dismissed Free Exercise Clause, Establishment Clause, and Equal Protection Clause claims challenging religious exclusions from the Virginia Tuition Assistance Grant Program. The VTAG program provides grants to Virginia residents who attend private non-profit colleges, except for religious training or theological education. The court said so long as the Supreme Court's decision in Locke v. Davey remains good law, the claims against VTAG must fail.

The case also challenged a program that offers college grants, with similar exclusions, to Virginia National Guard members. The court did not dismiss the challenges to that program because the court had only a limited factual record about the procedures utilized to administer the program. However, the court refused to issue a preliminary injunction because it is unlikely that plaintiffs challenging the program will succeed on the merits.

Noise Ordinance Is Constitutional as Applied to Anti-Abortion Sidewalk Advocacy

In Knotts v. City of Cuyahoga Falls. (ND OH, March 31, 2026), an Ohio federal district court upheld the application of a noise ordinance to anti-abortion sidewalk counselors who engage in sidewalk advocacy based on their religious beliefs. The court rejected plaintiffs' free speech, free exercise, and vagueness challenges to the ordinance, saying in part:

The Court notes that on its face 1) the Ordinance does not regulate speaker identity, but rather the amplification of the speaker, 2) it does not regulate the content of speech, but rather the amplification of said speech, and 3) the Ordinance exempts certain locations holding specific events (concerts, live outdoor musical or theatrical performances) from amplification restrictions, not content.  For example, under this Ordinance, a religious organization hosting a theatrical performance on its property is exempt from the amplification restrictions whether that performance is pro-life or pro-choice.  The Ordinance is content neutral. ...

The Ordinance applies to everyone, and does not regulate nor mention any religious activity, creed or affiliation.....  It does not distinguish among religions or between religion and non-religion.  Accordingly, it is neutral and generally applicable.  

Plaintiffs summarily assert that the Ordinance violates their first Amendment right to free exercise as it applies to them.... Plaintiffs explain that they “hold sincere religious convictions that compel them to engage in sidewalk advocacy to save the lives of the unborn, which they express through amplified speech.”... However, “‘a generally applicable law that incidentally burdens religious practices usually will be upheld.’” 

... [T]he burden does not infringe “free exercise unless it places a substantial burden on a central religious belief or practice[.]”   There is no such burden here.  Plaintiffs were not denied the right to speak on their religious views or otherwise express their views, they merely were not permitted to engage in amplified speech over the complaint of neighbors....

New Case Challenges Oklahoma's Rejection of Religious Charter School Application

The battle over the constitutionality of Oklahoma authorizing and funding a religious charter school took another step forward on Monday. As previously reported, in May 2025, the U.S. Supreme Court split evenly, 4-4, on the constitutionality of such a school. The even split was caused by Justice Barrett recusing herself. Subsequently, a new test case was created as the National Ben Gamla Jewish Charter School Foundation. applied to create for a statewide virtual high school. The Oklahoma Statewide Charter School Board voted to reject the application and gave as its formal reason only that under Oklahoma law, a charter school is a public school and must be nonsectarian. 

The Oklahoma Attorney General, apparently in an attempt to create a record that would allow the Supreme Court to avoid the constitutional issue, filed suit against the Charter School Board in a state trial court seeking a writ of mandamus to require the Board to identify and incorporate into the record other valid, non-constitutional grounds for the rejection that exist. (See prior posting). With that case apparently still pending, on Monday the Ben Gamla school filed suit in an Oklahoma federal district court against the Charter School Board and the Attorney General, seeking to overturn the Charter School Board's rejection of its application 

The complaint (full text) in National Ben Gamla Jewish Charter School Foundation, Inc. v. Drummond, (WD OK, filed 3/24/2026), alleges in part:

... Under the Free Exercise Clause ...  a system that precludes religious entities from obtaining generally available state benefits solely because of an organization’s religious character or conduct is unconstitutional unless the government can satisfy strict scrutiny. Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 484 (2020)...

