Clergy Seek Access To ICE Detainees

Suit was filed this week in a Minnesota federal district court by Evangelical Lutheran and United Church of Christ organizations and by a Catholic priest seeking access to a federal building in Minneapolis that houses individuals held by Immigration and Customs Enforcement personnel. The complaint (full text) in Minneapolis Area Synod of the Evangelical Lutheran Church in America v. U.S. Department of Homeland Security, (D MN, filed 2/23/2026) alleges in part:

The Bishop Henry Whipple Federal Building ... now stands in stark contrast to its namesake’s legacy. The federal government is using the building to hold Minnesotans detained by Immigration and Customs Enforcement (“ICE”) while barring faith leaders from offering prayer, pastoral guidance, sacramental ministry, and spiritual comfort to detainees in moments of profound fear, isolation, and despair. By prohibiting faith leaders from providing essential pastoral care to individuals in ICE detention, the federal government unconstitutionally obstructs their sacred obligation to exercise their faith through ministry to community members in the greatest need of spiritual comfort....

Defendants’ policies and practices unreasonably burden Plaintiffs’ free exercise of religion in violation of the First Amendment and the broad protections under RFRA.

[Thanks to Heather E. Kimmel for the lead.]

Hospital Justified In Firing Nurse for Praying with Patients, Discussing Holocaust With Patient

In Sanders v. Kootenai Hospital District, (D ID, Feb. 20, 2026), an Idaho federal district court rejected various claims by Claudia Sanders, a nurse at a crisis center who was fired by her employer, a publicly operated hospital. Sanders duties included triaging patients. According to the court:

Sanders alleges two incidents in which she engaged in constitutionally protected speech or activity that were the cause of her termination. First, she maintains that on January 23, 2022, she “discussed the Holocaust in general terms” with a Jewish patient and provided the patient a copy of Viktor Frankl’s Man’s Search for Meaning, a book written by a psychiatrist who survived the Holocaust.... Second, she contends that she has previously prayed with patients who asked her to pray.

In rejecting Sanders' free speech claims, the court said in part:

The First Amendment does not protect speech made pursuant to a government employee’s official duties....

Sanders admitted that she prayed with patients under the belief that such conduct fell within her job responsibilities....

Sanders’ January 23 discussion on the Holocaust with a patient also was made pursuant to her official duties as a NICC triage nurse....  Because Sanders’ speech owes its existence to her position, she spoke as an employee—not as a citizen. Therefore, the Court concludes that Sanders did not engage in protected speech....

... It is not unreasonable for Kootenai to consider Sanders’ statements about the Holocaust, which implied that it either did not happen or that it was a good thing ...  disruptive to its ability to serve the community...

Kootenai was also justified in terminating Sanders for engaging in prayer with patients. The Supreme Court has long recognized that the government has a compelling interest in avoiding the appearance of taking a position on questions of religious belief when the restriction applies to government employees engaging in religious speech while providing state-sponsored services.... 

... Sanders promoted religious messages while working with patients on Kootenai business, raising a legitimate Establishment Clause concern.....

The court also rejected Sanders' claims of wrongful termination, defamation, infliction of emotional distress, and tarnishing of her reputation.

Mayor's Statements About Prayer Event Sponsors May Have Violated Establishment Clause

Johnson v. City of Seattle, (WD WA, Feb. 18, 2026), is a suit by promoters of a worship event held in a Seattle park. According to the court:

Plaintiffs allege that ... a large group of protestors came to the park to agitate, disrupt, and assault Plaintiffs for the views, message, and content of their event....  [S]hortly after the event had begun, event organizers were approached by the police and told to shut down the event because of violent protestors that the police could not control....  Two protestors attacked the event’s stage, ripped down the fabric banners and kicked over equipment, and other protestors exposed body parts, engaged in lewd behavior in front of minor children, threw urine-filled water balloons, sprayed attendees with pepper spray and tear gas, and harassed Plaintiffs with curse words and violent threats....

On the same day, Mayor Harrell issued a press release stating that Plaintiffs’ event was an “Extreme Right-Wing Rally”, and that Plaintiffs were responsible for the violence that had been perpetrated against them.... Plaintiffs allege that they were blamed for deliberately provoking the reaction “by promoting beliefs that are inherently opposed to our city’s values, in the heart of Seattle’s most prominent LGBTQ+ neighborhood.”.... Mayor Harrell issued another press release ... which contained statements from the City’s “Christian and Faith Leaders” condemning Plaintiffs for their event and blaming them for the violence perpetrated against them.... According to the City’s faith leaders, Plaintiffs targeted the LGBTQ+ community....

