5th Circuit Allows San Antonio Park Development To Move Ahead Over Religious Objections of Lipan-Apache

In Perez v. City of San Antonio, (5th Cir., Aug. 13, 2025), the U.S. 5th Circuit Court of Appeals in a 2-1 decision affirmed a trial court's refusal to enjoin San Antonio's development plan for a city park.  Plaintiffs are members of the Lipan-Apache Native American Church. Certain of their religious ceremonies can take place only at a particular river bend in the park and require the presence of cormorants in the trees there. The development plans involve removing and relocation of trees and modifying bird habitats to deter birds from nesting in highly urbanized areas of the park. Plaintiffs claim that removal of trees and the bird deterrence program violate their religious freedom protected by the 1st Amendment, the Texas Religious Freedom Restoration Act, and the Texas Constitution.  In a prior opinion, the 5th Circuit certified to the Texas Supreme Court a question on the meaning of a 2021 amendment to the Texas Constitution that prohibits the government from interfering with religious services. In response, the Texas Supreme Court said that the constitutional provision does not extend to governmental actions for the preservation and management of public lands.

In this week's decision, the majority, refusing to grant an injunction pending further appeal, held that the project did not violate the Texas Religious Freedom Restoration Act, saying in part:

... [T]he City’s development plan only indirectly impacts Appellants’ religious conduct and expression. Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. The record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year....

Appellants did not meet their burden to show that they are likely to succeed on their claim that the plan constitutes a substantial burden of their religious exercise. Even if they did, that would not change the outcome of this appeal because the City’s plan advances a compelling interest through the least restrictive means—and thus survives strict scrutiny.

The majority also held that the city's program did not violate the 1st Amendment, saying in part:

The parties’ dispute under the Free Exercise Clause centers on which standard of constitutional review applies to the instant case, rational basis or strict scrutiny. Appellants argue that the City’s plans for tree removal and rookery management measures are not neutral and generally applicable and, therefore, must be analyzed under the more exacting strict scrutiny standard. The City contends that its planned Park improvements are neutral and generally applicable and that the more deferential rational basis standard of review applies. Assuming strict scrutiny applies, we conclude that the challenged government action in this case withstands Appellants’ Free Exercise challenge, as illustrated infra in the TRFRA claim analysis.

Judge Higginson dissented in part, saying in part:

Despite my respect for the majority’s analysis, I continue to think that Appellants’ religious exercise is substantially burdened and that the City of San Antonio ... failed to accommodate Appellants’ religious beliefs in the least restrictive manner.  I would therefore hold that the Texas Religious Freedom Restoration Act (“TRFRA”) requires the City to accommodate Appellants’ religious beliefs across two “items of relief” requested in the complaint: the City’s tree-removal (“Item 2”) and anti-nesting (“Item 3”) measures....

Appellants’ testimony shows that services at the riverbend would be “meaningless” without the trees or the cormorants, and that disruption to either will “unravel” the land’s spiritual ecology—a sine qua non for Church members’ religious exercise.  Just as importantly, Appellants’ testimony confirms that these services cannot “be performed anywhere else.”...

To the extent the majority suggests that Appellants can obtain  spiritual fulfilment by exercising their religious beliefs in a manner contrary to their testimony, such reasoning is forbidden.

Denial of State Reimbursement for Religious Home School Material Does Not Violate 1st Amendment

In Trakel v. Critchfield, (D ID, Aug. 6, 202), an Idaho federal district court rejected parents' claim that they are entitled to reimbursement for religiously influenced supplemental materials that they purchased for their children who are enrolled in the state's home learning program, the Idaho Home Learning Academy. The court said in part:

IHLA is an accredited public charter school that provides Idaho students with a customizable online education. The school offers its own online curriculum options but also reimburses families for the costs of certain self-selected supplemental and enrichment materials. Some of these items are “preapproved,” while others require IHLA to first determine that the items are educationally appropriate, reasonable, and an efficient use of tax dollars....

The school denied the reimbursement request, citing State Department of Education policies and Article IX, Section 5 of the Idaho Constitution, known as the Blaine Amendment,  which prohibits the use of public money for religious purposes....

The Trakels argue this denial violates the Free Exercise and Free Speech Clauses of the First Amendment. Specifically, they view IHLA’s reimbursement policy as a public benefit, which is unconstitutionally limited to secular curriculums....

