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. 

Washington Bishops Sue Challenging Expanded Child Abuse Reporting Law

Last week, the Catholic bishops in Washington state filed suit challenging the constitutionality of a recently adopted amendment to the state's mandatory child abuse reporting law. The amendment requires clergy to report child abuse or neglect when they have reasonable cause to believe that it has occurred, even when a priest learns of the abuse or neglect in a confessional. The complaint (full text) in Etienne v. Ferguson, (WD WA, filed 5/29/2025) alleges in part:

1. Consistent with the Roman Catholic Church’s efforts to eradicate the societal scourge of child abuse, the Roman Catholic Archdiocese of Seattle and the Dioceses of Yakima and Spokane have each adopted and implemented within their respective dioceses policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect....

3. Yet despite these self-imposed reporting policies—policies that go beyond what Washington law requires—Washington is targeting the Roman Catholic Church in a brazen act of religious discrimination.  Without any basis in law or fact, Washington now puts Roman Catholic priests to an impossible choice: violate 2,000 years of Church teaching and incur automatic excommunication or refuse to comply with Washington law and be subject to imprisonment, fine, and civil liability....  Washington has done so at the same time that it expanded exemptions from mandatory reporting requirements for certain non-clergy.  The object of this law is clear: subject Roman Catholic clergy to dictates of the state. 

4. Putting clergy to the choice between temporal criminal punishment and eternal damnation, interfering with the internal governance and discipline of the Catholic Church, and targeting religion for the abrogation of all privileges, is a patent violation of both the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and a violation of Article I, Section 11 of the Washington Constitution.

The Pillar reports on the lawsuit.

State Court Order to Cooperate in Religious Divorce Cannot Be Challenged in Federal Trial Court Proceeding

In Azimi v. Worrell, (WD VA, June 3, 2025), plaintiff appearing pro se, challenged on Free Exercise and Establishment Clause grounds an order by a Virginia state trial court judge in plaintiff's divorce proceeding. The state court had ordered that plaintiff "cooperate with any and all actions and procedures necessary to accomplish a religious divorce pursuant to the Islamic Religion with all due speed and dispatch." A Virginia federal district court dismissed the case for lack of jurisdiction. The court invoked the Rooker-Feldman doctrine that bars federal courts from hearing cases that amount to appellate review of a state court judgment when plaintiff instead should have appealed through the state court system.

Suit Challenges Exclusion of Religious Training from Virginia Tuition Grant Programs

Suit was filed last week in a Viginia federal district court challenging the exclusion from Virginia's Tuition Assistance Grant Program and its National Guard Grants of educational programs that provide religious training or theological education. The complaint (full text) in Johnson v. Fleming, (ED VA, filed 5/28/2025), alleges that the exclusions violate the Free Exercise, Establishment and Equal Protection clauses.  The complaint reads in part:

297. Defendants’ religious exclusions violate the Free Exercise Clause several ways....

298. The government violates the Free Exercise Clause when it disqualifies otherwise eligible persons or organizations from receiving otherwise available government benefits “solely because of their religious character,”....

327. Because the VTAG and National Guard religious exclusions are not neutral or generally applicable, they trigger strict scrutiny....

335. So the State Council [of Higher Education] considers CIP Code 39 programs as too religious and excludes them from participation in the Tuition Assistance Grant Program. This requires the State Council to entangle itself in religious matters. 

336. The [Virginnia] Department [of Military Affairs] likewise does not deem religious majors at secular private schools and public schools to be for “religious training or theological education” and students who pursue those programs at those schools can receive a National Guard Grant. 

337. The Department favors students who pursue religious programs at secular private schools and public schools to the detriment of students who pursue religious programs at religious schools....

347. Defendants’ religious exclusions create arbitrary and irrational distinctions based on nothing more than government officials’ discretion about whether a certain program is too religious.

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

3rd Circuit: Fireman's Free Exercise and Title VII Challenge to Grooming Rules Should Move Forward

In Smith v. City of Atlantic City, (3d Cir., May 30, 2025), the U.S. 3rd Circuit Court of Appeals vacated a New Jersey federal district court's grant of summary judgment for Atlantic City in a suit by a fireman claiming violation of his free exercise rights and his right to reasonable religious accommodation under Title VII. However, the court affirmed dismissal of plaintiff's equal protection and retaliation claims. In the case, plaintiff who is a Christian challenged the city's requirements that prohibit him from growing a beard of any length, contending that the requirement violates his religious beliefs. Finding free exercise and Title VII reasonable accommodation violations, the court said in part:

Firefighters engaged in fire suppression face danger from smoke and fume inhalation. The City protects its firefighters by requiring them to don air masks in “hazardous” and  “confined” spaces.... These “self-contained breathing apparatuses,” or “SCBAs,” form a seal on the firefighter’s face to keep out hazardous air and pump in clean air....

