Foster Parent Requirements for Affirming Transgender Children Are Upheld

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

In Antonucci v. Winters I, (D VT, Feb. 20, 2025), the foster care license of plaintiffs was withdrawn because of their inability to comply with the state's non-discrimination requirement that included a commitment to facilitate the social and medical transition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

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

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

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

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

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

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

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

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

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

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

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

Title VII Applies to Liberty University's Firing of Transgender Employee

In Zinski v. Liberty University, Inc., (WD VA, Feb. 21, 2025), a Virginia federal district court refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. In an extensively reasoned 70-page opinion, the court rejected several defenses asserted by the University. First the University contended that §§702 and 703 of the 1964 Civil Rights Act allow a religious employer to discriminate on the basis of transgender status when that is consistent with the employer’s religious belief. Those section allow a religious employer to discriminate "with respect to the employment of individuals of a particular religion." The court said in part:

Having determined that no source of law—from statutory text to legislative history to precedent—answers the question before us, the Court is left to weigh the imperfect arguments above, alongside the potential legal and social consequences of our decision. Drawing upon all of these considerations, we conclude that Sections 702 and 703 must be narrowly construed so as to permit discrimination only on the basis of an employee’s espoused religious belief or practice, such that religious employers have no license to discriminate on the basis of any other protected class. Where a religious employer discriminates on the basis of any other protected class in a but-for fashion, a statutory violation occurs, even if the decision was religiously motivated....

To decide that sex discrimination is acceptable so long as it is religiously motivated would allow employers to achieve all manner of discrimination under the banner of religion. So long as the religious institution can show that its view—despite directly implicating sex, race, or national origin—is a sincerely held religious belief, the religious institution would have free license to discriminate at will and evade the scrutiny of civil law. Not only would this subject potentially thousands of people to discrimination..., but it would supply religious institutions with a power not afforded to secular institutions, thereby generating favorites under the law and raising Establishment Clause questions....

The court also rejected the University's RFRA defense, concluding first that RFRA applies only to suits in which the government is a party. It added:

And even if Liberty were entitled to raise RFRA as a defense, we find that Title VII likely passes strict scrutiny....

On the record before us, enforcing this statute in Zinksi’s case merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse Zinksi’s behavior, or to allow Zinksi to spread a new message within the organization.... The minimal inroad on religious liberty here is easily justified by the exceedingly compelling governmental interest in eradicating sex discrimination in employment. Accordingly, we find that Liberty’s brief argument as to burden is insufficient to show substantial burden at this stage of litigation. Thus, strict scrutiny does not apply, and our analysis can come to an end.....

The court rejected the ministerial exception defense, saying in part that "nothing in the record suggests that Zinski was a minister." The court also rejected the University's freedom of expressive association claim, saying in part:

... [W]e must defer Liberty’s claim that it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior. However,... we cannot conclude that Zinksi’s presence at Liberty would “force the organization to send a message” that Liberty accepts transgender conduct as a “legitimate form of behavior.”... Zinksi is an IT employee who has limited to no interactions with students, has no role in influencing or promoting Liberty’s value system, and has no role in Liberty’s religious curriculum or programming. The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who “sins” despite Liberty’s opposition to sin in general....

Finally, the court rejected the University's ecclesiastical abstention defense, saying in part:

Zinski’s complaint asks the Court to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether a religious institution, like Liberty, has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired.

HHS Issues Guidance On Defining Gender-Based Terms

On Wednesday, the Department of Health and Human Services issued a release titled "Defining Sex: Guidance for Federal Agencies, External Partners, and the Public Implementing Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." (full text). The 1½ page memo says in part:

There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm....

Recognizing the immutable and biological nature of sex is essential to ensure the protection of women’s health, safety, private spaces, sports, and opportunities. Restoring biological truth to the Federal government is critical to scientific inquiry, public safety, morale, and trust in government itself.

The Release goes on to define the terms "sex", "female", "male". "woman", "girl", "man", "boy", "mother", and "father",

Catholic Bishops Sue Feds Over Cutoff of Refugee Resettlement Funding

The U.S. Conference of Catholic Bishops this week filed suit against the State Department and HHS challenging the abrupt cutoff of funds for refugee resettlement. The complaint (full text) in U.S. Conference of Catholic Bishops v. U.S. Department of State,, (DDC, filed 2/18/2025), alleges in part:

First, the Refugee Funding Suspension contravenes appropriations-related statutes and flouts the Constitution’s vesting of the power of the purse in Congress....

Second, the Refugee Funding Suspension is arbitrary and capricious.  For the first time in forty-five years, and without warning, the government has cut off funding to USCCB for the essential services USCCB provides to government-approved refugees, including refugees already placed with USCCB and its subrecipients....

Third, the Refugee Funding Suspension is unlawful because it was done without public notice and opportunity to comment.

The U.S. Conference of Catholic bishops issued a press release announcing the filing of the lawsuit.

ED's Title IX Rule Violates 1st Amendment

 In Carroll Independent School District v. U.S. Department of Education, (ND TX, Feb. 19, 2025), a Texas federal district court invalidated the Department of Education’s rule that interprets Title IX as prohibiting discrimination based on sexual orientation and gender identity. The court had previously issued a preliminary injunction barring enforcement of the rule against plaintiff school district.  The court now permanently vacates the Rule, finding, among other things, that it violates the First Amendment. The court said in part:

Because “misgendering” could, under this broad standard, constitute hostile environment harassment, teachers will “assume they should use subjective gender terms to avoid discipline under the Final Rule.”

As a consequence, recipients of Title IX funds, including teachers, are forced “to be an instrument for fostering public adherence to an ideological point of view [they] find[] unacceptable.”... The Final Rule functionally turns recipients of federal funds into federally commandeered censors of speech, forcing schools to require engagement in or, at a minimum, to prohibit certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.

ADF issued a press release announcing the decision.

Suit Challenges Software Company's Denial of Discount to Christian Nonprofit

A suit under California's Unruh Civil Rights Act was filed yesterday in a California federal district court by a Christian nonprofit organization that offers a video curriculum designed to instruct teenagers about Christian beliefs on sexuality.  The complaint (full text) in Holy Sexuality v. Asana, Inc., (SD CA, filed 2/18/25), alleges that Asana, Inc. which sells subscriptions for project management software, violated the public accommodation religious discrimination provisions of California law when it denied plaintiff the 50% discount offered to nonprofits. According to the complaint:

To qualify, nonprofits must: have 501(c)(3) status; not be an education or academic institution, hospital, hospital auxiliary, nurse register, mutual organization, or credit union; and not “advocate, support, or practice discrimination based on age, ethnicity, gender, national origin, disability, race, size, religion, sexual orientation, or socioeconomic background.”...

But, under its Religious Discrimination Policy, Asana denies that discount to “[r]eligious organizations that exist to solely propagate a belief in a specific faith.”...

Asana’s religious discrimination was and remains arbitrary, especially because Asana grants discounts to nonprofits who hold views opposite to Holy Sexuality’s and grants discounts to other religious nonprofits.

