Supreme Court Grants Certiorari in Conversion Therapy Ban Case

The U.S. Supreme Court today granted review in Chiles v. Salazar, (Docket No. 24-539, certiorari granted 3/10/2025).  In the case, the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. (See prior posting.) The petition for certiorari raises only the free speech issue. The SCOTUSblog case page for the case contains links to pleadings in the case. AP reports on the grant of review.

6th Circuit: Public Official Engaging in State Action Cannot Assert 1st Amendment Defense

In Emold v. Davis, (6th Cir., March 6, 2025), the U.S. 6th Circuit Court of Appeals upheld a $100,000 damage award to a same-sex couple who were refused a marriage license by Rowan County, Kentucky Clerk Kim Davis who had religious objections to same-sex marriage. The court said in part:

Government officials “have private lives and their own constitutional rights.” ...  But when a public official wields the “authority of the state,” she “engage[s] in state action,” which, by definition, cannot be protected by the First Amendment....

Davis alternatively argues that her Free Exercise rights were violated by a different state action:  Kentucky’s delay in granting her a religious accommodation.  But Plaintiffs had nothing to do with the timing of the accommodation, and Davis’s argument is irrelevant to Plaintiffs’ claim.  Either way, Davis has been found liable for state action—not private conduct—so she cannot raise a First Amendment defense...

 As Davis sees it, a public official can wield the authority of the state to violate the constitutional rights of citizens if the official believes she is “follow[ing] her conscience.” ...  That cannot be correct.  “The very purpose of a Bill of Rights” is to place certain freedoms “beyond the reach of . . . [government] officials.”  ...  Thus, when an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the Constitution must win out.  The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates....

Davis also argues that Kentucky’s RFRA shields her from liability.  But that statute does not apply here....

Judge Readler filed an opinion concurring in part and concurring in the judgment.  Louisville Courier Journal reports on the decision.

Recent Articles of Interest

From SSRN:

• Melvin Otey, Toward a Broader Theocentric Environmentalism, (December 01, 2024).
• Robert C. Blitt, From Zero to Holy War: The International Community's Ongoing Silence in the Face of the Russian Orthodox Church's Escalating Support for War Against Ukraine, (February 03, 2025).
• Kerrel Murray, Discriminatory Effect(s), (78 Fla. L. Rev. ___ (forthcoming 2026)).
• Helen Alvare, 46th Annual Donald A. Giannella Memorial Lecture: Religious Liberty and Nondiscrimination Law, (Villanova Law Review, Vol. 69, No. 5, pp. 881–920 (2024)).
• Zalman Rothschild, The Right to Exit Religion, (Georgetown Law Journal, forthcoming).
• James Gerard Dwyer, Mired in Meyer's Mischief A Century After Fabrication of Constitutional Parents' Rights, (26 Journal of Contemporary Legal Issues 107 (2025)).
• S. Ernie Walton, Brief of Amicus Curiae Professor S. Ernie Walton in Support of Petitioners in Oklahoma Statewide Charter School Board v. Drummond, (March 03, 2025).
• David Eliot Bernstein, The Supreme Court’s Mysterious 1920s Due Process Education Trilogy, (The Journal of Contemporary Legal Issues, Vol. 26, pp. 41–54 (2025)).
• Kumar Bal Govind Singh, Hate Speech, (January 12, 2025).

From SSRN (Non-U.S. Law):

• Stephen James Bogle, Spiritual Duties and Legal Debts in Seventeenth Century Scotland: A Preliminary Study, (January 25, 2025).
• Hesham Abdelgawad, The Impact of Islamic Law on Cryptocurrency Regulation in Egypt, (MJTILP, Vol 20, Issue 3, 2024).
• Roni M. Rosenberg, Moral and Practical Considerations in the Debate on Physician-Assisted Suicide: The Terminally Ill Adults (End of Life) Bill in England, (January 09, 2025).

From SSRN (Hindu law and rituals):

• Sanjay Koul this week posted 17 recent papers on Hindu law, beliefs and rituals: Liberation and Divine Union: A Study of Moksha in Hindu; The Foundations of Hindu Thought: An Examination of Key Scriptures Across Philosophy, Ethics, and Devotion; Fire Ritual in Sanatana Dharma; Meditation in Sanatana Dharma: An Exploration of Ancient Practices and Philosophical Insights; Exploring Kashmir Shaivism: Philosophy, Practices, and Contemporary Relevance; The Gurukul System Evolution, Impact, and Resurgence of India's Ancient Holistic Education Model; Sacred Texts and Spiritual Pathways: A Comprehensive Analysis of Shaiva, Vaishnava, and Shakta Agamas in Hindu Tradition; The Creation of the Universe and Core Principles of Sanatana Dharma: A Comprehensive Exploration of Hindu Philosophical Foundations; The Rig Veda: A Gateway to Understanding Ancient Indian Spirituality; The Atharvaveda: The Veda of Knowledge and Magic; Exploring the Puranas The Cultural and Spiritual Tapestry of Hinduism; The Upanishads: Foundations of Indian Thought and Their Global Philosophical Impact; The Yajurveda: The Veda of Ritual and Sacrifice; The Samaveda: A Melodic Expression of Ancient Indian Spirituality; The Vedas: Foundations of Ancient Knowledge and Philosophy in Hinduism; Namaste and Namaskar: The Spiritual and Cultural Essence of India's Sacred Greetings

From SmartCILP:

• Vincent J. Samar, Conceptual Schemes/Frameworks and Their Relation to Law: A New Argument for Separation of Church and State, 30 Cardozo Journal of Equal Rights and Social Justice 379-424 (2024).
• Weldon P. Sloan & Joseph M. Capobianco, Faith, Federal Courts, and Free Speech: Do Federal Courts Protect Religious Speech More than Non-Religious Speech?, 22 First Amendment Law Review 147-188 (2024).