... [T]wo exceptions—one practical exception and one discretionary regime—render the City’s policy not generally applicable. First, the City has long permitted administrative staff, all of whom are firefighters subject to the SCBA rule, to forgo fit testing...

Second, the City’s grooming regime has built-in discretion. Captains may “deviate” from the SCBA policy and permit any sort of conduct as long as they “bear[] full responsibility for the results of any deviation.” ...

Strict scrutiny is the appropriate standard in all free-exercise cases failing either Smith’s neutrality requirement or its general-applicability requirement....

But the City fails narrow tailoring. “[N]arrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest.”... The City could remove Smith from fire suppression duty as it did before 2020 or reclassify him as a civilian who is not subject to the SCBA and grooming policies. It could, as a simple fix, at least try and fit test Smith with facial hair to see if his facial hair, at any length, would interfere with the SCBA to a point that creates the risk of air leakage that the City fears. 

Judge Chung dissented in part, saying she would affirm the district court's dismissal of plaintiff's free exercise claim, because "the Grooming Standards are facially neutral and were applied equally to both religiously-motivated and secularly-motivated requests for accommodation...."

Judge Porter dissented in part, saying he would have upheld plaintiff's Title VII retaliation claim.

First Liberty issued a press release announcing the decision.

Suit Challenges Refusal to Recognize Ministers Ordained Online

Suit was filed last week in a Virginia federal district court challenging Augusta County and the City of Staunton's refusal to recognize ministers of the Universal Life Church who obtained ordination online as ministers authorized to perform marriage ceremonies under Virginia Code §20-23. Instead, they are required to register under §20-25 as a civil officiant which includes posting a $500 bond. The complaint (full text) in Universal Life Church Monastery Storehouse v. Landes, (WD VA, filed 5/22/2025) alleges that this violates the 1st and 14th Amendment, saying in part:

69. The Clerk defendants violate the Establishment Clause by interpreting and applying Va. Code Ann. §§20-23 and 20-26 to categorically deny ULC Monastery ministers the authority to solemnized marriages as religious officiants, solely because they were ordained by and are in regular communion with the ULC Monastery and not another approved religious society. This conduct impermissibly prefers certain denominations over others.....

77. Many of plaintiff ULC ministers ... choose to exercise their religion by officiating marriage ceremonies.... The Clerk Defendants' interpretation an application of Va. Code Ann. §§20-23 and 20-26 ... accordingly places an impermissible burden on Plaintiffs' religious practice in violation of the Free Exercise Clause....

84. ... The Equal Protection Clause prohibits intentional discrimination against similarly situated individuals and prohibits state action that burdens fundamental rights, including religious freedom.  Discrimination based on religious affiliation must survive strict scrutiny....

91. Defendants' actual and threatened enforcement of Va. Code Ann. §§20-23, 20-26 and 20-28 against ULC Monastery and its ministers burdens speech based on its content and viewpoint, and is accordingly subject to strict scrutiny....

Augusta Free Press reports on the lawsuit. 

[Thanks to Dusty Hoesly for the lead.] 

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Suit Challenges School District's Speech Policy

Suit was filed this week in an Oregon federal district court by a clinical social worker employed by an Oregon school district challenging the application of the district's Speech Policy to his display on a shelf in his office of three books that reject notions of transgender identity. The complaint (full text) in Theis v.  InterMountain Education Service District Board of Directors, (D OR, filed 5/21/2025), alleges in part:

He is He and She is She ... explain how every child should embrace and love herself exactly as God made her to be....

... [A]n employee at one of Mr. Theis’ schools saw the covers of the Books and complained that they were “transphobic.” IMESD labeled the display as “a hostile expression of animus toward another person relating to their actual or perceived gender identity” and ordered Mr. Theis to remove them. IMESD then warned him that “further conduct of this nature” may result in discipline, including termination of his employment....

2. Plaintiff is ... a professing Christian who bases his beliefs on the Bible and strives to live out his Christian faith at work and in the community.

