Michigan Court Invalidates 3 Abortion Restrictions

In Northland Family Planning Center v. Nessel, (Ct. Cl., May 13, 2025), the Michigan Court of Claims held that three abortion restrictions currently in Michigan law are unconstitutional under the Reproductive Freedom for All amendment to Michigan's Constitution that was approved in 2022.  The court invalidated the 24-hour mandatory waiting period, the informed consent requirement and the ban on nurse practitioners, midwives and physician assistants performing abortions.  The court said in part:

The Court agrees with intervening defendant that the ostensible goal of the challenged laws is to protect patient health.  The inquiry, however, does not stop there.  In order to survive the constitutional challenge, the challenged laws must achieve the purpose of protecting patient health, by the least restrictive means, and be consistent with accepted clinical standards of practice and evidence-based medicine.  This is where intervening defendant’s argument unravels.   

Against the mountain of expert opinions and citation of accepted clinical standards and medical literature submitted by plaintiffs establishing that the challenged laws do not protect patient health and are contrary to accepted clinical standards..., intervening defendant has produced two witnesses deeply entrenched in the national anti-abortion movement who have frequently and widely testified in favor of complete abortion bans.  These witnesses believe abortion is murder and an offense to God.  Dr. Wubbenhurst’s testimony was based on theologically skewed studies from journals known to support anti-abortion views.  Dr. Wubbenhurst’s testimony also made clear that she interpreted the findings of studies in ways the studies’ authors cautioned against.

However, the court upheld the coercion screening requirements of Michigan law, finding that they do not burden a patient's access to abortion care.

European Court Says Greece Wrongly Refused To Recognize Jewish Community's Title To Property

In Jewish Community of Thessaloniki v. Greece, (ECHR, May 6, 2025), the European Court of Human Rights in a Chamber Judgment held that Greece violated Article 1 of Protocol 1 of the Universal Declaration of Human rights that provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions...." At issue was the right of the Jewish Community of Thessaloniki to a 7400 square meter plot of land that the Community thought it had owned since 1934 but which Greece contended was subject to a 1950 law regarding property that had belonged to nationals of World War II enemies. The courts of Greece held that the Community should have brought an action to confirm its title and that the time to do that had long ago expired. The European Court rejected that contention saying that it was not reasonable to expect the Community to realize that it should have filed such an action. The European Court said in part:

... [I]n order for the legislation concerning the transfer of enemy property to have applied to a particular property, there were two fundamental conditions that had had to be met – one being that the property belonged to Italy or an Italian citizen on 22 October 1947 - 1947 – or to Germany or to a German citizen on 24 January 1946.... However, by the Court of Cassation’s own acknowledgement, that condition had not been met in the present case, given that the applicant community had been the owner of the plot since 1934.... No explanation as to why the circumstances of the instant case had warranted a different conclusion was given by the Court of Cassation.... The Court reiterates that where such manifestly conflicting decisions interfere with the right to the peaceful enjoyment of one’s possessions and when no reasonable explanation is given for such divergence, such interferences cannot be considered lawful for the purposes of Article 1 of Protocol No. 1 to the Convention because they lead to inconsistent case-law that lacks the required precision to enable individuals to foresee the consequences of their actions....

The Court also issued a press release summarizing the decision.

Christian Camp Sues Over Gender Identity Requirements

Suit was filed this week in a Colorado federal district court by a Christian children's summer camp challenging state regulations that require the camp to allow transgender children to use restroom, shower, dressing and sleeping facilities that conform to their gender identity. The complaint (full text) in Camp Id-Ra-Ha-Je Association v. Roy, (D CO, filed 5/12/2025), alleges in part:

Requiring IdRaHaJe to forfeit its religious status, beliefs, and exercise to maintain an otherwise available license to operate as a children’s resident camp in Colorado triggers strict scrutiny under the Free Exercise Clause....

 ... [T]he Department engaged in impermissible religious hostility by refusing to grant a religious exemption to IdRaHaJe while granting exemptions from regulations for secular reasons and despite clear precedent that prohibits the State from excluding IdRaHaJe from licensing based on its religious character and exercise....

 The gender identity regulations are not neutral or generally applicable because the Department has discretion to create individualized and categorical exceptions, which it has done for certain organizations.

The gender identity regulations also are not neutral and generally applicable because the practical “effect” of those provisions is to exclude only those organizations with religious beliefs and practices like IdRaHaJe’s....

The Equal Protection Clause prohibits the Department from excluding IdRaHaJe from licensing because of its religious status, character, beliefs, and exercise....

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

West Virginia Governor Tells Schools to Provide Religious and Philosophical Exemptions from Vaccine Requirements

Last week, West Virginia Governor Patrick Morrisey released a letter (full text) addressed to parents, students and school officials reaffirming that his Executive Order 7-25 is still in effect. The Executive Order issued last January provides for religious and conscientious exemptions for students from compulsory school immunization requirements.  He based the Order on the provisions of the state's Equal Protection for Religion Act of 2023. The Governor's recent letter, issued in light of the fact that the state legislature has not taken action on the matter, sets out a procedure for parents to use in applying for a religious or philosophical exemption. The governor's office also issued a press release summarizing the letter. The Inter-Mountain reports on the Governor's action.

Employees' Suit Against School Board for Denying Religious Exemption from Covid Vaccine Moves Ahead

Decisions in suits by former employees who were denied religious exemptions from employer Covid vaccine mandates continue to be handed down by the courts.  Here is a recent example:

In Brandon v. Board of Education of the City of St. Louis, (ED MO, May 8, 2025), a Missouri federal district court in a 76-page opinion refused to dismiss 16 employees' free exercise, equal protection, Title VII and state human rights act claims against the St. Louis school board. However, damage claims against the superintendent and the chief human resource officer were dismissed on qualified immunity grounds. Plaintiffs all had requested religious exemptions from the Board's Covid vaccine mandate. The Board received 189 requests for religious exemptions from its 3500 employees. None of the requests were granted. The board granted between 40 and 50 disability and medical exemptions. The court said in part:

Defendants have failed to meet their initial summary-judgment burden of showing that no genuine dispute of material fact exists as to Plaintiffs’ sincere religious beliefs....

... [T]he very providing of exemptions rendered the contract not generally applicable because it “‘invite[d]’ the government to decide which reasons for not complying with the policy [were] worthy of solicitude.”...  For these reasons, the Court holds that the strict-scrutiny standard governs here....

Defendants point to three interests that Policy 4624 purportedly served: (1) education, (2) stemming the spread of COVID-19, and (3) promoting “the health, safety, and general welfare of students.”...

Defendants argue that Policy 4624 was necessary to providing “children of any and all backgrounds safe access to education, social mobility, and athletic, cultural[,] and social development.”...  The Court agrees that these interests are compelling. ...

But the Court disagrees that  Defendants have satisfied their summary-judgment burden and proven that Policy 4624 was narrowly tailored to serve those interests....

... [T]he Board could have granted every request for religious exemption, while still granting all the disability and medical exemptions that it granted, and achieved a total employee vaccination rate of between 93.1%  ... and 93.4%.....

In sum, the record at a minimum strongly indicates that the Board denied all religious-exemption requests wholesale, and Plaintiffs thus received vastly different treatment than their comparators did....

Plaintiffs marshal evidence that the Board denied Plaintiffs’ religious-exemption requests because the Board thought that the religious-exemption requests were less important than other exemption requests. With this evidence, Plaintiffs more than show that a genuine dispute of material fact exists as to whether Defendants unlawfully intended to discriminate against Plaintiffs based on Plaintiffs’ protected religious beliefs....

