Supreme Court Review Sought in Denial of Religious Exemption from Vaccine Requirement for Student Attending Online School

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Perry v. Marteney, (Sup.Ct., cert. filed 9/4/2026). In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that West Virginia's law that requires children attending school in the state to be vaccinated against a number of infectious diseases may be constitutionally applied to a student attending the state's online public school over the religious objections of the student's parents, even though the vaccination requirement does not apply to home schooled children or those educated in learning pods or in microschools. The 4th Circuit said in part: "[T]he Perrys do not allege that K.P.’s desire to attend the Virtual Academy is religiously motivated, so this is merely an instance of West Virginia treating some secular activity more favorably than other secular activity...." (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Supreme Court Term Opens Monday with Several Cases of Interest on Its Docket

The U.S. Supreme Court's fall term opens tomorrow, Oct. 6. There are a number of cases on the Court's Docket for this term that are of interest to readers of Religion Clause Blog. Here are the cases with links to their case pages on SCOTUSblog:

Chiles v. Salazar (to be argued on Oct. 7). Is Colorado's ban on conversion therapy for minors constitutional.

Landor v. Louisiana Department of Corrections and Public Safety, (to be argued Nov. 10, 2025). Can a government official be sued in his individual capacity for violating the Religious Land Use and Institutionalized Persons Act.

First Choice Women’s Resource Centers v. Platkin, (argument date not yet set). Can a faith-based pregnancy resource center that has been served with a state investigatory subpoena challenge the subpoena on free speech grounds in federal court, or must the challenge be adjudicated in state court.

Little v. Hecox, (argument date not yet set). West Virgina v. B.J.P, (argument date not yet set). Do laws that bar transgender women from participating on women's sports teams in public schools and colleges violate Title IX or the 14th Amendment's Equal Protection Clause.

Olivier v. City of Brandon, Mississippi, (argument date not yet set). Can a street preacher sue to enjoin a city ordinance that limits demonstrations to a designated area within three hours of an event at the city's amphitheater, or would that undermine his prior state conviction for violating the ordinance.

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There are also two cases of interest on the Court's Emergency Docket (sometimes called its "Shadow Docket") These cases are usually decided without full briefing and oral argument. 

Trump v. Orr. Asks the Supreme Court should stay a district court injunction that requires the State Department to allow passport applicants to select the sex designation that will appear on their passports. Applicants have the choice of "M", "F", or "X", regardless of their biological sex.

We the Patriots USA v. Ventura Unified School District. Asks the Supreme Court to issue an injunction allowing school children whose parents object to vaccines on religious grounds to attend school while challenges to the absence of religious exemptions from school vaccine mandates are being appealed.

U.S. Reverses Position in Transgender Case Already Argued Before Supreme Court

Last December, the U.S. Supreme Court heard oral arguments in United States v. Skrmetti. The case involves a challenge to a Tennessee statute prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The case began as a suit by a private party, but the United States then intervened and filed its own complaint challenging the constitutionality of the statute. After a decision by the 6th Circuit reversing a preliminary injunction against enforcement, both the United States and the private plaintiff filed petitions for certiorari. The Supreme Court granted review only in the United States' case. Now with a change of Administrations, the United States has changed its position and no longer challenges the Tennessee statute.  The United States on February 7 filed a letter (full text) with the Supreme Court, reading in part:

The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.  Accordingly, the new Administration would not have intervened to challenge SB1—let alone sought this Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.

Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court.  The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts.  Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.  Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, see L.W. v. Skrmetti, No. 23-466 (filed Nov. 1, 2023), or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.

AP reports on the government's action.

Cert. Granted on Whether Opt-Out is Required When Parent Objects on Religious Grounds to Public School Curricular Material

Yesterday the U.S. Supreme Court granted review in Mahmoud v. Taylor, (Docket No. 24-297, certiorari granted 1/17/2025). (Order List.) The question presented to the Court in the Petition for Certiorari is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

In the case, the Montgomery County, Maryland Board of Education adopted certain LGBTQ-Inclusive Books as part of a larger array of books for use by English Language Arts teachers. An initial arrangement allowing parents to opt their children out of exposure to these books was ended by the Board.

The U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a free exercise violation occurs only when there is some sort of direct or indirect pressure to change religious beliefs or conduct, and that mere presence in the classroom when these materials may be read does not create that kind of coercion. (See prior posting.) 

CBS News reports on the Court's action.

