Court Enjoins Implementation of Ban on Transgender Individuals Serving in the Military

In Talbott v. United States, (D DC, March 18, 2025), the United States federal district court for the District of Columbia issued a preliminary injunction barring the military from implementing Executive Orders and military memoranda that exclude transgender persons from serving in the military. The injunction requires the military to maintain the pre-Trump status quo on military service by transgender individuals. Explaining its decision, the court's 79-page opinion said in part:

The Court agrees that “courts [are] ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have” and that “the military authorities [not courts] have been charged by the Executive and Legislative Branches with carrying out our Nation’s military policy.”... Often, courts accept “the reasoned, professional analysis of Congress and the Executive on matters strictly within the realm of military expertise.”...   

Defendants carry deference too far, however.  By “defer” they basically mean the Court must side with the military’s position, end-stop.  And they contend the Court must defer even if the judgment, as here, does not make sense....

The Court ... applies Bostock’s reasoning to analyze the Military Ban.  In doing so, it does not “import[] the Title VII test for liability,” ... into the equal protection guarantee of the Fifth Amendment.  Rather, it borrows Justice Gorsuch’s reasoning to conclude that transgender discrimination is a form of sex discrimination for purposes of the equal protection inquiry....

... [B]ecause the Military Ban targets transgender persons for disparate treatment, it creates an explicit sex-based classification that requires application of intermediate scrutiny. ...

The court also concluded that the Military Ban is subject to intermediate scrutiny because transgender persons should be considered a quasi-suspect class. The court went on:

Defendants have articulated important government objectives in military readiness, unit cohesion, and saving costs.  But the Fifth Amendment requires more than pointing to such “broadly formulated interests.”...  Defendants must show that the discriminatory Military Ban is in some way substantially related to the achievement of those objectives.  And they must do so without relying on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” ... They do not come close.  Plaintiffs are likely to succeed on their claim that the Military Ban fails intermediate scrutiny review.....

The Military Ban is soaked in animus and dripping with pretext.  Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact.  Thus, even if the Court analyzed the Military Ban under rational basis review, it would fail....

The Court could stop here in its analysis and comfortably conclude that Plaintiffs are likely to succeed on their claim that the Military Ban is motivated by animus and is not tailored to meet its stated goals.  But, as they say, there is more, for the Military Ban does not stand alone.  President Trump has signed an executive order recognizing the existence of only two sexes; blocked schools from using federal funds to promote the idea that gender can be fluid; directed the State Department to stop issuing documents that allow a third “X” gender marker; changed references to “LGBTQI+” on government websites to “LGB,” erasing not just transgender persons, but intersex people as well; revoked the ability of transgender federal employees to receive gender-affirming care; and directed that all incarcerated transgender persons be denied medical treatments and be housed by birth sex, where they are nine times more susceptible to violence....

NPR reports on the decision.

Court Upholds California's Repeal of Personal Belief Exemption from School Vaccination Mandate

 In Royce v. Pan, (SD CA, March 17, 2025), a California federal district court rejected a free exercise challenge to California's removal of the "personal belief" exemption from the state's compulsory school vaccination requirements. The court rejected arguments that the repeal of the exemption evidenced hostility to religion and that the law is not generally applicable because it exempts comparable secular activity.  The court said in part:

First, SB 277 did not specifically repeal a religious exemption.  Rather, it repealed a general personal belief exemption that was secular and neutral on its face.  Repeal of a secular exemption does not demonstrate hostility towards any religion or religious practice.  Second, even if SB 277 could be characterized as repealing a religious exemption, repealing a prior religious exemption is not hostile towards religion per se....

Plaintiffs argue that SB 277 is substantially underinclusive and treats secular activity more favorably than religious exercise by eliminating exemptions for religious reasons but permitting secular exemptions that undermine the State’s interest in a similar way.....  In particular, Plaintiffs highlight medical exemptions, exemptions for home schooled children and children enrolled in independent student programs, exemptions for students who qualify for IEPs, exemptions for students over 18 years of age, and conditional enrollment for migrant, homeless, foster, and military children.....

The court concluded that none of these exemptions are comparable to a religious exemption and that rational basis review applies because the law is neutral and generally applicable.