The court refused to grant plaintiffs a preliminary injunction, saying in part:

Here, the dearth of allegations of intended future conduct, threat of future enforcement, or self-censorship, clearly does not satisfy a pre-enforcement injury in fact.

However, the court allowed plaintiffs to continue their lawsuit seeking other relief, including their Establishment Clause claim which defendants had asked the court to dismiss. The court said in part:

... Plaintiffs ... argue that the statements made by Defendant Harrell after the event was shut down are laden with hostility toward religion, and the condemning statements made by other religious sects and cited in the second press release demonstrates Defendants’ preference for other religions.... These statements were made in formal press releases from the “Office of the Mayor.”... Official expressions of hostility directly connected to Plaintiffs and their event, combined with the supporting hostile statements made by City religious leaders that are officially approved by the City, can have the effect of showing that the City is failing its duty of neutrality, invalidating the facial neutrality of an ordinance....

Court Orders Access for Clergy to ICE Facility on Ash Wednesday

In Coalition for Spiritual and Public Leadership v. Noem, (ND IL, Feb. 12, 2026), an Illinois federal district court issued a preliminary injunction requiring federal immigration authorities to allow plaintiffs, Catholic clergy, access on Ash Wednesday (Feb. 18) to the ICE facility in Broadview, Illinois. The court agreed that denial of access likely substantially burdens plaintiffs' religious exercise in violation of the Religious Freedom Restoration Act. The court said in part:

Plaintiffs argue that prayer and ministry to the migrants and detainees at Broadview is an important religious practice.  Defendants concede that “ministering to vulnerable Catholic immigrants is part of [plaintiffs’] religious exercise,” but argue that doing so at Broadview “is itself not essential to the practice.”  RFRA requires a court to analyze if a government practice substantially burdens a person’s exercise of religion, not whether the religious practice burdened is “essential.”

The Hill reports on the decision.

Religious Liberty Commission Hearing Features Remarks by President Trump

Yesterday, the Religious Liberty Commission that was created in May by an Executive Order of Donald Trump held its second hearing (Video of full hearing). The hearing was held at The Museum of the Bible. President Trump was a featured speaker (video of Trump's remarks) (transcript of Trump's remarks). His wide-ranging speech began with the President saying, in part:

... America was founded on faith, as we know and I've been saying it for a long time. And when faith gets weaker, our country seems to get weaker. When faith gets stronger, as it is right now, we're having a very good period of time after some rough years, good things happen for our country. It's amazing the way it seems to work that way. And under the Trump administration, we're defending our rights and restoring our identity as a nation under God. We are one nation under God, and we always will be....

... I'm pleased to announce this morning that the Department of Education will soon issue new guidance protecting the right to prayer in our public schools and its total protection....

During his remarks, the President invited Housing and Urban Development Secretary Scott Turner to speak about developments. Turner said in part:

How many know we have a godly, faithful cabinet? And a cabinet that prioritizes prayer. On July 3rd, Mr. President, of this year, you kicked off the year-long celebration of America's 250th birthday in Iowa. You invited America's faith communities to come together to pray for our country. Well, Mr. President, America's faith communities are responding with overwhelming enthusiasm.... Today, more than 70 major faith organizations and churches have joined together to participate in what we're calling America Prays....

... What if 1 million people prayed for our country every single week between now and next July 4th? ... What if believers all across this great nation got together with 10 people, friends, family members, colleagues, work associates, ten people each week to pray for our country and for our fellow citizens.... Think about the transformation that you and I could witness in communities all across the land. Sons returning to their fathers. Daughters returning to their mothers. Families coming back together. Health being restored. Financial needs being met. Mountains being moved.... We're a nation that has always believed in the power of prayer....

... Lord, not just Democrat, not just Republican, but all American people will come together under the banner of Yahweh of God Almighty. And Lord God, we praise you. And we thank you. And we love you. In Jesus name, Amen. [Audience members respond "Amen"]

The White House posted a press release summarizing the main points of Trump's speech. USA Today reports on the hearing. The White House yesterday also issued a press release titled "President Trump’s Top 100 Victories for People of Faith."