Forest Service Is Enjoined from Transferring Apache's Sacred Land While Cert. Petition Is Pending

As previously reported, in September 2024 a petition for certiorari was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States. In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. The Supreme Court has not yet acted on the petition.  In April 2025, the Forest Service published a notice regarding publication of its final environmental impact statement which would have the effect of authorizing moving ahead with the land transfer as soon as June 16, 2025. In Apache Stronghold v. United States, (D AZ, May 9, 2025), an Arizona federal district court granted an injunction barring the government from transferring the land until the Supreme Court either denies review or decides the appeal. Explaining its decision, the court said in part:

... [E]nough has changed to suggest that the Supreme Court, should it grant certiorari—and there is good reason to anticipate that it will grant certiorari, given the fact that the case has been relisted thirteen times for consideration ...—could change the existing precedent in a way that would necessarily change the outcome of this case....

Both sides’ positions hold water, but the Court is more persuaded by Plaintiff’s emphasis on the fundamental freedoms at stake in this case. After all, “[r]eligious liberty and the concept of free exercise are grounded in the bedrock of our founding and the structure of our system of government.”... However, the Court’s determination regarding the balance of equities need not rest on such considerations alone. Plaintiff also enumerates various harms it will suffer if the land transfer occurs during the pendency of this appeal, which affect both the balance of equities and the likelihood that it will suffer irreparable harm without an injunction....

After the transfer is completed, Plaintiff argues that the Court may lose the equitable authority to rescind the transfer later once Resolution Copper takes certain irreversible actions.... Furthermore, Plaintiff posits that if the Supreme Court were to reverse and remand this case after the land exchange occurs, Defendants could then argue that the initial preliminary injunction request—which sought to prevent that transfer from occurring—is rendered moot, and Plaintiff would have to move for a new PI seeking a mandatory, rather than prohibitory, injunction.

Reuters reports on the decision.

Recent Articles of Interest

From SSRN:

• Jack Landman Goldsmith, Citizen of Heaven and Harvard: A Remembrance of Bill Stuntz, (April 02, 2025).
• Nicholas Reaves, Groff v. DeJoy: Hardison is Dead, Long Live Hardison!,  (Harvard Journal of Law and Public Policy No. 39 (Fall 2023)).
• Nicholas Reaves, Keeping the Faith: How Recent RLUIPA Decisions are Reshaping Religious Freedom for Incarcerated Individuals, (Harvard Journal of Law and Public Policy No. 33 (Fall 2024)).
• Patrick McKinley Brennan, A Constitution for Equals? Building Better Than Students for Fair Admissions, (April 28, 2025).
• Nelson Tebbe & Lawrence G. Sager, Salvaging Tandon, (May 06, 2025).
• Derek Ross, The Meaning of the Right of Equal Access to Public Service. ((2024), 2 Supreme Court Law Review (3d) 81 - 115).
• Matthew I. Hall, Stand-In Standing, (Florida Law Review __ (2025) (forthcoming)).
• Hanoch Dagan & Avihay Dorfman, The Powers of Discrimination, (UC Berkeley Public Law Research Paper Forthcoming).
• Nina Varsava, How is Law a Moral Practice?, (Forthcoming in the Journal of Moral Philosophy).
• Antony Kolenc, Veritatis Splendor and State Accommodation of Religious Freedom, (March 01, 2023).
• Navdeep Kaur, "Hate Speech: The Pernicious Language That Divides Society", (April 22, 2025).

From SSRN (Abortion Rights):

• Susan Keller, FDA v. Alliance for Hippocratic Medicine: Denying Standing for Anti-Abortion Doctor Groups While Expanding Conscience Protections, (SCOTUS 2024, pp. 39-47).
• Gerald S. Dickinson, Abortion Rights from the Bottom-Up, (2026 Utah L. Rev. __ (forthcoming 2026)).
• David R. Upham, Prenatal Personhood, State Duties, and Congress’s Abortion Power Under the Fourteenth Amendment, (74 Cath. U. L. Rev. 427 (2025)).

From SSRN (Religious Doctrine):

• Pradeep Kumar Deepak, The Historical Significance of the Tribal Religious Cults of Tripura: An Overview, (Proceedings of North East India History Association,41st Session,2022, Pp. 314-322).
• Shima Baradaran Baughman, Systemic Absolution, (April 21, 2025).
• Telia Mary U. Williams, Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling, 17 U. St. Thomas J.L. & Pub. Pol'y. 431 (2023).
• Sanjay Koul, The Concept of Dharma in Sanatana Dharma -Beyond Religion: Cosmic Order, Duty, and Ethics, (May 04, 2025).
• Ayaga Max Liambilah, The Legacy and Memory of Pope Francis: A Humanity-Centered Papacy , (May 03, 2025).

From SSRN (Islamic Law):

• Sayed Gewid, To What Extent Is the United Nations Convention on Contracts for the International Sale of Goods (CISG) Compatible with Sharia Law Principles?, (September 15, 2023).
• Mohamed Youssef, Islamic Finance and Social Justice: A Policy Framework for Egypt's Economic Transformation, (May 05, 2025).
• Dr. Tauseef Ahmad, Waqf Amendment Act 2025 and its Impact on Muslim Endowments in India, (April 13, 2025).
• Jabeur Fathally,  Muslim Influence and the Lesser-Known Story of Contemporary International Humanitarian Law, (July 07, 2024).
• Md. Riazul Haque, Islamic Banking in Bangladesh: Trends and Insights, (February 11, 2025).
• Mumtaz Shah, Froth on the Floodwater: Hadith of Islamic Civilization Decline, (April 08, 2025).
• Zainuddin, Aan Aswari, Rizki Ramadani & Andika Buana, Polarisation of Islamic Scholars on the Legality of Cryptocurrency Usage as Currency, (Arena Hukum, Volume 17, No. 2, Pp. 448-464 (2024).

From SmartCILP:

• Mohamed Elewa Badar, Legal Pluralism, Cultural Defenses, and the Islamic Legal Tradition (Shari'a): Towards a Truly International Criminal Court, 59 Texas International Law Journal 245-290 (2024).
• Noah R. Feldman, Professor Ronna Grady Schneider Lecture on Constitutional Issues and Education Law. Religion in Public Schools: Constitutional Revolution in Action, 93 University of Cincinnati Law Review 299-314 (2024).
• Amelia J. Uelmen, Religious Lawyering in a Polarized Society, 102 University of Detroit Mercy Law Review 99-134 (2024).

South Carolina Abortion Law Does Not Violate Free Exercise Rights

In Bingham v. Wilson, (D SC, May 7, 2025), a South Carolina federal district court refused to dismiss claims by five physicians that the health and fetal anomaly exceptions to South Carolina's abortion ban are unconstitutionally vague.  The court however dismissed plaintiffs' free exercise challenge. The court said in part:

Plaintiffs’ theory is that “South Carolina has made a value judgment that secular (e.g., procreative) motivations for ending a potential life are important enough to overcome its asserted general interest in preserving it, but that religious motivations are not.”... Accepting Plaintiffs’ argument would require this Court to accept that the performance of abortions is a religious practice protected by the Free Exercise Clause of the First Amendment....

... Plaintiffs’ argument hinges on a finding that the Abortion Ban favors “secular conduct” over “religious conduct” by permitting limited exceptions (with the effect of undermining the State’s interest in preserving life), but prohibiting such exceptions in unenumerated circumstances where the Abortion Ban infringes upon their free religious exercise.  The Court finds this argument unpersuasive.  The State has a legitimate interest in both fetal and maternal health and exercised its plenary authority in enacting legislation that considers these interests....

Former Justice David Souter Dies; Described As Champion of Church-State Separation

The U.S. Supreme Court announced yesterday that former Justice David Souter died on May 8 at his home in New Hampshire. Souter served on the Court from 1990 until his retirement in 2009. In a press release mourning his death, Americans United described Souter as a champion of church-state separation. The press release summarizes eight Supreme Court cases involving church-state issues in which Souter wrote dissenting, concurring or majority opinions.