Litigation Over Air Force's Handling of Religious Objections to Vaccine Mandate Dismissed as Moot by Supreme Court

The U.S. Supreme Court today in Kendall v. Doster, (Docket No. 23-154, GVR'd 12/11/2023) (Order List), granted certiorari, vacated the judgment below, and remanded the case to the 6th Circuit with instructions to direct the District Court to vacate its preliminary injunctions as moot. In the case, the 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who had sought religious exemptions from the military's COVID vaccine mandate. (See prior posting.) The case is moot because the vaccine mandate has been rescinded by the military in compliance with Congressional legislation ordering the recission. (See prior posting.) The court similarly remanded as moot two other cases involving other challenges to rescinded federal vaccine mandates.

Parties Respond To Supreme Court's Proposed Contraceptive Compromise In Zubik Case

As previously reported, last month the U.S. Supreme Court in Zubik v. Burwell issued an unusual order seeking the parties' reactions to a Court drafted compromise on provision of health insurance contraceptive coverage for employees of religious non-profits. Yesterday both the government (full text of Government's brief) and the petitioners (full text of Petitioners' brief) filed briefs with their answers.  Neither side totally bought into the Court's alternative.  At the center of their disagreement is the question of whether employees of objecting religious non-profits will end up automatically receiving contraceptive coverage from an alternative source, or whether they will have to take separate independent action in order to obtain that coverage. The compromise floated in the Supreme Court's Order is ambiguous in this regard, suggesting:

Petitioners ... would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage.... 

In responding to the Court's proposal, the Government said in part:

Requiring an employer seeking an exemption from the contraceptive-coverage requirement to provide written notice plays an important role in implementing the accommodation, and eliminating that requirement would impose real costs on the parties whose rights and duties are affected—including objecting employers. But the accommodation for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.

On the other hand, Petitioners argued:

Under the current regulatory scheme, there is just a single plan that automatically comes with payments for contraceptive services. Petitioners’ employees, therefore, automatically receive free contraceptive coverage solely by virtue of their enrollment in petitioners’ plans. There is no reason why this must be so. Instead, to truly separate petitioners from the contraceptive coverage, there should, at a minimum, be “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy),”... with separate enrollment processes, insurance cards, payment sources, and communication streams....

[I]f the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan. Otherwise, it is not independent of the employer’s plan. That process certainly need not be complex. Like activating a credit card, it could be as simple as having the insurance company send each eligible employee a contraceptive coverage card with a sticker attached providing a telephone number to call or website portal to use should she wish to activate the coverage.

Both the government and petitioners recognized that the Court's proposed alternative failed to deal with non-profits that self-insure and use third-party administrators to implement coverage. They both also recognized that petitioners' objections are more difficult to deal with in this context. The government's answer was that some designation or self-certification by the non-profit is unavoidable here, but " any employer that objects to a feature of the accommodation unique to self-insured plans can switch to an insured plan."

The non-profits, on the other hand, devoted a significant portion of their brief to the problem of self-insured employers, saying in part:

If commercial insurance companies begin making truly separate  contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges..... 

The only question, then, would be how employees of employers with self-insured plans would learn of the availability of those contraceptive-only policies. Asking the objecting employer or the objecting church plan to provide employees with that information would go well beyond what this Court’s order contemplates and what RFRA can tolerate. But there are other means through which individuals could learn about the availability of such contraceptive-only policies and how to enroll. For instance, the government itself could provide that information and assist individuals in enrollment.....

The government also could require doctors and other healthcare providers who have no religious objections to contraception to provide individuals with information about how to enroll in a contraceptive only plan if their employer’s plan does not include such coverage, and to help them complete that process should they choose to do so.

Wall Street Journal reports on the briefs.

Supreme Court Unanimously Upholds Muslim Inmate's Right To Grow Half-Inch Beard

Today in Holt v. Hobbs, (Sup. Ct., Jan 20, 2015), the U.S. Supreme Court unanimously held that the Arkansas Department of Corrections policy that prevents a Muslim inmate from growing a one-half inch beard for religious reasons violates the Religious Land Use and Institutionalized Persons Act.  In an opinion by Justice Alito the court held that it is irrelevant for purposes of RLUIPA that an inmate has other means of practicing his religion. While cases invovling prisoners' First Amendment rights invoke that reasoning, RLUIPA provides greater protection.  The court went on to reject the state's contention that its no-beard policy is the least restictive means of furthering a compelling state interest. It found unpersuasive the state's arguments regarding contraband and identification of inmates. The Court added that prison officials still have ample ways to maintain security, saying that "in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting."

Justice Ginsburg filed a short concurring opinion, joined by Justice Sotomayor, emphasizing that here, unlike in the Hobby Lobby case, accommodating petitioner's religious beliefs would not detrimentally affect third parties who do not share his beliefs. Justice Sotomayor filed a separate concurring opinion saying: "I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them."

