6th Circuit Questions Whether "Secular Purpose" Is Still Part of Establishment Clause Compliance

 In Gordon v. City of Hamtramck, (6th Cir., Aug. 21, 2026), the U.S. 6th Circuit Court of Appeals rejected Free Speech, Establishment Clause and Equal Protection challenges to a city Ordinance that changed the rules on what flags could be flown from a group of 18 city-owned flag poles. The flag poles historically were maintained by the city's Human Relations Committee (HRC). Originally, the city would fly any flag a resident requested. After the HRC honored a resident's request to fly the Pride flag, City Council passed a Resolution limiting flags that could be flown to the American, Michigan, Hamtramck, and Prisoner of War flags, and the flags of nations representing Hamtramck’s international character. When two members of the HRC, in defiance of this Resolution, again flew the Pride flag, they were removed from the HRC and the HRC's authority over city flag poles was removed. The two HRC members sued. The court said in part:

Before Resolution 2023-82, we assume without deciding that the flagpoles conveyed private speech and that they were a designated public forum.  But because we conclude that Resolution 2023-82 closed the flagpoles as a forum for private speech, we hold that the plaintiffs’ free-speech claim fails....

Gordon and Stackpoole ... altogether ignore Kennedy and do not attempt to grapple with its effects on Establishment Clause jurisprudence.  Instead, they cite Lemon and its progeny for the proposition that legislation must have a secular purpose...

... [A]lthough Kennedy recognized the abrogation of “Lemon and its progeny,” ...  it is unclear if it disturbed the Court’s pre-Lemon Establishment Clause case law that requires government action to possess a secular purpose....

Councilmember Choudhury’s statement, during an hours-long hearing, that “we have to respect the religious,” ...  fails to demonstrate that Resolution 2023-82’s primary purpose was to advance religion....

The court also concluded that plaintiffs had forfeited their Equal Protection claim by not developing the claim on appeal.

Judge Thapar filed a concurring opinion, saying in part:

The Resolution doesn’t resemble any founding-era hallmarks of established religion.  The City hasn’t exerted any control over religious belief or exercise by limiting the content of its flag display.  Even assuming religion motivated certain City Councilmembers to pass the ordinance, the City hasn’t compelled its residents to proclaim any religious creed or adopt those Council members’ beliefs.  Rather, Hamtramck’s residents remain free to express their contrary views....

... The Supreme Court couldn’t have been any clearer—Lemon is dead.  But the majority cracks the door open for the ghost of Lemon to keep haunting the Sixth Circuit.  That crack risks subjecting future Establishment Clause plaintiffs to an amorphous test “flawed in its fundamentals, unworkable in practice, and inconsistent with our history and our precedents.”... [W]e should recognize what our sister circuits have already understood:  Any inquiry into whether the government acted with a secular purpose has no place in Establishment Clause jurisprudence.

Satanic Temple Sues Over Denial of Use of Iowa Capitol Rotunda for Holiday Events

In Iowa, private organizations and individuals may request use of space on the Capitol Grounds, including the Capitol Rotunda, for events that are open to the public. Earlier this month, The Satanic Temple filed suit in an Iowa federal district court alleging that applications for holiday events they have filed have been denied in violation of the organization's 1st Amendment rights and its rights under Iowa law. The complaint (full text) in The Satanic Temple, Inc. v. Campbell, (SD IA, filed 8/13/2026), alleges in part:

11. The First and Fourteenth Amendments protect TST-Iowa’s right to expression. Defendants’ ongoing exclusion of TST-Iowa from engaging in protected religious speech, grounded in their beliefs of Satanism and the governing tenets of TST, at the Rotunda is based on their religious viewpoint. This exclusion constitutes impermissible viewpoint discrimination and is presumptively unconstitutional. The exclusion is also a content-based restriction and is not narrowly tailored to, or the least restrictive means of, achieving a compelling interest.... 

12. The First and Fourteenth Amendments and the Iowa Religious Freedom Restoration Act (“Iowa RFRA”) protect TST-Iowa’s right to freely exercise their religion. By denying TST-Iowa’s applications to hold an event at the Rotunda because of their religious beliefs, Defendants have violated their clearly established constitutional and statutory right to the free exercise of religion, and this exclusion cannot survive strict scrutiny.  

13. Additionally, by allowing other religious events, but prohibiting TST-Iowa’s events, Defendants have engaged in unlawful disparate treatment against TST-Iowa based on their religion, protected speech, and membership in a suspect class. This exclusion cannot survive strict scrutiny and violates the Equal Protection Clause of the Fourteenth Amendment.  

