Splintered 5th Circuit Says Suit Against City for Failing to Train Police on 1st Amendment Rights Can Move Ahead

 In Hershey v. City of Bossier City, (5th Cir., Oct. 7, 2025), the U.S. 5th Circuit Court of Appeals in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place.  The arena is in a public park, is managed by a private company and was rented out for the concert. Both police and private security guards provided security. They informed plaintiff that he could not hand out his material because he was on private property. Plaintiff sued the officers and guards for violating his 1st Amendment rights and sued the city for failing to train the police and the security guards. The case generated three separate opinions which, when put together reversed the trial court's dismissal of the claim against the city, but affirmed on qualified immunity grounds, the dismissal of claims against the police and security guards.

Judge Ho wrote in part:

“The dissemination of ... religious views and doctrines is protected by the First Amendment.”...

This right plainly encompasses the distribution of religious pamphlets—the activity at issue in this case....

So anyone who is “rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.”...

Hershey’s right to evangelize on a public sidewalk is not undermined by the fact that the city-owned facility abutting the sidewalk happens to be managed by a private corporation.  Nor should it matter that his rights were violated by private security guards working alongside police officers.  Municipalities cannot abrogate the constitutional rights of their citizens simply by delegating their coercive governmental powers to private agents.

He also concluded that the city's failure to train amounted to deliberate indifference.

Judge Dennis said in part:

The City’s failure to train officers that the park was a public forum led officers to believe that the park was private property and that citizens could be ejected without violating their First Amendment rights. Hershey also alleged that the officers who removed him from the park held this belief and told him he had to leave the park because it was private property. Hershey has pleaded facts sufficient to show that the City’s complete lack of training was the cause of his injury.

Judge Richman would have upheld the dismissal of the claim against the city, saying in part:

This is a single-incident case in which Hershey relies on his own confrontation with city officers and private security guards to establish municipal liability.  This case does not present the “rare” and “narrow and extreme circumstances” that our court and the Supreme Court has said permit “drawing the inference” of “deliberate indifference.”

The court also by a different 2-1 vote upheld dismissal of damage claims against the officers and security guards on qualified immunity grounds. Judge Dennis would have reversed the trial court's dismissal on qualified immunity grounds, saying in part:

Because the law clearly established Hershey’s right to leaflet in a traditional public forum without viewpoint discrimination, qualified immunity is inappropriate.

Judge Richman disagreed, saying in part:

... [G]iven that the Supreme Court has indicated that sidewalks on public property are not automatically public forums and that the district court considered several cases concerning the forum status of spaces surrounding arenas that do not speak in unison, the forum status of the space in question was not clearly established.... 

Judge Ho reluctantly agreed that precedent required concluding that the right involved was clearly established, but expressed his disagreement with that precedent, saying in part:

 “[i]t seems absurd to suggest that the most egregious constitutional violations imaginable are somehow immune from liability precisely because they’re so egregious.  It would make a mockery of our rights to grant qualified immunity just because no one in government has yet to be abusive enough to commit that particular violation—and then stubborn enough to litigate it, not only before a district court, but also in the court of appeals (or the Supreme Court).”

Taxpayer With Religious Objections to U.S. Funding of Israel's Military Operations Lacks Standing to Sue

In Kikkert v. Trump, (WD WA, Oct. 1, 2025), plaintiff, an army veteran and federal taxpayer, sued the President and various members of Congress. According to the court:

Plaintiff alleges that by using federal taxes to fund Israel’s recent military operations, Defendants have breached numerous international treaties, federal statutes, and provisions of the U.S. Constitution....  Plaintiff further alleges that he has standing to bring this suit, claiming that his “$72.72 in 2023 excise taxes are part of the $3.8 billion in annual U.S. military aid to Israel” and said aid is “causing Plaintiff irreparable spiritual harm by forcing him to contravene his faith and his veteran’s oath to defend the Constitution, a sacred text in his religion, and desecrating his familial legal of military service spanning give generations.” 

The court dismissed the suit for lack of standing, saying in part:

... [T]he mere fact of being a taxpayer is not enough to establish Article III standing.  The only exception to this general rule is a narrow exception provided by Flast v. Cohen....  But the Supreme Court has also “repeatedly emphasized that the Flast exception has a narrow application”...

... Flast and its progeny are primarily focused on Establishment Clause challenges.... Here, however, Plaintiff does not bring an Establishment Clause challenge....