... [T]he Trakels seek to compel IHLA to provide a religious education. IHLA’s reimbursement policy is not a public benefit that allows parents to make fully independent decisions regarding their children’s education. Although families have an unusual degree of input and flexibility, IHLA is ultimately a public school that sets its own curriculum. To qualify for reimbursement, supplemental materials must receive approval and meet a variety of standards set by the school.... To put it simply, reimbursed materials become part of the IHLA curriculum. The question, then, is whether the Trakels have a free exercise or free speech right for their children to receive a public religious education. The answer is clearly no.

Prosecution of Religious Leader for Psilocybin Use Is Enjoined

In Jensen v. Utah County, (D UT, Aug. 4, 2025), a Utah federal district court enjoined Utah County from continuing its prosecution of plaintiff Bridger Lee Jensen for violating the Utah Controlled Substances Act's prohibition on psilocybin. Jensen is the founder of Singularism, an entheogenic religion. The court said in part:

... [A]t this procedural juncture ... it would be wisest to assume—without deciding—that the Utah constitution’s free exercise clause provides protections equal to those of the Federal Constitution’s Free Exercise Clause. Doing so adheres to “the general rule that courts should avoid reaching constitutional issues if the case can be decided on other grounds.”...

... [T]he Utah Controlled Substances Act’s restrictions on psilocybin possession and use, though neutral, are not generally applicable due to the secular exemption for behavioral-health treatment by certain healthcare systems and accordingly trigger strict scrutiny if a plaintiff can show that the restrictions burden its religious exercise. And Plaintiffs’ complaint alleges facts sufficient for the court to conclude that Plaintiffs have alleged a burden on their free exercise....

Only after this court determined that Plaintiffs were likely to prevail on the merits of their state RFRA claim did Defendants institute criminal proceedings against Mr. Jensen and invoke Younger abstention. From this sequence of events, the court finds that Defendants commenced the state criminal action (the basis for their abstention argument now) in order to relitigate the RFRA issue on which they appear to be poised to lose in this court—in other words, to get a second bite at the apple. The court will not allow the shield of the Younger doctrine to be used as a gamesmanship sword.  

Even if Defendants had not waived their Younger abstention defense by voluntarily invoking federal jurisdiction, the court finds that the bad-faith and irreparable-injury exceptions apply....

Based on the record in this case, the court notes once again its finding that the prosecution was brought in bad faith as part of a larger effort to harass Plaintiffs for their entheogenic religious practices and in hopes of giving the government a second opportunity to litigate the free-exercise issues presented squarely in this case. The prosecution has already caused Singularism to lose many of its practitioners and affiliates, and forcing Plaintiffs to wait until the conclusion of the criminal proceedings to secure their free-exercise rights would be the equivalent of issuing a death warrant for their nascent religion....

Court Enjoins Compliance with Arkansas Law Requiring Posting of 10 Commandments in All Classrooms

Earlier this year, Arkansas enacted Act 573 requiring display of the Ten Commandments in public school and college classrooms. In Stinson v. Fayetteville School District No. 1, (WD AR, Aug. 4, 2025), an Arkansas federal district court issued a preliminary injunction barring four school districts that are defendants in the case from complying with the new law.  The court said in part:

Forty-five years ago, the Supreme Court struck down a Ten Commandments law nearly identical to the one the Arkansas General Assembly passed earlier this year. That precedent remains binding on this Court and renders Arkansas Act 573 plainly unconstitutional. Why would Arkansas pass an obviously unconstitutional law? Most likely because the State is part of a coordinated strategy among several states to inject Christian religious doctrine into public-school classrooms. These states view the past decade of rulings by the Supreme Court on religious displays in public spaces as a signal that the Court would be open to revisiting its precedent on religious displays in the public school context. ...

Despite the Kennedy [v. Bremerton School District] Court’s rather sweeping announcement that the Lemon test had been “abandoned,” ..., there is no cause to believe that all Supreme Court precedent that relied on the Lemon test has been—or will be—overruled. The Kennedy opinion itself makes that crystal clear....

...  Act 573’s mandate is incompatible with the Founding Fathers’ conception of religious liberty. The Founders were deeply committed to the principle that government must not compel religious observance or endorse religious doctrine, and that commitment is reflected in multiple foundational texts....

The State has not established that burdening Plaintiffs’ Free Exercise rights “serve[s] a compelling interest and [is] narrowly tailored to that end.”... Even if the State were to meet its burden of showing a compelling interest, it would fail the “narrowly tailored” prong. There are many ways in which students could be taught the relevant history of the Ten Commandments without the State approving an official version of scripture and then displaying it to students in every classroom on a permanent, daily basis....