Senate Judiciary Committee Holds Hearing on Antisemitism in America

On Wednesday, the U.S. Senate Judiciary Committee held a hearing titled Never To Be Silent: Stemming the Tide of Antisemitism in America. A video of the full hearing and transcripts of the prepared testimony by witnesses are available at the Committee's website.   Jewish News Syndicate reported on the hearing, describing it as a hearing "that addressed where to draw the line between free speech and Jew-hatred."

DOJ Dismisses Suit Claiming Idaho's Abortion Restrictions Conflict With EMTALA

On Wednesday, both parties filed a Stipulation of Dismissal (full text) in United States v. State of Idaho, (D ID, filed 3/5/2025). According to the Stipulation, filing of this with the federal district court in which the suit was brought automatically dissolves the preliminary injunction which the court issued in August 2022.  In the case, the district court had enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The case then worked its way to the U.S. Supreme Court which initially granted review and then instead returned the case to the 9th Circuit, finding that certiorari had been improvidently granted. (See prior posting.)  Most recently, the parties argued the case before the 9th Circuit. Idaho's Attorney General Raúl Labrador announced this week's dismissal of the case, saying in part that: "It has been our position from the beginning that there is no conflict between EMTALA and Idaho’s Defense of Life Act." Liberty Counsel issued a press release discussing these developments and pointing out:

Idaho’s abortion law continues to face a separate legal challenge. In January 2025, St. Luke’s Hospital System in Idaho brought a nearly identical lawsuit as to Biden’s claiming the state’s abortion ban prevents women from getting abortions as part of emergency medical care. In St. Luke’s Health System v. Labrador, U.S. District Judge B. Lynn Winmill, who had previously levied the injunction in Biden’s lawsuit, issued a temporary restraining order against Idaho’s attorney general’s office blocking it from enforcing the “Defense of Life Act” pending the results of a later proceedings.

9th Circuit: Church Lacks Standing to Challenge Washington's Health Insurance Coverage Requirements

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., March 6, 2025), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a church which opposes abortion and some forms of contraception lacks standing to challenge Washington's Reproductive Parity Act which requires health insurance carriers to provide coverage for contraceptives and abortions. A second state statute allows insurance companies to offer employee plans that accommodate a church's religious objections, so long as employees can separately access coverage for such services from the insurer. However, plaintiff church has been unable to find a plan that accommodates its objections. The court said in part: 

Nothing in the challenged law prevents any insurance company ... from offering Plaintiff a health plan that excludes direct coverage for abortion services. Therefore, an insurance company’s independent business decision not to offer such a plan is not traceable to the Parity Act....

Nothing in the record suggests that Plaintiff’s alleged injury would be redressed if we struck down the Parity Act....

Plaintiff contends, in the alternative, that an employer purchasing a no-abortion plan in Washington still “indirectly facilitates” the provision of abortion services to its employees.  Plaintiff relies on but-for reasoning.  As noted above, under the conscientious-objection statute, employees can obtain coverage for abortion services through their insurance carrier, whether or not the employer has a religious objection....  So, Plaintiff’s argument goes, employees receive coverage that they would not have but for the existence of the health plan provided by their employer, even if the employer’s plan does not itself provide that coverage.... We reject this theory as well.  The general disapproval of the actions that others might decide to take does not create standing, even when some tenuous connection may exist between the disapproving plaintiff and the offense-causing action.

Judge Callahan filed a dissenting opinion.  She agreed with plaintiff's "facilitation" argument. She added in part:

Cedar Park also has standing because the Parity Act caused Kaiser Permanente to stop providing a health plan that excludes abortion coverage and the church cannot procure a comparable replacement.

DOJ Starts Title VII "Pattern or Practice" Investigation of Antisemitism at University of California

The Department of Justice has launched an employment discrimination investigation of the University of California. A DOJ press release this week says in part:

The Federal Task Force to Combat Anti-Semitism announced that the Justice Department has opened a civil pattern or practice investigation into the University of California (UC) under Title VII of the Civil Rights Act of 1964. The investigation will assess whether UC has engaged in a pattern or practice of discrimination based on race, religion and national origin against its professors, staff and other employees by allowing an Antisemitic hostile work environment to exist on its campuses....

Under Title VII, the Justice Department has the authority to initiate investigations against state and local government employers where it has reason to believe that a “pattern or practice” of employment discrimination exists....

CBS News reports on the investigation.

Wyoming Enacts Ban on Transgender Access to Multi-Occupancy Restrooms, Changing and Sleeping Areas

On March 3, Wyoming Governor Mark Gordon signed HB0072, "Protecting Privacy in Public Spaces Act" (full text). The new law requires that multi-occupancy restrooms, changing areas and sleeping quarters in public buildings and educational institutions be designated for use either by males or females. The Act defines males and females by their biological reproductive organs and prohibits them from entering facilities designated for the opposite sex. The Act contains a number of elaborate exceptions.  It also requires educational facilities to provide reasonable accommodations to persons unwilling or unable to use the facility designated for that person's biological sex. The Act provides a cause of action against the government facility involved for a person who encounters a person of the opposite sex in a restroom, changing or sleeping area. Cowboy State Daily reports on the new law.