5th Circuit: Religious Liberty Training Order Against Attorneys in Title VII Case Was Improperly Punitive

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., May 8, 2025), the U.S. 5th Circuit Court of Appeals reversed portions of a Texas federal district court's judgment against Southwest Airlines and its employee union that found violations of Title VII of the 1964 Civil Rights Act. At issue was the airline's firing of a flight attendant for posting on Facebook and privately sending to the president of the flight attendants’ union images and videos of aborted fetuses. The flight attendant opposed the union's support for abortion rights. The appellate court held that a judgement in favor of Southwest should have been entered on the flight attendant's claim that she was fired because of her religious beliefs. It concluded that there was insufficient evidence to support a judgment against Southwest on belief-based intentional discrimination. The court however affirmed the jury's verdict that found Southwest had violated Title VII by firing the employee for her religious practices. Southwest failed to convince the jury that accommodating the flight attendant by granting an exception to its social media, bullying and harassment policies would create an undue hardship for Southwest.

The 5th Circuit held that the district court's injunction entered in the case was overbroad and vague. The court also vacated a contempt order that had been issued against Southwest, and which subsequently became the center of much press attention. (See prior posting.) As explained in part by the 5th Circuit:

... [A]s part of its judgment, the district court ordered Southwest to “inform Southwest flight attendants that, under Title VII, [Southwest] may not discriminate against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion.” The notice that Southwest distributed to its flight attendants, however, stated a court “ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs.”...

Carter moved the district court to hold Southwest in contempt, arguing the email merely stated that Southwest “does not discriminate,” rather than “may not discriminate,” a material deviation from the court’s language... The district court agreed with Carter and held Southwest in contempt. As a sanction, the district court ordered Southwest to circulate a statement—verbatim—to its flight attendants “to set the record straight,” and ordered three of Southwest’s in-house attorneys to attend religious-liberty training with the Alliance Defending Freedom....

... We ... cannot say the district court abused its discretion in holding the airline in contempt....

... [B]ut religious-liberty training would do little to compel compliance with the order or to compensate Carter. The attorneys ordered to attend training were not involved in the decision to terminate Carter, and no evidence offered at trial suggests they demonstrated animus against Carter or her religious beliefs.... Additionally, the training would not be limited to Title VII training but instead was to encompass topics irrelevant to securing compliance with a Title VII judgment. It was plainly not the least-restrictive means of remedying Southwest’s non-compliance....

Punitive sanctions exceed the scope of a federal court’s civil contempt authority.

Reuters reports on the decision.

President Trump Congratulates New Pope

In a message posted yesterday on Truth Social and X, President Trump congratulated newly elected Pope Leo XIV, saying:

Congratulations to Cardinal Robert Francis Prevost, who was just named Pope. It is such an honor to realize that he is the first American Pope. What excitement, and what a Great Honor for our Country. I look forward to meeting Pope Leo XIV. It will be a very meaningful moment!

EEOC Sues Marriott Over Refusal to Accommodate Seventh Day Adventist

On Wednesday, the EEOC announced that it had filed a Title VII religious discrimination suit against two Marriott corporate entities that sell vacation timeshare programs for hotels and vacation clubs, saying in part:

According to the EEOC’s lawsuit, management at Marriott Vacations Worldwide and Marriott Ownership Resorts initially allowed an employee, who is a Seventh-Day Adventist, a religious accommodation that allowed her to avoid Saturday shifts. After a change in management, the companies began scheduling her for Saturday shifts. After the employee made repeated complaints, they changed her schedule, negatively impacting her sales and commissions, and continued to schedule her for Saturdays, forcing her to choose between showing up to work and her religious practice. This led her to resign, the EEOC said.

Bankruptcy Court Allows Child Abuse Victims to File Suits to Avoid New Limits on Damages in Maryland

As previously reported, in September 2023, the Catholic Archdiocese of Baltimore filed for bankruptcy protection in advance of the Oct. 1, 2023 effective date of the Maryland Child Victims Act.  That Act removed the statute of limitations for civil actions by victims of sexual abuse that occurred while the victim was a minor. However, in an amendment enacted this year (full text), the Maryland legislature reduced the amount of noneconomic damages that can be recovered in suits under the Act. The new limitation applies to actions filed on or after June 1, 2025. In In re Roman Catholic Archbishop of Baltimore, (D MD Bkrptcy, May 2, 2025), a bankruptcy court judge issued an order allowing survivors of child sexual abuse to file and serve a complaint against the Archdiocese and its insurance companies in Maryland courts before June 1 so, if the bankruptcy reorganization is not completed, victims will not be bound by the new limitation on damages.  Without this modification, the automatic stay provisions of the Bankruptcy Code and the bankruptcy court's orders in the case would have prevented the filling of claims while the reorganization proceedings were pending. Baltimore Banner reports on the bankruptcy court's action.

Student's Suit Against University President for Antisemitism Needs Additional Allegations

In Gerwaski v. State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education, (D NV, May 5, 2025), a Jewish student at University of Nevada Las Vegas sued the university and its president over antisemitic treatment.  The court dismissed all claims against the University on 11th Amendment grounds except those under Title VI and Title VII. Several claims, including plaintiff's free exercise claim, against University President Whitfield were dismissed, but without prejudice so that plaintiff could refile them alleging additional facts.  According to the court:

Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times.  Gerwaski serves in the UNLV student government and was hired as an employee at the UNLV Lied Library in June 2023.  Gerwaski alleges that he was asked inappropriate questions about his Jewish heritage and sexual orientation during the library’s onboarding process and that he was “unjustly terminated” from that job in August 2023, “as a result of the blatant disparate treatment and antisemitism that was exhibited by supervisors.”...  Gerwaski has also been exposed to verbal assaults by protesting members of [Nevadans for Palestinian Liberation] who made hateful antisemitic comments to him.  Gerwaski has chosen to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus....

Whitfield argues that Gerwaski does not plausibly allege a free exercise claim because he alleges only that verbal harassment by non-parties caused him to choose to cover his kippah, not that Whitfield acted to burden his rights.  Gerwaski responds that Whitfield fomented and encouraged antisemitic behavior on campus and ignored Gerwaski’s complaints, leading Gerwaski to begin covering his kippah....  

... Gerwaski attempts to tie Whitfield’s toleration of protestors on campus to Gerwaski’s feeling that it was necessary to cover his kippah with a baseball cap to avoid conflict with those protestors.  However, Gerwaski’s free exercise claim must be based on government action that substantially burdens his religion, not the actions of non-parties.... I grant Gerwaski leave to amend this claim against Whitfield if he can plausibly allege additional facts to support the claim and tie those facts to an ongoing constitutional violation for which he seeks injunctive relief. 

Cremation of Body When Next of Kin Were Unknown Did Not Violate State RFRA

In Doe v. Marion County, Arkansas, (WD AR, May 5, 2025), an Arkansas federal magistrate judge recommended dismissing a suit brought under the Arkansas Religious Freedom Restoration Act. At issue in the case is the manner in which an Arkansas county coroner disposed of the body of plaintiff's father after the coroner was unable to locate any next of kin.  The body was cremated.  When plaintiff discovered this, she sued alleging in part that cremation violated her strongly held religious beliefs. In recommending judgment for defendants on this claim, the magistrate judge said in part:

Simply using the term "sincerely held religious beliefs" ... without stating any accompanying factual detail, is insufficient to state a plausible claim. See Stephens v. Legacy-GoHealth Urgent Care, ... (“[g]eneral references to Christianity.... fail to plausibly suggest that a plaintiff’s anti-vaccination beliefs are in fact religious”)...  While it is not for the court to determine the reasonableness of Doe’s alleged religious beliefs, we are not required to take her conclusory assertions of violation at face value....