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

Refusing to Allow Minister To Wear Collar At His Criminal Trial Was Not Reversable Error

 In People v. Johnson, (CA App., Feb. 18, 2025), a California state appellate court held that a trial court's refusal to allow a criminal defendant, an ordained minister, to wear his clerical collar and have a Bible with him during his trial was not reversable error. Defendant was charged with gross vehicular homicide while intoxicated. The court said in part:

Assuming only for purposes of argument that the trial court erred in not allowing defendant to wear a collar, we must determine whether the error would have been prejudicial.  Federal constitutional error requires reversal unless the beneficiary of the error can show it was “harmless beyond a reasonable doubt.” ...

... [P]rohibiting defendant from wearing a clerical collar did not result in a structural defect in the constitution of his trial.  Nothing in the record indicates his inability to wear a collar impacted the outcome of his trial, interfered with his fundamental trial rights, or in any way impacted the trial’s structural truth-finding process.  Any error by the trial court in not allowing defendant to wear a collar was not structural. 

We thus must determine whether the assumed error was harmless beyond a reasonable doubt...  Defendant offers no argument on this point.  As a result, he has forfeited the issue....  Any error by the trial court denying defendant his request to wear a clerical collar was harmless beyond a reasonable doubt and not prejudicial.

The trial court sentenced defendant to 25 years to life under California's Three Strikes Law. The Court of Appeals however remanded the case for resentencing, finding that defendant did not receive fair notice that a three-strike sentence would be sought.

Court Issues TRO Barring Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, Feb. 14, 2025), a Maryland federal district court set out its reasons for issuing a nation-wide temporary restraining order barring enforcement of the sections of two Executive Orders that prohibit federal funding for institutions that provide gender affirming care for patients under 19 years of age. At issue are provisions in Executive Order 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government and in Executive Order 14187, titled Protecting Children from Chemical and Surgical Mutilation. The court said in part:

Defendants admit in the very first line of their response in opposition to the motion for a TRO that the President "issued two Executive Orders directing agencies to take steps, as permitted by law, to condition certain federal grant funding on his policy preferences."23 ECF 55, at 3. This is a clear violation of the Constitution as "attempt[s] [by the Executive Branch] to place new conditions on federal funds [are] an improper attempt to wield Congress's exclusive spending power and is a violation of the Constitution's separation of powers principles."....

Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Defendants assert that the challenged portions of the Executive Orders are based on the important government interest of "protecting the physical and emotional well-being of youth."...  Defendants assert that the Orders are substantially related to this important government interest because "[ e ]vidence. abounds that treatments covered by the Protecting Children EO 'are dangerous and ineffective."'... Though Defendants might well have support for this argument, the en banc Fourth Circuit in Kadel rejected a similar claim by noting that "those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing."... Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Jeremy Ross, Fulton, Foster Care, and Free Exercise, (Tex. Rev. L. & Pol. (forthcoming 2025)).
• Thomas Charles Berg, Defining Neutrality, Combating Polarization: Laycock’s Essential Contributions, (Journal of Law and Religion (forthcoming 2025)).
• Caroline Mala Corbin, New Judicial Federalism and the Establishment Clause: Classroom Ten Commandments as a Case Study in State Constitutional Protection, (Texas Law Review (forthcoming)).
• R. George Wright, On the Justification of Academic Freedom and of Free Speech On the University Campus, (December 26, 2024).
• Catherine Archibald, Still Problematic, Even Post-Settlement: Florida’s “Don’t Say Gay” Law and the Federal Constitution, (28 Chapman Law Review 1 (2024)).
• Valeria Gomez, The New Abortion Borders for Immigrant Women, (Minnesota Journal of Law and Inequality (Forthcoming, Vol. 43)).
• Teresa Stanton Collett, The Unsettled (and Unsettling) State of Abortion Law in the United States in 2024, (Abortion: A Comparative Perspective, Centro para el Bien Común Global Instituto Razón Abierta (2025)).
• Clare Ryan & Benjamin J. McMichael, The Future of Frozen Embryos, (SMU Law Review, Forthcoming 2025).
• Dov Fox & Mary Ziegler, The New Abortion, (Columbia Law Review, Vol. 126 (forthcoming 2025)).

From SSRN (Non-U.S. Law)

• Ahmer Bilal Soofi, The Lost Sunnah Of Treaty Negotiation – Need For Revival, (December 15, 2024).
• Ahmer Bilal Soofi, The Prophet (pbuh) as an International Law Practioner,  (December 02, 2024).
• Susanna Mancini, Freedom of Religion in Italy and Europe, (December 10, 2024).

From SmartCILP:

• Ann C. McGinley, Religious Accommodations in the Dobbs Era, 27 Employee Rights & Employment Policy Journal 276-334 (2024).

Parent May Proceed on Some Challenges to School's Policy on Transgender Students

In Landerer v. Dover Area School District, (MD PA, Feb. 13, 2025), a mother challenged a school board's policy Directive that prohibits parental notification without student consent when a student asks to socially transition and be called by a different name or pronouns. The court held that plaintiff lacked standing to obtain injunctive or declaratory relief because she had withdrawn her children from the Dover School District. The court also dismissed plaintiff's free exercise claim, saying in part:

... [T]he policy here is rationally related to the legitimate interest of protecting transgender students. Even though the policy is alleged by Plaintiff to impact or burden her religious beliefs, the Directive survives rational basis review.

The court however refused to dismiss plaintiff's claim that a teacher interfered with her right to direct the care (including medical and mental health care), custody and control of her child. It also refused to dismiss plaintiff's claim that she was denied procedural due process because the Directive failed to provide for notice to parents of their children's request to use a different name and pronoun. The court allowed plaintiff to proceed only against the school board and not against the individual defendants on these claims because of qualified immunity.

Anti-Abortion Pregnancy Centers Sue Challenging Delaware Disclaimer Requirements

Suit was filed this week in a Delaware federal district court challenging a new Delaware law that requires pro-life pregnancy centers to include in all advertising and to disseminate to clients onsite a disclaimer stating:  "This facility is not licensed as a medical facility by the state of Delaware and has no licensed medical provider who provides or directly supervises the provision of services." The complaint (full text) in National Institute of Family and Life Advocates v. Jennings, (D DE, filed 2/12/2025) alleges that this requirement violates the free speech and free exercise rights of pregnancy care centers. The complaint alleges in part:

13. ... [The law] is a classic example of compelled speech in violation of the Free Speech Clause. The law is expressly content-based both because it compels the content of speech and because it regulates only speakers who wish to discuss the subject of pregnancy from a pro-life perspective rather than any other health topic.

14. The law is also viewpoint based, because it is designed to target pro-life pregnancy care centers and burdens, restricts, chills, or in some circumstances legally prohibits their message. It does not similarly impact pro-abortion advocacy groups, individuals, or facilities. 

15. The law also infringes upon the free exercise rights of the pregnancy care centers which are founded with a religious mission to engage and support women, but will be forced to drown out their religiously motivated messages (including ones with primarily or exclusively religious content) and present misleading information to undercut the opportunities the pregnancy care centers have to engage pregnant women in unplanned or unsupported pregnancies.

