Missouri Regulation of Church-Run Child Care Homes Upheld

In CNS International Ministries, Inc. v. Bax, (ED MO, March 3, 2025), a Missouri federal district court rejected a series of challenges to Missouri's Residential Care Facility Notification Act. The Act requires disclosures, background checks, recordkeeping, and health and safety standards for residential care facilities housing children that are run by religious organizations. In particular CNS objected to background checks that disqualified two of its employees. Among other things, the court concluded that the statute did not infringe CNS's 1st Amendment right to expressive association, saying in part:

Under the statute and its regulations, members of CNSIMI have the potential to be excluded from HCYH, one of CNSIMI’s programs and not its entire ministry.  Plaintiff has not established partial exclusion from HCYH would amount to a significant burden on its right to freedom of association.  But even if partial exclusion were a significant burden, the Court finds the State has a compelling interest in protecting children who are residents of LERCFs, and the RCFNA’s disclosure and background check requirements are narrowly tailored to achieve that interest....

Rejecting plaintiff's parental rights argument, the court said in part:

Under Pierce, parents cannot be compelled to send their children to public schools; they have a fundamental right to choose a private school....  Parents, however, do not have a fundamental right to send their children to a private school free of state regulation, including reasonable background check requirements.  ...

Rejecting CNS's ministerial exception argument, the court said in part:

CNSIMI does not claim that any of its “ministers” have been deemed to be ineligible for employment or presence at HCYH.  It is undisputed that two CNSIMI employees did not meet RCFNA’s background check requirements, but Plaintiff does not argue that these two employees – one who was a janitor and the other who was a cafeteria worker – meet the functional requirements of a “minister.”... Furthermore, the Court declines to make a blanket determination that CNSIMI’s teachers, house parents, administrators, and board members qualify under the ministerial exception without evidence as to how specific individuals perform these jobs....

Court Preliminarily Enjoins Enforcement Against Plaintiffs of New Guidelines for Immigration Raids at Churches

In Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, Feb. 24, 2025), a Maryland federal district court issued a preliminary injunction barring immigration authorities from enforcing against the Society of Friends, Baptist, and Sikh plaintiffs the January 2025 policy change on immigration enforcement at sensitive locations such as places of worship. Instead, they must comply with the previous 2021 Guidelines. The court found that plaintiffs were likely to succeed on their 1st Amendment Freedom of Association claim as well as their claim under the Religious Freedom Restoration Act. It concluded that enforcement of the new policy would likely significantly burden both plaintiffs' right to expressive association and their religious exercise. The court said in part:

... Plaintiffs have provided facts showing that, in light of their religious beliefs and practices relating to immigrants, they can reasonably expect to face immigration enforcement actions at their places of worship pursuant to the 2025 Policy, that such actions will likely result in declines in attendance at their worship and ministry services, and that such declines are, in fact, already occurring.... They have further demonstrated that, as a result ..., certain core religious beliefs and practices will be significantly burdened, including the beliefs that each of the Plaintiffs' religions require regular, communal worship; that at least CBF requires, as part of its religious exercise, that its congregations engage in services to support immigrants and refugees; and that, for the Quaker Plaintiffs in particular, the presence of any firearms in worship services, such as those of armed law enforcement officers, violates their faith.

CBS News reports on the decision.

Foster Parent Requirements for Affirming Transgender Children Are Upheld

Last week, a Vermont federal district court in a series of opinions in two cases focused on challenges to the state's rules on licensing of foster parents. The suits were brought by couples who objected on religious grounds to the state's requirement that they be willing to accept any child regardless of sexual orientation or gender identity.