Most Challenges to Law Protecting Access to Abortion Clinics Are Rejected; One Section Violates 1st and 14th Amendments

In Hulinsky v. County of Westchester, (SD NY, March 14,2025), two women who have engaged in sidewalk counseling at abortion clinics challenged a Westchester County, New York, law that was designed to assure safe access to reproductive health care facilities. The court described the challenged legislation:

Sections 425.31(a) prohibits forms of “physically obstructing or blocking” that amount to interfering with and/or intimidating persons obtaining access at a reproductive health care facility. Sections 425.31(e) and (f) prohibit interfering with and/or intimidating persons obtaining access at a reproductive health care facility “[b]y force or threat of force, or by physically obstructing or blocking[.]” Section 425.31(c) prohibits “knowingly follow[ing] and harass[ing] another person within twenty-five (25) feet of” a “reproductive health care facility.” Section 425.31(h) prohibits “knowingly interfer[ing] with the operation of a reproductive health care facility.”

A New York federal district court found that Sec. 425.31(h) "burden[s] substantially more speech than is necessary to further the government’s legitimate interests." It also concluded that the section "is vague because it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited." However, the court dismissed plaintiffs' free exercise challenge to the section as well as their free speech and free exercise challenges to other parts of the law. 

Justice Department in Policy Change Files Amicus Brief Supporting Religious Charter School

 As previously reported, the U.S. Supreme Court has granted certiorari in Oklahoma Virtual Charter School Board v. Drummond and the related case of St. Isidore of Seville Virtual Charter School v. Drummond. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. Last week (March 12), the U.S. Acting Solicitor General filed an amicus brief (full text) urging reversal of the Oklahoma Supreme Court. The brief says in part:

... [T]he Free Exercise Clause applies and prohibits Oklahoma from excluding St. Isidore based on its religious observance. 

The United States previously advanced a different view of a charter school’s relationship with a State in Charter Day School, Inc. v. Peltier, 143 S. Ct. 2657 (2023), after this Court called for the views of the Solicitor General regarding whether a charter school’s adoption and enforcement of a student dress code was state action that could potentially violate the Constitution.  The United States contended (Br. 9-14) that the charter school was engaged in state action because it performed an educational function that was traditionally exclusively reserved to the State.  

After the recent change in Administration, the United States has concluded that charter schools do not perform functions exclusively reserved to the State.  More broadly, the state-action inquiry on which the United States focused in Peltier has obvious application to cases asking whether a school violates the Constitution in taking a specific action.  Where, as here, the question is whether a school lacks constitutional protections due to its governmental character, the key consideration is whether the school is itself a governmental entity, created and controlled by the State.  A charter school like St. Isidore does not meet those criteria.

RLUIPA and Free Exercise Claims Rejected in Suit by Native American Who Held Religious Objections to Blood Alcohol Test

In Shash v. City of Pueblo, (D CO, March 14, 2025), plaintiff who was a leader in the southern Colorado Native American Community Church of Aztlan brought a variety of claims against the city, state police and other state agencies growing out of his arrest and DUI charges brought against him after an auto accident. Among the claims were alleged violations of plaintiff's free exercise rights under RLUIPA and the federal and state constitutions. According to the court:

Plaintiffs allege that Trooper Chavez denied Mr. Shash the opportunity to take a breath test and effectively placed Mr. Shash in a position where he had to submit to a blood test or be charged with DUI....  Plaintiffs argue that this constitutes a substantial burden on Mr. Shash’s First Amendment right to free exercise of his religious beliefs, which prohibit blood draws outside a ceremonial context. 

The court dismissed plaintiff's RLUIPA claim, saying in part:

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.”...

Because Plaintiffs allege that Mr. Shash was never taken to jail, ... the Parties dispute whether Mr. Shash was ever “confined to an institution” for RLUIPA  purposes....  [W]hile Mr. Shash raises arguments relevant to a finding that he was in “pretrial detention,”..., he omits any discussion of whether his time in the Trooper Defendants’ custody was spent in a “facility.”  The Court thus agrees with Defendants that Mr. Shash was never “residing in or confined to” a qualifying institution.

The court dismissed plaintiff's 1st Amendment free exercise claim on qualified immunity grounds, saying in part:

While Plaintiffs allege that Mr. Shash made an “inquiry” regarding his right to decline a blood test that was “based on his right to religious exercise,” there is no allegation that Mr. Shash disclosed his religious beliefs to any Defendant, nor that Trooper Chavez was ever aware of Mr. Shash’s religious beliefs.... In other words, Plaintiffs fail to allege that Trooper Chavez purposefully imposed a substantial burden on Mr. Shash’s free-exercise rights....  Because Plaintiffs have not identified a clearly established First Amendment right implicated by Trooper Chavez’s conduct, Trooper Chavez is entitled to qualified immunity.