Refusal To Amend Birth Certificate Did Not Violate Plaintiff's 1st or 14th Amendment Rights

In Malone-Bey v. Mississippi State Board of Health, (MS App, March 4, 2025), a Mississippi state appellate court held that plaintiff's religious free exercise, equal protection and due process rights were not violated when the State Board of Health refused to amend his birth certificate to designate his race as “white: Asiatic/Moor.” The court said in part:

[Plaintiff] asserts that “[t]he inability to recognize this information on [his] birth certificate impedes his full expression of his identity.”  He further asserts that the Board is “discriminating against [him] or placing undue burdens on him due to his religious beliefs or status” and has “denied [him] the ability to fulfill religious obligations and affirm his identity.”

These arguments are without merit.  The Board is in no way “discriminating against” Malone-Bey.  To the contrary, the Board’s approved Certificate of Live Birth does not identify the race, nationality, or religion of any child.  The Board has not treated Malone-Bey different from anyone else.  The Board has treated him just like everyone else....

“Just as the [State] may not insist that [Malone-Bey] engage in any set form of religious observance, so [Malone-Bey] may not demand that the [State] join in [his] chosen religious practices by” adding new categories of information to the State’s records....

Trump Issues Ash Wednesday Greetings

Today the White House released an Ash Wednesday Message (full text) from President Trump and the First Lady. The Message reads in part:

This Ash Wednesday, we join in prayer with the tens of millions of American Catholics and other Christians beginning the holy season of Lent—a time of spiritual anticipation of the passion, death, and Resurrection of our Lord and Savior, Jesus Christ....

As we solemnly contemplate Jesus Christ’s suffering and death on the cross this Lent, let us prepare our souls for the coming glory of the Easter miracle.

We offer you our best wishes for a prayerful and enriching Lenten season....

Court Enjoins Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, March 4, 2025), a Maryland federal district court issued a nationwide preliminary injunction against enforcement of provisions in two Executive Orders that threaten to cut off federal funding to medical institutions that offer gender-affirming care to individuals under 19 years of age.  The court found that plaintiffs are likely to succeed on three claims, saying in part:

Because the Executive Orders direct agencies to withhold funding on a condition that Congress has not authorized, the President has exceeded his authority. The Plaintiffs have thus sufficiently shown likelihood of success on the merits of their ultra vires claim that the Executive Orders violate the separation of powers....

Plaintiffs accurately note that the Executive Orders foist upon hospitals receiving federal funds an impossible choice: (I) keep providing medical care to transgender patients under the age of nineteen in compliance with the anti-discrimination statutes and risk losing federal funding under the Executive Orders, or (2) stop providing care on the basis of trans gender identity in violation of the statutes, but in compliance with the EOs. 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....

Guided and bound by Fourth Circuit's analysis in Kadel, and with a barer record than the one before the Fourth Circuit there, the Court is compelled to find that the Executive Orders' effective ban on all gender-affirming care for those under nineteen by federally funded institutions is not substantially related to the important government interest of protecting children. As such, Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

Last month, the court issued a nation-wide temporary restraining order in the case. (See prior posting.)  ACLU issued a press release announcing yesterday's decision.

Trump Issues Ramadan Greetings

On Monday, The White House posted President Trump's Message on Ramadan (full text), saying in part:

As millions of Muslim Americans begin their Ramadan observances, my Administration recommits to upholding religious liberty that is such an integral part of the American way of life.  Above all, we renew our resolve to building a future of peace, and to recognizing the dignity imprinted on every human soul.

This Ramadan, I offer my best wishes for a season of joyous reflection on God’s endless grace and infinite love.  May God bless you and your families during this wondrous season.

Missouri Regulation of Church-Run Child Care Homes Upheld

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

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

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

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

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

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

2nd Circuit Rejects Amish Challenge to Removal of Religious Exemption from School Vaccine Requirements

In Miller v. McDonald, (2d Cir., March 3, 2025), the U.S. 2nd Circuit Court of Appeals held that New York state's removal of a religious belief exemption from its school immunization law did not violate the 1st Amendment free exercise rights of Amish parents or Amish schools. The court held that the public health law is neutral on its face and its legislative history does not reveal an anti-religious bias. It also rejected plaintiffs' contention that the law is not generally applicable, saying in part:

Plaintiffs contend that exempting students for medical reasons treats comparable secular conduct more favorably than religious beliefs.....

Repealing the religious exemption decreases “to the greatest extent medically possible” the number of unvaccinated students and thus the risk of disease; maintaining the medical exemption allows “the small proportion of students” who medically “cannot be vaccinated” to avoid the health consequences that “taking a particular vaccine would inflict.” ...  Exempting religious objectors, however, detracts from that interest.  Religious exemptions increase “the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike.”...   

In sum, Plaintiffs have failed to allege that § 2164 is anything but neutral and generally applicable.  The district court therefore did not err in applying rational basis review. As noted, Plaintiffs have conceded that the law satisfies rational basis review....