ACLU issued a press release announcing the decision. [Thanks to Thomas Rutledge for the lead.]

European Court Says Russia Violated Religious Rights in Its War with Ukraine

In Ukraine and Netherlands v. Russia, (ECHR, July 9, 2025), the European Court of Human Rights in a 1652 paragraph Grand Chamber opinion held Russia has violated a large number of provisions of the European Convention on Human Rights in its conflict with Ukraine. The opinion covers the period from 2014 until 2022 when Russia withdrew as a party to the Convention. Among the violations were intimidation, harassment and persecution of religious groups other than the Ukrainian Orthodox Church of the Moscow Patriarchate (UOC-MP), in violation of Article 9 of the Convention which protects freedom of religion. The Court said in part:

1269.  The evidence shows that since May 2014 freedom of religion has been significantly curtailed in occupied Ukrainian territory. The separatists in the “DPR” [Donetsk] and the “LPR” [Lugansk] quickly declared the UOC-MP to be the main religious group in occupied territory. They harassed and persecuted religious figures of other religions or Christian churches as well as civilians engaging in worship ... in breach of the requirements of international humanitarian law.... There are numerous reports of religious leaders being ill-treated, abducted during religious activities and, in some cases, killed by separatists in eastern Ukraine. It is clear from the context of many of these instances that these individuals had been targeted on account of their positions as leaders of religious communities and in the context of a generalised practice of disrupting and preventing the right of those not adhering to the UOC-MP to practise their religions.... There is also evidence of the banning of religious material, which was deemed to be “extremist” by separatist administrations and institutions.... Members of the Jehovah’s Witnesses appear to have been particularly targeted.

1270.  From 2016 the evidence shows that the “DPR” and the “LPR” began to put in place formal requirements for the registration and operation of religious groups..... Some religious organisations were identified as “extremist” organisations and banned on this ground with their religious material and publications seized, destroyed and banned... Religious leaders and parishioners were pursued on charges of organising or attending illegal gatherings....

1271.  ... In 2022 the Russian occupation administration “nationalised” property from religious communities and repurposed it for their own ends....

The Court also issued a press release summarizing the full decision.

Office of Personnel Management Says Federal Employee Religious Speech In Workplace Is Protected

Yesterday, the federal Office of Personnel Management issued a Memo (full text) to heads of federal departments and agencies on Protecting Religious Expression in the Federal Workplace. The cover letter transmitting the Memo says in part:

The memo provides clear guidance to ensure federal employees may express their religious beliefs through prayer, personal items, group gatherings, and conversations without fear of discrimination or retaliation....

The memo builds on OPMʼs July 16 guidance on reasonable accommodations for religious purposes....

The Memo itself defines kind of religious speech that should be protected in the federal workplace, saying in part:

... Employees should be permitted to display and use items used for religious purposes or icons of a religiously significant nature ... on their desks, on their person, and in their assigned workspaces. 

... Agencies should allow ... employees to engage in individual or communal religious expressions in both formal and informal settings alone or with fellow employees, so long as such expressions do not occur during on-duty time...

... Employees may engage in conversations regarding religious topics with fellow employees, including attempting to persuade others of the correctness of their own religious views, provided that such efforts are not harassing in nature. Employees may also encourage their coworkers to participate in religious expressions of faith, such as prayer, to the same extent that they would be permitted to encourage coworkers participate in other personal activities. The constitutional rights of supervisors ...should not be distinguished from non-supervisory employees.... However, unwillingness to engage in such conversations may not be the basis of workplace discipline.   

...  [W]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.....

Among the specific examples of protected employee speech set out in an Appendix to the Memo are:

• An employee may invite another to worship at her church despite being belonging to a different faith. 
• On a bulletin board meant for personal announcements, a supervisor may post a handwritten note inviting each of his employees to attend an Easter service at his church....
• A park ranger leading a tour through a national park may join her tour group in prayer.
• A doctor at a Veterans Affairs (VA) hospital may pray over his patient for her recovery.....

The Hill reports on the Memo. [Thanks to Thomas Rutledge for the lead.]