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

Kansas Governor Vetoes Bill Banning Medical and Surgical Treatment of Minors for Gender Dysphoria

 On Feb. 11, Kansas Governor Laura Kelly vetoed Senate Bill 63 which prohibited medical, hormonal or surgical treatment of minors for gender dysphoria. It provided for damage actions against doctors who violated the prohibitions and barred insurance policies from covering liability for such damages. State employees whose duties include care of children may not promote social transitioning. In her veto message (full text), Governor Kelly said in part:

Infringing on parental rights is not appropriate, nor is it a Kansas value. As I’ve said before, it is not the job of politicians to stand between a parent and a child who needs medical care of any kind. This legislation will also drive families, businesses, and health care workers out of our state, stifling our economy and exacerbating our workforce shortage issue.

Reporting on these developments, Kansas Reflector said in part:

Kelly, a Democrat, vetoed a similar bill last year, and Republicans failed to coordinate the necessary two-thirds majority to override the veto. House Speaker Dan Hawkins, a Wichita Republican, said in a statement Tuesday that House Republicans were ready to override this year’s veto.

UPDATE: On Feb. 18, the Kansas legislature overrode Governor Kelly's veto. 

New Report on Antisemitism in the U.S. Released

This week, the American Jewish Committee released its report on The State of Antisemitism in America 2024. The report is comprised of a survey of American Jews, a survey of the U.S. general public, and a comparison of the two surveys. Among the report's key findings are:

77% of American Jews say they feel less safe as a Jewish person in the U.S. because of the October 7, 2023, Hamas terrorist attacks.

Nearly six in 10 (56%) American Jews say they altered their behavior out of fear of antisemitism in 2024 – a sharp increase from previous years. In 2023, this number was 46%, and 38% in 2022.

90% of American Jews say antisemitism has increased in the U.S. since the Hamas terrorist attacks.

One-third (33%) of American Jews say they have been the personal target of antisemitism – in person or virtually – at least once over the last year.

Refusal To Sell Generic Cake for Same-Sex Wedding Reception Violates California Anti-Discrimination Law

In Civil Rights Department v. Cathy's Creations, Inc., (CA App., Feb. 11, 2025), a California state appellate court in a 74-page opinion held that a bakery violated the anti-discrimination provisions of the Unruh Civil Rights Act (UCRA) when it refused to sell a predesigned white cake to a customer because the cake would be used at the customer's same-sex wedding reception. The bakery had a policy of refusing customer requests that violate fundamental Christian principles. The court rejected defendant's free exercise and free speech defenses and concluded that the bakery's referral of the customer to another bakery did not eliminate the violation. The court said in part:

Here, the policy’s application hinges not on the act of marriage, but on the same sex status of the couple to be married.  Thus, the policy’s purposeful exclusion of same sex couples is facial discrimination because of sexual orientation....

... [T]he fact that Miller’s adoption of the discriminatory policy was driven by her sincerely held religious beliefs rather than malice or ill will is irrelevant to the issue of intentional discrimination....

Discriminatorily denying service and then telling would-be customers they may take their business down the street (or farther) to a separate, unassociated establishment where they may be served by way of referral in no way ensures full and equal access to the product or service at the same price and under the same conditions.... [A] referral to a separate and independent business subjects the customer to “‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments’” that public accommodation laws like the UCRA are generally designed to address.....

Focusing on the bakery's free speech and free exercise defenses, the court said in part: 

The act of providing a product to a wedding reception with the intent to send a message does not transform that product into pure speech if the product itself is not the self-expression of the vendor.  If this were the case, a host of nonexpressive products or services provided for a same-sex wedding reception could be deemed to convey a message merely because they were provided for the event—e.g., flatware, chairs and linens, etc.  Moreover, many standard products provided to a wedding reception are equally as visible as the cake and used by the couple in a symbolic manner....  The mere fact these products are prepared for and provided to a same-sex wedding in a routine economic transaction does not transform them into the self-expression of the vendor....

There is also little likelihood a viewer would understand the cake’s sale and provision to a same-sex wedding conveyed any message about marriage generally or an endorsement and celebration of same-sex marriage in particular....

Here, the UCRA does not draw any distinctions between secular and religious activities, and there is no evidence the UCRA was enacted as a means to discriminate against religion.  Moreover, defendants’ argument the statutory provisions relating to the preservation of housing for senior citizens ... are contradictory secular exemptions under the UCRA, rendering it not generally applicable, is unpersuasive.

Designation of Catholic Church as Historic Structure Is Enjoined

In Zubik v. City of Pittsburgh, (WD PA, Feb. 11, 2025), a Pennsylvania federal district court enjoined the city of Pittsburgh from designating a closed Catholic church building that is in substantial disrepair as a historic structure. When a building is nominated for historic designation, its owners are prohibited from making any exterior alterations to the building. The court held that the nomination of the building by a city resident violated the city's Historic Designation Ordinance that requires the nomination of a religious structure "only be made by the owner(s) of record of the religious structure."

The court also concluded that the city's actions substantially burdened use of the church property for religious exercise in violation of the Religious Land Use and Institutionalized Persons Act. The court said in part:

The City effectively supplanted the Diocese’s control over the external religious ornamentation and symbols affixed to the Church Building.  By doing so, the City hindered, restricted, or encumbered the Diocese’s religious use of its stained-glass windows and other sacred fixtures of the Church Building.  Contrary to the City’s argument, these encumbrances impose more than a “minimal effect of limiting how the Diocese could alter the street facing façade” of the Church Building....

...[O]n this record there is no compelling government interest in the City’s exercise of control over the Church Building, nor is the City’s pursuit of historic designation of the Church Building the least restrictive means of achieving its stated interests.

Indiana Supreme Court Broadly Interprets Churches' Partial Tort Immunity

In Calvary Temple Church of Evansville, Inc. v. Kirsch, (IN Sup. Ct., Feb. 11, 2025), the Indiana Supreme Court gave a broad interpretation to a state statute that partially shields non-profit religious organizations from tort liability. As summarized by the court:

For an invitee—one who enters the premises with the church’s actual or implied permission—  the church’s twin duties are to warn of hidden dangers of which it has actual knowledge and not to harm the entrant intentionally. Unless the church breaches one of these limited duties, it is not liable for injuries sustained on its premises.

At issue in the case was how broadly to define church "premises." Plaintiff in the case was a church member who was injured while helping construct a storage shed on the five-acre plot of land on which the small church is also located. He sued claiming that the church was negligent in not providing safe equipment and failing to properly supervise him. The court said in part:

Despite the broad meaning of “premises”, Kirsch insists that the term cannot include a church’s entire parcel of land and refers only to the parcel’s specific subpart that is “used primarily for worship services”....

Had the legislature intended “premises” in section 2 to mean only the building where worship services occur or only a subpart of the church’s parcel of land, it could have limited the term’s meaning as it did in adjoining section 34-31-7-3. Section 3 applies to nonprofit religious organizations that offer childcare services for a fee...

“Premises” in section 2, rather, is consistent with general-language dictionaries that define “premises” to include an entire parcel of land....

Section 34-31-7-2 is not without limit.... The “use” requirement is that “the premises as a whole [be] used primarily for worship services”.

[Thanks to Josh Tatum for the lead.]