Even if Doe had pled facts sufficient to state an ARFRA claim, Defendants have sustained their burden of showing that their actions, in accordance with state law, were in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest....  Burial is markedly more expensive, and there is no lesser restrictive means to further the government’s interest.... Requiring the state to bury all unclaimed bodies simply because an unknown family member might have a religious belief against cremation would certainly constitute an undue hardship....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

3rd Circuit: Consular Decisions Cannot Be Challenged Under RFRA

 In Calvary Albuquerque Inc. v. Rubio, (10th Cir., May 6, 2025), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision upheld a consular officer's denial of an R-1 (non-immigrant religious worker) visa to a South African minister who wanted to serve as the worship leader at an Albuquerque, New Mexico church.  Plaintiff contended that the visa denial violated the Religious Freedom Restoration Act, but the majority concluded that it could not reverse the decision of a consular officer under the consular nonreviewability doctrine. The majority said in part:

RFRA’s cause-of-action provision plainly does not expressly authorize judicial review of consular officers’ visa decisions.  Also, whether the provision stating RFRA applies to “all Federal law” expressly authorizes judicial review of consular officers’ visa decisions is ambiguous.  Applying statutory construction tools to that clause, we conclude that RFRA does not do so.....

Calvary argues the constitutional claim exception to the consular nonreviewability doctrine applies because it brought a free exercise claim under RFRA, and RFRA is analogous to a constitutional right.... Even if a RFRA claim could qualify for the exception, Calvary has not plausibly alleged that (a) the consular officer failed to provide a facially legitimate and bona fide reason to deny Mr. Green’s visa application or (b) the officer acted in bad faith....

Judge Bacharach dissented, contending that RFRA's language authorizes review of consular decisions.

Church's Removal of Congregant from Services Did Not Violate 1st Amendment

 In Devi v. Sacramento Bhartiya Sabha, (ED CA, May 2, 2025), a California federal magistrate judge recommended dismissal of a suit against a church and the city by plaintiff who was removed from a church service by police serving her with a trespass notice at the request of church board members. The court said in part:

Plaintiff alleges that the Board of Trustees and the President of the Church defendant prohibited her from entering the Church and “exercising her rights to freely practice her religious beliefs and to her rights to free speech” under the First Amendment....  She alleges that she was removed from the Church because the Church defendant did not approve of plaintiff’s opinions and questions and was attempting to stop her from stating these opinions....  She alleges the Church defendant retaliated against her by preventing her from attending services because she expressed her opinions and concerns about the Church’s finances....

To state a claim for a violation of the First Amendment, plaintiff must allege facts sufficient to show that defendants acted under the color of state law....

In order to successfully bring her claim, plaintiff has to show that there is significant state involvement in the private party’s actions.  Plaintiff has made no allegations that the Church defendant’s alleged decision to exclude her from the Church is a “traditionally and exclusively governmental” function.  She also still has not demonstrated that there was “significant” state involvement in the Church defendant’s decision to remove her from the Church.  Based on plaintiff’s allegations, the Church decided to call the police to remove plaintiff from the Church premises because she was trespassing.  To the extent plaintiff is alleging that the Church defendant was a state actor because it had plaintiff removed by the City of Sacramento Police Department, “merely complaining to the police does not convert a private party into a state actor.”

Supreme Court Allows Ban on Transgender Individuals Serving in Military to Remain in Effect While Appeals Move Forward

In United States v. Shilling, (Sup. Ct., May 6, 2025), the U.S. Supreme Court by a vote of 6-3 granted a stay while appeals to the 9th Circuit and the Supreme Court move forward of a preliminary injunction that, had it remained in effect, would have disqualified transgender individuals from serving in the military.  The Supreme Court's one-paragraph order stays the preliminary injunction granted in Shilling v. United States, (WD WA, March 27, 2025). The district court in granting the injunction had said:

The government’s unrelenting reliance on deference to military judgment is unjustified in the absence of any evidence supporting “the military’s” new judgment reflected in the Military Ban—in its equally considered and unquestionable judgment, that very same military had only the week before permitted active-duty plaintiffs (and some thousands of others) to serve openly. Any evidence that such service over the past four years harmed any of the military’s inarguably critical aims would be front and center. But there is none.

In its Application for a Stay of the Injunction, the military had argued in part:

Absent a stay, the district court’s universal injunction will remain in place for the duration of further review in the Ninth Circuit and in this Court—a period far too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation’s interests.

NBC News reports on the Supreme Court's order.

3rd Circuit: Class Videos on Islam Did Not Violate Establishment Clause

In Hilsenrath v. School District. of the Chathams, (3rd Cir., May 5, 2025), the U.S. 3rd Circuit Court of Appeals held that videos about Islam shown in a 7th grade World Cultures and Geography class did not violate the Establishment Clause.  The court focused on the Supreme Court's new "historical practices and understandings" test in Establishment Clause cases.  The court said in part:

This kind of historical inquiry “requires serious work. And that work is especially challenging here because “free public education was virtually nonexistent at the time the Constitution was adopted." But “[h]istorical tradition can be established by analogical reasoning,”...

... [The] videos were presented in an academic rather than devotional context, they do “not come close to crossing any line” separating permissible curricular materials from impermissible proselytization....

... [E]ven assuming the Establishment Clause requires equal treatment in primary and secondary school curricula, the record does not show favoritism here. Besides Islam, C.H. and his classmates were introduced to Christianity, Judaism, Buddhism, and Hinduism. And the World Cultures and Geography course represented only a sampling of the expansive world religions curriculum offered at the School District of the Chathams....

...So assuming the Establishment Clause required the Board to treat religions equally, the record shows that it satisfied that requirement here....

Judge Phipps filed a concurring opinion, saying in part:

This Establishment Clause challenge comes at a time when the “one-size-fits-all test” from Lemon v. Kurtzman ..., has been emphatically rejected, and there is no longer any lurking constitutional mandate of secularism in governmental affairs....

Thus, with the lifting of the constitutional mandate of secularism, teaching about religious matters in a public school does not violate the Establishment Clause. For that reason, the instructional materials about Islamic beliefs, practices, and modes of worship do not offend that constitutional provision....

Washington State Makes Clergy Mandatory Reporters of Child Abuse With No Exceptions for Privileged Information

On May 2, Washington state Governor Bob Ferguson signed Senate Bill 5375 (full text) which amends previous law to now require clergy to report child abuse or neglect when they have reasonable cause to believe that it has occurred. The bill deletes the previous exemption for clergy, even when they obtain the information through a privileged communication such as in a confessional. The Catholic diocese of Spokane reacted to the Governor's signing of the bill with a message (full text) that reads in part:

This week, Washington State Governor Bob Ferguson signed into law Senate Bill 5375, which seeks to force priests to violate the Seal of Confession if child abuse is revealed within the celebration of the sacrament. In light of this, I again, wish to reiterate my previous statement regarding this matter: 

I want to assure you that your shepherds, bishop and priests, are committed to keeping the seal of confession – even to the point of going to jail. The Sacrament of Penance is sacred and will remain that way in the Diocese of Spokane....

The Diocese of Spokane maintains an entire department at the Chancery, the Office of Child and Youth protection, staffed by professional laypeople. We have a zero-tolerance policy regarding child sexual abuse.

OSV News reports on the new law.

UPDATE: In a statement (full text) issued May 4, the Archbishop of Seattle said that any priest who violates the seal of Confession in order to comply with the new law will be excommunicated from the Catholic Church.

Recent Articles of Interest

From SSRN:

• Audra Savage, Slavery and the Forgotten History of Religious Liberty, (Forthcoming 2025-26 BYU Law Review)).
• Zachary Kayal, Church Autonomy and Collateral-Order Appeals, (125 Columbia Law Review Forum 50 (2025)).
• Walter E. Burke, The Establishment Clause and Progressive Ideology: Balancing Policy Goals and Constitutional Safeguards, (February 01, 2025).
• Brian Curtis, A Challenge To The Unavailability Of Damages Under RLUIPA, (Forthcoming in Volume 111 of the Virginia Law Review (2025)).
• Julia Fay, "Religious" Secularism and Legitimacy in American Democracy, (Columbia Journal of Law and Social Problems, Vol. 57.2, pp. 215-262 (2024)).
• Mary Graw Leary, Screaming Into The System: The Symbiotic Relationship Between Flannery O’Connor, Violence, And The Criminal Law, (April 08, 2025).
• Tracy L. Turner, Project 2025 and Due Process After Dobbs, (April 08, 2025).
• Jonathan L. Marshfield, Bringing Context To Legal Battles Over Trans Rights – A Reply To Professor Yeargain, (85 Ohio St. L.J. Online 1 (2024)).
• Bakht Munir, et. al., Exposing Islamophobia in Machine Learning: A Critical Analysis of the Existing Theories and Biases, (Center for Management Science Research, Vol. 3, Issue 3, 2025, Pp. 1-9).