RFRA and Free Exercise Clause Apply to Corporate Entities Exercising Religion

In United States v. Safehouse, (3d Cir., July 24, 2025), the U.S. 3rd Circuit Court of Appeals held that the Religious Freedom Restoration Act and the 1st Amendment's Free Exercise clause apply to corporate entities, and to non-religious entities exercising religion. The United States contended that defendant's offering of supervised illegal drug use violates federal law. Defendant argued that its overdose prevention services reflect its Board members' religious belief in the value of human life. The court said in part:

RFRA’s plain text and Free Exercise doctrine are clear that those statutory and constitutional protections extend to non-natural persons, including so-called non-religious entities. In so holding, we express no view about whether threatened prosecution of Safehouse substantially burdens its exercise of religion. We likewise decline Safehouse’s invitation to determine in the first instance whether it has plausibly stated RFRA and Free Exercise claims. We only address the proper object of RFRA’s and the First Amendment’s protections: that object includes a non-natural entity allegedly exercising religion, even if the entity itself is not religious. 

Adoptive Parent Rule on Transgender Children Violates Plaintiff's Free Speech and Free Exercise Rights

 In Bates v. Pakseresht, (9th Cir., July 24, 2025), the U.S. 9th Circuit Court of Appeals held unconstitutional as applied to plaintiff Oregon's requirement that to be certified as an adoptive parent, a person must agree to respect and support an adopted child's gender identity and gender expression and use the child's preferred pronouns. Plaintiff contended that it violated her Seventh Day Adventist religious beliefs to use a child's preferred pronouns or take the child for gender transition medical appointments. In a 2-1 decision, the court agreed that the requirement violated plaintiff's free speech and free exercise rights. The majority, in a 50-page opinion, said in part:

We deal here with two vital such rights: the First Amendment’s protections for free speech and the free exercise of religion.  These rights work together, with “the Free Exercise Clause protect[ing] religious exercises, whether communicative or not,” and “the Free Speech Clause provid[ing] overlapping protection for expressive religious activities.”...  Fundamental as basic freedoms, these rights spring from a common constitutional principle: that the government may not insist upon our adherence to state favored orthodoxies, whether of a religious or political variety....

We hold that Oregon’s application of § 413-200-0308(2)(k) to Bates, in denying her certification to be an adoptive parent, triggers strict scrutiny for both her free speech and free exercise claims.  In Part A below, we explain why strict scrutiny applies to Bates’s free speech claim.  In Part B, we do the same for Bates’s Free Exercise Clause claim.  And in Part C, we explain why applying Oregon’s policy to Bates does not survive strict scrutiny.  Bates has therefore shown a likelihood of success on the merits of her claim that denying her certification under § 413-200-0308(2)(k) violates the First Amendment.

Judge Clifton dissented, saying in part in a 40-page opinion:

The only limitation imposed by the state in declining to approve her application to foster a child concerns her treatment of the child, not what she personally believes, how she speaks to the world, or how she practices her faith. Oregon should be permitted to put the best interests of the child for which it is responsible paramount in making the decision to place one of its children in the custody of a foster applicant. Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child’s self-determined gender identity, if that is something the parents have decided is important. Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given. 

Challenge To California's Investigation of Caste Discrimination Dismissed on Procedural Grounds

In Hindu American Foundation, Inc. v. Kish, (ED CA, July 18, 2025), a California federal district court dismissed on various procedural grounds a suit contending that the California Civil Rights Department is violating the constitutional rights of Hindu Americans by "conflat[ing] a discriminatory caste system with the Hindu religion" in an investigation of Cisco Systems, Inc. Individual plaintiffs in the case include employees of Cisco.

The court first concluded that the Younger abstention doctrine requires it to dismiss the case because it would pose "a serious risk of direct interference with state court proceedings...." The court went on to find a lack of standing to pursue plaintiffs' Establishment Clause claim, saying in part:

In the present case, the Individual Plaintiffs do not allege that they were direct targets of the Department's enforcement action but instead allege that they learned of it through, among other things, conversation or reading about the State Action.... Plaintiffs contend in conclusory fashion that the Department's conduct has chilled their participation in "the political community," but do not identify what political community they refer to in this regard.... Instead, plaintiffs vaguely allege that the Department's conduct has led to conversations at discrete, unidentified social events.... In this way, plaintiffs' allegations merely state an abstract stigmatic injury, rather than an injury caused by direct contact with the Department's actions and are therefore insufficient to establish plaintiffs' standing to assert their claim under the Establishment Clause....

The court also found a lack of standing as to plaintiffs' Free Exercise claims, saying in part: 

Plaintiffs cannot persuasively maintain that there "exists some conflict between one of [their] religious convictions and a challenged governmental action[]" precisely because they contend that caste discrimination is not one of their religious convictions....

Because plaintiffs have not alleged that they plan to engage in religious conduct which could arguably be the target of an enforcement action brought by the Department, the court concludes that they have not shown standing to bring a pre-enforcement action pursuant to the Free Exercise Clause....