As for his Free Exercise argument, Plaintiff fails to allege specific facts to give rise to Article III standing....

Plaintiff’s claim that the government’s funding of Israeli military operations using federal taxes operations has “force[d] him to commit sacrilege” and is causing “irreparable spiritual distress,” ... does not amount to an alleged injury to his ability to exercise his religion.  It is thus insufficient to establish Article III injury-in-fact.

Photographer Entitled to Nominal Damages for Injury from Threat to Require Her to Photograph Same-Sex Weddings

In Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov't., (WD KY, Sept. 30, 2025), in a case that has been in litigation for over five years, a Kentucky federal district court held that a Christian wedding photographer who has moral and religious objections to photographing same-sex marriages is entitled to $1 in nominal damages for the injury she suffered through a credible threat of enforcement and the chilling effect on her speech of Louisville's Fairness Ordinance. The Ordinance prohibits a business from denying services to an individual based on the person's sexual orientation, and from advertising that it will engage in such discrimination. ADF issued a press release announcing the decision.

10th Circuit: Nondiscrimination Requirement Did Not Infringe 1st Amendment Rights of Catholic Preschools

 In St. Mary Catholic Parish in Littleton v. Roy, (10th Cir., Sept. 30, 2025), 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. The court said in part:

Colorado is not attempting to prohibit funds from being used for religious purposes. ... [P]reschools funded through UPK may use those funds to educate students on matters of faith. The restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use. The Parish Preschools allege, of course, that this universal restriction nonetheless infringes upon their ability to exercise their religious beliefs. But when a particular religious practice is alleged to be infringed incidentally, rather than religious status or use being specifically targeted, the Supreme Court requires that the law at issue be neutral and generally applicable....

... [B]ecause state law gives no room to the Department to make exceptions, it stays generally applicable, and thus does not implicate the Free Exercise Clause....

Meanwhile, the Department has made every effort to encourage faith-based preschools to participate in UPK short of granting them an unlawful exemption from the nondiscrimination requirement. As a result, forty faith-based preschools are currently part of UPK. The program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs....

Even if a group is engaged in expressive association, its expressive association rights are not infringed upon by the mandated inclusion of a person unless “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”...

This is a case about preschoolers. No one would reasonably mistake the views of preschool students for those of their school. And while we must “give deference to an association’s view of what would impair its expression[,]” that does not mean that we must buy that “mere acceptance of a member from a particular group” is enough.... Teachers and staff are the ones responsible for disseminating a preschool’s message and developing the curriculum, not the preschool children they teach.  ...

Teacher Loses Challenge to School's "Controversial Issues" Policy

In Cahall v. New Richmond Exempted Village School District Board of Education, (SD OH, Sept. 29, 2025), an Ohio federal district court dismissed a teacher's constitutional challenges to a 3-day suspension she received for violating the school's "controversial issues" policy. Plaintiff, a third-grade math and science teacher, added four books with LGBTQ+ themes to a book collection in her classroom that students can read during in-class free time. In upholding the school's action, the court said in part:

To the extent that [plaintiff] relies on the Free Exercise Clause... —teachers do not have a First Amendment right (whether under its free speech component or its free exercise component) to make their own “curricular and pedagogical choices” in a public school.... If Cahall wants to keep religious materials for her own use—for example, a Bible in a desk drawer that she reads herself during free time—the analysis gets more difficult. Or similarly if she wants to speak as a citizen on matters relating to LGBTQ+ or other issues—for example, commenting at a Board meeting.... But the District pays her to instruct students, and as part of that, it has the right to specify the materials that she uses to accomplish that objective....

Cahall also invokes the Establishment Clause. Her claim ... appears to be that the District chose to treat other religious expressions, by other school personnel, better than hers.... But assuming that is her claim, ... she has not plausibly alleged that a similarly-situated employee was treated more favorably, and thus has not plausibly alleged that the District is favoring one religion over another.  

If instead she is arguing that she has some kind of constitutional right to share her religiously motivated beliefs, the Establishment Clause actually works against her.

The court also rejected vagueness and equal protection challenges.