In Antonucci v. Winters I, (D VT, Feb. 20, 2025), the foster care license of plaintiffs was withdrawn because of their inability to comply with the state's non-discrimination requirement that included a commitment to facilitate the social and medical transition of a hypothetical future foster child. Plaintiffs asserted that complying with the requirement would violate their Christian religious beliefs about gender and sexuality. They sued seeking a preliminary injunction, contending that the requirement violated their free speech and free exercise rights. The court denied the preliminary injunction, saying in part:

Plaintiffs argue that, in this case, the state’s interest is not compelling because there is national, and even global, disagreement about the propriety of medical transitioning....

Evaluating the efficacy or safety of a particular procedure is not within this Court’s purview.  The Court’s role is to determine whether the Rules and Policies enforced here, which pertain to medical and social transitioning as well as the use of gender-appropriate pronouns, serve a compelling state interest.  At this stage in the case, Defendants have submitted sufficient evidence of the benefits of those policies to satisfy that portion of the strict scrutiny test....

The Court ... finds, based upon the current record, that the Rules and Policies established and implemented by DCF and Defendants serve the compelling interest of protecting the health and welfare of LGBTQ youth, and are narrowly-tailored to necessarily address that interest....

In Antonucci v. Winters II, (D VT, Feb. 20, 2025), the court on qualified immunity grounds dismissed plaintiffs' claim for damages for free exercise and free speech violations. It allowed plaintiffs to proceed on claims for injunctive and declaratory relief. The court did not dismiss plaintiffs' retaliation or equal protection claims because defendants had not offered specific arguments that they were covered by qualified immunity.

In Wuoti v. Winters, (D VT, Feb. 20, 2025), two couples whose foster parent licenses were not renewed challenged the state's foster parent policy on free speech, freedom of association and free exercise grounds. The court denied their motion for a preliminary injunction, saying in part:

Plaintiffs argue that Defendants are compelling them to “speak the State’s views while prohibiting them from expressing their religious views.”...  Compliance with DCF Rules and Policies, however, is different from speech.  Defendants did not compel Plaintiffs to change their beliefs, or to make any statements that disavowed those beliefs.  Instead, Defendants were pursuing their mission of ensuring a welcoming, affirming, and safe home for each child....

Plaintiffs further argue that Defendants were compelling them to use preferred pronouns and to otherwise speak in ways that are contrary to their religious beliefs about gender and sexuality, while at the same time restricting them from expressing their own views on those issues.  The DCF Rules and Policies at issue, however, are based upon research and feedback regarding outcomes for LGBTQ youth.  The record does not establish that they are targeted at any religious viewpoint.  Indeed, the alleged restrictions are at most incidental to rules of conduct designed to promote healthy and affirming homes....

Nothing in the record indicates that Defendants are compelling Plaintiffs to associate with any specific person or group.  Plaintiffs protest that their license denials were based in part on their professed inability to associate with certain events, as in a pride parade.  When DCF raised the possibility of attending a gay pride parade, however, the suggestion was merely hypothetical.  Indeed, while Policy 76 suggests that staff “encourage” such activities, there is no requirement that foster families engage in them.  Nor are Defendants preventing Plaintiffs from associating with others who share their beliefs, as in attending church.  What foster parents may not do is require children in their care to engage in activities that are non-affirming....

Here, nothing on the face of DCF’s Rules and Policies targets religious practices or religious applicants....

... [T]he Court finds that Rules and Policies at issue are generally applicable, and that Plaintiffs are unlikely to succeed on their free exercise claim....

Plaintiffs are concerned about foster families whose religious beliefs are not consistent with DCF policies, DCF does not compel such families to change or reject their beliefs.  What it does require is the provision of an affirming environment for children who are, or who come to identify as, LGBTQ.  

27 Religious Denominational Groups Sue DHS Over Rescission of Sensitive Locations Policy

Yesterday, 27 Christian and Jewish denominational bodies and organizations filed suit in a D.C. federal district court challenging the rescission by the Department of Homeland Security of its "Sensitive Locations Policy." The policy severely limited the situations under which immigration enforcement actions could take place at churches, synagogues, mosques and other institutions of worship, as well as at various other locations. The complaint (full text) in Friends General Conference v. U.S. Department of Homeland Security, (D DC, filed 2/11/2025), says in part:

1. [Plaintiffs] bring this suit unified on a fundamental belief: Every human being, regardless of birthplace, is a child of God worthy of dignity, care, and love. Welcoming the stranger, or immigrant, is thus a central precept of their faith practices....