From SmartCILP:

• M. Hamed Isar, Balancing Tradition and Inclusion: Framework Principles for an Afghan Accord, 33 William & Mary Bill of Rights Journal 97-168 (2024).

Catholic Leaders Criticize Trump Over AI Picture of Him as Pope

An unusual conflict between the President of the United States and Catholic leaders has surfaced.  It began last Wednesday with what, according to National Catholic Reporter, was seen as a humorous remark by President Trump to reporters:

"I'd like to be pope. That would be my number one choice," the president joked, before endorsing his friend, New York’s Cardinal Timothy Dolan for the Catholic Church's top job.

Then on Friday, Donald Trump posted on his Truth Social account and his X (formerly Twitter) account this AI generated photo of himself dressed as the Pope. It was also re-posted on the White House's X (formerly Twitter) account.

According to National Catholic Reporter in an article today:

U.S. President Donald Trump is facing a firestorm of criticism from leaders of the Roman Catholic Church after posting on social media a computer-generated image of himself as pope in full papal regalia as Catholics worldwide continue to mourn Pope Francis....

On social media, Bishop Thomas Paprocki, of the Diocese of Springfield, Illinois, said Trump owes an apology to Catholics.

"This is deeply offensive to Catholics especially during this sacred time that we are still mourning the death of Pope Francis and praying for the guidance of the Holy Spirit for the election of our new Pope," Paprocki wrote.

Paprocki quoted a Bible verse from Galatians that admonishes, "God is not mocked." He said, "By publishing a picture of himself masquerading as the Pope, President Trump mocks God, the Catholic Church, and the Papacy."

The New York State Catholic Conference said on X there is "nothing clever or funny about this image, Mr. President. We just buried our beloved Pope Francis and the cardinals are about to enter a solemn conclave to elect a new successor of St. Peter. Do not mock us."

In Rome, Dolan, the archbishop of New York, was stopped by reporters and asked about it. "I hope he didn’t have anything to do with that," Dolan said in a video posted on social media by a multimedia journalist for the New York Archdiocese. 

"Are you offended by that?" a journalist asked. 

Dolan paused and replied, "It wasn’t good." He repeated that in Italian for Roman journalists and laughed nervously....

A Catholic News Service article quoting Cardinal Dolan was posted today on the website of the U.S. Conference of Catholic Bishops.

President Trump Issues Executive Order Creating a Religious Liberty Commission

Yesterday, President Trump issued an Executive Order (full text) establishing a Religious Liberty Commission. According to the Executive Order:

The Commission shall advise the White House Faith Office and the Domestic Policy Council on religious liberty policies of the United States.  Specific activities of the Commission shall include, to the extent permitted by law, recommending steps to secure domestic religious liberty by executive or legislative actions as well as identifying opportunities for the White House Faith Office to partner with the Ambassador at Large for International Religious Freedom to further the cause of religious liberty around the world.

The Executive Order also calls for the President to appoint 3 Advisory Boards to advise members of the Commission-- an advisory board of religious leaders, an advisory board of lay leaders, and an advisory board of legal experts. The White House also issued a Fact Sheet (full text) summarizing the Commission's role, saying in part:

The Commission is tasked with producing a comprehensive report on the foundations of religious liberty in America, strategies to increase awareness of and celebrate America’s peaceful religious pluralism, current threats to religious liberty, and strategies to preserve and enhance protections for future generations.

Key focus areas include parental rights in religious education, school choice, conscience protections, attacks on houses of worship, free speech for religious entities, and institutional autonomy....

The Executive Order was signed at a White House National Day of Prayer Event (video of event).

Chairman of the Commission is Texas Lieutenant Governor Dan Patrick. Vice-Chair is Dr Ben Carson.  Other members of the Commission as announced in a press release by Lt. Gov. Patrick are:  Ryan Anderson, Bishop Robert Barron, Carrie Boller, Cardinal Timothy Dolan (Archbishop of New York), Rev. Franklin Graham, Allyson Ho, Dr. Phil McGraw, Eric Metaxas, Kelly Shackelford, Rabbi Meir Soloveichik and Pastor Paula White. In addition, Attorney General Pam Bondi, Scott Turner (Secretary of Housing and Urban Development), and Vince Haley (Assistant to the President for Domestic Policy) are ex officio members of the Commission.

Catholic News Agency reports on the creation of the Commission.

UPDATE: President Trump also issued a National Day of Prayer Proclamation, declaring May 1 as a National Day of Prayer.

Court Upholds School's Policy on Use of Students' Preferred Names and Pronouns

In Willey v. Sweetwater County School District #1 Board of Trustees, (D WY, April 28, 2025), a Wyoming federal district court upheld against due process and free exercise challenges a school district's policy requiring teachers to use students' preferred names and pronouns. A student's request to use a different name or pronoun was to be disclosed to the student's parent or guardian only if the parent or guardian affirmatively requested the information. Plaintiff challenged the policy both as a parent and as a teacher in the school system.  The court said in part:

Plaintiff asserts that she is not “alleging a right to receive generalized updates,” but rather a right to make “decisions about the children’s well-being.... However, according to Plaintiffs logic, if a parent is not already aware of their child’s use of preferred name or pronouns, then in order to make those decisions, the school would have an obligation to proactively inform the parent. Within this right as defined by Plaintiff, Plaintiff cannot prevent placing an affirmative obligation on the school to inform parents of any circumstance that occurs in school that might affect a child’s “well-being.” Such a finding would expand parental rights beyond their own decision-making rights to place affirmative obligations on other parties that care for their child. The Supreme Court has made clear that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”...

Plaintiff asserts she has a right not to have information regarding her child’s gender identity withheld. The Court agrees. However, the Court does not think the information can properly be deemed “withheld” to infringe on parental rights unless a parent inquired into or sought the information and it was intentionally concealed or they were lied to....

Plaintiff alleges that Defendants significantly burdened her “sincerely held religious beliefs by preventing her from acting pursuant to her religious belief that it is the parents who have the duty to train their children regarding human sexual identity and the unchangeable natural created order of humans as male and female.”...

However, a person’s constitutional right to freely exercise their own religious beliefs does not require that the state also exercise those same religious beliefs....

Even if Plaintiff could show that her sincerely held religious beliefs were in fact burdened ..., the policy that existed while Plaintiff's child was in school in the District is a neutral policy of general applicability....

Plaintiff additionally alleges that her sincerely held religious beliefs related to gender identity, parental involvement in decision-making, and truth-telling prohibit her from complying with the District’s PNCPs as a teacher. ...

... Plaintiff sets forth no evidence that the 2023-24 [Policy] provided for anything other than exemptions “for any reason” rather than individualized exemptions that requires government consideration of the particular reasons. There is no devaluing of religious reasons because exemptions may be made “for any reason.”...

 A policy which provides exemptions “for any reason” without any subjective government assessment remains a neutral law of general applicability.

This decision follows on an earlier decision in the case that denied a preliminary injunction as to most of plaintiff's claims. (See prior posting.) Cowboy State Daily reports on the most recent decision.