3. Plaintiff’s sincerely held religious beliefs govern his views about all aspects of life, including human nature, sex, and gender....

217. Defendants’ censorship of Plaintiff’s display of the Books while permitting books and other decorations with different messages on related topics is content and viewpoint discrimination, which is unconstitutional in any type of forum....

220. Defendants’ Speech Policy and practice also impose an unconstitutional heckler’s veto because they permit the restriction of protected employee expression merely because school officials deem an employee’s expression “offensive” to others....

249. Plaintiff’s sincerely held religious beliefs motivated him to display the Books in his office. 

250. Defendants substantially burdened Plaintiff’s religious exercise when they forced Plaintiff to choose between exercising his religious beliefs and being dismissed or violating his conscience.

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

California Agrees to Consent Decree Allowing Sectarian Schools to Participate In IDEA

 As previously reported, last October the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of special needs children and by two Orthodox Jewish schools. The suit challenges as a violation of the Free Exercise and Equal Protection Clauses California's rules that preclude sectarian schools from receiving payments for special needs children under the federal Individuals With Disabilities Education Act (IDEA). This week, in the district court the parties filed a Joint Motion for Entry of Consent Judgment and Permanent Injunction in Loffman v, California Department of Education, (CD CA, May 19, 2025). The injunction bars California from enforcing requirements that schools be nonsectarian in order to participate in the IDEA program. Fox News reports on these developments.

Mass. Top Court Says Rastafarian Parents Can Bar Vaccination of Their Child Who Is In Temporary State Custody

In Care and Protection of Eve, (MA Sup. Jud. Ct., May 15, 2025), the Massachusetts Supreme Judicial Court held that the Department of Children and Families could not vaccinate a child in its temporary custody over the religious objections of the child's parents. The Department was granted emergency custody of the child two days after she was born following incidents of domestic violence by the husband against his wife. The couple's three other children had previously been removed because of domestic violence. They are being raised by a relative. At the custody hearing, the parents testified that their Rastafarian religious beliefs were to avoid Western medicine, including vaccines. The lower court held that the child's best interests outweighed the parents' religious beliefs. Massachusetts' highest court reversed the trial court's order that would have allowed vaccination. The Supreme Judicial Court said in part:

Parents who have temporarily lost custody of their child retain a constitutional right to direct the religious upbringing of the child.  When they object to vaccinations of their child on religious grounds, the department must demonstrate that allowing that child to remain unvaccinated would substantially hinder the department's compelling interest in the vaccinations.  As the Commonwealth allows religious exemptions from vaccination for parents who have not lost temporary custody of their children and the department has not demonstrated a consistent application of the vaccination requirement for children within its custody, even as between this child and her siblings, the department has not demonstrated that leaving this child unvaccinated would substantially hinder the department's compelling interests.

Employees' Suit Against School Board for Denying Religious Exemption from Covid Vaccine Moves Ahead

Decisions in suits by former employees who were denied religious exemptions from employer Covid vaccine mandates continue to be handed down by the courts.  Here is a recent example:

In Brandon v. Board of Education of the City of St. Louis, (ED MO, May 8, 2025), a Missouri federal district court in a 76-page opinion refused to dismiss 16 employees' free exercise, equal protection, Title VII and state human rights act claims against the St. Louis school board. However, damage claims against the superintendent and the chief human resource officer were dismissed on qualified immunity grounds. Plaintiffs all had requested religious exemptions from the Board's Covid vaccine mandate. The Board received 189 requests for religious exemptions from its 3500 employees. None of the requests were granted. The board granted between 40 and 50 disability and medical exemptions. The court said in part:

Defendants have failed to meet their initial summary-judgment burden of showing that no genuine dispute of material fact exists as to Plaintiffs’ sincere religious beliefs....

... [T]he very providing of exemptions rendered the contract not generally applicable because it “‘invite[d]’ the government to decide which reasons for not complying with the policy [were] worthy of solicitude.”...  For these reasons, the Court holds that the strict-scrutiny standard governs here....

Defendants point to three interests that Policy 4624 purportedly served: (1) education, (2) stemming the spread of COVID-19, and (3) promoting “the health, safety, and general welfare of students.”...

Defendants argue that Policy 4624 was necessary to providing “children of any and all backgrounds safe access to education, social mobility, and athletic, cultural[,] and social development.”...  The Court agrees that these interests are compelling. ...

But the Court disagrees that  Defendants have satisfied their summary-judgment burden and proven that Policy 4624 was narrowly tailored to serve those interests....