Britain's Court of Appeals: Teacher Wrongfully Terminated for Personal Facebook Postings Reflecting Christian Beliefs on Sexuality

In Higgs v. Farmor's School, (EWCA, Feb. 12, 2025), Britain's Court of Appeal held that the dismissal of a teacher because of posts on her personal Facebook page reflecting her Christian-based objections to schools teaching children about same-sex marriage and gender fluidity constituted unlawful discrimination on the ground of religion or belief in violation of the Equality Act 2010. The court said in part:

The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others.  However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Lord Justice Falk filed a brief concurring opinion.

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

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

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

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

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

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

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

[Caption of lawsuit corrected.]

Missouri and Christian Counselors Sue Localities Over Conversion Therapy Bans

Suit was filed last week in a Missouri federal district court against Kansas City and Jackson County, Missouri by the state of Missouri and Christian licensed counselors challenging ordinances passed by those jurisdictions which broadly ban licensed counselors from engaging in counseling directed at changing a minor's sexual orientation or gender identity. The complaint (full text) in Wyatt Bury, LLC v. City of Kansas City, Missouri, (WD MO, filed 2/7/2025), alleges in part:

Kansas City and Jackson County recently passed ordinances that ban purely consensual conversations—pure speech—about gender identity and sexual orientation. These ordinances not only require counselors to parrot these governments’ preferred views on sexual ethics; they also ban different views. That violates the First Amendment. 

340. The Counseling Ordinances facially and as-applied restrict speech based on content and viewpoint by prohibiting the Counselors and other licensed professionals who are Missouri citizens from proclaiming only certain content and viewpoints; by applying to speech based solely on its content; by authorizing counseling that supports only one viewpoint of gender identity and sexual orientation....  

353. The Public Accommodation Ordinance forces the Counselors to speak messages they object to by requiring them to offer and provide same-sex marital and relationship counseling because the Counselors offer and provide counseling about marriages and relationships between one man and one woman.... and to refer to clients and prospective clients by using those persons’ self-selected pronouns....

376. The City’s Public Accommodation Ordinance substantially burdens the Counselors’ sincerely held religious beliefs by requiring them either to operate their counseling practices in ways that violate their religious beliefs or to close their practices....

Plaintiffs also challenge the ordinances on vagueness grounds. 

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

Evangelist Can Move Ahead with Free Speech Claim Against Officer Who Arrested Him at Pride Festival

In Cocchini v. City of Franklin, Tennessee, (MD TN, Feb. 6, 2025), a Tennessee federal district court held that plaintiff, a Christian evangelist, had successfully stated a claim for violation of his 1st Amendment free speech rights. Plaintiff was asked by a police officer to leave a Pride Festival after he began to share his Christian testimony with two women at a church booth.  When he refused to leave, he was arrested. He sued, contending that the police officer discriminated against him by impermissibly regulating his speech conducted in a public forum. The police office asserted a defense of qualified immunity. The court said in part:

Here, Cocchini has alleged facts plausibly demonstrating that the Park remained a public forum throughout Franklin Pride....

There are two competing stories for Cocchini’s exclusion from the Park.  Officer Spry says he removed Cocchini from the public forum, causing him to cease his peaceful invited religious speech, apparently for violating Tennessee’s criminal trespass law....  However, the Complaint alleges that Officer Spry told Cocchini on the day of his arrest, and under oath, that he arrested Cocchini because a Franklin Pride TN security event coordinator wanted him removed.....  Taking the allegations in the Complaint as true, Cocchini sufficiently asserts that the justification for his exclusion from the Park, and arrest, was based on the content of his speech....

If the arrest was to “avoid offense to gay, lesbian, or transgender individuals,” as the Complaint alleges, such an interest (compelling or not) is not narrowly tailored by arresting individuals like Cocchini who express religious views....

... [I]if as Cocchini alleges, Officer Spry arrested him “because of the content of his speech,” then he “acted in violation of the First Amendment in ways that should have been clear to a reasonable officer.” ... This is a disputed issue of fact such that “development of the factual record is [] necessary to decide whether [Officer Spry’s] actions violated clearly established law.” ...

The court however dismissed plaintiff's equal protection claim which was based only on the alleged violation of his 1st Amendment rights.

Differential School Bussing for Parochial School Students Does Not Violate Free Exercise or Equal Protection Clauses

In Swiech v. Board of Education for the Sylvania City School District, (OH App., Feb. 7, 2025), an Ohio state appellate court affirmed the dismissal of a suit brought by the mother of elementary school children. Plaintiff claimed that the hub-and-spoke bussing arrangement for transporting of children to Catholic elementary schools violates her free exercise and equal protection rights. Public school students were furnished direct home-to-school bus transportation. The court said in part:

The first step in analyzing an equal protection claim is determining the appropriate standard of review....  

... [B]ecause this case does not involve a fundamental right or a suspect class, rational basis review applies.

... [I]t is rational and reasonable to classify public school students separately from nonpublic and community school students based on the differences in how many students attend each school, where the students are located in relation to their school, and when the schools start and end....

... Swiech’s argument that she receives lesser governmental benefits as a consequence of the exercise of religion lacks nuance.  Swiech’s children receive different transportation not because she is exercising her religion, but because she chooses to send them to a nonpublic or community school.  All students residing in the School District who attend a nonpublic or community school are similarly transported regardless of whether they attend a religious or non-religious school. ...

In any event, we agree with the School District that its bussing plan does not have a coercive affect against Swiech in the practice of her religion.  While the bussing plan may impact Swiech’s and her children’s sleep schedules, work schedules, and medication schedules, it does not interfere with their ability to practice their religion.  Indeed, the School District’s bussing plan ensures that Swiech’s children are able to attend their chosen religious school on time every day.

Trump Establishes White House Faith Office

Last Friday, President Trump issued an Executive Order (full text) establishing the White House Faith Office. The White House also issued a Fact Sheet summarizing the President's Executive Order and related initiatives.  The Executive Order comes less than three weeks after President Trump as part of an earlier Executive Order (full text) titled Initial Rescissions of Harmful Executive Orders and Actions revoked President Biden's Executive Order (full text) that created a White House Office of Faith-Based and Neighborhood Partnerships. President Trump's new Executive Order reads in part:

The executive branch wants faith-based entities, community organizations, and houses of worship, to the fullest extent permitted by law, to compete on a level playing field for grants, contracts, programs, and other Federal funding opportunities.  The efforts of faith-based entities, community organizations, and houses of worship are essential to strengthening families and revitalizing communities, and the Federal Government welcomes opportunities to partner with such organizations through innovative, measurable, and outcome-driven initiatives.

The executive branch is committed to ensuring that all executive departments and agencies ... honor and enforce the Constitution’s guarantee of religious liberty and to ending any form of religious discrimination by the Federal Government.

The President also announced the following appointments to the White House Faith Office:  Pastor Paula White-Cain as a Special Government Employee and Senior Advisor to the Office; Jennifer S. Korn as a Deputy Assistant to the President and Faith Director of the Office; and Jackson Lane as Special Assistant to the President and Deputy Director of Faith Engagement.

The Hill reports on the President's action. Wikipedia traces the history of similar offices in successive Administrations since that of George W. Bush. [Thanks to Scott Mange for the lead.]