14. Finally, Defendants have also violated TST-Iowa’s statutory rights under the Iowa Civil Rights Act (“ICRA”). For the past two years and on an ongoing basis, Defendants have discriminated against TST-Iowa by denying them services and public accommodations, both (1) on the basis of their religion and/or their perception of their religion and (2) in retaliation for their prior reports of discrimination.....

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

Police Enforcement of Rules Set by Farmers' Market Does Not Support a Section 1983 Action

In Conwell v. City of Benson, Minnesota, (D MN, Aug. 14, 2026), a Minnesota federal district court denied a motion for a temporary restraining order filed by an anti-abortion preacher who was cited for trespass by police after he insisted on evangelizing at a privately-run farmer's market held on city property without registering as a vendor and paying a vendor's fee. The court held that there was insufficient state involvement to support a claim under 42 USC §1983, saying in part:

... Conwell was initially approached by a volunteer working for the Market.  Then, he was approached and cited by city police working in their official capacity.   

The Court finds that Conwell is unable to show a likelihood of success on these facts.  Neither the City nor the police were involved in the creation of the Market’s vendor rules.  The police did not plan to enforce these rules by providing routine security....  The police merely responded to a call from a private citizen who volunteered at the Market.  Had Conwell ... followed the volunteer’s instruction, there would be no police involvement.  Conwell cannot manufacture a § 1983 claim by refusing to follow the Market’s rules, necessitating the involvement of police.  

Without a strong showing on the merits, the extraordinary measure of a preliminary injunction is inappropriate....

Teacher's Free-Speech Rights Not Infringed by Requirement to Use Students' Preferred Names and Pronouns

In Ellis v. The Brooke Charter Schools, (D MA, Aug. 13, 2026), a Massachusetts federal district court rejected claims by a public charter high school teacher that her free-speech rights were infringed when she was dismissed for refusing on religious grounds to comply with the school's requirement that teachers use students' preferred names and pronouns. While the firing was triggered by the teacher's refusal to use a former student's preferred pronouns in a requested letter of recommendation, the teacher's lawsuit alleged that the firing was because of her refusal to comply more broadly with the school's policy. The court said in part:

... [T]he Court finds that ... the requirement that Plaintiff comply with the BCS policy to use students’ preferred names and pronouns, was part of Plaintiff’s official duties as a BCS employee.... [A]ddressing students, particularly in the classroom, is essential to teaching.  A teacher’s official job-related duties, for which she is compensated, require her to communicate with students at her place of employment, including by addressing them in accord with school policy. ...

... [T]o teach effectively, which is inherent in the job duties, requires a teacher to interact with students in a way that does not create a barrier to learning or an unnecessary distraction....

With regards to the letter of recommendation, which again is not the basis of Plaintiff’s free speech claim, although writing letters of recommendation may not be part of a teacher’s principal responsibilities—that is, instructing students on academic curriculum—it is still within the realm of a teacher’s traditional and typical duties.  Recommendation letters are typically written about and derived from knowledge of a student’s classroom performance, communicated via official school channels such as email or letterhead....

The Court, however, need not reach a conclusion as to whether the speech that Plaintiff would have made in connection with the recommendation letter referenced in her complaint would have been a part of her official duties because Plaintiff does not specifically allege or otherwise argue that her refusal to write the letter was the reason for her termination or the basis for her free speech claim....

Further, even if Plaintiff’s speech fell outside of her official duties, her speech did not involve a matter of public concern.... Put simply, “the act of referring to a particular student by a particular name does not contribute to the broader public debate on transgender issues.”...

The school did not ask the court to dismiss plaintiff's free exercise claims.

Fellowship of Christian Athletes Sues to Challenge School's Ban on Outside Adults at Student Religious Club Meetings

Suit was filed this week in a New Jersey federal district court by the Fellowship of Christian Athletes (FCA) challenging a New Jersey school district's ban on outside adults attending on-campus meetings of student religious groups. The ban was put in place after a complaint from the Freedom from Religion Foundation.  Fellowship of Christian Athletes organizes student chapters called "huddles" in which students pray, engage in Bible study, support one another in their faith and athletics, and eat pizza. FCA staff and adult volunteers also attend the huddles. The complaint (full text) in Fellowship of Christian Athletes v. Board of Education of the Hopewell Valley Regional School District, (D NJ, filed 8/11/2026), alleges in part:

... [T]he District’s new religious-clubs-only volunteer ban does indeed discriminate against religious clubs and single them out for disfavored treatment. While FFRF had claimed that FCA’s adult supporters were being given “unique access” to students, this is simply false. The District expressly permits adult visitors on its campuses for a variety of different reasons. And other non-religious student groups are allowed to—and regularly do—take advantage of this permission as a matter of course....