... The exclusion of Plaintiffs serves no compelling, substantial, or legitimate government interest....

The Equal Protection Clause prohibits discrimination on the basis of religion. 

... Okla. Stat. Ann. tit. 70, § 3-136(A)(2) discriminates against religion on its face because it excludes applicants seeking to run religious charter schools from the charter school program. 

... Defendants must therefore satisfy strict scrutiny. 

Becket Fund issued a press release announcing the filing of the lawsuit.

3rd Circuit: Prison Officials Have Qualified Immunity in Inmate's Lawsuit Over Right to Receive Religious Pamphlets

In Cordero v. Kelley, (3rd Cir., March 19, 2026), the U.S. 3rd Circuit Court of Appeals held that prison officials who refused to allow an inmate to receive a bulk mailing of religious pamphlets had qualified immunity in a damage action against them alleging violation of the 1st Amendment. The court said in part:

Cordero asserts that his Christian religion requires him to spread the Word of God by sending religious pamphlets, or tracts, to friends and family.  Prior to 2015, Cordero was able to receive hundreds of pamphlets at a time via mail at NJSP without incident.  However, from 2015 to 2017, Gregory Kelley, a correctional officer working in the NJSP mailroom, rejected multiple bulk mailings containing 100 or more religious pamphlets....

We agree with the District Court that the defendants were entitled to qualified immunity on Cordero’s First Amendment claim for damages.  We have found no caselaw clearly establishing a right to either receive through the mail bulk quantities of religious materials, or the right to receive a yearly bulk order of Christian tracts....

Cordero also argues that the New Jersey Administrative Code mandates that he “be permitted to receive, retain and send out religious literature without quantity limitations.”... However, “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”  Davis v. Scherer, 468 U.S. 183, 194 (1984).  Rather, the “clearly established right must be the federal right on which the claim for relief is based.”  Doe v. Delie, 257 F.3d 309, 319 (3d Cir. 2001).  And a “state statute cannot ‘clearly establish’ the federal right for qualified immunity purposes.”  Id.  

1st Circuit: Equal Benefit Requirement for Religious Schools Does Not Extend to All Private Schools

 In Hellman v. Massachusetts Department of Elementary and Secondary Education, (1st Cir., March 20, 2026), parents contended that their children who are enrolled in private schools should be entitled to identical special education services as public school students. Under Massachusetts law, private school students only received such services at off-site locations, while public school students received them in their normal school buildings. Rejecting the parents' due process, equal protection and privileges or immunities claims, the court said in part:

The crux of the Parents' argument is that once the state establishes an otherwise generally available benefit, it may not deny that benefit to a student simply because their parents exercise their fundamental right to enroll their child in private school.  But every case they cite arises under the Free Exercise Clause, not the parental rights doctrine involved here.  (The Parents did not bring a Free Exercise claim; the Place Regulation applies to all private schools, secular and religious alike.)  And those holdings have no bearing on their parental rights claim.  They rest on a distinct, First Amendment principle that prohibits the state from imposing even indirect coercion or penalties on religious exercise... 

That principle does not apply to the parental right.....  [I]t does not require the state to extend public benefits on identical terms to private and public school students to protect the parents' choice of forum.

Detroit Abortion Clinic Buffer Zone Ordinance Challenged

Suit was filed last week in a Michigan federal district court challenging a Detroit ordinance that bans picketing within 15-feet of abortion clinics and bans sidewalk counselors from approaching closer than 8 feet from persons entering clinics. The complaint (full text) in Sidewalk Advocates for Life v. City of Detroit, (ED MI, filed 3/18/2026) alleges in part:

The Ordinance, which is enforceable through criminal penalties, violates the Free Speech, Free Exercise, and Freedom of Assembly Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as well as the Michigan Constitution....