Justice Department Issues Opinion to EEOC On Impact of Recent Developments for Federal Employees

Earlier this month, the Justice Department's Office of Legal Counsel (OLC) issued an advisory opinion Religious Liberty Protections for Federal Employees in Light of Recent Legal Developments, 49 Op. O.L.C. __ (Sept. 18, 2025). The opinion was requested by the Acting Chair of the U.S. Equal Employment Opportunity Commission who wanted to know the extent to which 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace and a 2017 Memorandum Federal Law Protections for Religious Liberty remain operative. OLC responded that recent developments require two exceptions to continuing to enforce those prior directives:

First ... the Supreme Court held in Groff that an employer experiences “undue hardship” only where the burden posed by an accommodation would be “substantial in the overall context of an employer’s business.”... Thus, under Title VII, an agency cannot deny a religious accommodation if the burden imposed on the agency by the accommodation in the context of the agency’s work is insubstantial. Agencies should therefore disregard references in the 1997 Guidelines to the “de minimis” standard as inconsistent with their statutory obligations....

Second, the 1997 Guidelines provide that, although agencies generally may not “restrict personal religious expression by employees in the Federal workplace,” agencies must restrict such expression where it “creates the appearance, to a reasonable observer, of an official endorsement of religion.”... Again, that restriction reflected Supreme Court precedent that has since been abrogated....

The 1997 Guidelines’ “official endorsement” test thus creates a special restriction on religious expression without a constitutionally valid justification.  

... [O]ur conclusion that the “appearance of official endorsement” test can no longer be enforced does not mean that all religious expression in the workplace must be permitted. Nor does it mean that the Constitution imposes no limits on religious conduct or expression by government employees. The Supreme Court has never cast doubt on the principle that government employers can prohibit disruptive or coercive behavior by their employees regardless of the religious nature of that conduct.

The OLC Opinion also went on to provide that telework as a form of religious accommodation for federal employees may still be used despite President Trump's directive to federal employees to return to in-person work.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Mother Loses Free Exercise Challenge To Violence Against Women Act

In United States v. Gaviola, (ED CA, Sept. 25, 2025), a California federal district court held that enforcement of 18 USC §2262(a)(2) does not violate the free exercise rights of a California mother who arranged for her 16-year-old son to be forcibly transferred to a religious boarding school in Missouri.  The son had previously obtained a temporary restraining order against his mother prohibiting her from contacting him. He had also filed a petition to become an emancipated minor. 18 USC §2262(a)(2), which is part of the Violence Against Women Act, criminalizes causing a person to travel in interstate commerce by force, coercion, duress or fraud where that violates a state court protection order. According to the court:

Gaviola asserts that her decision to cause her child, MV, to cross state lines in order to enroll him in a Christian school “reflects her sincerely held religious beliefs and her absolute right to direct her child’s religious and moral education.”... As such, she claims that “[p]rosecuting her under 18 U.S.C. § 2262 for this conduct imposes a substantial burden on her free exercise of religion, as it effectively penalizes her for making a constitutionally protected choice.”

In rejecting her claim, the court said in part:

Section 2262 is neutral. It does not single out religion or religiously motivated conduct for special burdens; it applies regardless of the defendant’s beliefs. It is generally applicable because it uniformly prohibits all persons from violating protection orders; it does not afford discretion to grant exceptions for secular motivations (e.g., employment, education, medical reasons) while denying them for religious ones. The government’s interest—interstate enforcement of state court orders and protection of victims of domestic violence—applies equally across the board. Thus, under Smith, § 2262 is a classic example of a neutral, generally applicable law whose enforcement does not trigger strict scrutiny, even if a defendant claims her conduct was religiously motivated....

Moreover, if the Court set aside Smith and applied strict scrutiny, Gaviola’s arguments still fails....

Gaviola does not raise a claim or defense under the RFRA. However, whether under Gaviola’s interpretation of a First Amendment challenge or one under the RFRA, the “net effect” is the same: “the government may substantially burden a person’s exercise of religion if and only if the government’s action can survive ‘strict scrutiny.’” ...  

As previously discussed, the Court does not doubt the sincerity of Gaviola’s religious beliefs. The Court will also assume, without deciding, that prosecution under 18 U.S.C. § 2262(a)(2) substantially burdens her exercise of religion. Even so, the government’s interests are compelling. 

The federal government has a paramount interest in protecting victims of domestic violence, including by ensuring the enforceability of state-court protection orders and preventing their evasion through interstate travel. Enforcing § 2262—as well as other provisions of the Violence Against Women Act—advances these compelling interests, such as safeguarding children, upholding judicial orders, and deterring interstate abduction.... 