... FCA’s student leaders want to meet with fellow students and adult volunteers on campus so they can model to fellow students and coaches what it looks like to follow Christ in their school communities—something they cannot do if they’re forced to meet elsewhere.  

Having adult staff and volunteers present on campus is also critical to FCA’s religious mission because it allows FCA to see how student leaders are doing and give the students invited feedback and guidance....

Plaintiffs allege that the school's action violates their free exercise, free speech and equal protection rights as well as the federal Equal Access Act and the New Jersey Law Against Discrimination. 

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

Suit Challenges Illinois End of Life Options Act

Suit was filed yesterday in an Illinois federal district court by four Catholic doctors, a Catholic bishop and a Lutheran skilled nursing facility objecting to the requirement that they comply with Illinois' recently enacted End of Life Options Act. The complaint (full text) in Kirchoff v. Treto, (ND IL, filed 8/11/2026), alleges in part:

... Illinois’s “End-of-Life Options” Act ...—which takes effect on September 12th—both legalizes assisted suicide and mandates that doctors who conscientiously object to it nonetheless promote its alleged “benefits” to “terminally ill” patients and, if requested, refer or transfer those patients to someone who is “able and willing” to help them commit suicide..... 

Illinois’s conscription of objecting practitioners into its new assisted suicide regime blatantly violates the First and Fourteenth Amendments. Indeed, EOLO plainly compels or restricts speech based on content and viewpoint by requiring such practitioners to (a) discuss assisted suicide’s alleged “benefits” and make specific “referrals” for the same....

EOLO also violates the First Amendment right of expressive association by forcing health care entities to hire and otherwise associate with health care professionals who promote or even directly participate in assisted suicide. 

EOLO additionally violates the First Amendment’s protection for the free exercise of religion and church autonomy. Put simply, requiring only a narrow class of “health care professionals” to discuss the “benefits” of and “refer” for assisted suicide with respect only to “terminally ill” patients, contrary to those professionals’ deeply held religious beliefs, is neither neutral nor generally applicable. And requiring health care entities to hire and retain employees who promote and even participate in assisted suicide violates the internal governance of religious institutions in deciding whom they authorize to carry out their religious mission to save and promote the dignity of every patient’s life....

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

Suit Challenges Town's Refusal to Permit Nativity Display on Town Square

Suit was filed last week in a New York federal district court challenging an upstate New York town's refusal to permit placing of a privately-sponsored nativity display in the town square during the Christmas season. The complaint (full text) in Polverino v. Town of Brighton, New York, (WD NY, filed 7/21/2026), alleges that the town every year permits a Menorah display sponsored by Chabad Lubavitch, while Brighton town officials have ignored, evaded and effectively denied plaintiff's Nativity display requests for more than two years. Plaintiff alleges that this violates his free speech and free exercise rights, as well as the 1st Amendment's Establishment Clause and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

9th Circuit: School Social Worker's Office Display Was Government Speech Subject to School Regulation

In Theis v. Intermountain Education Service District Board of Directors, (9th Cir., July 21, 2026), the U.S. 9th Circuit Court of Appeals in a 2-1 decision upheld an Oregon federal district court's determination that a school district could bar a school social worker from displaying, when students are in his office, books that the school found to be hostile toward transgender individuals. The majority held that plaintiff's display was not protected by the First Amendment because it is government speech. The court said in part:

First, Theis’s speech occurred within the scope of his professional role.  It was confined to the environments—his offices—in which he was assigned to perform his duties and to times when he was with students.  And Theis does not dispute that his speech was aimed at students.  This case is therefore distinguishable from those in which a school employee engages in the challenged speech off school grounds or while performing tasks unrelated to the school’s ordinary operations, and from cases in which the employee does not direct his speech to students.... 

Second, and most importantly, Theis’s speech “owes its existence to his position” in the IMESD schools.... Theis displayed the books in his offices where he interacted with students as part of his assigned duties, and the displays were visible to those students during evaluations and meetings... 

This case is different [from the Supreme Court case of Kennedy v. Bremerton].  Theis’s display of books occurred in the course of performing his assigned duties and in a setting where he was responsible for interacting directly with his students.  Unlike Coach Kennedy, who was off the clock, Theis was not engaged in a moment of private expression detached from his role.  To the contrary, he was engaged in his core professional responsibilities.... 