... The legislative record contains no evidence that the City attempted to address its asserted interests through less restrictive means before enacting the Ordinance. The City did not pursue targeted injunctions against specific individuals. It did not increase enforcement of existing harassment, assault, obstruction, or trespass statutes. It did not seek dispersal orders. It moved directly to a blanket ordinance outlawing an entire category of expressive activity on public sidewalks....

...The Free Exercise Clause of the First Amendment ... prohibits the government from imposing substantial burdens on the exercise of sincerely held religious beliefs unless the burden is imposed by a neutral law of general applicability....

The Ordinance is not generally applicable because § 31-14 4(b)(2) exempts “[a]uthorized security, personnel, employees, or agents” of healthcare facilities who are “engaged in assisting patients and other persons to enter or exit” the facility. This exemption permits clinic employees and escorts to engage in the precise conduct the Ordinance forbids for everyone else: standing within 15 feet of the entrance, approaching patients, speaking to them, and walking alongside them within the buffer zone. Under the framework of Tandon v. Newsom ... and Fulton v. City of Philadelphia ... whenever the government treats comparable secular activity more favorably than religious exercise, the law is not generally applicable and strict scrutiny applies automatically. One exemption suffices to create constitutional infirmity.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Husband's Religious Objections to Divorce Were Inappropriate Basis for Sanctions or Restraining Order

Hoch v. Hoch, (CA App., Feb. 17, 2026) (certified for publication 3/12/2026), is an appeal from family court orders relating to sanctions and domestic violence restraining orders (DVRO) issued in marriage dissolution proceedings involving a Jehovah's Witness couple. Among other holdings, the California state appellate court reversed the DVRO issued against the wife and affirmed the DVRO against the husband. The court also reversed monetary sanctions issued against the husband under Section 271 of the Family Code, but affirmed other monetary sanctions issued against him. The court said in part:

Michael contends that imposition of sanctions against him under section 271 violated his rights under the free exercise clause of the First Amendment to the United States Constitution. He claims that as a practicing and devout member of the Jehovah’s Witness faith, he could not stipulate to allowing Marcie to amend her petition for legal separation to allege dissolution instead without violating his religious beliefs. 

We need not address whether the sanctions against Michael under section 271 violated his constitutional right of free exercise of religion. The trial court abused its discretion under section 271 by imposing monetary sanctions against Michael for not stipulating to permit Marcie to amend her petition for legal separation by converting it into one for marital dissolution. Stipulating by its nature is not obligatory. Michael expressed what he believed to be a “conscientious” reason for declining to stipulate: Due to his religious beliefs, he was not comfortable with “facilitating” a divorce. Whether or not that reason amounts to a legitimate claim under the federal constitution’s free exercise of religion clause is a question we need not decide. Michael’s concern was reasonable and, it appears to us, held in good faith. No evidence was presented that would lead us to conclude to the contrary....

Among the actions which the family court cited as giving rise to a restraining order [against the husband] was Michael’s “inappropriate use of religion to control [Marcie], including, but not limited to, in the instant marital dissolution action.”... The only such instance of inappropriate use of religion expressly identified by the family court was “compelling [Marcie]’s filing of a dissolution action because [Michael] wanted to control whether or not [Marcie] could seek a legal separation and, later, a dissolution of marriage.” We need not decide whether the court infringed Michael’s right of free exercise in order to conclude this was an erroneous ground for a restraining order. Michael had a statutory right not to agree to a legal separation if he did not want one. The other grounds cited by the trial court are, however, sufficient in themselves to support the DVRO against Michael.

Court Permanently Enjoins Enforcement of Arkansas Law Requiring 10 Commandments in Every Classroom

In Stinson v. Fayetteville School District , (WD AR, March 16, 2026), an Arkansas federal district court issued a permanent injunction barring the state from enforcing Arkansas' statute that requires the posting of a particular version of the Ten Commandments in every public-school classroom. The court, finding both Establishment Clause and Free Exercise Clause problems with the law, said in part:

... [T]he State makes three important factual stipulations about Act 573:    

(1) “Act 573 does not direct teachers to provide instruction about the Ten Commandments or about the displays.”  

