Supreme Court Strikes Down Most Applications of Conversion Therapy Ban

In Chiles v. Salazar, (Sup.Ct., March 31, 2026), the U.S. Supreme Court in an 8-1 decision struck down most applications of Colorado's law that prohibits licensed counselors from engaging in conversion therapy for minors, defined as therapy that attempts to change an individual’s sexual orientation or gender identity. Justice Gorsuch, joined by all but Justice Jackson, wrote the majority opinion which says in part:

The State insists, and the Tenth Circuit agreed, that its law does not “regulate expression” at all, only “conduct,” “treatment,” or a “therapeutic modality.”...  As a result, Colorado reasons, its law triggers no more than rational-basis or intermediate scrutiny review.... But the State’s premise is simply mistaken.  In many applications, the State’s law banning “conversion therapy” may address conduct—such as aversive physical interventions.  But here, Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say.  Her speech does not become conduct just because the State may call it that. Nor does her speech become conduct just because it can also be described as a “treatment,” a “therapeutic modality,” or anything else. The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by “mere labels.”...

As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech.  It goes a step further, prescribing what views she may and may not express.  For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.” §12–245–202(3.5)(b)(I).  For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” §12–245–202(3.5)(b)(II).  But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it....

At bottom, Colorado and the dissent fundamentally misconceive this Court’s speech-incident-to-conduct precedents. In these cases, the question is not whether a law mostly addresses conduct and only sometimes sweeps in speech. Instead, the focus lies on two entirely different questions: whether the law in question restricts speech only because it is integrally related to unlawful conduct— or ... only for reasons unrelated to its content....

Colorado’s law does not regulate speech incident to conduct under either test....

... Colorado emphasizes, [prior precedent] left open the possibility that a future party might present “persuasive evidence . . . of a long (if heretofore unrecognized) tradition” of content regulation regarding additional categories of professional (or other) speech that might likewise warrant only “diminished” First Amendment protection....

...  Colorado and the dissent ask us to recognize a cavernous “First Amendment Free Zone,”... one in which States may censor almost any speech they consider “substandard care.” It is, once more, an approach our precedents already foreclose. 

Justice Kagan, joined by Justice Sotomayor, filed a concurring opinion stating that the result might be different if a law regulating speech in doctors' and counselors' offices were content-based but viewpoint-neutral.

Justice Jackson filed a 35-page dissenting opinion saying in part:

Stated simply, the majority has failed to appreciate the crucial context in which Chiles’s constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional. The Tenth Circuit was correct to observe that “[t]here is a long-established history of states regulating the healthcare professions.” ...  And, until today, the First Amendment has not blocked their way.  For good reason: Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care....

Over the past few decades, however, the premise of conversion therapy (in whatever form) has been widely discredited within the medical and scientific community. Conversion therapy is, at bottom, “based on a view of gender diversity that runs counter to scientific consensus.”...

A state license used to mean something to the patients who entrust their care to licensed professionals—i.e., that the person is certified to be one who provides treatments that are consistent with the standard of care. 

That stops today....

The Guardian reports on the decision. ADF, which represented petitioner, issued a press release commenting on the decision.

Supreme Court in Shadow Docket Case Rejects California's Policy on Informing Parents of Student's Gender Transition

On Monday evening, the U.S. Supreme Court in Mirabelli v. Bonta, (Sup. Ct., March 2, 2026), barred enforcement against objecting parents of a controversial California school policy that requires student consent before disclosing to parents a student's gender transitioning in school. A California federal district court had enjoined enforcement of the policy in a challenge by parents and teachers. The 9th Circuit Court of Appeals, however, stayed the district court's injunction, thus reinstating the policy. In a per curiam opinion, the Supreme Court ruled for the parents.  It vacated the 9th Circuit's stay as to parents who object to the policy, but left the stay in place as to teachers. Justices Thomas and Alito would have vacated the injunction as to teachers as well. Justices Jackson, Kagan and Sotomayor dissented.

The per curiam opinion says in part:

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim.  California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” ...  The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs....

The same is true for the subclass of parents who object to those policies on due process grounds.  Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” ... The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health....

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, filed a concurring opinion, saying in part:

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization..... But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects....

 ... [C]ontrary to the dissent’s charge, granting interim relief is not a sign of the Court’s “impatience” to reach the merits.... Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents.... 