The SAC now includes allegations from the Individual Plaintiffs regarding how they feel stigmatized, however, it includes no allegations that the Department has pursued any discriminatory action against the Individual Plaintiffs....

The court similarly found a lack of standing as to plaintiffs' due process and equal protection claims. It also concluded that the Hindu American Foundation lacks organizational or associational standing, saying in part:

Plaintiffs’ theory appears to be that the Foundation was forced to respond to the Department’s actions insofar as it spent any resources responding to those actions rather than on other initiatives.  The Supreme Court has explicitly rejected such a theory of standing.

The Mooknayak reports on the decision.

Cert. Filed In Challenge to Denial of Religious Exemption from Vaccine Mandate

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Kane v. City of New York. (Sup. Ct., cert. filed 7/21/2025). In the case, the U.S. 2nd Circuit Court of Appeals affirmed the denial of petitioners' applications for religious exemptions from the Covid vaccine mandate imposed by the City of New York on public school teachers and staff. (See prior posting.) The certiorari petition seeking Supreme Court review of the decision describes the question presented in part as follows:

After the pandemic, Respondents issued a vaccine mandate for public-education employees. It exempted “Christian Scientists” and others affiliated with “recognized” religions that “publicly” opposed vaccination. But it refused accommodation for anyone with “personal” religious beliefs or anyone whose faith leader—like Pope Francis— had publicly endorsed the vaccine. 

... In sum, the Second Circuit approved a discretionary religious-accommodation scheme that disfavors personal religion.

ADF issued a press release announcing the filing of the lawsuit.

Court Enjoins Newly Mandated Child Abuse Reporting By Priests

In Etienne v. Ferguson, (WD WA, July 18, 2025), a Washington federal district court issued a preliminary injunction barring enforcement of Washington's new law requiring priests to report suspected child abuse learned in the Sacrament of Confession. The injunction applies to all priests supervised by the archbishop and bishops who are plaintiffs in the suit. The court said in part:

There is no question that SB 5375 burdens Plaintiffs’ free exercise of religion.  In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law....

SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect....  However, other groups of adults who may learn about child abuse are not required to report.  Parents and caregivers, for example, are not mandatory reporters.  Moreover, the Washington legislature passed Substitute House Bill 1171... exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client”....

Thus, SB 5375 is neither neutral nor generally applicable because it treats religious activity less favorably than comparable secular activity....

The state, in removing the privileged communication exception for clergy but expanding it for other professionals, cannot demonstrate the narrow tailoring strict scrutiny requires....

Becket Law issued a press release announcing the decision.

Christian Bookstore Challenges Colorado Anti-Discrimination Law

Suit was filed this week in a Colorado federal district court by a Christian bookstore challenging on free speech, free exercise, equal protection and due process grounds recent amendments to Colorado's Anti-Discrimination Act. The complaint (full text) in Doxa Enterprise, Ltd. v. Sullivan, (D CO, filed 7/16/2025), alleges in part:

2. Colorado recently passed HB25-1312 (the “Act”) and amended the Colorado Anti-Discrimination Act (“CADA”) to define “gender expression” to include “chosen name” and “how an individual chooses to be addressed.” The Act then declares that Coloradans have a right to access “public accommodations[] and advertising” free of discrimination on that basis— except if the requested language is “offensive” or made for “frivolous purposes.”  Under this revised CADA language, it is now illegal for public accommodations like independent bookstores to refer to transgender-identifying individuals with biologically accurate language in their publications and customer interactions. 

3. This puts CADA on a collision course with the First Amendment rights of Plaintiff Doxa Enterprise, Ltd (“Born Again Used Books” or the “Bookstore”), a Christian bookstore in Colorado Springs that sells Christian literature, homeschool curricula, and classics. The Bookstore also publishes a website and social media accounts to promote its Christian faith and products.

ADF issued a press release announcing the filing of the lawsuit.

Christian Evangelist Challenges Town's Permit Requirement for Carrying Sign

Suit was filed this week in a South Carolina federal district court challenging the application of Chapin, South Carolina's "Parades, Demonstrating, Picketing" Ordinance to plaintiff's carrying of a religious sign on public rights of way. The complaint (full text) in Giardino v. Town of Chapin, South Carolina, (D SC, filed 7/15/2025), alleges in part:

2. Chapin interprets and applies the Ordinance regulating “demonstrations” to engulf Giardino’s use of religious signs while standing on public rights-of-way in town limits, requiring him to (i) apply for a permit to hold a sign on a public way, (ii) supply fourteen-day advance notice of his use of a sign, (iii) divulge identity and content of his sign, (iv) conditioned on standardless approval of the Mayor, and, if approved, (v) limit his time holding a sign to thirty minutes, and (vi) to move to a different spot after fifteen minutes...