(2) “Act 573 does not require classroom instruction, and it does not require that the Ten Commandments be incorporated into public school curriculum.”  

(3) “There is no requirement for teachers, other school officials, or students to interact with, bring attention to, or even acknowledge the posters in any way.” 

In other words, the State admits there is no educational purpose in displaying the Ten Commandments—no teaching, no learning, and no curricular integration.  

The Court is “reluctan[t] to attribute unconstitutional motives to the State[ ], . . . when a plausible secular purpose . . . may be discerned from the face of the statute.”... But here, a plausible secular purpose is expressly disavowed. Act 573’s purpose is only to display a sacred, religious text in a prominent place in every public-school classroom. And the only reason to display a sacred, religious text in every classroom is to proselytize to children. The State has said the quiet part out loud....

Act 573 is subject to strict scrutiny because it is denominationally preferential and burdens parent-Plaintiffs’ right to direct their children’s religious upbringing.

Arkansas Advocate reports on the court's decision.

9th Circuit Again Upholds Transfer of Apache Religious Site to Copper Company

In Arizona Mining Reform Coalition v. U.S. Forest Service, (9th Cir., March 13, 2026), the U.S. 9th Circuit Court of Appeals once again upheld the transfer of 2500 acres of National Forest land that includes Apache ceremonial religious ground to Resolution Copper Mining LLC. The land, for which Resolution Copper will transfer 5000 acres of land located elsewhere, contains nearly 2 billion metric tons of copper. The San Carlos Apache Tribe claimed that the transfer violates their free exercise rights protected by the 1st Amendment and the Religious Freedom Restoration Act. The 9th Circuit, sitting en banc, had previously rejected similar claims brought by Apache Stronghold, a non-profit organization representing the interests of certain members of the Tribe. (See prior posting.) Plaintiffs in the current litigation unsuccessfully attempted to discredit the continuing viability of that prior decision.  The court said in part:

... [T]he Lopez Plaintiffs ... argue that the Supreme Court’s decision in Mahmoud v. Taylor ... abrogated Apache Stronghold by clarifying the meaning of a “religious burden.”  In their view, Mahmoud stands for the proposition that the court must determine if “looking to ‘the specific religious beliefs and practices asserted,’ the challenged government actions pose an ‘objective danger,’ or ‘very real threat’ to the claimant’s religious exercise, thus ‘substantially interfer[ing]’ with it.”... By contrast, the Lopez Plaintiffs argue, the Apache Stronghold majority rejected an inquiry into the relative objective or subjective nature of an asserted interference with religious practice in favor of an inquiry focused on coercion.   

But this view of Mahmoud does not survive scrutiny.  As an initial matter, the Supreme Court itself declined to rehear its denial of certiorari in Apache Stronghold... Regardless, the Lopez Plaintiffs misrepresent the thrust of Mahmoud by selectively quoting from it.  Their focus on the “objective danger” language ignores that Mahmoud centers on (1) the education context and (2) policies that directly coerce or indirectly compel behavior at odds with individual religious beliefs or practices, not involving the disposition of government property....

 ... We nonetheless recognize that this land transfer will fundamentally alter the nature of the land, including destruction of those sites sacred to the Tribe, the Lopez Plaintiffs, and similarly situated Native individuals.  Despite those grave harms to Native religious practice, Congress has chosen to transfer this land, and Plaintiffs have not raised any viable challenges to that decision....

UPDATE: On March 19, Justice Kagan denied petitioners' application for an injunction pending appeal. The petition, pleadings and ruling are available from the Supreme Court's website here.

UPDATE: The 9th Circuit filed an amended opinion on April 8, still denying a preliminary injunction to block the land exchange.