Justice Kagan, joined by Justice Jackson, filed a dissenting opinion, saying in part:

Today’s decision shows, not for the first time, how our emergency docket can malfunction.  A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case’s merits. The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute.  It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks. And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation....

As to due process particularly... I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make..... On the other side of ledger, of course, a State has critical interests in the care and education of children.  But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line.  And that would entitle the parents, at the end of the day, to relief. 

The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes....

Justice Sotomayor, without writing or joining an opinion, stated that she would have left the 9th Circuit's injunction in place both as to parents and teachers.

SCOTUSblog reports on the decision.

Supreme Court: Trump Administration Rules on Passport Gender Markers Can Go into Effect While Appeals Move Forward

In Trump v. Orr, (Sup. Ct., Nov. 6, 2025), the U.S. Supreme Court by a 6-3 vote granted an emergency stay of a preliminary injunction that had been entered by a Massachusetts federal district court.  The district court had enjoined, pending appeal, enforcement of the Trump Administration's policy of requiring U.S. passports to display the sex assigned to the passport holder at birth rather than the sex marker that matches their current gender identity. The challenged policy was put in place in compliance with a 2025 Executive Order on ... "Restoring Biological Truth to the Federal Government."   In staying the injunction, the Supreme Court's majority said in part:

Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.”

Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now....

 ... [The government] provides no evidence of harmful confusion or other problems caused by transgender Americans who are using passports with sex markers corresponding to their current gender identity.  To the contrary, as the plaintiffs’ experiences demonstrate, it is gender-incongruent passports that cause confusion and fail to provide a meaningful basis for identification.

 As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes, that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes....

Politico reports on the decision.

Hawaii Supreme Court Interprets State Constitution's Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawai'i, (HI Sup. Ct., Sept. 12, 2025), the Hawaii Supreme Court held that the Hawaii state constitution's Establishment Clause invalidates a provision in a 1922 land grant from the Territory of Hawaii to the Church of Jesus Christ of Latter-Day Saints. The land grant provided in part:

The land covered by this Grant is to be used for Church purposes only. In the event of its being used for other than Church purposes, this Grant shall become void and the land mentioned herein shall immediately revert to and revest in the Territory of Hawaii.

The current owners of the land seek a declaratory judgment holding that the reversionary clause is invalid.  The majority said in part:

Ultimately, we hold that the State’s action to enforce the Deed Restriction, requiring that the Property be used “for Church purposes only” or else the Property would revert to the State, violates Hawai‘i’s Establishment Clause in article I, section 4 of the Hawai‘i Constitution.  We resolve this appeal based on the Hawai‘i Constitution.  In doing so, we need not consider the Federal Establishment Clause....

When the Hawai‘i Constitution was framed and subsequently went into effect, three U.S. Supreme Court cases delineated the law under Federal Establishment Clause jurisprudence: Everson v. Board of Educ. of Ewing. Township, 330 U.S. 1 (1947); McCollum v. Board of Educ., 333 U.S. 203 (1948); and Zorach v. Clauson, 343 U.S. 306 (1952).  We conclude that these decisions provide appropriate and ample guidance to decide this case....

... The State ... asserts that we should adopt the now-prevailing test for Federal Establishment Clause challenges in Kennedy, 597 U.S. 507.  We decline to adopt either the Lemon or the Kennedy tests. ...

We see no reason to adopt the Kennedy test to analyze the Hawai‘i Establishment Clause.  We recognize the well-founded concerns raised by Justice Sotomayor’s dissent in Kennedy, highlighting the challenges of unearthing and applying historical practices and understandings from the period around the U.S. Constitution’s adoption in 1787.  Further, Appellants make the salient point that applying the Kennedy test in the context of state actions in Hawai‘i is even more fraught with questions and peril.  It would be discordant to require that the Hawai‘i Establishment Clause be construed based on the historical practices and understandings of the Founding Fathers given that the Hawai‘i Constitution was adopted by its electorate in 1959, one-hundred and seventy-two years after the U.S. Constitution was adopted. ...

Justice Eddins, joined by Justices McKenna and Devis filed a concurring opinion, saying in part:

Because in my view article I section 4 of the Hawaiʻi Constitution has a pluralistic purpose and secular spirit grander than the majority suggests, and the Department of the Attorney General urges us to interpret our constitution to match recent Supreme Court case law, I write separately....