[Plaintiffs] claim that the school immunization law mandates two impossible options: inject their children with vaccines, forcing conduct against their religious beliefs, or forego educating their children in a group setting, requiring them to sacrifice a central religious practice.  True, Plaintiffs have shown that § 2164 burdens their religious beliefs and practices; but those burdens are not equivalent to the existential threat the Amish faced in Yoder.  Unlike in Yoder, compliance with § 2164 would not forcibly remove Amish children from their community at the expense of the Amish faith or the Amish way of life. 

Moreover, Yoder’s holding is limited by the state’s interest in protecting public health....

Coffee House Sued Over Separate Antisemitic Incidents Involving Harassment of Customers

 A suit under California's Unruh Civil Rights Act alleging religious discrimination was filed yesterday in a California state trial court against an Oakland, California coffee house that (unknown to plaintiff) had a history of promoting menu items with names connected with Hamas. The complaint (full text) in Hirsch v. Native Grounds, Inc. (D/B/A Jerusalem Coffee House), (CA Super. Ct., filed 3/3/2025), alleges that plaintiff, a Jewish American who entered the coffee house with his 5-year-old son, was asked restaurant's owner (also a defendant) to leave because he was wearing a baseball cap that featured a Jewish star.  The complaint alleges in part:

26. Within minutes of sitting down, Mr. Hirsch was approached by Defendant Harara. Harara demanded to know whether Hirsch was a “Zionist.” ... When Hirsch refused to answer Harara’s question, Harara demanded that he leave the premises. 

27. Harara threatened to call the police and repeatedly demanded that Hirsch leave the premises, which he described as his private business.... When Hirsch pointed out that he was being asked to leave because his hat depicted a Jewish star, Harara stated that “this is a violent hat, and you need to leave.” 

28. An employee of the East Bay Community Space ... stated that it was the business’ right and that “they could ask you to leave for any reason.” Mr. Hirsch again pointed out that a business cannot refuse service to someone solely ... because of their religion. Raven [the employee] disagreed, claiming “they’re allowed to ask you to leave for any reason” and ... claiming that “the only reason they know you’re a protected class is that you’re putting on your hat. You’re choosing to be here in this situation.”

San Francisco Standard reports on the lawsuit.

This suit follows one filed in a California federal district court by another plaintiff several days earlier alleging antisemitic discrimination at the same coffee house.  The complaint (full text) in Radice v. Jerusalem Boxing Club, LLC, (ND CA, filed 2/27/2025), alleges in part:

2. Once in July 2024 and once in August 2024, Mr. Radice visited Oakland in connection with his work as the interim executive director for a nonprofit organization to secure the East Bay Community Space ... as a venue for a fundraiser event for that nonprofit organization. The Community Space’s building houses JBC and JCH [Jerusalem Coffee House]. 

3. On both occasions, Mr. Radice was harassed and excluded from JCH (a place of public accommodation), explicitly because he is Jewish. On the second occasion, Mr. Radice was refused service and followed out of JCH and down the block. Accordingly, JBC violated Mr. Radice’s civil rights under both federal and California law. 

ADL issued a press release announcing the filing of this lawsuit.

Recent Articles of Interest

NOTE to Readers: An unusually large number of articles of interest were posted online during the past week--

From SSRN:

• Matthew K. Minerd, The Influence of John of St. Thomas Upon the Thought of Jacques Maritain, (Studia Poinsotiana, No. 2. (2024)).
• Yuanlou Lin, Though Shut in Caves and Sealed in Jars, Qumran Scrolls Were Not Hidden to Not Be Found by Us, (February 27, 2025).
• Stephanie H. Barclay & Matthew Krauter, The Untold Story of the Proto-Smith Era: Justice O'Connor's Papers and the Court's Free Exercise Revolution, (174 U. Penn. L. Rev. (forthcoming 2025)).
• Samuel J. Levine, Foreword "The Conference of Religiously Affiliated Law Schools", (Touro Law Review: Vol. 38: No. 4, Article 3 (2023).
• Samuel J. Levine, Interpreting Religious Doctrine: The Third Rail that Wags the Dog in Religion Clause Jurisprudence, (81 Wash. & Lee L. Rev. 1477, Fall 2024).
• Jennifer Lee Koh, Christian Lawyers in the Public Interest and Outside the Political Right, (BYU Law Review (forthcoming 2026)).
• Benjamin M. Leff, Getting Donor-Advised Funds Regulation Right: Closing the Public-Support Test Loophole, (February 21, 2025).
• Rosemary Teele Langford & Malcolm Anderson, Religious Charities in Australia: Implications for Governance Under Traditional Values and Outlooks, (March 25, 2024).
• Michael Bindas, Meyer, Pierce, and Everything After, (26 J. Contemp. Legal Issues 281 (2025) (forthcoming)).
• Aaron Tang & Ethan Hutt, "Original History" and the Free Exercise Case for Religious Charter Schools, (January 24, 2025).
• Naomi R. Cahn, Maxine Eichner & Mary E. Ziegler, "For Their Benefit": The Lost History of Parental Consent and Minors' Rights, (114 Calif. L. Rev. (forthcoming 2026)).
• Henry F. Fradella, How State Courts Apply Lawrence v. Texas in Civil Contexts: A Mixed-Methods Content Analysis of Two Decades of Cases, 32 Tulane Jour. of Law & Sexuality 1 (2023).