Court Rules On Pre-Trial Motions by Defendant Charged with Obstruction by Force of Religious Free Exercise

In United States v. Jiang, (ED VA, Feb. 6, 2025), a Virginia federal district court ruled on several technical and procedural issues raised in pre-trial motions by a defendant indicted, among other charges, for attempted forcible obstruction of free exercise of religious beliefs in violation of 18 USC §247. According to an AP report on an earlier aspect of the case:

Prosecutors say Jiang intended to shoot congregation members of the Park Valley Church in Haymarket in September 2023. He was arrested during Sunday services at the church, armed with a handgun and other weapons, after a former girlfriend called police and alerted them to disturbing social media posts he made.

According to authorities, Jiang had recently joined to the church but indicated that he was mad at God and at men for blocking him from having romantic relationships with women. He left behind a “final letter” in which he said he intended to only shoot and kill men and apologized in advance for any women who might be "collateral damage."

The court held that while §247 refers to obstructing "any person in the enjoyment of that person's free exercise of religious beliefs," it is sufficient that the indictment identified defendant's victim as “the congregants of Park Valley Church,” rather than identifying each individual.

The court also rejected defendant's argument that since he did not remove a firearm from his waistband while at the church until law enforcement instructed him to do so, he could not be charged with the aggravated offense of attempting to kill church members

Recent Articles of Interest

From SSRN:

• Kusal Amarasinghe, Eliminating Unnecessary Suffering in War: A Review on the Applicability of International Humanitarian Law & Selected Theravada Buddhist Principles, (International Research Conference- 2024, Faculty of Law, University of Colombo).
• Ann E. Tweedy, The Right to Practice Polyamory, (Southwestern Law Review, forthcoming 2025).
• David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, (Michigan Law Review, Volume 124, forthcoming 2025).
• Ian Stephens, Concrete and Particularized Standards to Resolve the Difficulty of Muldrow v. City of St. Louis, (October 21, 2024).
• Lauren van Schilfgaarde, American Cultural Heritage's Embrace of Tribal Cultural Heritage, (33 Kan. J.L. & Pub. Pol’y 275 (2024)).
• Hannibal Travis, Genocide by Deportation into Poverty: Western Diplomats on Ottoman Christian Killings and Expulsions, 1914-1924, (Florida International University Legal Studies Research Paper (forthcoming)).
• Laura D. Hermer, Abortion and Embodiment, (The American Journal of Bioethics, 2025).
• Lauren van Schilfgaarde, Native Reproductive Self-Determination,76 UCLA L Rev __ (2025)).
• Vincent Phillip Muñoz, What Is an Establishment of Religion? and What Does Disestablishment Require?,  (December 13, 2024).
• Risa L. Goluboff & Richard Schragger, Grants Pass and the Vagrancy Revolution Revisited, (The Supreme Court Review: Volume 2024).

From SSRN (Islamic Law):

• Ihsan Yilmaz, The Diyanet's Role in Shaping National and Transnational Identities: Religion, Politics, and the AKP's Pragmatic Islamism, (September 02, 2024).
• Romi Setiawan, Nurul Hak & Adi Setiawan, Synergising Normative and Cultural Frameworks in Reforming Core Principles for Effective Zakat Supervision in Indonesia, (September 19, 2024).
• Ekaterina Ryzhkova, The Institute of Public Finance in the Legal Tradition of the Arab East, (November 06, 2024).

From SmartCILP and elsewhere:

• Australian Journal of Law & Religion, (Vol. 5, 2024).
• Willan Chester Jordan, Book Review: Uncertain Refuge: Sanctuary in the Literature of Medieval England, by Elizabeth Allen, [Abstract], 41 Law & History Review 841-842 (2023).
• Joseph Chu, Past Wounds, Present Scars: A Historical-Legal Analysis of Religion, Regulation and Rights in Article 36 of the Chinese Constitution, 33 Minnesota Journal of International Law 113-154 (2024).

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.

President Trump Creates Task Force to Eradicate Anti-Christian Bias

Yesterday, President Trump issued an Executive Order titled Eradicating Anti-Christian Bias (full text). The Order establishes within the Justice Department a temporary Task Force to Eradicate Anti-Chrisian Bias chaired by the Attorney General and made up of 16 other Cabinet level and high-ranking Administration officials. The Executive Order sets out at length the reasons for creating the Task Force, saying in part:

... [T]he United States Constitution enshrines the fundamental right to religious liberty in the First Amendment....

Yet the previous Administration engaged in an egregious pattern of targeting peaceful Christians, while ignoring violent, anti-Christian offenses.  The Biden Department of Justice sought to squelch faith in the public square by bringing Federal criminal charges and obtaining in numerous cases multi-year prison sentences against nearly two dozen peaceful pro-life Christians for praying and demonstrating outside abortion facilities....

At the same time, Catholic churches, charities, and pro-life centers sought justice for violence, theft, and arson perpetrated against them, which the Biden Department of Justice largely ignored. ...

... [A] Federal Bureau of Investigation (FBI) memorandum asserted that “radical-traditionalist” Catholics were domestic-terrorism threats and suggested infiltrating Catholic churches as “threat mitigation.”  This later-retracted FBI memorandum cited as support evidence propaganda from highly partisan sources.

  The Biden Department of Education sought to repeal religious-liberty protections for faith-based organizations on college campuses.  The Biden Equal Employment Opportunity Commission sought to force Christians to affirm radical transgender ideology against their faith.  And the Biden Department of Health and Human Services sought to drive Christians who do not conform to certain beliefs on sexual orientation and gender identity out of the foster-care system....

 My Administration will not tolerate anti-Christian weaponization of government....

Also yesterday, President Trump spoke for 24-minutes (full text of Remarks) at the National Prayer Breakfast held in the U.S. Capitol

Title VI Does Not Cover Protected Speech, But Antisemitic Actions at Cooper Union Went Beyond Speech

In Gartenberg v. The Cooper Union for the Advancement of Science and Art, (SD NY, Feb. 5, 2025), a New York federal district court held that Title VI of the 1964 Civil Rights Act must be applied consistent with the 1st Amendment, even as to private schools. In the case, a group of Jewish students asserted a claim for deliberate indifference to national-origin harassment under Title VI growing out of on-campus incidents after the Gaza-Israel conflict began. The court said in part:

First, speech “on a matter of public concern, directed to the college community,” will generally fail to “constitute unlawful harassment.” ...

[C]onstruing Title VI not to reach instances of pure speech on matters of public concern, or an institution’s failure to censor or punish the same, does not mean that such expression is irrelevant to determining whether actionable harassment occurred.  To make out a hostile environment claim, a plaintiff must plead (and then prove) not only that they suffered objectively severe or pervasive harassment, but that the harassment was motivated, at least in part, by a protected characteristic....

Cooper Union’s first line of defense is that none of the speech or conduct identified in Gartenberg’s Complaint was motivated by animus towards Jews, but was instead mere “criticism[] of Israel and/or its policies” and a “show[] of solidarity for the Palestinian cause.”... Gartenberg, by contrast, maintains that Zionism and support for Israel are “an integral part of the national origin and identity of many Jews,” and that Jews’ “belief in Israel as their ancestral national homeland is fundamental to their Jewish identity.” ...