The delegates intended for Hawaiʻi’s Establishment Clause to reflect Everson’s separationist ideals.... Separation of church and state guided the adoption of Hawaiʻi’s religious clauses....

If the Supreme Court decides a case based on mission, text trickery, originalism, or imagination, then that case may have little value to a state that prefers a more principled way, or an interpretive approach that does not force “contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.”...

The Roberts Court’s off-the-wall jurisprudence reimagines the First Amendment.  The Constitution creates a barrier against state support for religion and state involvement in religion.  But the Court misshapes the Constitution to require government support of religion. 

Two years ago, I feared the Court self-inflicted harm, eroded faith in the courts, and exposed itself to real criticisms about its legitimacy....  

Back then in the big games, the Roberts Court called balls and strikes based on the pitcher and hitter.  Bad enough for the integrity of our judicial system – national and subnational.  But now pitches that bounce to the plate or sail over the catcher’s head are strikes.  Just because the ump says so.  Pretend law is not law.   State constitutionalism makes it easy to consider Roberts Court jurisprudence white noise.

Supreme Court: Parents Have Free Exercise Right to Opt Children Out of Class Discussions That Undermine Religious Beliefs

 In Mahmoud v. Taylor, (Sup.Ct., June 27, 2025), the U.S. Supreme Court in a 6-3 decision upheld the granting of a preliminary injunction to parents who objected to a Maryland school district's removal of parents' right to opt their children out of class discussions involving "LGBTQ+ inclusive" storybooks. The parents objected to exposing their children to discussions of sexuality and gender that were inconsistent with parents' religious beliefs. The majority, in an opinion authored by Justice Alito, said in part:

The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution....

In light of the record before us, we hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that [Wisconsin v.] Yoder found unacceptable....

To start, we cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.”...

In any event, the Board and the dissent are mistaken when they rely extensively on the concept of “exposure.” The question in cases of this kind is whether the educational requirement or curriculum at issue would “substantially interfer[e] with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parent wishes to instill in the child.... Whether or not a requirement or curriculum could be characterized as “exposure” is not the touchstone for determining whether that line is crossed....

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable....

 Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.  That much is clear from our decisions in Yoder and Smith....

Justice Thomas filed a concurring opinion, saying in part:

... [T]he Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the “fully inclusive environment” that the Board purports to foster....

The curriculum itself also betrays an attempt to impose ideological conformity with specific views on sexuality and gender....

The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights.  Most straightforwardly, rather than attempt to “weave the storybooks seamlessly into ELA lessons,” the Board could cabin its sexual- and gender-identity instruction to specific units.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

 Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instill in their children.... Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny..... That novel rule is squarely foreclosed by our precedent and offers no limiting principle.  Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not. 

The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools....

... [N]ever, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim....

The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs?  It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects....

SCOTUSblog reports on the decision.

Supreme Court: Medicaid Recipients Cannot Sue Under Sec. 1983 To Challenge State Cutoff of Medicaid Funds to Planned Parenthood

In Medina v. Planned Parenthood South Atlantic,(Sup. Ct., June 26, 2025), the U.S. Supreme Court held that Medicaid recipients cannot sue under 42 USC §1983 to challenge South Carolina's cutoff of coverage under Medicaid of Planned Parenthood's non-abortion services.  In a 6-3 decision, the Court held that the remedy for wrongly excluding a provider from state Medicaid was for the Secretary of Health and Human Services to withhold federal Medicaid funding to the state. Justice Thomas filed a concurring opinion calling for a broader review of the Court's §1983 jurisprudence. Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

Congress enacted the Medicaid Act’s free-choice-of-provider provision to ensure that Medicaid recipients have the right to choose their own doctors.  The Court’s decision to foreclose Medicaid recipients from using §1983 to enforce that provision thwarts Congress’s will twice over: once, in dulling the tool Congress created for enforcing all federal rights, and again in vitiating one of those rights altogether.

Supreme Court Upholds Tennessee's Ban on Gender Affirming Care for Minors

In United States v. Skrmetti,(Sup.Ct., June 18, 2025), the U.S. Supreme Court today by a vote of 6-3 upheld Tennessee's law that bars both hormonal and surgical gender transition procedures for minors. The case generated 5 separate opinions spanning 118 pages. Chief Justice Roberts' majority opinion held that the Tennessee law does not trigger heightened scrutiny. He said in part:

This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status. As we have explained, SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second....