The court refused to exercise supplemental jurisdiction over plaintiff's state free exercise claim because it poses a novel question of the degree of scienter required for a violation of the state's free exercise protections in a suit against state officials. Colorado has not adopted a qualified immunity defense.

Recent Articles of Interest

From SSRN:

• Sascha O. Becker, Amma Panin, Steven Pfaff & Jared Rubin, Religion and Economic Development: Past, Present, and Future, (CESifo Working Paper No. 11724 (2025)).
• Steven Douglas Smith, The Once and Future Freedom of the Church: Three Stories, (San Diego Legal Studies Paper No. 25-008 (2025).
• Nausica Palazzo, The Religion of Illiberals and the Anti-Gender Backlash, (Law & Ethics of Human Rights, 18 (2):107-137 (2024)).
• Elizabeth Sepper, James David Nelson & Charlotte Garden, Expressive Association at Work, (124 Michigan Law Review__ (forthcoming 2026)).
• Dylan Morrissey, How Bruen and Dobbs Resolved Opposing Historical Traditions Through Hidden Equal Protection Analysis, (Forthcoming, Columbia Law Review Forum, Vol. 125, May 2025).
• Teresa Stanton Collett, Partial Personhood for the Unborn, (January 28, 2025).

From SmartCILP:

• Journal of Law & Religion, Vol. 39, Issue 2 (May 2024).
• Vrinda Narain, What's Love Got to Do with It? Anti-Love Jihad Laws and the Othering of Muslims in India, 30 UCLA Journal of Gender & Law 167-202 (2023).
• Maggie Crain, Fear and Loathing in Animus: Moral Panic, the Contextualizing Tool for Challenging Gender-Affirming Care Bans, 39 Wisconsin Journal of Law, Gender, & Society 21-54 (2024).

Syria Gets New Interim Constitution That Protects Freedom of Belief

AP reports that on March 13, Syria's interim president, Ahmad al-Sharaa, signed an Interim Constitutional Declaration (full text), which will be in effect until a new permanent constitution for the country is drafted and adopted and national elections are held under it. The Interim Constitutional Declaration provides in part:

Article 3 – Islam, freedom of belief, personal status

1. The religion of the President of the Republic is Islam, and Islamic jurisprudence is the principal source of legislation.

2 - Freedom of belief is protected. The State respects all divine religions and guarantees the freedom to perform all their rituals, provided that this does not disturb public order.

3. The personal status of religious sects is protected and respected in accordance with the law....

 Article 10 – Equality  

Citizens are equal before the law in rights and duties, without discrimination based on race, religion, gender or lineage....

 Article 13 – Expression, privacy, movement  

1. The State guarantees freedom of opinion, expression, information, publication and the press....

Oklahoma Indicts Megachurch Pastor on Charges of Lewd Acts With a Minor

The Oklahoma Attorney General has announced that on Wednesday a Multi-County Grand indicted the founder of a Texas Megachurch on five counts of lewd or indecent acts with a young girl. (Full text of indictment). The AG's press release (full text) announcing the indictment said in part:

Robert Preston Morris, 63, resigned last summer as senior pastor of Gateway Church. The Southlake, Texas-based megachurch is among the largest in the United States.

In December 1982, Morris was a traveling evangelist visiting in Hominy with the family of the alleged victim, who was 12 at the time. The indictment alleges Morris’ sexual misconduct began that Christmas and continued over the next four years....

The statute of limitations is not applicable in this case because Morris was not a resident or inhabitant of Oklahoma at any time.

NBC News reports on the indictment.

Petition Seeks to Stop Latest Effort to Get Bibles in Oklahoma School Classrooms

 As previously reported, the Oklahoma Supreme Court has issued an order staying any work by the Oklahoma Office of Management and Enterprise Services on any new request by the Oklahoma State Department of Education (OSDE) for the purchase of Bibles for distribution to public school classrooms. However, the Department of Education has announced a new "Bibles Back in School" Campaign in which it has partnered with singer Lee Greenwood in asking members of the public to purchase copies of the "God Bless the USA" Bible and donate them to OSDE for it to distribute to classrooms. The website through which purchase may be made says in part:

The God Bless The USA Bible makes a strong visual connection of the KJV translation (red letter edition) along with our nation’s Founding Father Documents – The US Constitution, The Bill of Rights, The Declaration of Independence, and The Pledge of Allegiance – providing a profound visible teaching asset for all. This special Bible will help our next generation of leadership to carry on the future of America as we’ve known it.