12. Giardino is an evangelical Christian driven by his faith to share the good news of Jesus Christ (gospel) with others. 

13. He wants to inform others of the salvation they can find by believing in Jesus Christ and accepting Him as their savior.   

14. To convey this evangelistic message, Giardino holds a 20-inch by 24-inch sign attached to a short handle containing a short, pithy statement about the gospel while standing on a public sidewalk or public right-of-way in the town limits of Chapin, South Carolina.

The complaint alleges that enforcement of the Ordinance violates plaintiff's free speech, free exercise and due process rights, as well as South Carolina's Religious Freedom Act. Plaintiff also filed a Memorandum in Support of Motion for Preliminary Injunction.

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

Virginia Enters Consent Decree Permitting Religiously Motivated Talk Therapy to Change Minors' Sexual Orientation or Gender Identity

In a press release last week, Founding Freedoms Law Center announced that the Virginia Department of Health Professions and the Virginia Board of Counseling last month entered into a consent decree (full text) in Raymond v. Virgnia Department of Health Professions, (Cir. Ct., June 4, 2025). The decree enjoins defendants from enforcing Virginia's ban on conversion therapy for minors against plaintiffs and all similarly situated counselors insofar as they are engaging only in religiously motivated "talk therapy" aimed at aligning a minor's gender identity or romantic attractions with the client's biological sex. The decree provides in part:

11. Plaintiffs are Christians and integrate their religious faith in their counseling of clients through talk therapy, which consists of voluntary conversations, prayer, and sharing of written materials such as Scripture, between an individual counselor and an individual client....

22, ...[T]he parties consider that enforcing the Challenged Provisions with respect to talk therapy between a licensed professional and a client that is motivated or informed by religious beliefs and desired by the client would violate Article I, §§ 11 and 16 of the Virginia Constitution, as well as the Virginia Religious Freedom Restoration Act.

Virginia Mercury reports on the consent decree. [Thanks to Scott Mange for the lead.]

Another Suit Challenges Texas Law Mandating 10 Commandments in Every Classroom

Suit was filed yesterday in a Texas federal district court challenging the constitutionality of Senate Bill 10 which requires a copy of the Ten Commandments to be posted in every public-school classroom. The complaint (full text) in Nathan v. Alamo Heights Independent School District, (WD TX, filed 7/2/2025), alleges in part:

S.B. 10 is not neutral with respect to religion. By design, it expressly requires the display of religious scripture—the Ten Commandments—in every public-school classroom. It also requires that schools post a specific, state-approved version of that scripture that is associated with certain Protestant faiths, taking sides on theological questions regarding the correct content and meaning of the Ten Commandments and enshrining in state law an official denominational preference....

As a result of the displays mandated by S.B. 10, students who do not subscribe to the state’s official version of the Ten Commandments or whose faith tenets and values are otherwise contradicted by the displays—including the minor-child Plaintiffs—will be pressured into religious observance, veneration, and adoption of this religious scripture....

Houston Public Media reports on the lawsuit. This is the second lawsuit that has been filed challenging the constitutionality of SB 10. (See prior posting.)

Ohio's School Voucher Program Held to Violate State Constitution

In Columbus City School District v. State of Ohio, (OH Com. Pl., June 224, 2025), an Ohio state trial court held that Ohio's school voucher program, known as EdChoice, is unconstitutional under the Ohio Constitution, Art. VI, Sec. 2 which provides:

The General Assembly shall secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.

The court said in part:

... EdChoice procedure mandates that payments be made directly from the State to private schools.... Where EdChoice participating private schools are inexplicably receiving double the per pupil state funding than public schools, it is difficult to say that EdChoice is simply a scholarship that follows and/or benefits the student as opposed to a system that benefits private schools. 

Taken together, the evidence presented by the Plaintiffs supports their assertion that, in expanding the EdChoice program to its current form, the General Assembly has created a system of uncommon private schools by directly providing private schools with over $700 million in funding.  This evidence proves beyond a reasonable doubt that EdChoice violates Article VI Section 2 of the Ohio Constitution....