... [T]here is a rational basis for SB1’s classifications. Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty....

Justice Thomas filed a concurring opinion, saying in part: 

This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.

Deference to legislatures, not experts, is particularly critical here. Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones, and surgical interventions, despite mounting evidence to the contrary. They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own. They have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.

Justice Barrett, joined by Justice Thomas, filed a concurring opinion, saying in part:

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class.... I write separately to explain why, in myview, it does not....

Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of “closely scrutiniz[ing] legislative choices” in all these domains....

Justice Alito filed an opi nion concurring in part, saying in part:

I do notjoin Part II–A–2 of the opinion of the Court, which concludes that SB1 does not classify on the basis of “transgender status.” There is a strong argument that SB1does classify on that ground, but I find it unnecessary to decide that question. I would assume for the sake of argument that the law classifies based on transgender status, but I would nevertheless sustain the law because such a classification does not warrant heightened scrutiny. I also do not join Part II–A–3 of the Court’s opinion because I do not believe that the reasoning employed in Bostock v. Clayton County ... is applicable when determining whether a law classifies based on sex for Equal Protection Clause purposes.

Justice Sotomayor filed a dissenting opinion, joined by Justice Jackson and joined in part by Justice Kagan, saying in part:

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it... Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims....

Justice Kagan filed a dissenting opinion, saying in part:

I take no view on how SB1 would fare under heightened scrutiny.... So I would both start and stop at the question of what test SB1 must satisfy. As JUSTICE SOTOMAYOR shows, it is heightened scrutiny...

SCOTUSblog reports on the decision.

Supreme Court: Wisconsin's Religious Nonprofit Exemption from Unemployment Comp. Tax Must Include Catholic Charities

In Catholic Charities Bureau, Inc. v. Wisconsin Labor and Industry Review Commission, (Sup. Ct., June 5, 2025), the U.S. Supreme Court, in an opinion by Justice Sotomayor, unanimously held that Wisconsin violated the First Amendment's religion clauses when it held that Catholic Charities Bureau does not qualify for the exemption from unemployment compensation tax that is granted by state statute to nonprofits "operated primarily for religious purposes". The Wisconsin Supreme Court had held that Catholic Charities' activities were no different than those offered by a secular organization; they did not involve worship services, religious outreach, ceremony, or religious education. In reversing the Wisconsin supreme Court, the U.S. Supreme Court said in part:

A law that differentiates between religions along theological lines is textbook denominational discrimination....

This case involves that paradigmatic form of denominational discrimination....

Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics. Petitioners’ Catholic faith, however, bars them from satisfying those criteria. Catholic teaching, petitioners say, forbids “‘misus[ing] works of charity for purposes of proselytism.’” ... It also requires provision of charitable services “without making distinctions ‘by race, sex, or religion.’” ...  Many religions apparently impose similar rules.... Others seemingly have adopted a contrary approach....

Wisconsin’s exemption, as interpreted by its Supreme Court, thus grants a denominational preference by explicitly differentiating between religions based on theological practices.

Justice Thomas filed a concurring opinion, saying in part:

As a matter of church law, Catholic Charities and its sub-entities are an arm of the Diocese of Superior, and thus, for religious purposes, are not distinct organizations.  But, when determining whether Catholic Charities was a religious organization entitled to a tax exemption, the Wisconsin Supreme Court nevertheless relied on Catholic Charities’ separate corporate charter to treat it as an entity entirely distinct and separate from the Diocese. That holding contravened the church autonomy doctrine....

Justice Jackson filed a concurring opinion, saying in part:

The Federal Unemployment Tax Act (FUTA) allows a State to exempt from its unemployment-coverage mandate any “organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.”... The State treats church affiliated charities that proselytize and serve co-religionists exclusively differently from those that do not.... Because I agree that this distinction violates the neutrality principle of the Constitution’s Religion Clauses, I join the Court’s opinion in full.

... [B]oth the text and legislative history of FUTA’s religious-purposes exemption confirm that Congress used the phrase “operated primarily for religious purposes” to refer to the organization’s function, not its inspiration....