Judge VanDyke filed a dissenting opinion, saying in part:

... [E]exactly no one believes the majority’s legal fiction—that anything seen by students on school grounds is necessarily government speech or perceived as such.  When a student sees personal materials hanging in a teacher’s office, they naturally identify that ornamentation as reflecting the teacher’s own personal views....  A free and open American society appropriately recoils at the prospect of public-school teachers becoming involuntarily conscripted apparatchiks of any administration’s particular orthodoxy....

The fact that Theis’s speech was private expression does not render it immune from government regulation.  When a government employee speaks in his personal capacity, he can only invoke the protections of the First Amendment if he can show that he spoke “on a matter of public concern.”...  If this burden is met, courts engage in “a delicate balancing of the competing interests ... [to determine] whether an employee’s speech interests are outweighed by “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

 ... [I]n this case, nothing could support the conclusion that the government’s interest in efficiently operating its public schools outweighed Theis’s speech interest.... [A]fter three years of Theis’s use of the books in decorating his office, the record contains no evidence whatsoever of “actual, material, and substantial disruption” in the school.... The only negative reaction to the books... all originated from a single, adult teacher who saw “the books in [Theis’s] office, researched them online, and then determined they were offensive.”...

[Thanks to Thomas Rutledge for the lead.]

Catholic Sisters Sue To Invalidate New York's Assisted Suicide Counseling Requirement

Last week, four Orders of Catholic Sisters along with the Catholic Diocese and Bishop of Rockville Centre, New York, filed suit in a New York federal district court challenging, at least as applied to them, the constitutionality of New York's Medical Aid in Dying Act as it interacts with the state's Palliative Care Information Act. Labelling these a "Suicide Counseling Mandate", the 102-page complaint (full text) in Carmelite Sisters for the Aged and Infirm, Inc. v. James, (ND NY, filed 7/17/2026) alleges in part:

13. The many New York nurse practitioners, doctors, mental health professionals, hospitals, and care homes with religious or moral objections to participating in assisted suicide will have nowhere to go, because New York’s purported “opt-out” is among the narrowest in the nation, and doesn’t apply at all to independent assisted living facilities, including those run by the Benedictine Sisters. The Catholic patients who wish to die without being offered the chance to kill themselves at their lowest moment will be left out in the cold.....

15. First, the First Amendment’s protected sphere of church autonomy requires the government to respect and stay out of matters of governance within religious institutions, such as how the Catholic Church chooses to implement its beliefs on the sanctity of human life and the decision of religious communities to form themselves around those same principles. 

16. Second, its protection of the free exercise of religion prohibits the government from burdening the sincere religious beliefs of Plaintiffs and the patients they serve unless the state is furthering an interest of the highest order and using the least restrictive means to do so—an exceedingly high bar Defendants cannot meet.  

17. Third, its protections against religious gerrymanders prohibit the government from enacting legal burdens that fall uniquely on religious adherents—such as those who object to providing assisted suicide. 

18. Fourth, its protections against compelled speech prevent the government from forcing Catholic doctors and nurses to speak the government’s preferred, supportive message of assisted suicide. 

19. And fifth, its protections for freedom of association allow the Catholic Church, its various communities, and the patients they serve, to organize themselves into like-minded communities with the same values and beliefs—the mission of which is to live faithfully according to those beliefs, for however long or short a time....

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

Suit Seeks Accommodation for Christian Library Employee Who Objects To Using Co-Workers' Preferred Names and Pronouns

Suit was filed yesterday in a Louisiana federal district court by a Library Technician who was fired for refusing to comply with the library's Inclusivity Policy that requires employees to refer to fellow employees by their chosen name and pronoun.  Plaintiff Luke Ash is also a Christian pastor. The complaint (full text) in Ash v. City of Baton Rouge Louisiana, (MD LA, filed 7/9/2026) alleges in part:

Ash has sincerely held religious beliefs that God created mankind in his own image, and that each individual is created either male or female.... Ash also has sincerely held religious beliefs that biological sex is immutable....  Because of his sincerely held religious beliefs, Ash has sincere religious convictions and beliefs that referring to a person by pronouns inconsistent with their biological sex both dishonors God’s design for that person and constitutes a lie and a grave sin....  Ash believes that he is compelled to tell the truth, even to those who may disagree....

Ash had never, at any point, referred to any co-worker directly using pronouns inconsistent with their preference, and he had certainly never done so after being told by such individual that the pronoun he used was incorrect....

Ash contends that his firing violated his federal and state free speech, free exercise and equal protection rights and that under Title VII the Library was required to provide him a reasonable accommodation from the Inclusivity Policy. The complaint alleges in part:

Permitting Ash to maintain respectful communications to those with whom he interacts at the Library while maintaining compliance with his sincerely held religious beliefs would have been a reasonable accommodation that would impose no hardship whatsoever on the Defendants or the Library. 