From SSRN (Marriage):

• Lee Anne Fennell, Owning Marriage in Robinson's Gilead Novels, (Connubial Fictions: The Evolution of American Marriage in Law and Literature (Richard H. McAdams, Jonathan S. Masur, and Martha C. Nussbaum eds.) (forthcoming Oxford UP)).
• Damir Banović, Normalizing Queer and the Loss of Critical Potential? Same-Sex Marriage: to Equality or Liberation?, (Fabio Macioce, Dragica Vujadinović and Zara Saeidzadeh (eds.) "Feminist Legal and Political Practices - The Contemporary Interplay of Gender, Intersectionality and Diversity", Springer Nature (forthcoming in 2025)).
• Anthony C. Infanti, Ten Years After Windsor and Obergefell: The Tax Inequalities of Marriage Equality, (Loyola of Los Angeles Law Review (forthcoming)).

From SSRN (Abortion and Reproductive Rights):

• David S. Cohen & Carole Joffe, After Dobbs: How the Supreme Court Ended Roe but Not Abortion (Book Introduction and Epilogue), (January 25, 2025).
• Mridula Raman, Prosecutorial Discretion and the Crime of Abortion, (Yale Law and Policy Review Vol. 43, pp. 171-250 (2024)).
• Evan D. Bernick, Cthulhu and the Constitution, (February 22, 2025).
• Makayla Haussler, Confronting State-Sanctioned Reproductive Abuse: Reproductive Justice, Domestic Violence, and the Promise of State Constitutional Rights to Safety Post-Dobbs, (January 15, 2025).
• David S. Cohen & Rachel Rebouche, Repealing Comstock, (104 Boston University Law Review Online 267 (2024)).
• Scott DeVito, Dobbs Is, Historically, Right, (January 01, 2025).
• Brendan Mohan, Dobbs v. Employee Benefits: Major Questions Left After the Landmark Decision, (November 25, 2024).

From SSRN (Islamic Law):

• Amr Ibn Munir, The Islamic Law of Treaty, (February 03, 2025).
• Imam Sujono, Yovita Arie Mangesti, Slamet Suhartono & Zaleha Kamaruddin, Islamic Legal Perspective on the Implementation of Online Marriage Contracts During the Covid-19 Pandemic, (Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam | Vol. 6, No. 1, October 2022).
• Abdulkadir Abubakar Adam & Aina-Obe Shamsuddin Bolatito, Navigating Digital Morality and Hisba Board's Strategies: The Challenges of Online Immorality Induction Among Youth in Kano State, Nigeria, (February 16, 2025).
• Bolatito, Aina-Obe Shamsuddin Bolatito & Nazifi Dahiru Abdullahi, A Faith-Based Framework for Mitigating Corruption in Nigeria; An Islamo-Christian Perspective, (February 08, 2025).
• Rifqi Khairul Anam, The Meaning of The Madura Proverb "Bhuppa'-Bhâbhu'-Ghuru-Rato" in Hasan Hanafi's Social Theology Perspective and Its Relevance to Community Development, (October 24, 2024).
• Sophia Chima, Balancing Freedom of Religion and Freedom of Expression: Review of the Blasphemy Laws in Nigeria, (November 21, 2024).
• Shameer Modongal, Prophet's Teaching on Jar: Application of Islamic Ethics of Neighborhood in the New Globalized Society, (November 29, 2023).
• Md. Omar Farque, Muslim Wife’s Right to Maintenance in Bangladesh: Analysed Through the Lenses of Shari’ah and Judicial Decisions, (November 12, 2024).

From SSRN (Law of India):

• Prashant Kumar Chauhan & Vikas Singh Yadav, Impact of the Hindu Succession (Amendment) Act, 2005 on Women’s Property Rights, (International Journal of Law, Management & Humanities, Volume 8 | Pp. 554-560, Issue 1 2025).
• Tapesh Meghwal, Faith and Safety: Legal Frameworks and Challenges of Managing Crowd Risks at Religious Gatherings in India, (December 20, 2024).
• Aayush Bhardwaj & Heena Parveen, The Nexus Between the Ramayana and State Administration, (in P. Salgar (Ed.), Ramayana: Instrument for Indianising Socio-Legal Approaches (pp. 189-203) (2024)).

From SmartCILP:

• Christopher J. Manettas, A License to Discriminate? 303 Creative v. Elenis and Where the Supreme Court May Go, 39 Touro Law Review 539-552 (2024).
• Allen Rostron, Saints, Satanists, and Religious Public Charter Schools, 59 Tulsa Law Review 451-486 (2024).
• Wayne Law Review Symposium “The Evolution of Religious Liberty”, 70 Wayne Law Review, Issue 1 (2024).

Iowa Governor Signs Law Ending Anti-Discrimination Protection for Transgender Individuals

On Feb. 28, Iowa Governor Kim Reynolds signed Senate File 418 (full text) which removes "gender identity" as a protected class under the state's anti-discrimination laws. It also provides that in construing state statutes, a reference to "sex" means "the state of being either male or female as observed or clinically verified at birth." The law also bars issuance of a new birth certificate reflecting a sex change. In her signing statement (full text), Governor Reynolds said in part:

It is common sense to acknowledge the obvious biological differences between men and women. In fact, it is necessary to secure genuine equal protection for women and girls....

I know this is a sensitive issue for some, many of whom have heard misinformation about what this bill does. The truth is that it simply brings Iowa in line with the federal Civil Rights Code, as well as most states.

We all agree that every Iowan, without exception, deserves respect and dignity. We are all children of God, and no law changes that.

Iowa Public Radio reports on the bill.