7. ... Consistent with their call to welcome and serve all people, many have undocumented congregants and many offer social service ministries— such as food and clothing pantries, English as a Second Language (“ESL”) classes, legal assistance, and job training services—at their churches and synagogues that serve undocumented people.  An immigration enforcement action during worship services, ministry work, or other congregational activities would be devastating to their religious practice. It would shatter the consecrated space of sanctuary, thwart communal worship, and undermine the social service outreach that is central to religious expression and spiritual practice for Plaintiffs’ congregations and members.

8. The rescission of the sensitive locations policy is already substantially burdening the religious exercise of Plaintiffs’ congregations and members.  Congregations are experiencing decreases in worship attendance and social services participation due to fear of immigration enforcement action.  For the vulnerable congregants who continue to attend worship services, congregations must choose between either exposing them to arrest or undertaking security measures that are in direct tension with their religious duties of welcome and hospitality. Likewise, the choice that congregations currently face between discontinuing social service ministries or putting undocumented participants at risk of arrest is no choice at all: Either way, congregations are forced to violate their religious duty to serve and protect their immigrant neighbors.

The suit alleges that the rescission of the policy violates plaintiffs' free exercise rights under RFRA as well as their 1st Amendment rights to expressive association.

The Institute for Constitutional Advocacy and Protection issued a press release announcing the lawsuit.

Court Refuses to Enjoin Colorado's Reporting Requirements for Health Care Sharing Ministries

In Alliance of Health Care Sharing Ministries v. Conway, (D CO, Jan. 13, 2025), a Colorado federal district court refused to issue a preliminary injunction to prevent enforcement of Colorado's reporting requirement for health care sharing plans, most of which are religiously affiliated. The court said in part:

The Alliance has not made a showing—strong or otherwise—that it is likely to succeed on the merits of any of its claims.  First, the Alliance has not demonstrated that the Reporting Law is not neutral or generally applicable, or that it is not rationally related to a legitimate government interest.  Accordingly, the Alliance has not shown that it is likely to succeed on the merits of its free exercise claim.  Second, generally applicable administrative and recordkeeping regulations like the Reporting Law do not violate the Establishment Clause.  The Alliance is therefore unlikely to succeed on the merits of its Establishment Clause claim.  Third, the Alliance has not shown that the Reporting Law’s requirement that the Alliance’s members disclose certain third-party vendors poses any risk of chilling the Alliance’s members’ First Amendment associational rights.  Thus, the Alliance’s challenge to the Reporting Law on freedom-of-association grounds is unlikely to succeed.  Fourth and finally, the Alliance has not shown that the Reporting Law—in compelling the Alliance’s members divulge their marketing materials and to report factually accurate operations data—violates the Alliance’s members’ free speech rights.  The Alliance therefore has not shown that it is likely to succeed on the merits of its free speech claim.

In a motion filed Jan. 28 (full text), plaintiff seeks an injunction pending appeal.

Quaker Organizations Sue Over New Immigration Enforcement Policy

Yesterday three organizations of Quaker congregations along with two individual congregations filed suit in a Maryland federal district court challenging the Department of Homeland Security's recent change in policy that allows immigration agents to conduct enforcement operations in houses of worship and at religious life-cycle ceremonies.  The complaint (full text) in Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, filed 1/27/2025), alleges that the policy change violates the Religious Freedom Restoration Act, the 1st Amendment's protection of expressive association and the Administrative Procedure Act.  The complaint alleges in part:

89. A diversity of worshippers is an essential component of the Quaker value of “experience[ing] God in a broader, more encompassing way,” as “one’s life experience affects how one hears the spirit and what conclusions one might draw.”... Deterring immigrants from worshipping in-person with a Quaker meeting would therefore directly interfere with Plaintiffs’ religious exercise by lessening their “ability to hear God and what God is trying to tell [them].” ...