The complaint also asks for an injunction barring enforcement of the Inclusivity Policy and asks for reinstatement of plaintiff. Liberty Counsel issued a press release announcing the filing of the lawsuit.

8th Circuit Remands Case That Invalidated Conversion Therapy Bans

In Wyatt Bury, L.L.C. v. City of Kansas City, Missouri, (8th Cir., July 2, 2026), the U.S. 8th Circuit Court of Appeals sent back to the district court a case in which the district court had upheld most of ordinances passed by Kansas City and Jackson County that prohibited mental health professionals from providing conversion therapy to minors. The court said that the remand was appropriate in light of the U.S. Supreme Court's intervening decision in Chiles v. Salizar. The court said in part:

Chiles addressed a free speech challenge to a Colorado statute similar to the Counseling Ordinances at issue here.  The Court rejected Colorado’s theory that its statute regulated professional conduct and not speech....  And it concluded that the Colorado statute triggered strict scrutiny because it regulated content and discriminated based on viewpoint.... Notably, Kansas City and Jackson County pressed the same speech-conduct distinction the Supreme Court rejected in Chiles before the district court and before us, and this distinction featured prominently in the district court’s order.

The Pathway reports on the decision.

1st Circuit Upholds Maine's Antidiscrimmination Rules For Religious Schools Except Its Religiouis Expression Nondiscrimination Requirement

Last week, the U.S. 1st Circuit Court of Appeals issued opinions in two cases raising similar, but not identical, challenges to the antidiscrimination requirements of Maine's Human Rights Act. The schools particularly focused on provisions barring religious discrimination and discrimination on the basis of sexual orientation and gender identity.  The Act applies to private schools that receive public funding, such as funding under Maine's tuition assistance program.

In St. Dominic Academy v. Makin, (1st Cir., July 2, 2026), the court in a 108-page opinion, held that the employment nondiscrimination rule "does not credibly threaten to injure St. Dominic".  The court said in part:

While the rule generally bars schools from employment discrimination based on religion, sexual orientation, or gender identity, the MHRA contains two specific carveouts for religious schools that apply regardless of whether a school participates in the tuition-assistance program.  First, section 4553(4) expressly protects a religious school's ability to discriminate "with respect to employment of its members of the same religion, sect or fraternity."... Second, section 4573-A(2) allows a religious school to "require that all applicants and employees conform to [its] religious tenets."

The court also held that neither the ban on religious discrimination in admissions nor the ban on sexual orientation and gender identity discrimination trigger strict scrutiny. The court said in part:

[T]he Religious Nondiscrimination Rule does not exclude any school solely because of its religious character.  Rather, the rule excludes a school because it discriminates against students on the basis of the students' religion, a practice that is neither uniquely religious nor uniquely tied to religious schools.... In short, the State is simply saying that a school in Maine, whether religious or not, cannot accept public funds while simultaneously putting up, for example, a "No Protestant Children Need Apply" sign....

... [T]he record does not suggest that religious schools, by their nature, engage in sexual-orientation or gender-identity discrimination.... Simply put, barring sexual orientation and gender identity discrimination does not exclude religious schools from the tuition-assistance program solely based on their religious character....

Just as combatting religious discrimination qualifies as a legitimate governmental pursuit, so too combatting sexual-orientation and gender-identity discrimination rises to the level....  And the imposition of liability for sexual-orientation or gender-identity discrimination on those schools that accept public funding rationally relates to those antidiscrimination goals, as does the requirement that such schools respect students' expression of their gender identity....

The court, however, ordered the trial court to issue a preliminary injunction barring enforcement of the rule that  provides "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in doing so." The court said in part:

St. Dominic, as part of its religious mission, requires students to attend religion classes, Mass, and other religious activities.  These activities necessarily entail some degree of student participation.  Even under the Commissioner's reading of the Religious Expression Rule, then, if a preacher at a school-mandated Mass permits students to say "Amen" in order to signify agreement, St. Dominic would then be required to allow expressions of disagreement.  And in the classroom, inculcation often solicits -- indeed encourages -- affirmation, for example in the form of an iterative exchange of expression.  Few would teach the Lord's Prayer without having the students recite it; and under the Religious Expression Rule that recitation would, in turn, appear to require the school to allow the reciting of, for example, the Hare Krishna Mahā mantra.  And while such an example may seem fanciful, the point is that the Religious Expression Rule would inevitably interfere with a religious school's ability to foster an expressive environment consistent with its religious mission.....