Canceling Church's Sunday Lease on School Gym Violated 1st Amendment

 In Truth Family Bible Church Middleton v. Idaho Housing and Finance Association, (D ID, Sept. 22, 2025), an Idaho federal district court held that plaintiff's First Amendment rights were violated when its lease to use a public charter school's gymnasium for Sunday services was terminated. The court said in part:

... Truth Family had a month-to-month lease with Sage International Network of Schools (“SAGE”), a public charter school, where they would pay rent for the use of the school’s gymnasium on Sundays for church services.... SAGE submitted an application to IHFA to participate in the Public Charter School Facilities Program [under which] it could receive bonds for facility improvements and construction.  

IHFA reviewed SAGE’s application and indicated the lease with Truth Family could be a problem because the bond proceeds could not be used for religious purposes under Article IX Section 5 of the Idaho Constitution (otherwise known as the “Blaine Amendment”).... Ultimately, SAGE decided to terminate the lease in order to proceed with bond financing.....

IHFA did not single out Truth Family’s lease in a way that was neutral or generally applicable, and SAGE did not terminate Truth Family’s lease in a manner that was neutral or generally applicable. Therefore, Truth Family met its burden of showing there was a violation of the Free Exercise Clause here....

To refuse the issuance of bonds to anyone who contracts with a religious organization to use their facilities is likely not narrowly tailored to any government interest that could possibly be served by the Blaine Amendment....

... [T]he government is still indicating a preference for a certain religion or non-religion when it excludes another. When Truth Family was prevented from using facilities to participate in worship services, that indicated IHFA and SAGE’s preference for non-religion in violation of the Establishment Clause....

SAGE terminated the lease solely due to Truth Family’s status as a religious organization. While the motivation might have been money rather than a direct issue with the message itself, the result is the same: Truth Family could no longer spread its message at the school because it was a religious one. This is a violation of the Free Speech Clause, and summary judgment is proper....

Idaho Ed News reports on the decision.

Another Suit Challenges Texas' Law Requiring 10 Commandments in Classrooms

On August 20 a Texas federal district court issued a preliminary injunction barring 11 Texas school districts from complying with Texas SB 10 that requires posting of a particular version of the Ten Commandments in every classroom. Five days later, Texas Attorney General Ken Paxton in a press release directed the school districts that were not defendants in the litigation to comply with SB 10. (See prior posting.) Today, plaintiffs filed a lawsuit against 14 more of Texas' 1207 school districts seeking an injunction barring those districts from complying with SB 10. The 67-page complaint (full text) in Ringer v. Comal Independent School District, (WD TX, filed 9/22/2025) alleges in part:

... [P]ermanently posting the Ten Commandments in every public-school classroom—rendering them unavoidable—will unconstitutionally harm the Plaintiffs. The displays will pressure students, including the minor-child Plaintiffs, into religious observance, veneration, and adoption of the state’s favored religious scripture. The displays will also send the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that S. B. 10 requires—do not belong in their own school community, pressuring them to refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And the displays will substantially interfere with and burden the right of the parents-Plaintiffs, who are Jewish, Christian, Hindu, Baha’i, Humanist, or nonreligious, to direct their children’s education and upbringing when it comes to religious questions and matters.

Americans United issued a press release announcing the filing of the lawsuit.

School's Policy on Disclosure of Students' Social Transitioning Violated Due Process, But Not Parents' Free Exercise Rights

In Mead v. Rockford Public School District, (WD MI, Sept. 18, 2025), parents of a middle school student, referred to as G.M., challenged a school's policy on non-disclosure of their child's social transitioning of gender. The school referred to G.M. by a female name and pronouns when speaking with the parents. However, teachers and other employees referred to the child by a masculine name and with masculine pronouns at school. A Michigan federal district court held that this did not violate parents' free exercise rights, but that parents had stated due process claims.  The court said in part:

Plaintiffs argue that the District has conditioned the privilege of their child attending public school on their willingness to abandon their sincere religious beliefs.  Not so.  As parents, the Meads “are not being coerced or compelled into recognizing any individual in any particular way inconsistent with their religious beliefs.” ... The District allows its students to request their preferred name and pronouns....  In no way does that compel students or their parents to recognize a preferred name or pronouns of the opposite sex.  

Accordingly, the court finds the District’s policy and practice to be neutral and generally applicable.  As a result, the policy and practice are not subject to strict scrutiny but must have a rational basis....

Defendants proffer the legitimate purpose of promoting a safe and supportive learning environment for LGBTQ students.... Plaintiffs do not dispute that the policy is rationally related to this purpose....