Wyoming Passes Bill Barring State from Requiring Employees to Use Preferred Pronouns of Other Employees

The Wyoming legislature this week gave final approval to SF077 (full text) which provides in part:

The state and its political subdivisions shall not compel or require an employee to refer to another employee using that employee's preferred pronouns.

The Act allows  person aggrieved by a violation to seek injunctive or declaratory relief.

Wyoming Governor Mark Gordon allowed the bill to become law without his signature. In his No Signature Letter to Senate yesterday, Governor Gordon called the law "a solution in search of a problem."

Wyoming PBS has background on the bill.

10th Circuit Upholds State Insurance Regulator's Closure of Christian Health Care Sharing Ministry

In Renteria v. New Mexico Office of the Superintendent of Insurance, (10th Cir., Feb. 27, 2025), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, upheld a trial court's refusal to preliminarily enjoin the enforcement of a New Mexico cease and desist order issued by the Office of the Superintendent of Insurance against a Mennonite church's health care sharing ministry. The ministry claimed that the order violated its free exercise rights.  The court said in part:

OSI’s enforcement action here was not because of Gospel Light’s religious beliefs, it was because they operated outside of the bounds of the NMIC [New Mexico Insurance Code] that applied to their business activities. In other words, OSI’s asserted interests were to protect New Mexico consumers by regulating the insurance industry, not to burden or regulate religious conduct. That other organizations, not entirely secular and not comparable to Gospel Light, merit partial exemptions under the NMIC does not carry the water for Plaintiffs that the NMIC treats a secular activity more favorably than a comparable religious activity. Consequently, rational-basis review applies.....

OSI sought to enforce the NMIC to protect consumers. The “regulation and licensure of insurance producers” are “important state interests,”... and OSI’s final order, which enforces the NMIC against Gospel Light, is rationally related to the regulation of health insurance. As such, the government action here satisfies rational-basis review, and Plaintiffs have not shown a substantial likelihood of success on the merits on their Free Exercise claims....

Judge Carson dissented, saying in part: 

State governments must enforce statutes in a neutral and generally applicable manner.  In this case, that means the New Mexico Office of the Superintendent of Insurance (“OSI”) cannot regulate Gospel Light Mennonite Church Medical Aid Plan (“Gospel Light”), a religious organization, more stringently than it regulates similarly situated secular organizations like labor unions and fraternal organizations.  But the district court reached the opposite conclusion when it allowed the OSI to impose statutory restrictions upon Gospel Light while exempting similarly situated secular organizations.  The majority upholds the OSI’s impermissible action.  Because the district court’s and the majority’s conclusions run contrary to established Tenth Circuit and Supreme Court precedent precluding discrimination based on religious views, I respectfully dissent.

New Study of U.S. Religious Landscape Released

This week, the Pew Research Center released the findings from its 2023-24 Religious Landscape Study, a survey of 36,908 U.S. adults. (Full text). (Web version). The 392-page report covers data on the demographics and viewpoints of various Christian and non-Christian religious denominations in the U.S. Of particular interest to readers of Religion Clause may be the Report's section on Religion and Public Life which surveys attitudes on three questions. It reports in part:

Americans are about evenly divided on whether the federal government should declare the U.S. a Christian nation, with 47% either favoring or strongly favoring the idea and 50% either opposing or strongly opposing it.

Among religious groups, this idea is most widely supported by evangelical Protestants, 78% of whom say that they favor or strongly favor the federal government declaring the U.S. a Christian nation....

Interestingly, 16% of respondents who identify with non-Christian religions and 19% of religiously unaffiliated favor this.

The new Religious Landscape Study finds that about half of Americans, or a little more, support allowing teacher-led prayer in public schools, whether that be praying to Jesus explicitly (52%) or, alternatively, praying to God without mentioning any specific religion (57%). Seven-in-ten U.S. Christian adults say they favor permitting teacher-led prayers to Jesus in public schools and 73% say they favor teacher-led prayers to God that don’t mention any specific religion.

Compared with Christians, far lower shares of religiously unaffiliated Americans (28%) and adults who affiliate with other, non-Christian religions (39%) say they favor public school teachers leading classes in prayers that refer to God without mentioning any specific religion. There is even less support among non-Christian groups for allowing public school teachers to lead classes in prayers to Jesus....

 About half of Americans (53%) favor or strongly favor allowing cities and towns to display religious symbols on public property. Support for this stance is particularly strong among Christians, including 80% of evangelical Protestants and 73% of Latter-day Saints who favor or strongly favor allowing public displays of religious symbols.

Much lower shares of Buddhists (39%), Muslims (35%), Hindus (31%) and Jews (25%) say they favor allowing religious displays on public property....

8th Circuit: Damages Available Under RLUIPA When Defendant Received Federal Funds

In Barnett v. Short, (8th Cir., Feb. 28. 2025), the U.S. 8th Circuit Court of Appeals reversed in part the dismissal of a suit brought by a former inmate who alleges that while in administrative segregation in the Jefferson, Missouri County jail he was denied access to a Bible. The court held that damages are available in suits under the Religious Land Use and Institutionalized Persons Act, at least where the defendant does not enjoy sovereign immunity, saying in part:

Though damages against a defendant that enjoys sovereign immunity may not be "suitable" or "proper," damages against those that don't are the norm....

We therefore conclude that the district court erred in dismissing Barnett's RLUIPA claim against the county.