Congress sought to extend to most nonprofit workers the stability that unemployment insurance offers, while exempting a narrow category of church-affiliated entities most likely to cause significant entanglement problems for the unemployment system—precisely because their work involves preparing individuals for religious life. It is perfectly consistent with the opinion the Court hands down today for States to align their §3309(b)(1)(B)-based religious-purposes exemptions with Congress’s true focus.

SCOTUSblog reports on the decision. 

Supreme Court Gives Emergency Relief to State Legislator Who Was Disenfranchised After Anti-Transgender Social Media Post

In Libby v. Fecteau, (Sup. Ct., May 20, 2025), the U.S. Supreme Court by a vote of 7-2 granted an injunction pending appeal to a member of the Maine House of Representatives.  Petitioner's Emergency Application for an Injunction describes the issue before the Court:

Maine State Representative Laurel Libby spoke out on social media about an intensely debated issue—the participation of transgender athletes in girls’ high school sports. Maine requires girls to compete alongside transgender athletes; Libby criticized that policy after a transgender athlete won the girls’ pole vault at the state track-and-field championship. Displeased with Libby’s criticism, the Maine House voted along party lines to censure her.  

The verbal censure (unwise as it may be) is not what Applicants challenge here. It’s what happened next. The Speaker declared Libby was barred from speaking or voting until she recants her view. This means her thousands of constituents in Maine House District 90 are now without a voice or vote for every bill coming to the House floor for the rest of her elected term, which runs through 2026.....

In this application, Petitioners seek an injunction pending appeal requiring the Clerk to count Libby’s votes. That interim relief simply restores the status quo of equal representation, bringing the Maine House back into conformity with every other State and Congress. 

The Supreme Court granted the injunction in a one-paragraph order that did not give reasons for the decision. Justices Sotomayor and Jackson voted to deny the injunction. Justice Jackson filed a dissenting opinion, saying in part:

Not very long ago, this Court treaded carefully with respect to exercising its equitable power to issue injunctive relief at the request of a party claiming an emergency.  The opinions are legion in which individual Justices, reviewing such requests in chambers, declined to intervene—reiterating that “such power should be used sparingly and only in the most critical and exigent circumstances.” ...

Those days are no more. Today’s Court barely pauses to acknowledge these important threshold limitations on the exercise of its own authority.  It opts instead to dole out error correction as it sees fit, regardless of the lack of any exigency and even when the applicants’ claims raise significant legal issues that warrant thorough evaluation by the lower courts that are dutifully considering them....

SCOTUSblog and The Washington Stand report on the decision.

Supreme Court Denies Execution Stay to Buddhist Who Says His RLUIPA Rights Will Be Violated

 In a 5-4 decision in Hoffman v. Westcott, (Sup. Ct., March 18, 2025), the U.S. Supreme Court refused to grant a stay of execution to a Buddhist inmate who contended that Louisiana's method of execution would violate his free exercise rights under RLUIPA. Justices Sotomayor, Kagan and Jackson dissented from the denial without filing opinions. Justice Gorsuch filed a dissenting opinion, saying in part:

The State of Louisiana plans to execute Jessie Hoffman tonight. Mr. Hoffman is a Buddhist. And he argues that the State’s chosen method of execution—nitrogen hypoxia—violates his rights under the Religious Land Use and Institutionalized Persons Act of 2000.... Nitrogen hypoxia will, he says, substantially burden his religious exercise by interfering with his meditative breathing as he dies....  No one has questioned the sincerity of Mr. Hoffman’s religious beliefs. Yet the district court rejected his RLUIPA claim anyway based on its own “find[ing]” about the kind of breathing Mr. Hoffman’s faith requires.... That finding contravened the fundamental principle that courts have “no license to declare . . . whether an adherent has ‘correctly perceived’ the commands of his religion.” 

AP reports on the Court's action.