90. Moreover, Plaintiffs’ Quaker beliefs make it essential that they “encourage others for whom [that] path is meaningful to join.”... But DHS’s new policy, by opening meeting houses to immigration-enforcement activities, inhibits Plaintiffs from doing just that.... Knowingly putting a person in harm’s way or subjecting them to the possibility of a violent encounter with an armed law-enforcement officer would violate Quaker beliefs in peace and nonviolence....

91. Quakers have held a religious commitment against violence for hundreds of years.... For many Quakers, “[t]he presence of a weapon in a Quaker meeting would be absolutely unacceptable.”... The presence of armed immigration officers at meeting houses—which the new policy allows—would thus significantly hamper Plaintiffs’ ability to exercise their faith.... Importantly, even the threat of armed government agents at meeting houses—which has existed since the moment DHS announced its new policy—does the same.

Axios reports on the lawsuit.

Free Speech and Free Exercise Challenges to Law Restricting Sidewalk Counselors Moves Ahead

In Pro-Life Action Ministries v. City of Minneapolis, (D MN, Oct. 30,2022), a Minnesota federal district court dismissed void-for-vagueness and an expressive-association challenges to a Minneapolis ordinance that bans physically disrupting access to a reproductive healthcare facility.  The court however refused to dismiss plaintiff's free speech, free exercise of religion and overbreadth claims. It said that it is impossible, without a trial record that explores historical background, legislative history, and contemporaneous statements of decisionmakers to determine whether the law is neutral and generally applicable, or whether, instead, it targets religious conduct. A trial record is also needed to decide whether the law is narrowly tailored. The suit was brought by a Christian nonprofit organization that engages in “sidewalk counseling” outside abortion clinics.

Louis Farrakhan Sues Anti-Defamation League for $4.8 Billion

Suit was filed earlier this month in a New York federal district court by Nation of Islam leader Louis Farrakhan against the Anti-Defamation League and the Simon Wiesenthal Center seeking $4.8 billion in damages. The suit alleges that defendants are interfering with Farrakhan's activities through labeling him as an antisemite. The complaint (full text) in Farrakhan v. Anti-Defamation League, (SD NY, filed 10/16/2023), alleges violations of the First Amendment's protections for freedom of association and free exercise of religion, as well as alleging causes of action for defamation. The complaint contends that the Anti-Defamation Leage is a "de facto, quasi-governmental actor", alleging in part:

 344.... [O]n or about December 20, 2022, the Defendant ADL submitted a demand letter directly to the Office of Management and Budget ... for funds it desired to be redirected from programs and services that benefit the average American citizen to its own coffers to be used as it sees fit....

345.Extraordinarily, that same demand letter brazenly commanded the OMB to allocate funds to other agencies and departments of the U.S. government that it, and/or its functionaries, would directly benefit from....

348.Based upon the regulations of the U.S. government, Defendant ADL’s fiscal appropriations demand made directly to the OMB incontrovertibly establishes it as a quasi-governmental agency....

More generally, the complaint says in part:

2. For nearly forty (40) years, the Anti-Defamation League ..., later joined by the Simon Wiesenthal Center ..., in violation of the rights and protections guaranteed by the First Amendment to the United States Constitution, have engaged in actions to hinder Minister Farrakhan and the Nation of Islam from continuing the Mission that Allah (God) gave to the Most Honorable Elijah Muhammad. 

3. That Mission, accepted by Minister Farrakhan, is to deliver the Truth that will correct the condition of spiritual, mental and moral death of the black man and woman of America that came as a result of the 310 years of chattel slavery and over 150 years of oppression and suppression, thereafter....