Plaintiffs allege two fundamental rights under the Fourteenth Amendment’s Due Process Clause, (1) the parental right to direct the upbringing of their child and their child’s education, and (2) the parental right to direct their child’s healthcare.  Plaintiffs plausibly allege that the District infringed upon the first set of rights when it failed to inform them of their child’s requested gender transition and when it deceived them so they wouldn’t find out besides their child telling them.  Plaintiffs plausibly allege that the District infringed upon the second set of rights when it conducted a “psychosocial intervention” to treat their child’s gender dysphoria and other mental health disorders.

ADF issued a press release announcing the decision.

Organization Ordaining Ministers Online Loses Challenge to Tennessee Officials

Tennessee law provides that persons who receive ordination online may not solemnize marriages in the state. In American Marriage Ministries v. Collins, (ED TN, Sept. 17, 2025), plaintiff, an organization that ordains ministers online sued Tennessee officials who refused to provide it with the same non-prosecution assurances, and agreements not to challenge their marriages, that officials had previously given to Universal Life Church Monastery Storehouse. A Tennessee federal district court rejected various challenges to the refusal. The court said in part:

Here, AMM contends Defendants have violated the Establishment Clause by “set[ting] up favored and disfavored religious institutions under the law” and impermissibly “ma[de] accommodations for some religious denominations and not others.”  ...)  However, AMM does not cite any evidence from the record that would indicate a denominational difference between it and ULCM, nor does it otherwise explain how Defendants’ disparate treatment of AMM and ULCM constitutes denominational discrimination sufficient to show an Establishment Clause violation....   

...  AMM [does not] cite any authority to support the proposition that, in the absence of a showing of denominational discrimination, an official preference among different “religious institutions” violates the Establishment Clause....

... AMM lacks standing to bring the claim it now seeks to press under the Free Exercise Clause because that claim contests the constitutionality of the text of the Online Ordination Ban rather than Defendants’ disparate treatment of ULCM and AMM...

... AMM’s arguments for strict scrutiny fall short.  The record does not support a finding that Defendants’ disparate treatment of AMM and ULCM is based on religion, because—just as there was no denominational difference to support an Establishment Clause violation—AMM has not pointed to any relevant religion-based distinction between the two organizations that could support a finding of “classification . . . based on religion.”...

... AMM cannot meet its burden of “showing pure arbitrariness by negativing every conceivable basis that might support the government's decision.”... This is an extremely difficult burden for a plaintiff to satisfy, even in the already deferential realm of rational basis review....

There is at least one conceivable rational basis for Defendants’ disparate treatment of AMM following the ULCM Stipulations.... Defendants’ entry into the ULCM Stipulations was a rather extraordinary official act, in the sense that they made a series of promises not to enforce a civil statute over which (according to their own views of the relevant law) they lacked any enforcement power.  Given this context, in which Defendants made promises about a subject matter and a statute outside of their authority, it is conceivable that they might choose to avoid further entanglements with the Online Ordination Ban. It is as if, having found themselves off the road, Defendants have since endeavored to stay in their lane; this is certainly a rational attitude for government officials to take towards their duties.

9th Circuit Upholds Requirement to Use Only Secular Curricular Materials in Charter School Home Instruction Programs

In Woodlard v. Thurmond, (9th Cir., Sept. 11, 2025), the U.S. 9th Circuit Court of Appeals rejected First Amendment challenges to California's refusal to purchase and permit the use of religious curricular materials in home-based independent study programs of two charter schools. The court said in part:

Plaintiffs ... argue that the defendant charter schools’ independent study programs are really homeschooling and that the schools’ provision of curricular materials should be treated as a generally available public benefit in aid of homeschooling, access to which cannot be denied based on Plaintiffs’ religious beliefs. The argument is premised on three recent Supreme Court decisions holding that when a state creates a generally available public benefit, it cannot exclude a potential recipient from the benefit because of religious status or religious use....

... [N]ot all government decisions that engender religious objections impose burdens on religion that fall afoul of the Free Exercise Clause. As the Supreme Court made clear in Carson, a state’s decision to provide a “strictly secular” public education does not do so....

... [I]n contrast to private homeschooling, parents in independent study programs can teach only under the supervision of state employees. The extensive legal requirements applicable to the defendant charter schools’ independent study programs make the programs sufficiently public to defeat Plaintiffs’ free exercise claim....