Arresting Person for Praying with Others Violates European Convention on Human Rights

In Rafiyev v. Azerbaijan, (ECHR, July 8, 2025), the European Court of Human Rights in a Chamber Judgment held that it violates Article 9 of the European Convention on Human Rights to hold a person in violation of law for praying together with others. The court said in part:

1.  The case concerns the arrest and subsequent conviction of the applicant, a follower of the Nurism teachings of Islam, for the administrative offence of holding an unauthorised religious meeting on private premises....

6.  On 4 March 2017 the applicant went to Guba to attend a funeral ceremony. Afterwards, the applicant, together with others, visited their friend, T.A., at his private house. At around 1 p.m. several police officers raided the premises and took the applicant and twenty-one other individuals to the Guba District Police Office.

7.  ... An administrative-offence report ... stated that ... the applicant had violated the rules on holding religious meetings ... and that he had committed an administrative offence under Article 515.0.2 of the Code of Administrative Offences ("the CAO")....

59.  Moreover, as is clear from the meaning of Article 515.0.2 of the CAO, in order to fall under its scope, an administrative offence had to be committed by an individual who either established a religious organisation or operated one. Given that the applicant was not the owner of the private residence at which he was arrested and was merely in attendance there with his friends, it is unclear how he could have been regarded as having committed an administrative offence under Article 515.0.2 of the CAO....

60.  In any event, even assuming that the private residence where the applicant assembled with others was used as a place of religious worship as argued by the Government, the Court finds it necessary to reiterate that, while States can put in place a requirement that religious denominations be registered in a manner compatible with Articles 9 and 11 of the Convention, it does not follow that sanctioning an individual member of an unregistered religious organisation for praying or otherwise manifesting his or her religious belief is compatible with the Convention.... To accept the contrary would amount to the exclusion of minority religious beliefs which are not formally registered with the State, and consequently would amount to admitting that a State can dictate what a person can or cannot believe....

Law & Religion UK reports on the decision.

Supreme Court Review Sought In High School Football Game Prayer Dispute

A petition for certiorari (full text) was filed with the U.S.Supreme Court last week in Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (Sup. Ct., cert. filed 6/6/2025).In th e case, the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. (See prior posting).

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Israel's Supreme Court Orders Tel Aviv to Permit Outdoor Sex-Separated Yom Kippur Services

Times of Israel reports that yesterday a unanimous 3-judge panel of Israel's Supreme Court ordered the municipality of Tel Aviv to permit the Orthodox Jewish outreach organization Rosh Yehudi to hold outdoor sex-separated Yom Kippur services.  According to the report:

The ruling comes after the Tel Aviv Municipality refused to allow such a service with a gender partition anywhere outdoors in the city, citing a municipal ordinance banning public gender separation and despite being requested by the court to agree to such a compromise.

Last Yom Kippur, Dizengoff Square was the scene of a violent struggle between secular activists and a group of Rosh Yehudi worshipers when the organization defied a municipality ban on a prayer service with a gender partition, a decision upheld by the courts, by setting up a barrier made of Israeli flags....

During Wednesday’s hearing, the three justices were highly critical of the Tel Aviv Municipality’s position, accused it of discriminating against Orthodox worshipers and were frustrated by its refusal to countenance the compromise suggested by the court to move the prayers to Meir Park....

The ruling itself, ordering the municipality to accept the compromise the court offered, was issued without the reasoning behind it due to the time constraints of the case, coming just days before Yom Kippur which falls this Friday night and Saturday.

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot....  So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality....  Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....

President Issues Memorial Day Prayer for Peace Proclamation

Today is Memorial Day. Last week, President Biden issued his Memorial Day 2024 Proclamation, titled A Proclamation on Prayer for Peace (full text), which says in part:

This Memorial Day, we honor the brave women and men who made the ultimate sacrifice for our Nation’s freedom.  We recommit to keeping our sacred obligation to their survivors, families, and caregivers.  Together, we vow to honor their memories by carrying on their work to forge a more perfect Union....