Yesterday, the petitioners in Walke v. Walters, (OK Sup. Ct., filed 3/12/2025), filed a Supplemental Petition (full text) with the Oklahoma Supreme Court asking it to issue an injunction prohibiting OSDE from proceeding with the Campaign, arguing that OSDE lacks authority to distribute Bibles to school districts and that the Bibles Back to School Campaign violates provisions of the Oklahoma state Constitution (Art. 1 Sec. 2 and Art. 2 Sec 5)which prohibit public money from being used to support any system of religion. The Petition says in part:

To be sure, private parties are free to offer donations of items-- including Bibles-- to school districts, but state officials cross the constitutional line when they organize, promote, and participate in a campaign to distribute donated copies of a particular religious text to schools.

Americans United issued a press release announcing the filing of the Supplemental Petition.

9th Circuit: Profs Lack Standing to Challenge Addition of Caste Discrimination to University's Anti-Discrimination Policy

In Kumar v. Koester, (9th Cir., March 12, 2023), the U.S. 9th Circuit Court of Appeals held that two Hindu California State University college professors lack standing to challenge the addition of "caste" as a protected class under the university's anti-discrimination and harassment policy. Plaintiffs claim that this addition falsely attributes a caste system to Hinduism. The court said in part:

Appellants allege that the Policy’s inclusion of “caste” stigmatized their religion and caused them to self-censor certain religious practices, like celebrating holidays and discussing religious texts....

The complaint ... alleges that the Policy violates the Religious Clauses of the First Amendment by defining the Hindu religion as including a caste system, and in doing so, “ascrib[es] an oppressive and discriminatory caste system to the entire Hindu religion.”...  

Appellants failed to show that they intend to engage in any religious practice that could reasonably constitute caste discrimination or harassment such that the Policy would be enforced against them....

... How can Appellants be injured by a policy prohibiting conduct that they have no intention to engage in?...

... Appellants have alleged no injury to their ability to exercise their religion.  Rather, their claims only indicate that they are offended by an alleged association of the caste system with Hinduism.  This is the exact “moral, ideological, or policy objection to a particular government action” that the injury in fact requirement is meant to “screen[] out.”...

... [T]he district court made a factual finding that the Policy had no hostility toward religion.  It based that finding on (1) the fact that the Policy does not mention Hinduism; (2) dictionary definitions show “caste” is “readily defined without reference to Hinduism” 

... If the Policy does not stigmatize Hinduism, Appellants have no spiritual injury.  And if there is no injury, there is no standing....  Appellants’ Establishment Clause claim fails for lack of Article III standing....

[Thanks to Dusty Hoesly for the lead.]

Trump Nominates Brian Burch as Ambassador to the Vatican

Yesterday, President Donald Trump formally submitted to Congress the nomination of Brian Burch to be U.S. ambassador to the Holy See. Burch is President of CatholicVote. According to Catholic News Agency, last December Trump announced on Truth Social that he intended to nominate Burch for the position. CNA's report in December said in part:

CatholicVote is a political advocacy group that endorsed Trump in January and ran advertisements in support the president-elect during his campaign. According to CatholicVote, the organization spent over $10 million on the 2024 elections.

Oklahoma Supreme Court Stays for Now Bible Purchases for Public Schools

As previously reported, in October suit was filed by public school parents, teachers and by clergy challenging Oklahoma's requirement for all public schools to incorporate the Bible in their curricula. The suit was filed in the Oklahoma Supreme Court asking it to assume original jurisdiction because of the importance and time-sensitiveness of the case. The suit was filed against the State Superintendent of Education, the State Board of Education, the State Office of Management and Enterprise Services (OMES), and personnel of each agency. OMES processes purchasing requests by state agencies. At the request of the petitioners as well as by OMES, the Oklahoma Supreme Court in Walke v. Walters, (OK Sup. Ct., March 10, 2025), issued an Order (full text) staying any work by OMES on any new request by the Department of Education for the purchase of Bibles as well as staying OMES's work on a pending Request for Proposals on Biblical Character Instruction. The Court however deferred until a later stage in the case petitioners' request for a stay on implementing in its entirety the state's Bible Education Mandate. Oklahoma Public Radio reports on the Court's order.