Plaintiffs’ compelled speech claim fares no better. It is premised on the argument that “[w]hen parents in the Blue Ridge and Visions programs select a diverse array of curricula for their children’s diverse needs,” the parents are speaking, not the government. However, we have held that a public school’s curriculum is an “expression of its policy,” ... and that “information and speech ... present[ed] to school children may be deemed to be part of the school’s curriculum and thus School District speech,” 

School Rules on Non-gendered Pronouns Do Not Violate Free Exercise or Free Speech Rights

In Hyland v. State Board of Education, (NJ App., Sept. 9, 2025), a New Jersey state appellate court rejected a 1st and 14th Amendment challenge to amended Board of Education rules that, among other things, eliminated gendered pronouns in the rules. The court said in part:

Hyland argues the State Board may not establish a "religion of secularism" by adopting amendments that define gender as "indeterminate," which can be decided based on the student's feelings, resulting in the treatment of comparable secular activity more favorably than religious exercise.  He further argues the amendments force students who adhere to a "Biblical worldview," to act and operate under a law that directly contradicts those beliefs, and the students or parents are not allowed to opt out of the imposition of those beliefs....

A fair reading of the amended chapter demonstrates the State Board does not seek to promote a "religion of secularism," nor does it create a constitutionally prohibited entanglement.  The students and parents retain the right to opt-out of any instruction related to health, family life education, or sex education or educational activity that violates their religious beliefs.... Thus, the amendments do not violate either the Free Exercise or Establishment Clauses, as they apply uniformly to all students and do not seek to regulate religious conduct or belief.,,,

We are satisfied that the record establishes there is no violation of the First Amendment free speech rights.  Here, the amendments to Chapter 7 do not regulate or target the speech of students or parents.  While the amendments define gender identity, they neither compel nor coerce students or parents to endorse this definition.  Nor do they prevent students or parents from publicly expressing a different view....

11th Circuit: Government Can Insist on Secular Presenters in Intervention Program for Domestic Abusers

In Nussbaumer v. Secretary, Florida Department of Children and Families, (11th Cir., Sept. 4, 2025), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise challenges to Florida's requirements for becoming certified as a provider in the state's batterers' intervention program. Anyone convicted of domestic violence is required to complete the intervention program offered by a certified provider.  Nussbaumer is a Florida minister and licensed clinical Christian psychologist. He was denied certification because state rules require that the program's curriculum not include any faith-based ideology associated with a particular curriculum and not identify poor impulse control as a cause of domestic violence or suggest anger management techniques to prevent domestic violence. The court held that plaintiff's free speech rights were not violated because the curriculum and its presentation are government speech. Similarly, it held that his free exercise rights were not infringed, saying in part:

“the government’s own speech cannot support a claim that the government has interfered with a private individual’s free exercise rights.”... “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”

6th Circuit: Transgender Bathroom Rule Did Not Violate Objecting Parents' or Students' Free Exercise Rights

In Jane and John Doe No. 1 v. Bethel Local School District Board of Education, (6th Cir., Aug. 26, 2025), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of claims that a school's policy on use of communal bathrooms by transgender students violated the free exercise rights of Muslim and Christian students and their parents. The court dismissed as moot plaintiffs' request for a declaratory and injunctive relief because while the case was pending, the school changed its policy pursuant to a new Ohio law that mandated bathroom access based on biological sex. However, plaintiffs' claim for damages from past violations was not moot. Nevertheless, the court found no 1st Amendment violation, focusing on the Supreme Court's recent decision in Mahmoud v. Taylor. The court said in part:

The Supreme Court acknowledged that “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.” ... But the Court situated Mahmoud in line with Wisconsin v. Yoder, ...  as an exception to the general rule because “[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” ...

This exception does not apply here.  The bathroom policy does not impose a burden “of the [] same character as the burden in Yoder.”...  Unlike the challenged state law in Yoder, which compelled Amish families to send their children to public or private schools, and the curricular requirement in Mahmoud, which required elementary school students to attend classes where certain LGBTQ+-inclusive storybooks that “unmistakably convey a particular viewpoint about same-sex marriage and gender” were taught, the bathroom policy was not an educational requirement or curricular feature, and the policy did not require students to use the communal restrooms.... [Single occupancy bathrooms were available to students.]

Because the policy was neutral and generally applicable, it is subject to rational basis review, which it survives....