Here, the Religious Expression Rule is facially nonneutral because it singles out "religious expression." ...

In Crosspoint Church v. Makin, (1st Cir., July 2, 2026), the court considered additional challenges to Maine's antidiscrimination rules as they apply to religious schools. Crosspoint Church contended that 2021 amendments to the state's anti-discrimination laws were a response to the Supreme Court's decision in Carson v. Makin that required Maine to include religious schools in its tuition assistance program.  The court said in part:

The State likely adopted the 2021 Amendments at least partially in response to the Carson litigation.  But we will not infer something as sinister as an "express[] design[]" to discriminate against a specific religious entity where Maine offers a quite logical and compelling rationale for the amendments' structure and timing: 

If [the State's] Legislature anticipated that the [Carson] litigation might result in [the State] being prohibited from excluding religious schools from [public funding], it would have been entirely appropriate to then make the same distinction in education as the Legislature did [years earlier] for employment and housing and require religious organizations that accept public funds to comply with [all antidiscrimination rules]. 

Thus, just as we concluded in St. Dominic that the plaintiffs there had not shown that general antireligious animus likely motivated the 2021 Amendments,... so too do we hold here that Crosspoint has not shown that specific anti-BCS animus motivated the same amendments....

The court also rejected Crosspoint's free expression claims, saying in part:

The Sexual Orientation and Gender Identity Nondiscrimination Rule, Crosspoint contends, regulates speech because it would "require BCS to affirm a student's gender identity and sexual orientation," even though it would "violate[] BCS's statement of faith to admit a student or allow a student to remain enrolled who violates BCS's statement of faith by presenting as a gender not consistent with his or her biological sex."...

... [H]ere, Crosspoint seeks to refuse admission to (and expel) any student who is gay or transgender, irrespective of that student's speech.  Although such refusal may express Crosspoint's views regarding sexual orientation and gender identity, and the Sexual Orientation and Gender Identity Nondiscrimination Rule would interfere with that expression, that does not transform the rule into a speech regulation....

Supreme Court Review Sought by Teacher Who Objects to School's Gender identity Policy

 A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Polk v. Montgomery County Public Schools, (Sup. Ct., cert. filed 6/26/2026). In the case, the U.S. 4th Circuit Court of Appeals upheld the denial of a preliminary injunction sought by a substitute teacher who objected on free speech and free exercise grounds to a Maryland school district's Guidelines for Student Gender Identity. (See prior posting.) The petition for review poses the Questions Presented as:

1. When public schools try to force teachers, over their religious objections, to use pronouns inconsistent with a student’s biological sex and to hide from parents information about their child’s gender expression at school, does Smith apply and foreclose heightened scrutiny under the Free Exercise Clause?  

2. Do public schools violate the Free Speech Clause when they compel objecting teachers to adhere to such a school policy?

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

Parents Sue California School District Over Opt-Out Rights

Suit was filed this week in a California federal district court challenging a California school district's refusal to allow parents to opt their children out of LGBTQ+ instruction that conflicts with the family's religious beliefs. Plaintiff parents contend that the Supreme Court's 2025 decision in Mahmoud v. Taylor gives them the right to opt their children out of this instruction. The complaint (full text) in Taylor v. Sunnyvale School District, (ND CA, filed 6/22/2026), alleges in part:

12.... As devout members of The Church of Jesus Christ of Latter-day Saints, they, like “[m]any Americans,” including the parents in Mahmoud, “believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly.”...  

13. The Taylors also believe that Sunnyvale’s curriculum is age-inappropriate and inconsistent with their religious beliefs, practices, and child-raising philosophies, and that forcing their children to participate in Sunnyvale’s LGBTQ+ instruction will undermine their efforts to raise their children in accordance with their religious beliefs....

18. ... [A]fter months of cordial conversation, Sunnyvale abruptly reversed course and denied the Taylors’ request for notice and opt-outs, stating in a letter that LGBTQ+ instruction “is not optional and is not subject to parent opt-out provisions.” ...  According to Sunnyvale, “the U.S. Supreme Court’s decision in Mahmoud v. Taylor … addressed a specific set of facts in another state,” did not create a “general or automatic right for parents to opt their children out of required curriculum,” and “does not override California’s statutory requirements governing instructional content.”... With that, the denial letter concluded that Sunnyvale is “not granting opt-outs from LGBTQ+-inclusive curriculum or storybooks that are part of our adopted educational program.”...

Plaintiffs contend that the school's refusal violates their parental right to control the education of their children as well as their free exercise and free speech rights. Becket Fund issued a press release announcing the filing of the lawsuit.