6. This lawsuit is to ensure that the abuse, misuse, and false use of the terms “anti-Semite,” “anti-Semitic,” and “antisemitism,” as falsely charged by the Defendants is permanently barred from being a tool to defame Plaintiffs and stifle the exercise of constitutional rights.

The Forward reports on the lawsuit.

Principal Can Move Ahead with Claim He Was Nonrenewed Because of Speech to Fellowship of Christian Athletes

In Littlefield v. Weld County School District RE-5J, (D CO, Oct. 19, 2023), a Colorado federal district court refused to dismiss a retaliation claim against a school Superintendent brought by a former high school principal who was demoted and then whose contract was not renewed. Plaintiff, who alleged discrimination because he was a conservative Christian male, claimed that these action against him were taken because of a motivational speech he had given to the Fellowship of Christian Athletes before school started. The court said in part:

Dr. Littlefield has plausibly alleged that Ms. Arnold retaliated against him for his association with the FCA in violation of his First Amendment rights when she issued a negative performance review and demoted him.

Plaintiff's freedom of association claim against the Assistant Superintendent of Human Resources was dismissed.

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

Court Upholds Accreditation Requirement For Religious University

In Wisdom Ministries, Inc. v. Garrett,(ND OK, Aug. 1, 2023), an Oklahoma federal district court rejected a constitutional challenge to a cease and desist order issued by the Oklahoma State Regents.  The Regents insisted that Wisdom University, an Oklahoma-based online university operated by Wisdom Ministries, obtain proper accreditation before it issues degrees. The court held that the requirement does not violate the university's free expression, free exercise, Establishment Clause, freedom of association or equal protection rights, saying in part:

The issue raised by plaintiff has nothing to do with governmental restriction of content or subject matter being taught at Wisdom University but, instead, the state is applying a facially neutral regulation that ... falls with the power of the state to regulate business conduct....

Consumer protection is a legitimate state interest, and there is an equal need to protect students attending a secular or religious institution from paying for a degree program that does not meet certain minimal objective standards. The statute does not impose any higher burden on religious schools to obtain accreditation and such institutions are free to obtain accreditation from an agency specializing on accreditation for religious schools. Nothing about the accreditation requirement suggests that the state is favoring secular institutions or acting with hostility to religious institutions, and plaintiff has not shown that enforcement of the accreditation requirement of § 4103 violates the Free Exercise Clause as applied to religious colleges or universities....

Plaintiff’s allegations do not support a plausible claim that enforcement of the accreditation requirement of § 4103 will violate plaintiff’s rights under the Establishment Clause. Plaintiff makes a series of conclusory allegations that obtaining proper accreditation will involve the Regents in plaintiff’s religious affairs, but these allegations are speculative at best. Defendants have taken the position that Wisdom Ministries is free to operate a school or university without obtaining the accreditation required by § 4103, as long as Wisdom Ministries does not purport to offer a degree.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

State Law May Bar Women's Spa from Refusing to Serve Transgender Women Who Have Not Had Sex-Confirmation Surgery

In Olympus Spa v. Armstrong, (WD WA, June 5, 2023), a Washington federal district court dismissed, with leave to amend, a suit by a Korean style spa designed for women. The suit challenges Washington's public accommodation law which bars discrimination, among other things, on the basis of gender expression or identity.  Because spa patrons are required to be naked during certain spa services (massages and body scrubs), the spa refuses to serve transgender women who have not gone through post-operative sex-confirmation surgery. The spa advertises itself as welcoming "biological women." Three of the spas employees and one of its patrons are also plaintiffs in the case.  Plaintiffs claim that their requiring them to service nude males and females in the same rooms substantially burdens the exercise of their religious beliefs.  The court held however that because the public accommodation law is neutral and generally applicable, it needs to meet only rational basis review and does so because of the state's interest in ensuring equal access to public accommodation. 