On appeal, the parent plaintiffs specifically argue that the School District infringed on their right to direct the upbringing of their children by (1) modifying the School District’s bathroom operations, (2) increasing their children’s risk of physical danger, and (3) choosing not to answer questions about implementing the bathroom policy.  We are unpersuaded by their arguments, and thus, we affirm the grant of judgment on the pleadings on plaintiffs’ Fourteenth Amendment claim....

Judge Larsen filed an opinion concurring in the judgment but saying that the majority had read the Mahmoud case too narrowly. He said in part:

... [T]he ultimate question Mahmoud poses is whether a school policy “substantially interfere[s] with the religious development of the child or pose[s] a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child.”...  All sorts of non-curricular school rules—which aren’t clearly “educational”—can interfere with parents’ religious upbringing of their children.  Imagine, for example, a school that provides free school lunch to all students, regardless of income, to remove the stigma associated with accepting free or reduced-price meals.  If the school neither provided Kosher meals nor permitted parents to pack brown-bag lunches, that might well impose a Yoder-like burden on Jewish parents and students, even though the policy would neither be obviously “educational” nor involve the curriculum.  If the school cannot require Jewish students to read books “designed to” undermine their commitment to keeping Kosher, why would the school be able to more directly compel them to eat a grilled ham and cheese?...

... In this case, Bethel’s policy allowed religious students to “opt out” by using single-stall restrooms instead of the communal ones to which they objected.  That important fact distinguishes this case from both Yoder and Mahmoud....

Buckeye Flame reports on the decision.

Christian Families Challenge Foster Care Rules on Support of Transgender Children

Two families, asserting Christian religious beliefs, filed suit yesterday in a Massachusetts federal district court challenging on 1st and 14th Amendment grounds a policy of the Massachusetts Department of Children and Families that requires foster parents to agree that they will "[s]upport, respect, and affirm the foster child’s sexual orientation, gender identity, and gender expression." The complaint (full text) in Jones v. Mahaniah, (D MA, filed 9/3/2025), alleges in part:

3. Both families will provide a loving and respectful home for any child, including transgender, gay, or lesbian foster children. But that is insufficient for Massachusetts....

4. ... [T]he State requires the Joneses and the Schrocks to promise to use a child’s chosen pronouns, verbally affirm a child’s gender identity contrary to biological sex, and even encourage a child to medically transition, forcing these families to speak against their core religious beliefs. 

5. Second, DCF infringes on Plaintiffs’ free-exercise rights through a policy that is not neutral or generally applicable,,,,  A foster parent must promise in advance to use opposite-sex pronouns and encourage a hypothetical child’s gender transition, even if they never have and never will host a child who struggles to accept their natural body....

120. Because DCF compels applicants to speak and express the DCF’s preferred views on human sexuality while prohibiting speech expressing other views it regulates speech based on content and viewpoint, it engages in unconstitutional viewpoint discrimination....

134. 110 C.M.R. 7.104(1)(d) is not neutral nor generally applicable because it imposes special disabilities based on religious beliefs, categorically excludes people from foster-care licenses based on religious beliefs, prefers certain religious and secular beliefs over the Plaintiffs’ religious beliefs, and provides for categorical and individualized exemptions without extending an exemption to religious persons like Plaintiffs.

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

Members of Healthcare Sharing Ministry Have Standing to Challenge Insurance Regulator

In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, (D NM, Aug. 25, 2025), a New Mexico federal district court held that two members of a healthcare sharing ministry that was barred from operating in New Mexico by insurance regulatory authorities have standing to challenge on free exercise grounds the regulator's order that ended the ministry's operation in the state. The ministry itself was originally also a party to the lawsuit, but it was dismissed because it was challenging the action in state court.

In refusing to dismiss at this stage for lack of standing, the court said in part:

... OSI acknowledges that Plaintiffs believe “they have a biblical obligation to help their fellow man when in need which is accomplished by sharing each other’s medical expenses.”...  Further, Plaintiffs present evidence—unrebutted by OSI— showing that OSI’s final order directing Gospel Light’s to cease operations tangibly interfered with their religious beliefs and practices. While Smith and Renteria admitted that they continue to pay into Gospel Light’s sharing ministry, they also testified that OSI’s final order prevented them from participating in other aspects of the program, including the ability to share in organized prayer networks which connected them to other Gospel Light members.... Importantly, Renteria stated that OSI’s actions caused her to switch her family to a different healthcare sharing ministry....

... OSI’s final order impacted Plaintiffs’ ability to fully participate in Gospel Light’s sharing ministry. That participation is a distinct part of Plaintiffs’ religious belief structure....