Nassau County Buffer and Bubble Zones Around Houses of Worship Violate Free-Speech Rights

In Borecky v. County of Nassau, (ED NY, June 18, 2026), a New York federal district court issued a preliminary injunction barring enforcement of the Nassau County Religious Safety Act. The law prohibits picketing, literature distribution or oral advocacy within 35 feet of a place of religious worship (Buffer Provision). It also creates a bubble zone of 100 feet around a place of religious worship in which an advocate may not, without a person's consent, approach within 10 feet of a person to engage in oral advocacy, deliver literature or carry signs (Bubble Provision). Plaintiffs were advocates for immigrant rights. The court (in its 63-page opinion) said in part:

If the goal is to avoid harassment, intimidation, violence, or threatening speech, the County could have drafted a law that criminalized such conduct.  It need not have also banned peaceful conversation, polite exchange, and information distribution on public streets—what amounts to the “extreme step of closing a substantial portion of a traditional public forum to all speakers.”... There is no evidence in this record that Nassau County considered any alternative laws or seriously engaged in any exercise of limiting the First Amendment damage inflicted by the RSA on individuals like Plaintiffs....

There might have been a record that justified the impositions on protected speech from the Buffer Provision.  But it is not here....

Defendants have failed to articulate any rationale for having both a buffer and bubble provision to advance their interests in protecting religious liberty and public safety.  The combined effect of the two exacts a chilling of free expression that neither does alone....

The Buffer Provision makes no attempt to accommodate the diversity and types of institutions around which the restriction operates.  There are nearly 1000 such places, some are in storefronts, some which abut private business, others on detached pieces of property, others abutting sidewalks and public thoroughfares.... And as a result, the 35-foot radius around a driveway or entrance prohibits activity in all manner of places—including core public forums like sidewalks and streets—without regard to the particular site or location of any individual place of worship....

The differences between the Buffer and Bubble Provisions do not save the latter from facial invalidity....

Given the breadth of the expressive conduct and speech implicated by the law, an officer is left with the discretion to determine whether the individual standing in silence wearing a t-shirt with a political message is violating the statute or not engaging in expressive conduct at all.  “Because of its overbreadth, the statute vests local law enforcement officers with too much arbitrary discretion in determining whether or not a certain emblem is grounds for prosecution.  It permits only that expression which local officials will tolerate[.]” ...

amNY reports on the decision.

Cert. Petition Filed Challenging Grant of Qualified Immunity In 1st Amendment Case

A petition for certiorari (full text) was filed with the U.S Supreme Court last week seeking review of the 5th Circuit's decision in Hershey v. City of Bossier City. In the case, a 3-judge panel 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 an arena in which a Christian rock concert was taking place. However, the court affirmed the trial court's qualified immunity dismissal of the claims against police and security guards. (See prior posting.) It is this aspect of the 5th Circuit's decision that is being appealed in the certiorari petition. At issue is whether in free speech and free exercise claims, officers can claim qualified immunity where a reasonable officer should have understood their action to be unconstitutional, but their particular action has not been previously held unconstitutional by a court.

First Liberty Institute issued a press release announcing the filing of the cert. petition.

Cert. Denied In School's Discipline of Pro-Life Student Group

The Supreme Court yesterday denied review in E.D. v. Noblesville School District, (Docket No. 25-906, certiorari denied 6/15/2026). At issue in the case is a high school's refusal to permit a student pro-life group to post flyers in the school because of the political content of the flyers. The dispute eventually led to the suspension of the pro-life group for several months. The 7th Circuit Court of Appeals upheld the school's action. 

Justice Alito filed an opinion dissenting from the denial of certiorari, saying in part:

Hazelwood ... concerned the regulation of “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  ...  When regulating the content of such activities, the Court held, a school need only meet the low bar of showing that the censorship is “reasonably related to legitimate pedagogical concerns.” 

... “[C]ourts must be very careful when a government claims that speech by one or more private speakers is actually government speech,” because “it can be difficult to tell whether the government is using the doctrine ‘as a subterfuge for favoring certain private speakers over others based on viewpoint.’”...

I would grant the petition to clarify the relationship between Hazelwood and our subsequent government-speech decisions.

Muslim High Schoolers Sue After Being Disciplined for Instagram Video

Suit was filed yesterday in a Virginia federal district court against Fairfax County schools by four Muslim students who were disciplined because of a skit they posted on the Muslim Students Association Instagram site.  The complaint (full text) in Doe v. School Board for Fairfax County Public Schools, (ED VA, filed 6/4/2026), alleges in part:

2. Plaintiffs, students at Thomas Jefferson High School for Science and Technology (“TJHSST”), created a lighthearted promotional video for their chapter of the Muslim Student Association. The video contained no threats, no weapons, and no reference to any real-world event. It was a skit, modeled on a viral online trend, intended to invite students to their events.  