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection.  The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, do hereby proclaim Memorial Day, May 27, 2024, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time when people might unite in prayer and reflection.  I urge the press, radio, television, and all other information media to cooperate in this observance.  I further ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

Catholic Bishops Mobilize Special Prayer Efforts for Supreme Court's Decision on Abortion Pill Availability

On March 26, the U.S. Supreme Court will hear oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine and a companion case Danco Laboratories, LLC v. Alliance for Hippocratic Medicine. (SCOTUSblog case page.) At issue are challenges to the Food and Drug Administration's relaxation of restrictions on the administration and use of the abortion drug mifepristone. (See prior posting.) On March 14, the U.S. Conference of Catholic Bishops issued a letter (full text) calling for the recitation of a special prayer beginning the day before oral arguments and daily until the date in June when the case is decided.  The letter reads in part:

The USCCB Committee on Pro-Life Activities is inviting Catholics to join a focused effort of prayer for the end of abortion and the protection of women and preborn children, beginning on March 25, the eve of the oral arguments, and the anniversary of St. John Paul II’s landmark, pro-life encyclical, The Gospel of Life (Evangelium vitae). In particular, we will invoke the intercession of St. Joseph, Defender of Life....

The Tablet and Catholic World Report both report on the Bishops' Nationwide Invitation to Prayer.

House Members Protest Invited Guest Chaplain

Yesterday, 26 members of the U.S. House of Representatives Freethought Caucus sent a letter (full text) to House Speaker Mike Johnson and the House Chaplain questioning why California-based pastor Jack Hibbs was invited to deliver an opening prayer in the House of Representatives.  The letter reads in part:

The undersigned members write to express our concerns about Speaker Johnson’s sponsorship of Pastor Jack Hibbs as the Guest Chaplain of the House of Representatives. Pastor Hibbs is a radical Christian Nationalist who helped fuel the January 6th insurrection and has a long record of spewing hateful vitriol toward non-Christians, immigrants, and members of the LGBTQ community. He should never have been granted the right to deliver the House’s opening prayer on January 30, 2024.  

In the days leading up to the attack on the Capitol, Hibbs echoed Donald Trump’s election fraud lies and inflamed his followers by preaching that January 6th would go down in history alongside the War of Independence and the War of 1812. By preaching that God had anointed the Trump administration and could still intercede to save Trump’s presidency on January 6th, Hibbs advanced a religious permission structure that led to violence by those who believed any means were justified to carry out what they viewed as God’s plan....

European Court: Azerbaijan's Ban on Foreign Educated Imams Violates European Convention

In Babayev v. Azerbaijan, (ECHR, Feb. 1, 2024), the European Court of Human Rights held that Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) is violated by Azerbaijan's law prohibiting citizens of the country who obtained their religious education abroad from conducting Islamic religious rites and rituals in Azerbaijan. In awarding petitioner, who had been sentenced to three years in prison for violating the law, damages of 6000 Euros, plus costs and expenses, the court said in part:

75.... The Court notes that there is no indication whatsoever that the Islamic religious rites and rituals that the applicant conducted contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society....

76.... The Court is aware of the fundamental importance of secularism in Azerbaijani statehood and the respondent State’s attachment to religious tolerance. However, it cannot accept the Government’s argument that the applicant’s criminal conviction was necessary in a democratic society on account of the State’s fight against religious extremism and its protection of democratic values....

78.... [I]t is apparent that in so far as the restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from religious extremism or any other forms of intolerance...

Memorial Day Proclamation Issued by President Biden

Congress has designated the last Monday in May as Memorial Day. President Biden last week issued A Proclamation on Prayer For Peace, Memorial Day, 2023 (full text). It reads in part:

On Memorial Day, we honor America’s beloved daughters and sons who gave their last full measure of devotion to this Nation....

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection. The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, do hereby proclaim Memorial Day, May 29, 2023, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time when people might unite in prayer and reflection.

Certiorari Denied in Challenge to Police Department Prayer Vigil

The U.S. Supreme Court today denied review in City of Ocala, Florida v. Rojas, (Docket No. 22-278, certiorari denied 3/6/2023) (Order List.) In the case the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children. (See prior posting.) Justices Gorsuch and Thomas filed separate opinions (full text). Justice Gorsuch, while agreeing with the denial of certiorari, contended that the district court should also reconsider the question of plaintiffs' standing as "offended observers," saying in part:

"... [M]ost every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue a political solution."

Justice Thomas dissented from the denial of review, saying in part:

[W]e should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits....

I have serious doubts about the legitimacy of the “offended observer” theory of standing applied below.