The court however affirmed the dismissal of the suit against the jail administrator in her individual capacity, saying in part: 

RLUIPA permits claims against a "government," see 42 U.S.C. § 2000cc–2(a), and it defines "government" to include county officials and "any other person acting under color of State law." ... That language permits suits against individual defendants in both their official and individual capacities....

But we conclude that Congress's authorization of suits against non-recipients of federal money in their individual capacities exceeds its spending power. That's because "the legitimacy of Congress' power to enact Spending Clause legislation rests not on its sovereign authority to enact binding laws, but on whether the recipient voluntarily and knowingly accepts the terms of that 'contract.'"...

The court also reversed the dismissal of plaintiff's free exercise claim against the jail administrator, but affirmed dismissal of that claim against the county because " Short did not possess the authority needed to render the county liable for her decision."

Judge Loken dissented in part, saying that he would affirm the decision to dismiss the free exercise claim against the jail administrator, agreeing with the trial court that the deprivation of the Bible did not impose a substantial burden on plaintiff's religious exercise.

Utah RFRA Protects Psilocybin-Using Religious Sect

In Jensen v. Utah County, (D UT, Feb. 20, 2025), a Utah federal district court issued a preliminary injunction under Utah's Religious Freedom Restoration Act barring law enforcement personnel from interfering with the sincere religious use of psilocybin by members of a new religious group known as Singularism. The court also ordered return of items that had been seized from the group. The court said in part:

Plaintiffs seek a preliminary injunction barring enforcement of the Utah Controlled Substances Act as applied to their psilocybin ceremonies....

Based on the evidence in this case, Plaintiffs have established that the government has substantially burdened their sincere religious exercise. Simply put, Plaintiffs offer a sacramental psilocybin tea to their voyagers, who then embark on a spiritual journey by which they write their own scripture. A law that categorically prohibits the possession and use of the psilocybin sacrament—thereby preventing Singularism’s adherents from pursuing their spiritual voyages and hindering them from producing their sacred scripture—substantially burdens the free exercise of Singularism and its adherents....

Defendants observe that Singularism “does not claim special access to divine truths,” instead encouraging its practitioners to more deeply “discover and define their own beliefs,” and explicitly states that “no organization, including [it], has all the answers to life’s most difficult questions.” In Defendants’ view, these features weaken Singularism’s claim to be a religion because they show that Singularism’s beliefs are not comprehensive....  As the court sees it, however, these features less so detract from Singularism’s religious nature than they illustrate Singularism’s commitment to existential humility...

From all the evidence in the record, the court is hard-pressed to find, as Defendants urge, that Singularism is essentially a drug-dealing business cloaked in a minister’s robe. To the contrary, the court is convinced that Singularism is a legitimate religion and that Plaintiffs are sincere practitioners of it. This is not a case where a group of people claim a religious right to do little more than use and distribute large quantities of drugs.... By establishing the sincerity of their religious beliefs, Plaintiffs have fulfilled their responsibility of establishing a prima facie case under the Utah RFRA, shifting the burden to the government to demonstrate that the Utah Controlled Substances Act accomplishes a compelling state interest using the least restrictive means....

Whatever legal regime a society chooses, however, it must apply its protections equally to unpopular or unfamiliar religious groups as to popular or familiar ones if that commitment to religious liberty is to mean anything. As sang Jonas Gwangwa, a South African jazz musician who was exiled by the apartheid government, “Freedom for some is freedom for none.” Indeed, the very founding of the State of Utah reflects the lived experience of that truth by members of the Church of Jesus Christ of Latter-day Saints. Perhaps it is ironic then that not long after enacting its RFRA to provide special protections for religious exercise, the State of Utah should so vigorously deploy its resources, particularly the coercive power of its criminal-justice system, to harass and shut down a new religion it finds offensive practically without any evidence that that religion’s practices have imposed any harms on its own practitioners or anyone else. 

Civil Courts Can Decide Dispute Over Catholic Organization's Bylaws

In Foundation for the Advancement of Catholic Schools, Inc. v. Blair, (CT App., Feb. 25, 2025), a Connecticut state appellate court held that a controversy over interpretation of the Foundation's bylaws can be adjudicated by civil courts.  At issue is whether under the Foundation's bylaws, the archbishop can appoint Board members who are not nominated by the Foundation's Governance Committee. The court said in part:

We need not decide whether FACS is a religious organization because, even if we assume, without deciding, that it qualifies as such, we conclude that the claims raised in the plaintiffs’ action can be resolved by applying neutral principles of law.....

We ...must review the plaintiffs’ requested relief and the relevant language of FACS’ bylaws to determine whether resolving this dispute requires an inquiry into purely ecclesiastical questions of religious doctrine or practice or the governance, administration or policies of a church....

Read plainly, the relevant language in the bylaws concerning the procedure for appointments to the board is entirely secular and cannot reasonably be interpreted as implicating issues of religious doctrine or practice or of church government, policy or administration. Put another way, nothing in the pertinent bylaw provision indicates that an analysis of the claims raised by the plaintiffs would require a court to go beyond the secular legal principles governing corporations and the interpretation of bylaws and to resolve impermissible ecclesiastical issues....

Indeed, the defendants concede that the plaintiffs’ claims do not require resolution of doctrinal issues but argue, nonetheless, that because of the archbishop’s status in the [Archdiocese of Hartford], he exercises his ‘‘religious discretion’’ when making decisions as to board appointments, which constitutes a matter of church governance and the governance of a presumably religious organization that a civil court cannot review. This argument fails because the dispositive question is whether the bylaws authorize the board to limit the universe of individuals who may be appointed to the board by the archbishop to only those individuals submitted for nomination by the committee. That question can be determined by applying secular legal principles.