Trump Administration Fires 5 Last-Minute Biden Appointees to U.S. Holocaust Memorial Council

The Trump Administration has dismissed five Biden appointees who were serving 5-year terms on the 68-member United States Holocaust Memorial Council. Those dismissed were among 12 individuals appointed to vacancies on the Council by President Biden just days before his term of office ended. The Council serves as the Board of Trustees of the U.S. Holocaust Memorial Museum. The highest profile dismissal was that of Doug Emhoff, former First Gentleman who took a prominent role in fighting antisemitism during the Biden Administration. CNN reports on additional firings:

Former White House chief of staff Ron Klain; Anthony Bernal, a senior adviser to former first lady Jill Biden; Jennifer Klein, a former director of the White House Gender Policy Council; and Susan Rice, who served as a domestic policy adviser to Joe Biden and helped develop his administration’s strategy to combat antisemitism, were among the other Biden appointees who were fired from the board, sources familiar with the matter said....

Not all Biden-era appointees have received emails notifying them of their dismissal, according to one Biden appointee who sits on the board.

Attorney General Outlines Strategy to Battle Gender-Affirming Care for Minors

In an April 22 Memorandum titled "Preventing the Mutilation of American Children" (full text), U.S. Attorney General Pam Bondi directed Justice Department personnel to take a number of steps to end gender-affirming care for minors. The Memorandum says in part:

There is a radical ideological agenda being pushed throughout every aspect of American life-from TV programming and Hollywood film production to children's books and elementary school classrooms-that teaches children to deny biological reality. Gender ideology, masked as science, teaches that children should process adolescent stress and confusion as a case of mistaken identity and that the solution is not to root out and eliminate the underlying condition but to acquiesce in it permanently through life-altering chemical and surgical intervention....

Pursuant to the President's directive, I am issuing the following guidance to all Department of Justice employees to enforce rigorous protections and hold accountable those who prey on vulnerable children and their parents.

 I am directing all U.S. Attorneys to investigate all suspected cases of FGM [Female Genital Mutilation]-- under the banner of so-called "gender-affirming care" or otherwise-- and to prosecute all FGM offenses to the fullest extent possible....

I am directing the Civil Division's Consumer Protection Branch to undertake appropriate investigations of any violations of the Food, Drug, and Cosmetic Act by manufacturers and distributors engaged in misbranding by making false claims about the on- or off-label use of puberty blockers, sex hormones, or any other drug used to facilitate a child's so-called "gender transition." ...

I am also directing the Civil Division's Fraud Section to pursue investigations under the False Claims Act of false claims submitted to federal health care programs for any non-covered services related to radical gender experimentation....

I have instructed the Office of Legislative Affairs ("OLA") to draft legislation creating a private right of action for children and the parents of children whose healthy body parts have been damaged by medical professionals through chemical and surgical mutilation. The proposed legislation will establish a long statute of limitations and retroactive liability, so that no one providing such "treatment" will escape liability....

CNN reports on the Memo.

Harvard Releases Reports on Antisemitism and Anti-Muslim Bias

Yesterday, Harvard University released the 311-page Final Report of its Presidential Task Force on Combating Antisemitism and Anti-Israeli Bias (full text) and also released the 222-page Final Report of its Presidential Task Force on Combating Anti-Muslim, Anti-Arab, and Anti-Palestinian Bias (full text). Harvard president Alan Garber issued a Statement (full text) accompanying the release of the reports, saying in part:

Separately and together, the task force reports reveal aspects of a charged period in our recent history, offering searing personal accounts as they hold up a mirror to our interactions with one another. During the listening sessions that took place last spring, Jewish, Israeli, and Zionist community members reported experiencing our campus climate as unwelcoming. In some cases, they hid overt markers of their identities to avoid confrontation. Muslim, Arab, Palestinian, and pro-Palestinian community members reported feeling judged, misrepresented, and silenced. Some found our existing policies and practices wanting when they needed support or sought action. Across our community, some questioned how issues concerning Israel and Palestine were addressed on our campus, noting that they found some seminars and lectures, panel discussions, and events open to the public to be one-sided, deepening feelings of exclusion and rejection, and calling into question our institutional commitment to excellence and rigor in our academic pursuits.

Especially disturbing is the reported willingness of some students to treat each other with disdain rather than sympathy, eager to criticize and ostracize, particularly when afforded the anonymity and distance that social media provides. Some students reported being pushed by their peers to the periphery of campus life because of who they are or what they believe, eroding our shared sense of community in the process.

Harvard cannot—and will not—abide bigotry. We will continue to provide for the safety and security of all members of our community and safeguard their freedom from harassment. We will redouble our efforts to ensure that the University is a place where ideas are welcomed, entertained, and contested in the spirit of seeking truth; where argument proceeds without sacrificing dignity; and where mutual respect is the norm....

Supreme Court Today Hears Arguments on Funding of Religious Charter Schools

The Supreme Court will hear oral arguments this morning in Oklahoma Charter School Board v. Drummond, consolidated for oral argument with St. Isidore of Seville Catholic Virtual School v. Drummond which stemmed from a separate petition for review filed by an intervenor in the same case. 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. The petitions for review contend that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause despite Establishment Clause concerns, and that religious instruction by a state-funded charter school does not constitute state action. The SCOTUSblog case pages for the two cases, with links to the petitions, briefs, amicus briefs and commentary are here and here.

Oral arguments, which begin at 10:00 AM will be live-streamed at this page. A transcript and audio recording of the arguments will become available later today here.  NEA Today reports on the upcoming oral arguments.

UPDATE: A transcript and audio of today's oral arguments are now available here. The Hill has a lengthy report on the arguments.

Suit Challenges HHS's Rescission of Sensitive Locations Policy

Suit was filed yesterday in an Oregon federal district court by a group of churches, an interfaith council and a Latino organization challenging the Department of Homeland Security's reversal of its "sensitive locations" policy that had limited immigration enforcement activities in churches, health care clinics and social service agencies. The complaint (full text) in Pineros y Campesinos Unidos del Noroeste, (D OR, filed 4/28/2025), alleges in part:

112. Defendants’ rescission of sensitive locations protections enables immigration enforcement to target sensitive locations and events commonly associated with expression, directly and substantially interfering with the ability of Plaintiffs and their members to associate freely.

113. Following the rescission of protections for sensitive locations, Defendants have shown that immigration enforcement actions will be carried out to punish individuals at sensitive locations from engaging in expressive activity with which Defendants disagree. The rescission of sensitive locations protections has already led to fear and discouragement of participation in planned protests, events, and activities, as well as religious ceremonies....

121. Defendants’ rescission of protections for sensitive locations permits ICE and CBP agents to conduct immigration enforcement activity, including arrests, investigations, and surveillance, at and near houses of worship, locations where houses of worship provide community services, and during religious ceremonies.

122. Such conduct has deterred and will continue to deter membership, attendance, and participation in religious services and related events for all individuals, including lawful permanent residents and U.S. citizens. ICE enforcement will also be likely to disrupt activities and events held by places of worship, including religious ceremonies. The conduct has impacted the free exercise rights of members of the Augustana Lutheran Church; Our Lady of Guadalupe Parish, San Francisco Interfaith Council, and Westminster Presbyterian Church. Plaintiffs’ core work of carrying out religious ceremonies and providing pastoral care to parishioners to further their faith has been disrupted by the need to now prioritize maintaining the safety of their sanctuaries....

Oregon Live reports on the decision.

Court Refuses to Dismiss Megachurch Pastor's Defamation Suit Against Sex Offender

In Jakes v. Youngblood, (WD PA, April 25, 2025), a Pennsylvania federal district court refused to dismiss under Pennsylvania's anti-SLAPP law a defamation suit brought by megachurch pastor T.D. Jakes against convicted sex offender Duane Youngblood.  Jakes sued after Youngblood in a podcast accused Jakes of grooming and sexually abusing him some 40 years earlier when Youngblood was 18 to 19 years old. Anti-SLAPP laws are designed to allow rapid dismissal of suits filed to suppress protected speech. The court, applying the Erie doctrine, held that the Pennsylvania anti-SLAPP law is procedural and thus does not apply to diversity cases in federal court. Instead, dismissal is governed by Federal Rules of Civil Procedure, Rules 12 and 56.  The court said in part:

The Court does not believe that a procedural rule protecting a substantive right is, by virtue of the right it is protecting, transformed into a substantive law. The statute exists to spare those who exercise their free speech rights from unwarranted and harassing litigation. However, §8340.15 pursues this policy goal through procedural means.