Despite receiving more funding in each successive year, the Plaintiffs’ public-school districts struggle to educate their students with inadequate funding....  Meanwhile, private religious schools receive EdChoice funding in addition to unknown amounts of non-public revenue.  Such a system is not thorough and efficient.  Thus, the Court finds that the Plaintiffs have proven beyond a reasonable doubt that the EdChoice voucher program violates Article VI Section 2 of the Ohio Constitution....

... [A]n order determining that the EdChoice voucher program is unconstitutional because it bestows the exclusive right to, or control of, any part of the state’s school funds to one or more “religious or other sect, or sects” does not violate the Free Exercise Clause of the First Amendment because the voucher program does not prohibit any religious organization from participating based on its religious viewpoint....

Viewing the term through Ohioans’ eyes in 1851, “sect” is not limited to religious groups, but refers to any person or collective of persons with like philosophy.  As such, “other sect, or sects,” distinguishes from a “religious sect,” and refers to any non-religious group or groups... 

Though the notes from the debates occurring during the 1850 Constitutional Convention demonstrate that the delegates were primarily concerned with religious sects attempting to control the school funds of the State, the plain language of this clause evidences their intent to prohibit any non-state actor, actors, entity, or entities from controlling school state funds....

Statehouse News Bureau reports on the decision.

Supreme Court: Parents Have Free Exercise Right to Opt Children Out of Class Discussions That Undermine Religious Beliefs

 In Mahmoud v. Taylor, (Sup.Ct., June 27, 2025), the U.S. Supreme Court in a 6-3 decision upheld the granting of a preliminary injunction to parents who objected to a Maryland school district's removal of parents' right to opt their children out of class discussions involving LGBTQ+ inclusive” storybooks. The parents objected to exposing their children to discussions of sexuality and gender that were inconsistent with parents' religious beliefs. The majority, in an opinion authored by Justice Alito, said in part:

The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution....

In light of the record before us, we hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that [Wisconsin v.] Yoder found unacceptable....

To start, we cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.”...

In any event, the Board and the dissent are mistaken when they rely extensively on the concept of “exposure.” The question in cases of this kind is whether the educational requirement or curriculum at issue would “substantially interfer[e] with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parent wishes to instill in the child.... Whether or not a requirement or curriculum could be characterized as “exposure” is not the touchstone for determining whether that line is crossed....

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable....

 Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.  That much is clear from our decisions in Yoder and Smith....

Justice Thomas filed a concurring opinion, saying in part:

... [T]he Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the “fully inclusive environment” that the Board purports to foster....

The curriculum itself also betrays an attempt to impose ideological conformity with specific views on sexuality and gender....

The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights.  Most straightforwardly, rather than attempt to “weave the storybooks seamlessly into ELA lessons,” the Board could cabin its sexual- and gender-identity instruction to specific units.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

 Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instill in their children.... Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny..... That novel rule is squarely foreclosed by our precedent and offers no limiting principle.  Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not. 

The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools....

... [N]ever, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim....

The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs?  It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects....

SCOTUSblog reports on the decision.

Challenge To Narrow Religious Exemption in Maryland Employment Law Is Dismissed In Part

In General Conference of Seventh-Day Adventists v. Horton, (D MD, June 18, 2025), a Maryland federal district court denied a preliminary injunction in a suit challenging the Maryland Supreme Court's interpretation of the religious exemption in the Maryland Fair Employment Practices Act. The Maryland Supreme Court has held that the exemption is limited to claims brought by employees who perform duties that directly further the core mission of the religious entity. As summarized by the court, plaintiffs allege in part:

(1) the exemption violates Plaintiffs' church autonomy rights under the Religion Clauses of the First Amendment; (2) it violates the Establishment Clause of the First Amendment because it excessively entangles government with religion; (3) it violates the Free Exercise Clause of the First Amendment; (4) it violates the Establishment Clause by discriminating against Plaintiffs based on their denomination; (5) it violates Plaintiffs' First Amendment right to expressive association; (6) it violates Plaintiffs' First Amendment right to assembly; and (7) it violates the right to due process of law under the Fifthand Fourteenth Amendments because it is unconstitutionally vague.

In a 43-page opinion, the court found that plaintiffs are not likely to succeed on the merits of any of these claims. However it refused to dismiss outright three of plaintiff's claims, saying in part:

... [T]he Court recognizes that Plaintiffs are in good faith seeking an extension of the law in Count 1 [church autonomy], and that on Count 3 [free exercise], Plaintiffs have a different interpretation of the law on the issue of the applicable level of scrutiny that is not strictly foreclosed by precedent. Ordinarily, a court should refrain from dismissing outright a claim asserting a novel legal theory that can better be assessed after factual development....