Supreme Court Refuses to Lift Preliminary Injunction Against DOE's Title IX Changes

 In Department of Education v. Louisiana, (US Sup. Ct., Aug. 16, 2024), the U.S. Supreme Court refused to stay preliminary injunctions that two district courts issued to prevent enforcement of the Department of Education's new rules under Title IX. The new rules, in part, expand the definition of sex discrimination under Title IX to include discrimination on the basis of sexual orientation and gender identity. All the Justices agreed that the injunctions should remain in place as to this portion of the new rules. Justice Sotomayor, joined by Justices Kagan, Gorsuch and Jackson would have allowed other portions of the new rules to go into effect. Liberty Counsel issued a press release announcing the court's decision.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

Justice Kavanaugh, joined by Justice Barrett, filed a concurring opinion, saying in part:

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

Justice Jackson, joined by Justice Sotomayor, filed a dissenting opinion, saying in part:

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

11th Circuit Rejects RLUIPA Challenge to Novel Execution Method; Supreme Court Denies Review

In Smith v. Commissioner, Alabama Department of Corrections, (11th Cir., Jan. 24, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision refused to stop the January 25 execution of death row inmate Kenneth Smith.  The U.S. Supreme Court also refused to stay Smith's execution and denied certiorari in the case, initially in an Order dated January 24 (Smith v. Alabama, (Docket No. 23-6517)), and subsequently in an order dated January 25, to which Justice Sotomayor filed a dissent, as did Justice Kagan joined by Justice Jackson. (Smith v. Hamm, (Docket No. 23-6562)). Smith was executed in the evening of January 25. The case has garnered substantial news coverage because Alabama used a novel execution method-- nitrogen gas-- after a first attempt at execution by lethal injection failed. In addition to 8th Amendment claims, Smith, who wished to engage in audible prayer as he was being executed, raised free exercise claims under RLUIPA (as well as other claims).  The 11th Circuit affirmed the district court's refusal to issue a preliminary injunction, saying in part:

Here, Smith argues that the Protocol substantially burdens his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged mask. It is not speculative that Smith would engage in religious exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it found that any risk of the mask gaping or dislodging is speculative based upon the same factual findings regarding the mask’s design, fit, and nitrogen volumes above. Without such findings, we cannot conclude that Smith will be substantially burdened in his ability to audibly pray during the course of the execution. Based upon this standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA holding.

Judge Wilson filed a concurring opinion and Judge Pryor filed a dissent on the 8th Amendment issue.

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Supreme Court Says "De Minimis" Is Incorrect Standard for Religious Accommodation Under Title VII

The U.S. Supreme Court today in Groff v. DeJoy,(Sup. Ct., June 29, 2023), held that lower courts have largely been misreading the Hardison case's standard for determining when accommodation of religious practices of employees imposes an "undue hardship on the conduct of the employer's business." The case involves a postal worker who was seeking accommodation of his Sabbath observance. In a unanimous decision, written by Justice Alito, the Court said in part:

Today, the Solicitor General disavows its prior position that Hardison should be overruled—but only on the understanding that Hardison does not compel courts to read the “more than de minimis” standard “literally” or in a manner that undermines Hardison’s references to “substantial” cost....With the benefit of comprehensive briefing and oral argument, we agree.

We hold that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business....

[B]oth parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.”... As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.”...

An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself....

Second, ... Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.... Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

Justice Sotomayor, joined by Justice Jackson, filed a concurring opinion, saying in part:

Petitioner Gerald Groff asks this Court to overrule Hardison.... The Court does not do so. That is a wise choice because stare decisis has “enhanced force” in statutory cases.De   

Supreme Court Vacates Stay of Injunction Against Yeshiva University, Sending Case Back To State Courts

The U.S. Supreme court yesterday in Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 14, 2022), vacated the stay issued on Sept. 9 by Justice Sotomayor of a New York state trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. In a 5-4 vote, the Court issued the following opinion directing the University to first seek expedited review and interim relief from New York trial courts.  Here is the full opinion [paragraph breaks added]:

The application (22A184) for stay pending appeal of a permanent injunction entered by the New York trial court, presented to Justice Sotomayor and by her referred to the Court, is denied without prejudice to applicants again seeking relief from this Court if, upon properly seeking expedited review and interim relief from the New York courts, applicants receive neither. The order heretofore entered by Justice Sotomayor is vacated.

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Justice Alito, with whom Justice Thomas, Justice Gorsuch, and Justice Barrett join, dissent.

NY Jewish Week reports on the decision. [Thanks to Rabbi Michael Simon for the lead.]

UPDATE: Here is the full text of Justice Alito's dissent. He said in part:

At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.