... [T]his case can be resolved without opining on whether conduct or speech hostile to Zionism, itself a term subject to a considerable variety of interpretations, is necessarily antisemitic....

... That the demonstrators at Cooper Union generally avoided the use of overtly antisemitic language and symbols is ... not dispositive. Here, Gartenberg’s Complaint is replete with words and phrases that she alleges are thinly veiled “code words” designed to “activate conscious or subconscious [antisemitic] concepts and frames.”...  On October 25, 2023, for instance, pro-Palestinian students at Cooper Union chanted slogans like “[l]ong live the intifada,” “[r]esistance is justified,” and “[i]t is right to rebel.” ...  Although the parties offer competing interpretations of these slogans, when uttered just two weeks after the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence, the Court agrees that such phrases support at least a plausible inference of animus towards Jews....

Regardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in between, it is not a proper basis on which to impose civil liability on Cooper Union....

Gartenberg’s allegations, however, go beyond identifying instances of pure political speech.  Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building....  

Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks.,,, Unable to find her, the protesters then “descended on the hallway surrounding the library” while continuing to chant their slogans...

It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library.  The demonstrators “attempted to enter the library, banging on and rattling the locked library doors and shouting ‘let us in!’”...

The Court is dismayed by Cooper Union’s suggestion that the Jewish students should have hidden upstairs or left the building, or that locking the library doors was enough to discharge its obligations under Title VI.  These events took place in 2023—not 1943—and Title VI places responsibility on colleges and universities to protect their Jewish students from harassment, not on those students to hide themselves away in a proverbial attic or attempt to escape from a place they have a right to be.  In sum, the physically threatening or humiliating conduct that the Complaint alleges Jewish students in the library experienced “is entirely outside the ambit of the free speech clause,....

JNS reports on the court's decision.

Australia Strengthens Hate Crime Laws In Face of Rising Antisemitism

Yesterday, Australia's Parliament gave final passage to Amendments to Australia's Hate Crimes Law. (Full text of law.) (Full text of Explanatory Memorandum.) The law is intended to strengthen Australia's efforts to combat hate crimes, particularly in the face of rising incidents of antisemitism in the country. As summarized by BBC:

The new laws were passed following a wave of high-profile antisemitic attacks which have become a major topic of debate in the country.

The amendments have been described by the government as the "toughest laws Australia has ever had against hate crimes".

But critics say that the governing Labor Party is caving to opposition demands and going against its own policy of opposing mandatory jail sentences.

Under the amendments, displaying hate symbols or performing a Nazi salute is now punishable with at least one year in prison.

Other penalties include a minimum of three years for financing terrorism and six years for committing or planning terrorist acts.

U.S. Withdraws from UN Human Rights Council

On Tuesday, President Trump issued an Executive Order (full text) withdrawing the United States from the United Nations Human Rights Council and ordering a review of the United States membership in UNESCO. The United States currently holds a seat on the Human Rights Council. The Executive Order provides in part:

The United States helped found the United Nations (UN) after World War II to prevent future global conflicts and promote international peace and security.  But some of the UN’s agencies and bodies have drifted from this mission and instead act contrary to the interests of the United States while attacking our allies and propagating anti-Semitism.....

Three UN organizations that deserve renewed scrutiny are the UNHRC; the UN Educational, Scientific, and Cultural Organization (UNESCO); and the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)....

The United States will not participate in the UNHRC and will not seek election to that body.  The Secretary shall terminate the office of United States Representative to the UNHRC and any positions primarily dedicated to supporting the United States Representative to the UNHRC.

... The United States will also conduct a review of its membership in UNESCO....  In particular, the review will include an analysis of any anti-Semitism or anti-Israel sentiment within the organization.

VP Vance Speaks to International Religious Freedom Summit

Vice President JD Vance yesterday delivered a 1 hour and 49-minute address to the 2025 International Religious Freedom Summit at the Washington Hilton Hotel in Washington D.C.  (Video of full remarks.) He said in part:

I'm here this morning in part to reflect not only on the words of our Founders, but especially on those of their intellectual forebears, the Church fathers of classical Christianity to which we owe the very notion of religious liberty. And I know we have people of every faith here, but it is, I think, a conceit of modern society that religious liberty is a liberal concept. But we know that religious freedom flows from concepts central to the Christian faith, in particular the free will of human beings and the essential dignity of all peoples. We find its foundational tenets in the Gospels themselves with Christ's famous instructions to render unto Ceaser that which is Ceaser's, and unto God that which is God's....

Our Administration believes we must stand for religious freedom not just as a legal principle, as important as that is, but as a lived reality both within our own borders and especially outside of it. In recent years too often has our Nation's international engagement on religious liberty issues been corrupted and distorted to the point of absurdity. Think about this. How did America get to the point where we're sending hundreds of thousands of taxpayer dollars abroad to NGO's that are dedicated to spreading atheism all over the globe.

Catholic News Agency and Religion News Service reported on his remarks.

University Did Not Violate Constitution by Permitting Anti-Zionist Encampment

In Groveman v. Regents of the University of California, (ED CA, Feb. 4, 2025), a California federal district court dismissed a suit alleging that the University of California Davis participated in the denial of plaintiff's constitutional rights when it allowed a pro-Palestinian encampment to continue even though it violated University rules on camping and obtaining permits. Plaintiff who is Jewish and identifies as a Zionist was blocked by the encampment from walking through the campus. He was told that Zionists are not welcome and was struck by an umbrella. Rejecting plaintiff's equal protection claim, the court said in part:

Plaintiff’s allegations fall short of establishing even a causal connection between defendants’ actions and plaintiff’s exclusion from the encampment, let alone that defendants acted with discriminatory intent.... Nor does plaintiff allege any facts suggesting that the university treated Jewish individuals differently than the encampment participants; there is no indication that Jewish individuals sought to establish an encampment, or that if they had, the university would have rebuffed them or prevented them from engaging in comparable treatment of pro-Palestinian protestors....

Rejecting plaintiff's free exercise claim, the court said in part:

Plaintiff alleges that defendants “deprived [him] of the right to express his Jewish identity freely” by “allowing the encampment to thwart religious dialog[ue]” in violation of the Free Exercise Clause of the First Amendment....  It is not possible to draw a plausible inference that defendants’ actions (or inactions) had the effect of favoring or disfavoring any religion or burdening plaintiff’s religious exercise....

The court also concluded that defendants had qualified immunity. Plaintiff's claim under Title VI was dismissed for lack of standing because he was not connected with any University program that received federal funding. Finally, the court rejected plaintiff's Americans With Disabilities Act claim. While plaintiff had a mobility issue, the fact "that a single path preferred by plaintiff was not accessible does not plead a violation of Title II of the ADA."

Maryland Supreme Court Upholds Retroactive Elimination of Limitation Period for Child Sex Abuse Claims

In Roman Catholic Archbishop of Washington v. Doe, (MD Sup. Ct., Feb. 3, 2025), the Maryland Supreme Court in a 4-3 decision upheld the retroactive elimination of the limitation period for bringing child sexual abuse suits.  The majority said in part:

In 2017, the General Assembly enacted legislation that, among other things, established a new time restriction applicable to filing child sexual abuse claims.  The new provision stated that “[i]n no event” may a civil action for child sexual abuse be filed against a defendant not alleged to have been the perpetrator of the abuse “more than 20 years after the date on which the victim reaches the age of majority.”...  