Ecclesiastical Abstention Doctrine Leads to Dismissal of Church Property Dispute

In Atlantic Korean American Presbytery v. Shalom Presbyterian Church of Washington, Inc., (VA App., March 11, 2025), a Virginia state appellate court held that the ecclesiastical abstention doctrine barred civil courts from hearing a church property dispute where the church involved had previously invoked jurisdiction of the Presbyterian Church Synod in the church's controversy with the Korean American Presbytery. The church went to a civil court only when it was unhappy with the Synod's ruling. At issue was whether the church's property was held in trust for either of the church's parent bodies-- the Atlantic Korean American Presbytery or the Presbyterian Church, U.S.A.  The court said in part:

AKAP asserts that because the PCUSA Synod previously adjudicated part of this dispute after Shalom invoked the Synod’s authority to prevent AKAP from assuming control of its assets, Shalom’s decision to seek a decision from the PCUSA Synod deprived the circuit court (and by extension, this Court) of jurisdiction to hear the matter.  Since we find the Synod’s decision deprives the circuit court of jurisdiction to hear this matter under the ecclesiastical abstention doctrine, we agree that the circuit court could not reach this matter because it lacked jurisdiction even to hear Shalom’s claim as pleaded. ...

By filing the instant complaint in the circuit court, Shalom is collaterally attacking the decision of the PCUSA’s Synod, whose jurisdiction Shalom had previously submitted to before ever initiating the current civil litigation.  Moreover, when initiating its opposition to AKAP’s attempt to seize control over its assets and operations by an Administrative Commission, Shalom filed an ecclesiastical complaint before the Synod while asserting standing to do so as a member of PCUSA and, thus, per PCUSA’s Book of Order, stating it was also a member of AKAP.  When the Synod subsequently denied their ecclesiastical complaint, instead of appealing that decision to the PCUSA General Assembly, Shalom “terminated [its] connection” with AKAP, and filed a civil complaint in the circuit court that sought a declaration that Shalom was not a member of AKAP.  And this complaint did not assert that the Synod’s decision was fraught with fraud or collusion.  Hence, by filing this civil complaint, Shalom effectively collaterally attacked the Synod’s decision (instead of appealing it) and entirely reversed the position it took on its PCUSA membership status before the ecclesiastical tribunal....  For us to find it permissible for Shalom to undertake a litigation strategy of first filing an ecclesiastical complaint in the ecclesiastical bodies of the Presbyterian Church USA, and then, instead of appealing an adverse judgment within that forum—immediately filing a civil complaint in the Circuit Court of Fairfax County to attack the judgment of the Synod—would violate both the Establishment and Free Exercise Clauses of the United States Constitution.

The court's 43-page opinion includes a lengthy review of the development of the ecclesiastical abstention doctrine in Virginia.

Education Department Threatens Enforcement Actions Against 60 Universities for Antisemitic Activities on Campus

 In a press release yesterday, the U.S. Department of Education said in part:

Today, the U.S. Department of Education’s Office for Civil Rights (OCR) sent letters to 60 institutions of higher education warning them of potential enforcement actions if they do not fulfill their obligations under Title VI of the Civil Rights Act to protect Jewish students on campus, including uninterrupted access to campus facilities and educational opportunities. The letters are addressed to all U.S. universities that are presently under investigation for Title VI violations relating to antisemitic harassment and discrimination.

Wyoming Enacts State RFRA

Last week, Wyoming Governor Mark Gordon signed HB 0207, the Wyoming Religious Freedom Restoration Act (full text). The Act requires strict scrutiny of state action that substantially burden's a person's right to the exercise of religion. Wyoming is the 29th state to enact a similar statute. Catholic World Report covers these developments.

Suit Challenges NYPD's Forcible Removal of Hijabs as Crowd Control Tactic

Suit was filed this week in a New York federal district court challenging the practice of the New York Police Department of forcibly and publicly removing Muslim women's hijabs as a method of crowd control at demonstrations. The complaint (full text) in Council on American-Islamic Relations New York v. City of New York, (SD NY, filed 3/9/2025) contends that the practice violates the free exercise and free speech protections of the U.S. and New York Constitutions, as well as the 4th Amendment and other provisions of New York law. CAIR issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Title VII Religioius Discrimination Case

The U.S. Supreme Court today denied review in Hittle v. City of Stockton, California, (Docket No. 24-427, certiorari denied 3/10/2025). Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of cert. In the case, the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a Christian religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. (See prior posting.) In his dissent, Justice Thomas said in part:

I would have taken this opportunity to revisit McDonnell Douglas and decide whether its burden-shifting framework remains a workable and useful evidentiary tool.

CNN reports on the denial of review.

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).