3. After bad-faith actors outside of TJHSST made Islamophobic, racist, and anti-Palestinian characterizations about the video, FCPS and TJHSST adopted those characterizations as their own. 

4. Defendants suspended Plaintiffs, labeled their conduct “antisemitic,” barred one Plaintiff from wearing a sweatshirt displaying the map of Palestine, and placed disciplinary marks on the students’ records.  

5. These actions were entirely without justification, damaging the reputations of the students before their peers and teachers and significantly affecting their educational performance and future opportunities. 

6. Because Defendants punished Plaintiffs’ protected speech, and treated Plaintiffs differently because they were Muslim, Arab, and Palestinian, Plaintiffs are entitled to relief under the First Amendment, the Fourteenth Amendment, and Title VI.

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

Title VI Does Not Bar Religious Discrimination

In Storms v. Carcieri, (D NJ, May 26, 2026), a New Jersey federal district court dismissed a suit which challenged a requirement by the Somerset County YMCA that in order to serve as a Board member, a board nominee must complete a 30-minute training course titled "Advancing Equity, Understanding Biases." Plaintiff Michael Storms refused to take the course because it violated his "deeply held religious belief that only Jesus Christ can forgive my sins." Storms, proceeding pro se, sued alleging that imposing the requirement on him violated his 1st and 14th Amendment rights, as well as Title VI and Title VII of the 1964 Civil Rights Act and the New Jersey Civil Rights Act. A number of his claims were dismissed because he had not plausibly alleged that the YMCA's conduct involved state action. The court dismissed plaintiff's Title VI claim because Title VI only bars discrimination on the basis of race, color or national origin. It does not cover religious discrimination. He also failed to show that the federal funding received by the national YMCA organization was the source of any of operations of the local entity.

Interestingly, in his complaint, Plaintiff also listed "Jesus Christ" as a plaintiff. In a footnote the court said: "The Court finds that Jesus Christ is not a proper plaintiff and proceeds in its analysis with Storms as the sole plaintiff in this matter."

Kars4Kids Violated False Advertising and Unfair Competition Laws by Not Disclosing Its Religious Ties

In Puterbaugh v. Kars4Kids, LLC, (CA Super. Ct., May 8, 2026), a California state trial court held that Kars4Kids violated California's Unfair Competition Law and its False Advertising Law through "inherently deceptive" omissions in its ads. The organization runs short repetitive television and radio ads featuring young children playing musical instruments and asking for donations of used cars. The ads make no mention of the actual recipients of funds from the organization or of the organization's religious affiliation. The organization's website says: "Because kids are our future. Learn how you can make a difference in the life of a child." The broadcast ads do not make this statement.

The primary function of Kars4Kids is to fund Oorah, an organization that operates Jewish heritage and summer camps in New York and New Jersey. Oorah also funds matchmaking programs for young adults and gap- year trips to Israel for 17- and 18-year-olds. The court said in part:

2. The Court finds that the First Amendment does not shield the Defendant. While charities have free speech rights, the government may regulate misleading commercial speech. Fraudulent omissions in an inducement to donate property are not protected by “free expression.”...

6. The name “Kars4Kids,” the 8-10-year-old actors in the advertisement, and the repetitive jingle all serve to reinforce the belief that donations are used exclusively for the benefit of children. 

7. Under cross-examination, the COO, Esti Landau, admitted that the organization’s primary purpose is to help “Jewish kids and families throughout their lives.”...

The Court finds that the Defendant disseminated public statements concerning... vehicle donations that were misleading by omission. Under the statutory “knew or should have known” standard, the Defendant is charged with the knowledge that California donors would reasonably assume their contributions benefit a general class of children, including those within their own state. The Court finds that the Defendant’s stated intent to make the advertisement “memorable” through extreme repetition, while simultaneously stripping it of all substantive facts, constitutes an actionable strategy of deception....

The Court finds the Kars4Kids “jingle” creates a false sense of a universal, secular, and local charity. The “Kars4Kids” name, when coupled with an advertisement that “does not mention anything” about its specific mission ... is likely to deceive the public. It improperly narrows the perceived beneficiary class to “kids” to elicit emotional and financial responses, while diverting funds to a much broader religious and familial social-service network....

The court ordered Kars4Kids to end all non-compliant broadcasting in California within 30 days. Inside Radio reports on the decision.