Christian Post reports on the decision.

Recent Articles of Interest

From SSRN:

• Michael Conklin, Religious Law Schools, Rankings, and Bias: Measuring the Rankings Penalty at Religious Law Schools, (Florida Journal of Law and Public Policy (forthcoming, 2025)).
• Jeremy Ross, An Empirical Analysis of Tandon and Fulton, (February 20, 2025).
• Steven J. Heyman, Religious Liberty and the Constitution, (Chicago-Kent Law Review, Volume 100, No. 2 (forthcoming 2025)).
• Alan Edward Brownstein, Attempting to Protect the Liberty and Equality of Minority Faiths and Nonreligious Individuals When the Supreme Court Will Not Do So, (Forthcoming, 2025, Chicago-Kent Law Review, in Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society").
• Dina Zingaro, "In the Image of God": Rereading Genesis 1-3 for LGBTQ+ Rights, (March 01, 2025).
• Amelia Miazad, Faith Investors, (November 01, 2024).
• Mark Movsesian, Status, Conduct, Belief, and Message, (Chicago-Kent Law Review (forthcoming 2025)).
• Abbe R. Gluck, The Mifepristone Case and the Legitimacy of the FDA, (Yale Law School, Public Law Research Paper (2023).

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

• Dörthe Engelcke, Dominik Krell & Nadjma Yassari, Underage Marriage: Legal and Social Practice in Muslim Jurisdictions, (Arab Law Quarterly, Advance Articles, 2025).
• Darshan Datar, The Voice and Religious Freedom, (Australian Journal of Law and Religion. Volume 3, No. 1. Pp. 96-100 (2023)).
• Dashan Datar, Judicial Concept of Religion in India: An Analysis of the Relationship Between Religion and Culture in Indian Supreme Court Jurisprudence, (May 01, 2024).

From SmartCILP:

• Leah Calabro, A Decade of Impunity: Finding Justice for the Yazidi Women Victims of the Islamic State, 48 Fordham International Law Journal 1-52 (2024).

Tennessee Enacts Conscience Protections for Health Care Providers

On April 24, Tennessee Governor Bill Lee signed the Medical Ethics Defense Act, SB 955 (full text). The new law provides in part:

A healthcare provider must not be required to participate in or pay for a healthcare procedure, treatment, or service that violates the conscience of the healthcare provider....

[However, this] Does not permit a healthcare payer to decline payment for a healthcare procedure, treatment, or service it is contractually obligated to pay for under the terms of a contract with an insured party. 

 Any political subdivision ... shall not reprimand or sanction a healthcare provider, nor deny or revoke, or threaten to deny or revoke, a license, certification, or registration of a healthcare provider for engaging in speech, expression, or association that is protected from government interference by the First Amendment to the United States Constitution, unless the political subdivision demonstrates by clear and convincing evidence that the healthcare provider's speech, expression, or association was the direct cause of physical harm to a person with whom the healthcare provider had a practitioner-patient relationship within the three (3) years immediately preceding the incident of physical harm.

WBIR News reports on the new law.

New Website Catalogues Laws That Exclude Religious Organizations from Government Funding Opportunities

Earlier this month, Notre Dame Law School announced that it, along with two other organizations, has launched a new website which identifies state laws that exclude religious organizations from participating in a wide variety of social service, educational and cultural funding opportunities. The announcement says in part:

The new website provides a database highlighting state statutes and regulations that prohibit religious organizations from participating in public programs on equal footing with their secular counterparts. Although the database does not express a view on the ultimate constitutionality of any particular law, its authors hope that the repository may be the first step towards identifying—and finally changing—those that do violate First Amendment rights.

The website is available at this link: Religious Equality – Protecting Religious Organizations from Discrimination. The website is also now listed in the Religion Clause sidebar under "Resources". City Journal reports on the new website.

Muslim Woman Sues Over Violation of Her Religious Rights in Jail

The New York chapter of the Council on American-Islamic Relations yesterday announced the filing of a federal lawsuit by a Muslim woman who alleges violation of her free exercise rights by Orange County, New York sheriff officers and jail officials.  The complaint (full text) in Green v. Orange County, (SD NY, filed 4/24/2025), alleges in part:

On February 2, 2024, a group of predominantly male officers at the Orange County Sheriff’s Office forced Ms. Green to remove her hijab twice: first, for post-arrest processing photographs and second, for her jail identification card. 

6. They also prohibited Ms. Green from wearing her hijab for more than 12 hours as she awaited arraignment....

9.  While incarcerated in the Orange County Jail, officials required Ms. Green to carry and present her identification card with a photo of her uncovered without her hijab for several months—which, for Ms. Green, was akin to being naked. 

10. Orange County Jail officers also confiscated Ms. Green’s hijab and purposefully broke her misbahah, or prayer beads, during a targeted cell sweep in late August 2024....Without her hijab, Ms. Green was unable to pray for herself or her family, including her six daughters, her mother (who passed away in November 2024), and her sister (who had been recently diagnosed with a brain tumor)...

13. In addition ... Defendants have failed to accommodate Ms. Green’s dietary requirements as a Muslim, often leaving her no choice but to go without food for extended periods of time.....

Convicted Cardinal Claims Eligibility to Vote for New Pope

In the Vatican, an unusual legal dispute has surfaced over the eligibility of the former deputy Vatican Secretary of State, Cardinal Giovanni Angelo Becciu, to vote at the upcoming Conclave to select a new Pope.  Article 36 of Apostolic Constitution Universi Dominici Gregis on the Vacancy of the Apostolic See and the Election of the Roman Pontiff provides:

A Cardinal of Holy Roman Church ... has the right to elect the Pope, in accordance with the norm of No. 33 of the present Constitution....On the other hand, Cardinals who have been canonically deposed or who with the consent of the Roman Pontiff have renounced the cardinalate do not have this right....

According to the National Catholic Register yesterday: 

[Becciu] lost all cardinal privileges in September 2020 after Vatican prosecutors presented Pope Francis with findings from an investigation into alleged financial crimes. 

As a consequence, Pope Francis required him to resign ... his position at that time, and “the rights connected to the cardinalate.” He duly agreed to comply, retaining the title of cardinal while being stripped of the rights and privileges associated with the office.

...  In 2021, he became the first cardinal to ever be tried by the Vatican’s criminal court.

In 2023, the court convicted the cardinal of embezzlement, aggravated fraud, and abuse of office.... He has always maintained his innocence and is currently appealing against the conviction through the Vatican’s Court of Appeal, which began hearings last October but has yet to give a ruling. 

Pope Francis invited Cardinal Becciu to attend a consistory in August 2022, an invitation that was described as a “private act of pastoral mercy” but not a step toward his rehabilitation or reinstatement of his cardinalatial rights. 

But speaking Tuesday, Cardinal Becciu gave that 2022 invitation as a reason for his eligibility to vote, saying that it showed “the Pope recognized that my cardinal prerogatives remain intact.”

Indiana Enacts Parental Rights Law

On April 22, Indiana Governor Mike Braun signed Senate Bill 143 protecting Parental Rights. The new law (full text) provides in part:

... A governmental entity may not substantially burden a parent's fundamental right to direct the: (1) upbringing; (2) religious instruction; (3) education; or (4) health care; of the parent's child, unless the burden, as applied to the parent and the child, is required to advance a compelling governmental interest and is the least restrictive means of advancing the governmental interest.