The court also rejected plaintiffs' claim that their free expression rights were violated by requiring them to remove language from their website that only "biological women" are females. The court said in part:

The WLAD [Washington Law Against Discrimination] bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa’s speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only “biological women”). But that does not convert the WLAD into a content-based regulation....

Finally, the court dismissed plaintiffs' freedom of association claims, saying in part:

The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa’s “biological women” policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection.

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

2nd Circuit: Expressive Association Challenge to NY "Boss Bill" Can Move Ahead

In Slattery v. Hochul, (2d Cir., Feb. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that the district court should not have dismissed an expressive association challenge to New York's "Boss Bill," a law that prohibits employers from discriminating against employees on the basis of reproductive health choices made by the employee or a dependent. Plaintiffs are anti-abortion crisis pregnancy centers and the president of one of them. The court said in part:

[W]e conclude that Evergreen plausibly alleged that § 203-e imposes severe burdens on Evergreen’s right to freedom of expressive association. The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization.... The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views....

Still, “[t]he right to associate for expressive purposes is not … absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”...

We hold that at this stage of the litigation, New York has not shown that § 203-e satisfies this standard....

It may be the case that preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest. But we need not decide that question here. Even if we answer in the affirmative, that interest cannot overcome the expressive rights of an association dedicated to outlawing or otherwise opposing that specific conduct....

The court went on to affirm the dismissal of plaintiffs' free speech, free exercise of religion and vagueness challenges. Bloomberg Law reports on the decision.

Challenges To School COVID Mitigation Requirements Are Dismissed

 In Tracy v. Stephens, (D UT, Nov. 1, 2022), a Utah federal district court dismissed claims that plaintiffs' rights were violated by school district COVID orders requiring the wearing of masks and social distancing.  The court said in part:

Plaintiffs have not identified what speech or type of speech was suppressed, meaning the court cannot apply the correct test to determine whether a regulation of it was permissible.... Plaintiffs have also not pleaded facts allowing for a plausible inference that by declining to wear masks or face coverings, or to participate in social distancing or isolation measures, they were engaged in inherently expressive conduct protected by the First Amendment....

Plaintiffs assert the Free Exercise Clause is implicated because they “hold a deeply held religious belief against the covering of their faces as this would violate their religious conscience,” and that they have a “God-given right to refuse unwanted medical treatment.”... But the Amended Complaint does not contain sufficient facts for the court to engage in the required analysis. Plaintiffs neither sufficiently identify the religious practices targeted and suppressed by Defendants, nor the provision(s) of the regulation(s) used by Defendants to target these practices. But Plaintiffs do identify an exemption process that would seemingly have allowed them to avoid the regulations’ requirements....

The court also dismissed plaintiffs' freedom of association, due process, equal protection, 4th, 9th and 13th Amendment, Civil Rights Act, conspiracy and state constitutional claims. 

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Suit Says Border Agents Questioned Muslims About Their Religious Practices

Suit was filed yesterday in a California federal district court by three Muslim Americans who claim that they were asked religiously intrusive questions by U.S. Customs and Border Protection agents upon their return from international travel. Among the questions were: “How often do you pray?” “Do you attend mosque?” “Which mosque do you attend?” “Are you Sunni or Shi’a?”  The complaint (full text) in Kariye v. Mayorkas, (CD CA, filed 3/24/2022), contends in part:

Religious questioning such as this violates the U.S. Constitution. It furthers no valid—let alone compelling—government interest, and it is an affront to the First Amendment freedoms of religion and association. Moreover, because Defendants specifically target Muslim Americans for such questioning, they also violate the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Just as border officers may not single out Christian Americans to ask what denomination they are, which church they attend, and how regularly they pray, singling out Muslim Americans for similar questions is unconstitutional....

 This practice also violates the Religious Freedom Restoration Act.

 Wall Street Journal reports on the lawsuit.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.