Plaintiffs’ statements raise a plausible inference that they share a concrete and particularized injury: the inability to utilize Gospel Light’s health sharing ministry to its full extent due to OSI’s final order. Because the scope of those injuries remains in dispute, summary judgment is inappropriate at this stage....

Pharmacists Sue for Religious Accommodation to Avoid Dispensing Gender-Affirming Drugs

Two Walgreens pharmacists filed suit last week in a Minnesota federal district court challenging the drug chain's refusal to accommodate their religious objections to dispensing drugs that facilitate gender transitions. Walgreens took the position that plaintiffs' long-standing arrangement to refer such prescriptions to other pharmacists to fill was now illegal under Minnesota law as administered by the state Board of Pharmacy.

The complaint (full text) (exhibits to complaint) in Scott v. Minnesota Board of Pharmacy, (D MN, filed 8/22/2025), alleges in part:

3. Walgreens was wrong about the law. Minnesota administrative rules require pharmacists to dispense or compound only those drugs that “may reasonably be expected to be compounded or dispensed in pharmacies by pharmacists.” Reasonable people understand that not every pharmacist or pharmacy sells every drug, for various reasons including supply shortages, insurance reimbursement rates, lack of demand in the community—or a pharmacist’s conscientious objections. 

4. Plaintiffs asked the State Board of Pharmacy to clarify that this is the correct interpretation of the Board’s rules. The Board refused, leaving Plaintiffs and other pharmacists like them in legal limbo and subject to adverse actions from employers like Walgreens. 

5. To any extent that Minnesota law does purport to require Plaintiffs to violate their religious convictions by dispensing or compounding certain drugs, it violates the Free Exercise Clause of the U.S. Constitution and the free exercise protections of Minnesota’s Constitution. Forcing individual pharmacists to violate their religious beliefs by dispensing drugs that are readily available from many other pharmacists is not narrowly tailored to advance any compelling government interest. Moreover, Minnesota permits many non-religious exceptions to any “must dispense” requirement, including for economic reasons and based on a pharmacist’s professional judgment about the risks and efficacy of a prescription. Refusing to allow religious accommodations therefore is neither neutral nor generally applicable.

KSTP News reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Supreme Court Review Sought by California Baker

A petition for certiorari (full text) was filed this week in Miller v. Civil Rights Division, (Sup. Ct., certiorari filed 8/26/2025). In the case, a California state appellate court held that a bakery, Cathy's Creations, and its owner violated the anti-discrimination provisions of California law when they refused to sell a predesigned cake to a customer because the cake would be used at a same-sex wedding reception. The California court rejected defendant's free exercise and free speech defenses. (See prior posting.) The California Supreme Court denied review. Washington Times reports on the petition seeking U.S. Supreme Court review.

LA Sued Over Its handling of Permit Application for Christian Revival Event

Suit was filed last week in a California federal district court by leaders of May Day USA, a nationwide Christian revival event, contending that the manner in which Los Angeles officials handed their application for a permit to hold a revival on Hollywood Boulevard violated their 1st and 14th Amendment rights. The 54-page complaint (full text) in Donnelly v. City of Los Angeles, California, (CD CA, filed 8/21/2025), alleges in part:

15. LAPD wielded the unconstitutionally unbridled discretion afforded it under the City’s permitting scheme to subject MayDay to lengthy and pretextual administrative hurdles....

16. Among the LAPD’s many demands was a requirement that MayDay conduct a petition of Hollywood Boulevard’s business owners and vendors to ensure at least 51% approved of MayDay’s expressive activity and speech....

19. The City’s permitting scheme thus enshrined an unconstitutional heckler’s veto upon MayDay and its expressive activities....

21. The City refused to provide MayDay with any concrete answer on its permit application until the last minute, prohibiting MayDay from finalizing their planned event, advertising it, or otherwise adequately preparing to engage in the event....

23. Three days prior to its requested event, the City denied the permit actually requested by MayDay ...and “granted” the application to host the event at a location ... it never requested and out of the site of the hecklers who Defendants believed would veto MayDay’s speech. In essence, the City tried to put MayDay unconstitutionally out of sight, and out of mind....

25. Simply put, the City said MayDay could speak, but only if it did it quietly, quickly, and where no one who might object would be forced to hear it. Defendants denied MayDay’s permit application on the basis of the views it planned to espouse and out of concern that Hollywood Boulevard was not an appropriate place for their religious speech, exercise, and expression.

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