Justice Sotomayor Stays NY Order Requiring Yeshiva University To Recognize LGBTQ Group

In Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 9, 2022),  U.S. Supreme Court Justice Sonia Sotomayor today issued an order staying a New York trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The New York trial court held that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights. (See prior posting.) Justice Sotomayor granted the University's Emergency Application for a Stay Pending Appellate Review without referring the petition to the full Court. However she wrote that her stay was granted "pending further order of the undersigned or of the Court." CNN reports on developments.

Supreme Court Upholds Football Coach's Prayer Rights; Repudiates the "Lemon Test"

 In Kennedy v. Bremerton School District, (Sup. Ct., June 27, 2022), the U.S. Supreme Court, in a 6-3 decision, held that a school district violated the First Amendment's Free Speech and Free Exercise clauses by disciplining a football coach for visibly praying at midfield immediately after football games. Justice Gorsuch wrote the majority opinion. In discussing whether the school district could regulate Coach Kennedy's speech because Kennedy was a government employee, Justice Gorsuch said in part:

[W]hat matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.

In reaching its contrary conclusion, the Ninth Circuit stressed that, as a coach, Mr. Kennedy served as a role model “clothed with the mantle of one who imparts knowledge and wisdom.”... Teachers and coaches often serve as vital role models. But this argument commits the error of positing an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control.... On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria. Likewise, this argument ignores the District Court’s conclusion (and the District’s concession) that Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities.... That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”.... 

Justice Gorsuch also found it clear that Coach Kennedy seeks to engage in a sincerely motivated religious exercise. The more difficult question was whether the school district could bar this because of Establishment Clause concerns. In deciding that it could not, the Court repudiated the Lemon test which had been relied upon by the lower courts in deciding the case. Justice Gorsuch said in part:

It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment.... A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others....

To defend its approach, the District relied on Lemon and its progeny....

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.... This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “‘perceptions’” or “‘discomfort.’” ...

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’” Town of Greece, 572 U. S., at 576.... “‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”... An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “‘exception’” within the “Court’s Establishment Clause jurisprudence.”

Justice Gorsuch then focused on the alternative argument that students were being coerced to pray. He said in part:

No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment. Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause..... But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion....

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.”

Justice Thomas filed a brief concurring opinion, saying in part:

[W]e have held that “the First Amendment protects public employee speech only when it falls within the core of First Amendment protection— speech on matters of public concern.”... It remains an open question, however, if a similar analysis can or should apply to free-exercise claims in light of the “history” and “tradition” of the Free Exercise Clause...

Justice Alito filed a brief concurring opinion, saying in part:

The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I join the opinion in full.

Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:

Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.

The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion....

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so....

The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so....

The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” ...

Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.

CNN reports on the decision.

Supreme Court Overrules Roe v. Wade and Casey

In a 5-1-3 opinion today, the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, (Sup. Ct., June 24, 2022), overruled Roe v. Wade  and Planned Parenthood of Southeastern Pa. v. Casey.  The majority, in a 108-page opinion written by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett said in part:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”...

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law....

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives....

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy....

[T]he dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell.... But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”... We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” ... Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.”... It is hard to see how we could be clearer....

We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard....

Under our precedents, rational-basis review is the appropriate standard for such challenges....

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests....

These legitimate interests justify Mississippi’s Gestational Age Act.... The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.”.... The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” ... These legitimate interests provide a rational basis for the Gestational Age Act....

Justice Thomas filed a concurring opinion arguing that "'substantive due process' is an oxymoron that 'lack[s] any basis in the Constitution.'" He goes on to say: "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Justice Kavanaugh filed a concurring opinion emphasizing that the Court's decision does not threaten or cast doubt on substantive due process decisions on non-abortion issues. He also reiterated: "Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral."

Chief Justice Roberts filed an opinion concurring only in the judgment and saying in part:

I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further— certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.... I see no sound basis for questioning the adequacy of that opportunity.

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more....

Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.

Justices Breyer, Sotomayor and Kagan filed a 66-page joint dissenting opinion, saying in part:

The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases.... That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest....

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”... But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all....

[I]n this Nation, we do not believe that a government controlling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within “the reach of majorities and [government] officials.”... We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once....

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship....

The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

[This post was corrected to make it clear that the Dissent was a Joint Dissent, not a dissent by one Justice joined by the others.]