7th Circuit: Visa Regulations for Temporary Religious Workers Do Not Violate RFRA or 1st Amendment

In Society of the Divine Word v. U.S. Citizenship and Immigration Services, (7th Cir., Feb. 24, 2025), the U.S. 7th Circuit Court of Appeals held that USCIS regulations that makes the process for obtaining a immigrant worker status and subsequent permanent residence more difficult for temporary religious workers than other categories of temporary workers does not violate the Religious Freedom Restoration Act or the 1st Amendment.  The court said in part:

Plaintiffs do not identify a belief or set of beliefs they have to violate because of the regulation. Instead, they offer a broader, structural argument—that the regulation places a substantial burden on their religious exercise because it allows for “undue Government interference” with their ability to “select and employ their own ministers.” Taking this claim on its own terms, it does not rise to the level of a substantial burden for purposes of stating a RFRA violation. There is no assertion that the regulation prevents Plaintiffs from practicing their religion. It does not require them to select or refrain from selecting any particular minister. And it does not otherwise pressure or coerce Plaintiffs into violating any tenet of their religion, as far as we can tell from the complaint and declarations. We agree with the district court that, at most, the regulation “requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly.” ... That is not a substantial burden on religious beliefs or practice....

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

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

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

CBS News reports on the decision.

Certiorari Denied in Abortion Buffer Zone Challenge

Yesterday, the U.S. Supreme Court denied review in Coalition Life v. City of Carbondale, Illinois, (Docket No. 24-57, certiorari denied 2/24/2025) (Order List.) In the case, the U.S. 7th Circuit Court of Appeals upheld a city ordinance creating a buffer zone around abortion clinics in which sidewalk counselors may not approach closer than 8 feet to those accessing the clinic. The 7th Circuit said it was bound by the Supreme Court's 2000 decision in Hill v. Colorado.  Justice Thomas filed a dissenting opinion saying in part:

Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it.  The Court today declines an invitation to set the record straight on Hill’s defunct status.  I respectfully dissent.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman & Joshua Krausz, Water from Stone: Extracting Leadership Wisdom from Moses' Mistake in Striking the Rock, (February 13, 2025).
• Hershey H. Friedman, The Life and Teachings of Rabbi Yosi: A Brilliant Scholar and Friend of the Prophet Elijah, (January 27, 2025).
• Adriano Diaz Cisneros, The Social Market Economy, Christian Humanism, and Antitrust: Foundations of Article 42 of Argentina's Constitution, (February 05, 2025).
• Craig Woody, The Inseparability of Pro-Life Speech and Religious Expression (FACE Act), (May 15, 2024).
• Maria Dugas, Gender According to World Athletics: The Regulation of Racialized Athletes from the Global South, (Dalhousie Law Journal, Volume 47:2 (2024)).
• Joshua Schroeder, Pure//Evil Part Deux: Why American Judicial Prophets Fixate on Chastity and Monsters, (SchroederLaw, Working Paper No. 107 (2025)).
• Mohd Javed, A Short History of Charitable Work/ Philanthropy Work /NGOs / NPOs, (January 31, 2023).
• Nancy A. McLaughlin & Jill R. Horwitz, Debra Turner v. Laurie Anne Victoria, et al., (University of Utah College of Law Research Paper Forthcoming,).
• Luke Boso, Fear and Hope for LGBTQ Rights in the Second Trump Administration, (54 Southwestern Law Review ___ (forthcoming 2025)).
• Eka Nugraha Putra, Non-Believers And The Problematic Blasphemy Laws In Indonesia, (October 10, 2024).

From SSRN (Islamic Law):

• Haseeb Fatima Saikhu, Report of the Commission on Marriage and Family Laws in Pakistan: Analytical Examination of its Ijtihad on Succession Rights of Orphaned Grandchildren, (September 10, 2024).
• Sismanto, Siswanto & Djalaluddin, Ahmad, The Meaning of Mujahadah Values for Muslim Entrepreneurs Culinary Business in East Kutai Regency, (October 25, 2024).
• Sami Uddin, Muhammad Asghar Shahzad & Muhammad Abubakar Siddique, Legal Foundations for Shariah-Compliant Islamic Banking in Pakistan: Challenges and the Way Forward, (Majallah-yi Talim o Tahqiq, Volume 6, No. 4, October-December 2024).
• Shiraz Ahmad Khan, A Proposed Amalgamation of the Doctrines of Khiyar-al-aib and Caveat Emptor in Islamic Law and Common Law Respectively, (September 16, 2024).
• Badreddine Berrahlia, M. Kabir Hassan, & Aishath Muneeza, A Shari’ah Appraisal of Virtual Currencies Based on Historical Perspective, Recent Legal Development and Financial Trends, (May 15, 2024).

From SmartCILP:

• Vania Blaiklock, A License to Discriminate: The Risky next Step of Religious Charter Schools, 19 Harvard Law & Policy Review 235-277 (2024).
• Eleni Coundouriotis, Book Review. The Reeducation of Race: Jewishness and the Politics of Antiracism in Postcolonial Thought, by Sonali Thakkar, 46 Human Rights Quarterly 549-552 (2024).

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.