... [T]he Board could have granted every request for religious exemption, while still granting all the disability and medical exemptions that it granted, and achieved a total employee vaccination rate of between 93.1%  ... and 93.4%.....

In sum, the record at a minimum strongly indicates that the Board denied all religious-exemption requests wholesale, and Plaintiffs thus received vastly different treatment than their comparators did....

Plaintiffs marshal evidence that the Board denied Plaintiffs’ religious-exemption requests because the Board thought that the religious-exemption requests were less important than other exemption requests. With this evidence, Plaintiffs more than show that a genuine dispute of material fact exists as to whether Defendants unlawfully intended to discriminate against Plaintiffs based on Plaintiffs’ protected religious beliefs....

South Carolina Abortion Law Does Not Violate Free Exercise Rights

In Bingham v. Wilson, (D SC, May 7, 2025), a South Carolina federal district court refused to dismiss claims by five physicians that the health and fetal anomaly exceptions to South Carolina's abortion ban are unconstitutionally vague.  The court however dismissed plaintiffs' free exercise challenge. The court said in part:

Plaintiffs’ theory is that “South Carolina has made a value judgment that secular (e.g., procreative) motivations for ending a potential life are important enough to overcome its asserted general interest in preserving it, but that religious motivations are not.”... Accepting Plaintiffs’ argument would require this Court to accept that the performance of abortions is a religious practice protected by the Free Exercise Clause of the First Amendment....

... Plaintiffs’ argument hinges on a finding that the Abortion Ban favors “secular conduct” over “religious conduct” by permitting limited exceptions (with the effect of undermining the State’s interest in preserving life), but prohibiting such exceptions in unenumerated circumstances where the Abortion Ban infringes upon their free religious exercise.  The Court finds this argument unpersuasive.  The State has a legitimate interest in both fetal and maternal health and exercised its plenary authority in enacting legislation that considers these interests....

Student's Suit Against University President for Antisemitism Needs Additional Allegations

In Gerwaski v. State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education, (D NV, May 5, 2025), a Jewish student at University of Nevada Las Vegas sued the university and its president over antisemitic treatment.  The court dismissed all claims against the University on 11th Amendment grounds except those under Title VI and Title VII. Several claims, including plaintiff's free exercise claim, against University President Whitfield were dismissed, but without prejudice so that plaintiff could refile them alleging additional facts.  According to the court:

Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times.  Gerwaski serves in the UNLV student government and was hired as an employee at the UNLV Lied Library in June 2023.  Gerwaski alleges that he was asked inappropriate questions about his Jewish heritage and sexual orientation during the library’s onboarding process and that he was “unjustly terminated” from that job in August 2023, “as a result of the blatant disparate treatment and antisemitism that was exhibited by supervisors.”...  Gerwaski has also been exposed to verbal assaults by protesting members of [Nevadans for Palestinian Liberation] who made hateful antisemitic comments to him.  Gerwaski has chosen to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus....

Whitfield argues that Gerwaski does not plausibly allege a free exercise claim because he alleges only that verbal harassment by non-parties caused him to choose to cover his kippah, not that Whitfield acted to burden his rights.  Gerwaski responds that Whitfield fomented and encouraged antisemitic behavior on campus and ignored Gerwaski’s complaints, leading Gerwaski to begin covering his kippah....  

... Gerwaski attempts to tie Whitfield’s toleration of protestors on campus to Gerwaski’s feeling that it was necessary to cover his kippah with a baseball cap to avoid conflict with those protestors.  However, Gerwaski’s free exercise claim must be based on government action that substantially burdens his religion, not the actions of non-parties.... I grant Gerwaski leave to amend this claim against Whitfield if he can plausibly allege additional facts to support the claim and tie those facts to an ongoing constitutional violation for which he seeks injunctive relief. 

Church's Removal of Congregant from Services Did Not Violate 1st Amendment

 In Devi v. Sacramento Bhartiya Sabha, (ED CA, May 2, 2025), a California federal magistrate judge recommended dismissal of a suit against a church and the city by plaintiff who was removed from a church service by police serving her with a trespass notice at the request of church board members. The court said in part:

Plaintiff alleges that the Board of Trustees and the President of the Church defendant prohibited her from entering the Church and “exercising her rights to freely practice her religious beliefs and to her rights to free speech” under the First Amendment....  She alleges that she was removed from the Church because the Church defendant did not approve of plaintiff’s opinions and questions and was attempting to stop her from stating these opinions....  She alleges the Church defendant retaliated against her by preventing her from attending services because she expressed her opinions and concerns about the Church’s finances....