Alaska Supreme Court Reverses Dismissal of Muslim Inmate's RLUIPA Claims

In Din v. State of Alaska, Department of Corrections, (AK Sup. Ct., Feb. 22, 2023) the Alaska Supreme Court vacated a trial court's dismissal of a suit brought under RLUIPA and the Alaska constitution by a Muslim inmate and remanded the case for further factual development.  At issue was the inmate's requests to pray five time per day using scented prayer oils and to eat halal meat as part of his diet. Prison rules only allowed use of scented oils for weekly outdoor congregate religious activities and only provided vegetarian or vegan meals for those requesting a halal diet. The court concluded that both restrictions imposed a substantial burden on the inmate's religious exercise. It went on:

Prison security is a compelling government interest. But DOC’s position that possessing prayer oils is prohibitively dangerous is difficult to reconcile with the fact that it allows inmates to possess “skin cream/oil.” Inmate and staff health are also important government interests, and DOC asserts that “even a seemingly mild scent may cause an adverse respiratory reaction.” But DOC’s position is difficult to reconcile with its policies allowing prisoners to possess other fragranced items, like deodorant, hair spray, and air fresheners....

DOC also asserts that the estimated additional cost of providing “halal/kosher meals . . . to accommodate all Alaska inmates who claim to need a special halal/kosher diet . . . would exceed $1,000,000 annually.” Din contends that this is not a compelling reason because providing him pre-packaged halal food would cost DOC approximately $7,700 more than the cost of regular meals, a small sum compared to its massive budget. 

Cost management obviously is an important government interest. But Congress contemplated that RLUIPA may “require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”....

The court also concluded that there are genuine issues of material fact as to whether present policies are the least restrictive means to achieve the state's interests. 

En Banc rehearing Denied in Challenge to Courtroom Invocations

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., Dec. 2, 2022), the U.S. 5th Circuit Court of Appeals by a vote of 12-3 denied an en banc rehearing in a case decided by a 3-judge panel in September. (See prior posting.) The panel held that a program devised by a Texas Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause.  Judge Higginson, joined by Judge Graves, filed an opinion dissenting from the denial of an en banc rehearing. They said in part:

None of the history cited by our court contemplates a judicial command “to stand and bow” for prayer, much less under threat of retaliation. At best, our court digs up “scattered evidence” that some nineteenth- and twentieth-century courts started with a prayer. Along with other evidence that prayers have been said and God invoked in courtrooms, our court thinks this is enough to prove that “courtroom prayer is consistent with a broader tradition of public, government-sponsored prayer.” I agree with the dissenting panel opinion that this history is too thin to justify that conclusion, but I would add that our court’s answer is pitched at the wrong level of generality....  [T]he question is whether “history shows that the specific practice is permitted,” not whether a general practice is permitted.

City's Harassment Of Private Prayer Services In Rabbi's Home Violated 1st Amendment

In Congregation 3401 Prairie Bais Yeshaya D'Kerestir, Inc. v. City of Miami, (SD FL, Oct. 6, 2022), a Florida federal district court refused to dismiss claims that city officials' harassment of a rabbi's home that hosted daily minyans (prayer services) for invited guests violated the 1st Amendment.  Private groups worshiping in a person's home are permitted in residential areas under the city's zoning code. The court said in part:

Defendant, wielding the City Code "like a club" ... issued multiple erroneous citations against Plaintiff for zoning code violations...; sent City personnel to the Property a staggering 126 times...; installed a surveillance camera that monitors only the Property ...; conducted at least one warrantless search...; and otherwise singled Plaintiffs out for harassment.... These events have had "a chilling effect on Plaintiff[s'] First Amendment Rights."... . Defendant's conduct, at least as alleged, could certainly "chill a person of ordinary firmness from exercising his or her First Amendment rights."  [Quote updated.]

11th Circuit Remands Establishment Clause Case That Had Relied On Lemon Test

In Rojas v. City of Ocala, Florida, (11th Cir., July 22, 2022), the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. In the case, plaintiffs who are atheists and humanists sued, challenging a prayer vigil that was co-sponsored by the Ocala police department held in response to a shooting spree that had injured several children. The district court granted summary judgment to plaintiffs.  On appeal, the court said in part:

When the district court granted summary judgment, it believed that the analytical framework articulated in Lemon v. Kurtzman ... was the controlling law. Even though many Justices soured on Lemon over the years, the Court seemingly could not rid itself of that much-maligned decision. Justice Scalia colorfully described Lemon as “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”...

After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot.” Kennedy v. Bremerton Sch. Dist. ... (2022)....

[T]he Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings....

We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.