Supreme Court Grants Review In 6th Circuit Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in four same-sex marriage cases from the Sixth Circuit: Obergefell v. James (Ohio); Tanco v. Haslam  (Tennessee); DeBoer v. Snyder (Michigan); and Bourke v. Beshear (Kentucky). (Order List). In a consolidated opinion, the 6th Circuit in a 2-1 decision upheld the same-sex marriage bans in the four states. (See prior posting.) In granting review, the Supreme Court defined the questions to be argued:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Supreme Court Hears Oral Arguments In Title VII Case

The United States Supreme Court heard oral arguments yesterday in a Title VII employment discrimination case.  The question presented in Mach Mining, LLC v. EEOC is whether and to what extent a court can enforce the EEOC’s statutorily required duty to conciliate discrimination claims before filing suit.  The transcript of the oral arguments is available from the Court's website. SCOTUSBlog's case page containing links to all the briefs in the case as well as to the 7th Circuit's opinion below is here. The Washington Post reports on the oral arguments.  While the case involves charges of gender discrimination, the result will impact religious discrimination cases as well.

Transcript of Today's SCOTUS Arguments In Town of Gilbert Now Available

The full transcript of oral arguments today in Reed v. Town of Gilbert -- the case on regulation of church directional signs-- is now available.  SCOTUSBlog has an analysis of the arguments, saying in part:

Throughout the argument, Justices of differing philosophical leanings seemed skeptical of a one-size-fits-all First Amendment approach for judging sign ordinances.  That was the way they interpreted the argument of David A. Cortman of Lawrenceville, Georgia, representing the small Good News Community Church and its pastor, Clyde Reed.   No member of the Court appeared persuaded by his argument that, if a city allows more leeway for one kind of sign, the Constitution demands that all signs in any way similar be treated the same.

Supreme Court Will Hear Arguments Today On Church's Challenge To Sign Ordinance

The U.S. Supreme Court will hear oral arguments this morning in Reed v. Town of Gilbert.  (Argument calendar.) In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld as content-neutral an Arizona town's sign ordinance that limits the display of directional signs.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.)  Here is the SCOTUSBlog's case page with links to all of the briefs in the case. and here is Lyle Denniston's preview of the arguments.

Supreme Court Grants Review In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court today granted certiorari in EEOC v. Abercrombie & Fitch Stores, Inc., (Docket No. 14-86). (Order List). In the case, the 10th Circuit held that there is a strict notice requirement before an employer is required to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.) The cert. petition and related briefs are available here from SCOTUSblog. News 9 reports on the Supreme Court's grant of review.

Cert. Denied In Broad Religious Rights Challenge To Provisions of the Affordable Care Act

The U.S. Supreme Court today denied certiorari in Liberty University v. Lew, (Docket No. 13-306, cert. denied 12/2/2013). (Order List.) In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to various other provisions of the Act. Plaintiffs claimed that both the employer mandate and the individual mandate imposed support of abortions, and that certain religious exemptions in the statute violate the Establishment Clause. In the case, the 4th Circuit also refused to allow plaintiffs to belatedly add claims regarding the contraceptive coverage mandate.  (See prior posting.) [Thanks to SCOTUSblog for the lead.]

Supreme Court Grants Review In Two Contraceptive Coverage Mandate Cases

The U.S. Supreme Court today (11/26/2013) granted certiorari in two cases challenging the Affordable Care Act contraceptive coverage mandate, and consolidated them for appeal allotting one hour for oral argument. (Order List.) The cases are Sebelius v. Hobby Lobby Stores, Inc, (Docket No. 13-354) and Conestoga Wood Specialties v. Sebelius, (Docket No. 13-356).

In the Hobby Lobby case, an 8-judge en banc panel of the 10th Circuit Court (in six separate opinions spanning 165 pages) held that two related family-owned corporate businesses had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violation of RFRA.  The corporations and their Christian owners objected to providing coverage for those contraceptives they regard as abortifacients.  Five of the 8 judges held that corporations have free exercise rights. Four of the 8 judges also concluded that the individual shareholders have standing to assert claims as well. (See prior posting.) From Becket Fund, here is a link to all the pleadings and briefs in the case since its inception.

In Conestoga Wood Specialties, the 3rd Circuit in a 2-1 decision denied a preliminary injunction sought by a family-owned business which, along with its Mennonite owners, objected to providing coverage for contraceptive methods that may terminate a fertilized embryo. The majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and that the conscience rights of the owners of a corporation do not pass through to the corporation. (See prior posting.) By a 7-5 vote, the 3rd Circuit denied an en banc rehearing. (See prior posting.) From Becket Fund, here is a link to the prior opinions and Supreme Court filings in the case.

CNN has additional coverage of the Supreme Court's action.