... [T]he Court finds that under its view of the legal landscape, Plaintiffs have not stated a viable claim of a violation of the right to expressive association. Nevertheless, as with Counts 1 and 3, where Plaintiffs are seeking an extension of the law to have claims based on expressive association apply to the employment context, and further factual development is arguably warranted before full disposition of this claim, the Motion to Dismiss will be denied as to this claim.

Texas Supreme Court Interprets Religious Services Clause of State Consitution

As previously reported, in a suit by members of the Lipan Apache tribe challenging improvements to a park that destroyed  their ability to use a sacred site for certain religious ceremonies, the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court a question on the meaning of a 2021 amendment to the Texas Consitution that prohibits the government from interfering with religious services. In Perez v. City of San Antonio,(TX Sup. Ct., June 13, 2025), the Texas Supreme Court in an 8-1 opinion said in part:

When the Texas Religious Services Clause applies, its force is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government’s interest in that limitation or how tailored the limitation is to that interest, but the scope of the clause’s applicability is not unlimited, and it does not extend to governmental actions for the preservation and management of public lands. We express no opinion on whether the Free Exercise Clause or the Texas RFRA protect the religious liberties Perez asserts, and we leave it to the federal courts to apply our answer in the underlying case.

Justice Sullivan filed a dissenting opinion, saying in part:

With deepest respect for my esteemed friends on the Fifth Circuit and on our Court, I would decline this expansive invitation to issue an advisory opinion on a “new provision” of our Bill of Rights that “[n]o Texas court has construed.”

Supreme Court: Wisconsin's Religious Nonprofit Exemption from Unemployment Comp. Tax Must Include Catholic Charities

In Catholic Charities Bureau, Inc. v. Wisconsin Labor and Industry Review Commission, (Sup. Ct., June 5, 2025), the U.S. Supreme Court, in an opinion by Justice Sotomayor, unanimously held that Wisconsin violated the First Amendment's religion clauses when it held that Catholic Charities Bureau does not qualify for the exemption from unemployment compensation tax that is granted by state statute to nonprofits "operated primarily for religious purposes". The Wisconsin Supreme Court had held that Catholic Charities' activities were no different than those offered by a secular organization; they did not involve worship services, religious outreach, ceremony, or religious education. In reversing the Wisconsin supreme Court, the U.S. Supreme Court said in part:

A law that differentiates between religions along theological lines is textbook denominational discrimination....

This case involves that paradigmatic form of denominational discrimination....

Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics. Petitioners’ Catholic faith, however, bars them from satisfying those criteria. Catholic teaching, petitioners say, forbids “‘misus[ing] works of charity for purposes of proselytism.’” ... It also requires provision of charitable services “without making distinctions ‘by race, sex, or religion.’” ...  Many religions apparently impose similar rules.... Others seemingly have adopted a contrary approach....

Wisconsin’s exemption, as interpreted by its Supreme Court, thus grants a denominational preference by explicitly differentiating between religions based on theological practices.

Justice Thomas filed a concurring opinion, saying in part:

As a matter of church law, Catholic Charities and its sub-entities are an arm of the Diocese of Superior, and thus, for religious purposes, are not distinct organizations.  But, when determining whether Catholic Charities was a religious organization entitled to a tax exemption, the Wisconsin Supreme Court nevertheless relied on Catholic Charities’ separate corporate charter to treat it as an entity entirely distinct and separate from the Diocese. That holding contravened the church autonomy doctrine....

Justice Jackson filed a concurring opinion, saying in part:

The Federal Unemployment Tax Act (FUTA) allows a State to exempt from its unemployment-coverage mandate any “organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.”... The State treats church affiliated charities that proselytize and serve co-religionists exclusively differently from those that do not.... Because I agree that this distinction violates the neutrality principle of the Constitution’s Religion Clauses, I join the Court’s opinion in full.

... [B]oth the text and legislative history of FUTA’s religious-purposes exemption confirm that Congress used the phrase “operated primarily for religious purposes” to refer to the organization’s function, not its inspiration....

Congress sought to extend to most nonprofit workers the stability that unemployment insurance offers, while exempting a narrow category of church-affiliated entities most likely to cause significant entanglement problems for the unemployment system—precisely because their work involves preparing individuals for religious life. It is perfectly consistent with the opinion the Court hands down today for States to align their §3309(b)(1)(B)-based religious-purposes exemptions with Congress’s true focus.

SCOTUSblog reports on the decision.