In 2023, the General Assembly enacted the Child Victims Act of 2023.  That law eliminated all time restrictions applicable to child sexual abuse claims, including the new provision that had been added in 2017....

We hold that the relevant provision of the 2017 law created a statute of limitations and that the running of a statute of limitations does not establish a vested right to be free from liability from the underlying cause of action.  We further hold that it was within the power of the General Assembly to retroactively abrogate that statute of limitations.  The Child Victims Act of 2023 is therefore constitutional as applied to the defendants in the three cases before us. 

Justice Biran, joined by Justices Eaves and McDonald, filed a dissenting opinion which said in part:

The text of the 2017 Act is unambiguous. In that legislation, the General Assembly created a statute of repose with respect to claims against non-perpetrator defendants. Thus, any claims against non-perpetrator defendants that were untimely on the effective date of the 2017 Act, or that became untimely before the effective date of the 2023 Act, could not be revived without violating the vested rights of the affected defendants. To the extent the General Assembly retroactively repealed the 2017 Act’s statute of repose by enacting the 2023 Act, it violated Article 24 of the Maryland Declaration of Rights and Article 3, Section 40 of the Maryland Constitution.

Justice McDonald also filed a dissenting opinion, joined by Justices Biran and Eaves. 

Teacher Sues After Suspension for Hanging Crucifix in Her Classroom Workspace

Suit was filed last week in a Connecticut federal district court by a public-school teacher who was placed on administrative leave after she refused to remove a crucifix that she had hung among other personal items in personal workspace near her classroom desk. The complaint (full text) in Arroyo-Castro v. Gasper, (D CT, filed 1/30/2025) alleges in part:

Federal and state law prohibit government officials from using the Establishment Clause as an excuse to abridge the free speech and religious free exercise rights of their employees.... Other teachers, meanwhile, display in their classroom workspaces Wonder Woman action figures, images of Baby Yoda and Santa Claus, and other personal expressive items.  Yet only Ms. Castro has been suspended and threatened with termination.  The disparity of treatment here against religious expression makes this an easy case...: if Defendants permit teachers to display personal expressive items like family photos and inspirational quotes in their classrooms, they may not punish Ms. Castro for doing the same by hanging a crucifix in the personal workspace aside her desk.

National Review reports on the lawsuit.

Requirement for Church to Obtain Permit Before Hosting Homeless Encampment Is Upheld

In Miller v. City of Burien, (WD WA, Feb. 3, 2025), a Washington federal district court dismissed a suit brought by a Methodist church challenging the city's requirement that the church apply for and obtain a temporary use permit before it could host a homeless encampment on its property. The court rejected plaintiffs' claims that requiring a permit violated its rights under RLUIPA as well as its free speech and free exercise rights under the 1st Amendment. The court said in part:

The parties concede that caring for unhoused individuals is an “exercise of religion” for purposes of RLUIPA. However, the parties dispute whether requiring the Church to apply for a temporary use permit before it is allowed to host a homeless encampment constitutes “imposing a ‘substantial burden’ on religious exercise” under the statute. It is important to note that this is not a denial of application case; rather, the question here is whether the City can require the Church to submit a permit application.... 

Here, the Church did not apply for a permit, the City did not deny the permit application, and the City did not deny the Church’s the right to host a homeless encampment—indeed, the City supported the Church’s endeavor. However, the City did require that the Church fill out a simple two-page application so that the City could ensure that the health and safety of the neighborhood residents, as well as the encampment occupants, was accounted for. Such minimum inconvenience does not constitute a substantial burden on the Church for purposes of RLUIPA. ...

 ... [T]he Church has failed to plausibly allege that the challenged regulation impacts speech. As such, its prior restraint facial challenge fails as a matter of law and must be dismissed....

... [Z]oning laws that permit some individualized assessment for variances remain “generally applicable” so long as the laws are motivated by secular purposes and impact equally all landowners seeking the variances. That, of course, is the case here. No landowner—secular or religious—is permitted to host a homeless encampment within a multi-family zone without a permit.... Nor has the Church alleged that Burien’s regulatory scheme is religiously motivated.... Therefore, because the Church has failed to plausibly allege that the challenged regulatory scheme was not neutral and not generally applicable, it has failed to state a free exercise claim under the First Amendment.

Michigan's Ban on Conversion Therapy for Minors Is Upheld

In Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer, (WD MI, Jan. 28, 2025), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement against counselors employed by Catholic Charities of Michigan's ban on conversion therapy for minors. The court concluded that plaintiffs were not likely to prove that the ban violates their free speech or free exercise rights, or that is void for vagueness.  The court said in part:

Here, Plaintiffs allege that they believe that “when a client comes to them and seeks to change her gender identity or gender expression to align with her biological sex, or seeks to change her behavior to refrain from acting on same-sex attraction, it is their ethical and religious duty to help that client live the life she desires to live” ...

The law is not subject to any form of heightened scrutiny under the First Amendment because the conduct regulated by the law is not merely “tied to a [medical] procedure,” ..., but consists solely of the administration of the procedure or treatment itself.... 

... In passing the new law, Michigan legislators found that treating children with conversion therapy fell below prevailing standards of care, and Michigan legislators targeted the specific and devastating harms to children that result from conversion therapy, including dramatically increased risks of depression and suicide....

Plaintiffs are not likely to establish the Free Speech violations alleged in Counts I through III....

Assuming, for the sake of argument, that Plaintiffs have plausibly demonstrated that Michigan’s law burdens the free exercise of religion, a law that burdens religious exercise is presumptively unconstitutional unless it is both neutral and generally applicable....

Michigan’s new law readily passes this test of facial neutrality.... There is no reference to religion nor any use of words with religious connotations. Michigan’s law prohibits all conversion therapy on minors, regardless of whether the minor’s (or the minor’s parent’s) motivation for seeking such therapy is religious or secular, or some variation....

Here, Plaintiffs contend that Michigan’s law was enacted with “official expressions of hostility to this well-known religious practice” ....  However, ... the comments Plaintiffs highlight do not necessarily demonstrate hostility to religion, only criticisms of conversion therapy.

News from the States reports on the decision.

Military Ends Travel Reimbursements to Service Members and Dependents for Out-of-State Abortions

In a January 29 Memorandum (full text), the Department of Defense removed the section of the military's Joint Travel Regulations that permit travel and transportation allowances for service members and their dependents to obtain abortions and other reproductive health care when it is not lawfully available in the local area where they are stationed. The travel allowance policy was announced in 2023. (See prior posting.) The policy was removed in accordance with President Trump's Executive Order, Enforcing the Hyde Amendment. (See prior posting.) The Hill reports on these developments.

Justice Department Announces Multi-Agency Task Force to Combat Antisemitism

In a press release yesterday, the Department of Justice announced the formation of a multi-agency Task Force to Combat Anti-Semitism. According to the Release:

The Task Force’s first priority will be to root out anti-Semitic harassment in schools and on college campuses.