Oklahoma AG Sues to Overturn Charter School Board's Strategic Factual Record In Rejecting Religious School

As previously reported, in May 2025, the U.S. Supreme Court split evenly, 4-4, on the constitutionality Oklahoma funding a religiously sponsored charter school. The even split was caused by Justice Barrett recusing herself, apparently because of her connection to those promoting the school. Subsequently, a new test case was created, as the National Ben Gamla Jewish Charter School Foundation applied to create for a statewide virtual high school. (See prior posting.) This Tuesday, the Oklahoma Statewide Charter School Board voted to reject the Ben Gamla School's most recent application and gave as its formal reason only that under Oklahoma law, a charter school is a public school and must be nonsectarian.  The next day, Oklahoma's Attorney General filed suit against the Charter School Board in an Oklahoma state trial court contending that there were additional unrelated reasons for rejection of Ben Gamla's application. The suit seeks a writ of mandamus to require the Board to identify and incorporate into the record other valid, non-constitutional grounds for the rejection.

The petition (full text) in Drummond v. Oklahoma Statewide Charter School Board, (OK Dist. Ct., filed 3/11/2026), alleges in part:

[T]he Board's refusal to list all of the reasons for rejecting the revised application is not coincidental. It is a deliberate decision designed to avoid issues of state law when Ben Gamla files a lawsuit seeking to overturn the Oklahoma Supreme Court's decision in Drummond v. Oklahoma Statewide Charter School Board.... Oklahoma law does not permit the Board to strategically withhold valid grounds for rejection....

Presumably, if other grounds for the application denial were included, the U.S. Supreme Court might refuse to decide the federal constitutional issue posed by state funded religious schools on the ground that there were other reasons for the Board's rejection of the Ben Gamla application.

VINnews reports on the lawsuit.

Cemetery Loses Free Exercise and Establishment Clause Challenges to Permit Denial

In Steelmantown Church v. Carlton County, Minnesota, (D MN, March 11, 2026), a Minnesota federal district court dismissed claims under the Free Exercise and Establishment clauses, RLUIPA, and Minnesota law brought by a nonprofit corporation that was refused permission to establish a cemetery that would perform "green burials." While Minnesota law allowed "religious corporations" to establish private cemeteries, Steelmantown was not formed as a Minnesota religious corporation. The court, explaining its rejection of Steelmantown's 1stAmendment claims, said in part:

... [E]stablishing and operating a cemetery of any sort is not inherently or exclusively a religious practice, and Section 307.01 on its face does not “aid or oppose particular religions” or “establish[] a denominational preference.”...  The statute expressly authorizes “any private person” or “any religious corporation,” regardless of whether they adhere to any religious faith, to establish a private cemetery on land the person or corporation owns....  The statute’s reference to “any religious corporation,” meaning those incorporated under Chapter 315, establishes only a preference toward a specific type of incorporated entity, not a particular religious faith or denomination.... 

Steelmantown effectively seeks preferential treatment because of its religious beliefs that a secular but otherwise identical institution—that is, a foreign nonprofit corporation whose “identity and mission” are not “derived from religious or spiritual traditions,” ... would not receive in the same circumstances.  If anything, that outcome would appear to be closer to a violation of the Establishment Clause than the conduct Steelmantown challenges here....

Steelmantown’s claim, in essence, appears to be that its religious practices are burdened by the requirement to incorporate (or reincorporate) under Chapter 315....  But nowhere does Steelmantown allege any facts that show this requirement “significantly inhibit[s] or constrain[s]” any “conduct or expression that manifests some central tenet” of its religious beliefs, “meaningfully curtail[s]” its “ability to express adherence” to those beliefs, or denies it a “reasonable opportunity to engage in those activities.” ... It does not explain, for instance, why maintaining its status as a foreign nonprofit corporation under Chapter 303 is central to its ability to express its religious beliefs or engage in its religious practices.  Nor does Steelmantown allege facts that suggest the requirement “operates so as to make the practice of [its] religious beliefs more expensive.”...