To state a claim for a violation of the First Amendment, plaintiff must allege facts sufficient to show that defendants acted under the color of state law....

In order to successfully bring her claim, plaintiff has to show that there is significant state involvement in the private party’s actions.  Plaintiff has made no allegations that the Church defendant’s alleged decision to exclude her from the Church is a “traditionally and exclusively governmental” function.  She also still has not demonstrated that there was “significant” state involvement in the Church defendant’s decision to remove her from the Church.  Based on plaintiff’s allegations, the Church decided to call the police to remove plaintiff from the Church premises because she was trespassing.  To the extent plaintiff is alleging that the Church defendant was a state actor because it had plaintiff removed by the City of Sacramento Police Department, “merely complaining to the police does not convert a private party into a state actor.”

Court Upholds School's Policy on Use of Students' Preferred Names and Pronouns

In Willey v. Sweetwater County School District #1 Board of Trustees, (D WY, April 28, 2025), a Wyoming federal district court upheld against due process and free exercise challenges a school district's policy requiring teachers to use students' preferred names and pronouns. A student's request to use a different name or pronoun was to be disclosed to the student's parent or guardian only if the parent or guardian affirmatively requested the information. Plaintiff challenged the policy both as a parent and as a teacher in the school system.  The court said in part:

Plaintiff asserts that she is not “alleging a right to receive generalized updates,” but rather a right to make “decisions about the children’s well-being.... However, according to Plaintiffs logic, if a parent is not already aware of their child’s use of preferred name or pronouns, then in order to make those decisions, the school would have an obligation to proactively inform the parent. Within this right as defined by Plaintiff, Plaintiff cannot prevent placing an affirmative obligation on the school to inform parents of any circumstance that occurs in school that might affect a child’s “well-being.” Such a finding would expand parental rights beyond their own decision-making rights to place affirmative obligations on other parties that care for their child. The Supreme Court has made clear that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”...

Plaintiff asserts she has a right not to have information regarding her child’s gender identity withheld. The Court agrees. However, the Court does not think the information can properly be deemed “withheld” to infringe on parental rights unless a parent inquired into or sought the information and it was intentionally concealed or they were lied to....

Plaintiff alleges that Defendants significantly burdened her “sincerely held religious beliefs by preventing her from acting pursuant to her religious belief that it is the parents who have the duty to train their children regarding human sexual identity and the unchangeable natural created order of humans as male and female.”...

However, a person’s constitutional right to freely exercise their own religious beliefs does not require that the state also exercise those same religious beliefs....

Even if Plaintiff could show that her sincerely held religious beliefs were in fact burdened ..., the policy that existed while Plaintiff's child was in school in the District is a neutral policy of general applicability....

Plaintiff additionally alleges that her sincerely held religious beliefs related to gender identity, parental involvement in decision-making, and truth-telling prohibit her from complying with the District’s PNCPs as a teacher. ...

... Plaintiff sets forth no evidence that the 2023-24 [Policy] provided for anything other than exemptions “for any reason” rather than individualized exemptions that requires government consideration of the particular reasons. There is no devaluing of religious reasons because exemptions may be made “for any reason.”...

 A policy which provides exemptions “for any reason” without any subjective government assessment remains a neutral law of general applicability.

This decision follows on an earlier decision in the case that denied a preliminary injunction as to most of plaintiff's claims. (See prior posting.) Cowboy State Daily reports on the most recent decision.

Supreme Court Today Hears Arguments on Funding of Religious Charter Schools

The Supreme Court will hear oral arguments this morning in Oklahoma Charter School Board v. Drummond, consolidated for oral argument with St. Isidore of Seville Catholic Virtual School v. Drummond which stemmed from a separate petition for review filed by an intervenor in the same case. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The petitions for review contend that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause despite Establishment Clause concerns, and that religious instruction by a state-funded charter school does not constitute state action. The SCOTUSblog case pages for the two cases, with links to the petitions, briefs, amicus briefs and commentary are here and here.

Oral arguments, which begin at 10:00 AM will be live-streamed at this page. A transcript and audio recording of the arguments will become available later today here.  NEA Today reports on the upcoming oral arguments.

UPDATE: A transcript and audio of today's oral arguments are now available here. The Hill has a lengthy report on the arguments.