In addition to the Department of Justice, the Task Force will include representatives from the U.S. Department of Education, U.S. Department of Health and Human Services, and other agencies as it develops. The Task Force will be coordinated through the Department’s Civil Rights Division.

9th Circuit En Banc Affirms Dismissal of James Huntsman's Fraud Claims Against LDS Church

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (9th Cir., Jan. 31, 2025), the U.S. 9th Circuit Court of Appeals, sitting en banc, affirmed a trial court's dismissal of a fraud claim brought by James Huntsman, a prominent former member of and large contributor to the LDS Church.  Huntsman charged the Church with fraudulently misrepresenting the manner in which funds from tithes would be used, saying that that the Church falsely represented that the funds would not be used for commercial projects. The en banc court said in part:

No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project.  Although the Church stated that no tithing funds would be used to fund City Creek, it also clarified that earnings on invested reserve funds would be used....

Huntsman’s claim with respect to the $600 million allegedly transferred to Beneficial Life also fails.  Huntsman does not identify any specific statements made by the Church about the source of funds for Beneficial Life....

Because nothing in our analysis of Huntsman’s fraud claims delves into matters of Church doctrine or policy, our decision in this case does not run afoul of the church autonomy doctrine.

Judge Bress, joined by Judges Smith and Nguyen and in part by Judge Vandyke, concurred in the judgment saying in part:

... [W]e should not indulge in the illusion that this is merely a secular lawsuit about civil fraud.  Under the First Amendment, the plaintiff’s challenge to the Church’s understanding of tithing is not susceptible to resolution in a court of law, lest the judiciary wrest control from religious authorities over matters of theological concern.  

It would have been straightforward and preferable for the court to recognize that plaintiff’s unprecedented theory encounters overwhelming First Amendment impediments.  While every judge on this panel agrees that the plaintiff’s claims fail, I write separately to explain why a suit like this could never succeed under the First Amendment’s church autonomy doctrine. 

Judge Bumatay filed an opinion concurring in the judgement, saying in part:

In deciding religious matters, the Constitution strictly limits our authority.  Simply put, the church autonomy doctrine bars federal courts from resolving matters of faith, doctrine, and church governance.  So we can’t just sidestep the doctrine and jump straight to the merits.  Nor can the doctrine be assumed away, considered an afterthought, or serve as a convenient alternative ruling.  Rather, it’s a threshold structural bar that must be reckoned with.  Otherwise, we violate the restraints the Constitution places on our power.

North Carolina Supreme Court Upholds Window for Bringing Time-Barred Child Sex Abuse Claims That Were Not Previously Adjudicated

The North Carolina Supreme Court last week decided four cases raising the constitutionality and reach of the SAFE Child Act. In McKinney v. Goins, (NC Sup. Ct., Jan. 31, 2025), the North Carolina Supreme Court upheld against attacks under the state constitution a provision that created a two-year window during which victims of child sexual abuse could bring tort claims that were previously barred by existing statutes of limitation. The Court held that neither the "Law of the Land" Clause not the Ex Post Facto Clause of the North Carolina Constitution bar the challenged provision. The Court also rejected a substantive due process claim. Justice Earls filed an opinion concurring in the result but strongly disagreeing with the majority's method of constitutional interpretation which he labels "extreme originalism".

In Cohane v. Home Missioners of America, (NC Sup. Ct., Jan 31, 2025), the Court held that the SAFE Child Act revived suits against those who enabled the abuse, as well as against the abusers. The Court said in part:

The issue here is whether the General Assembly meant to distinguish between abusers who personally harmed the plaintiff and those organizations, institutions, and parties that employed or supervised the abuser or otherwise condoned, ratified, or facilitated the abuse (enablers). Defendants would have us hold not only that the revival provision distinguished between the two types of potential defendants but also that it authorized suits against abusers and not against enablers, in contravention of background tort law principles. We conclude that such a distinction does not follow from the plain text of the provision, nor does it find support in the SAFE Child Act or related statutory provisions read as a whole.

However, in two cases consolidated for decision, John Doe 1K v. Roman Catholic Diocese of Charlotte and John Doe v. Roman Catholic Diocese of Charlotte, (NC Sup. Ct., Jan. 31, 2025), the Court said in part:

Plaintiffs in this case are alleged victims of child sexual abuse in the 1970s and 1980s. The SAFE Child Act would have revived plaintiffs’ time-barred claims except for one glaring problem— plaintiffs already brought those claims over a decade ago and courts already entered final judgments dismissing those claims with prejudice because they were time barred. 

... [T]he General Assembly does not have the power to set aside a final judgment of the judicial branch.

AP reports on the decisions. [Thanks to Thomas Rutledge for the lead.]

Louisiana Grand Jury Indicts NY Doctor For Sending Abortion Medication to Purchaser in Lousiana

Louisiana Illuminator reports that last Friday a Baton Rouge, Louisiana grand jury indicted a New York doctor and her New York clinic for sending abortion pills into Louisiana in violation of a Louisiana statute enacted in 2022. This is the first criminal indictment of this kind since the overruling of Roe v. Wade. The abortion medication was ordered by a pregnant minor's mother who allegedly coerced her daughter into taking the pills. The mother has also been indicted in Louisiana. New York has a shield law designed to protect New York physicians from prosecution by other states for violation of their abortion laws.

Recent Articles of Interest

From SSRN:

• Maria Javed & Varun Sharma, Courts Shaping Religion: Moving Beyond the Essential Religious Practices Test, (August 01, 2024).
• Ekaterina Ryzhkova, The Institute of Public Finance in the Legal Tradition of the Arab East, (November 06, 2024).
• Robert Watson, Applying Bostock: The Queer Case Against Public Single-Sex Schooling, (Journal of Law & Education, Vol. 51, No. 2, Fall 2022).
• Robert Watson, A New Sex Education: The Title IX Defense Against “Don’t Say Gay”, (Indiana Law Review, Vol. 57:403 (2023)).
• Robert Watson & Neha Srinivasan, Under (Conduct-Based) Attack: Rejecting the Trans Care Bans, (August 01, 2024).
• Scott Skinner-Thompson, Transgender Disenfranchisement, (102 Washington University Law Review (forthcoming 2025).

From SmartCILP:

• Mihir Khetarpal, Permissive Exemptions and Entrenchment. 85 University of Pittsburgh Law Review 27-80 (2023).

ED "Dear Colleague" Letter Says Agency Will Not Enforce 2024 Rule Protecting Transgender Rights

Yesterday, the Acting Assistant Secretary of the Department of Education Office of Civil Rights issued a "Dear Colleague" letter (full text) to educators informing them that the Office of Civil Rights will enforce a 2020 version of Rules under Title IX governing responses to allegation of sexual harassment. Consistent with an Executive Order issued by President Trump mandating the removal of all rules and policies protecting transgender individuals, the letter rejects the version of Title IX rules adopted in 2024 by the Biden administration. Last month, a Kentucky federal district court invalidated the 2024 Title IX rules saying that they exceed the agency's authority, are vague and overbroad, and violate teachers' freedom of expression. (See prior posting.)