... A governmental entity may not: (1) advise, direct, or coerce a child to withhold information from the child's parent; or (2) deny a child's parent access to information that: (A) is in the control of the governmental entity (B) is requested by the child's parent; and (C) relates to the child's health care or social, emotional, and behavioral well-being.

ADF issued a press release supporting the enactment of the new law.

DOJ Hosts First Meeting of Task Force to Eradicate Anti-Christian Bias

 A Department of Justice press release reports that yesterday the DOJ hosted the inaugural meeting of the Task Force to Eradicate Anti-Christian Bias.  The Task Force was created by an Executive Order of President Trump. Yesterday's press release described the Task Force meeting, saying in part:

The witnesses included:

Michael Farris: First Amendment Litigator and Founding President of Patrick Henry College. Farris spoke on behalf of Senior Pastor Gary Hamrick to discuss how Cornerstone Church was under investigation and charged by the Internal Revenue Service (IRS) for so-called Johnson Amendment violations....

Dr. Scott Hicks: Provost and Chief Academic Officer, Liberty University. Hicks described how Liberty University and Grand Canyon University were singled out by the Biden Administration for fines due to the schools’ Christian worldview.

Phil Mendes: Navy Seal. Mendes was relieved of duty during Biden Administration for not taking the COVID-19 vaccine due to religious exemption requests that were denied by the Department of Defense.

 “As shown by our victims’ stories today, Biden’s Department of Justice abused and targeted peaceful Christians while ignoring violent, anti-Christian offenses,” said Attorney General Pamela Bondi. “Thanks to President Trump, we have ended those abuses, and we will continue to work closely with every member of this Task Force to protect every American’s right to speak and worship freely.”

Additionally, members of the Task Force highlighted specific cases within their own agencies where the Biden Administration unfairly and harshly punished Christian Americans for their religious beliefs.

UPDATE: The DOJ has posted video of opening remarks at the meeting by Attorney General Bam Bondi and  Deputy Attorney General Todd Blanche.

Christian Foster Care Ministry Can Limit Hiring to Those of Its Own Faith

In Gracehaven, Inc. v. Montgomery County Department of Job and Family Services, (SD OH, April 21, 2025), an Oho federal district court issued a preliminary injunction restoring contracting and funding by the county to a Christian ministry that provides foster care services to girls who are victims of sex trafficking and abuse. The county had refused to renew its contract with Gracehaven because of the ministry's policy of hiring only employees that shared its religious faith.  The court said in part:

Gracehaven will likely succeed on the merits of its claim that Montgomery County’s actions violated the Free Exercise Clause because it excluded Gracehaven from an otherwise available public benefit based on Gracehaven’s choice to employ those who share the same faith....

“When otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’” the Court must apply strict scrutiny to the reason the benefit was denied.

President Responds to Death of Pope Francis

President Trump issued a Proclamation (full text) yesterday ordering flags to be flown at half-staff on the day of the late Pope Francis' funeral. The President announced yesterday on Truth Social that he and the First Lady will attend the Pope's funeral in Rome.

Supreme Court Hears Arguments on Permissive Opt-Out of Children from Exposure To LGBTQ-Friendly Books

The U.S. Supreme Court this morning will hear oral arguments in Mahmoud v. Taylor. In the case, the U.S. 4th Circuit Court of Appeals affirmed a Maryland federal district court's denial of a preliminary injunction in a challenge to a school board's refusal to allow parents to opt their children out of exposure to a group of LGBTQ inclusive books. The parents contended that refusal to provide an opt out alternative violates their religious free exercise rights. (See prior posting). The SCOTUSblog case page has links to the numerous amicus briefs filed in the case as well as to other pleadings and relevant news coverage of the case.  Oral arguments will be streamed live here at 10:00 AM today. A transcript and audio recording of the arguments will be posted here by the Court later today. A SCOTUSblog article has further background on the case.

Religious Corporation Exemption to Maryland Anti-Discrimination Law Does Not Excuse LGBT Discrimination Against Data Analyst

In Doe v. Catholic Relief Services, (D MD, April 21, 2025), a Maryland federal district court held that the religious corporation exemption from the Maryland Fair Employment Practices Act does not apply to the termination of spousal health care benefits of the same-sex spouse of a data analyst and advisor working for Catholic Relief Services. The Maryland Supreme Court had previously held that "in order for the exemption to apply, the employee’s duties must directly further the core mission(s) – religious or secular, or both – of the religious entity." Finding the exemption inapplicable here, the court said in part:

... [T]he evidence preponderantly demonstrates that Doe’s ... duties and responsibilities were sufficiently apart from effectuating CRS goals (and core mission) such that his ... job activities and responsibilities were far attenuated from, and not reasonably capable of bringing about (or preventing effectuation of), CRS goals or missions.  Doe did not directly serve the poor and vulnerable overseas, solicit or secure funding for projects, or possess authority to determine how CRS would pursue its mission through its programs.  Nor did Doe manage or supervise any employee with such responsibilities.... The evidence is that from time to time, he may have been called upon to assist those who were responsible for undertaking actions that effect CRS’s goals; yet he was always one or more steps removed from taking action that effect CRS goals or that bear such responsibility. ...

Because the court concludes that none of Doe’s five full-time positions with CRS directly furthered a CRS mission, and that each of his positions was one or more steps removed from taking the actions that effect CRS goals, the court similarly concludes that CRS has not met its burden to show that MFEPA’s religious entity exemption applies here. ...

Assuming without deciding that CRS has made the threshold showing of a burden on its free exercise rights by operation of MFEPA,.., the court concludes that CRS fails to demonstrate that MFEPA is not neutral and generally applicable in its application to CRS here.

Parents Lack Standing to Challenge Law Barring Schools from Disclosing Child's Change of Name or Pronoun

In Chino Valley Unified School District v. Newsom, (ED CA, April 18, 2025), a California federal district court held that plaintiffs, parents of school children, lack standing to challenge a California law that prohibits public schools from requiring disclosure to parents, without their child's consent, of their child's change of name or gender pronoun at school. Plaintiffs are "devout Christians and believe that God created man and woman as distinct, immutable genders." They contend that the law violates their free exercise rights and their right to control the upbringing and medical care of their children.  The court said in part:

While the Court has no doubt as to the concern that Plaintiff Parents have toward the implementation of AB 1955, Plaintiff Parents have not shown that they have suffered or will imminently suffer any form of harm as a result the Act.  For example, Plaintiff Parents do not allege that their own child has gone or goes by a different name at school, that their children’s school has deprived the parents of relevant information about their child, or that this is something that is likely to happen in the future....

Supreme Court Hears Arguments Today on Mandated Insurance Coverage for Anti-HIV Drugs Over Religious Objections

The U.S. Supreme Court hears oral arguments this morning in Kennedy v. Braidwood Management, Inc. Plaintiffs in the case objected on religious grounds to providing their employees the U.S. Preventive Services Task Force's mandated insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contended that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. In the case, the U.S. 5th Circuit Court of Appeals held that the structure of the U.S. Preventive Services Task Force violates the Appointments Clause of the U.S. Constitution. That is the issue before the Court today. Oral arguments will be streamed here at 10:00 AM. A transcript and audio recording of the arguments will be posted later today at this web page. See prior related posting.

UPDATE: Here is a link to the transcript and audio of the oral arguments. Vox reports on the oral arguments.

Recent Articles of Interest

From SSRN:

• R. Shawn Gunnarson, James Cleith Phillips & Christopher Bates, Religions Employment and the Tensions Between Liberty and Equality, (Brigham Young University (accepted forthcoming)).
•  Joel Alicea, Constitutional Theory at a Catholic University, (75 Cath. U. L. Rev. (forthcoming 2025)).
• Edward L. Rubin, The Biblical Concept of Mercy as a Pragmatic Decision Protocol, (Vanderbilt Law Research Paper No. 25-07 (2025).
• Irene-Marie Esser, Iain MacNeil & Catriona Cannon, The Legal Dimension of 'Corporate Purpose': A Study of Companies with a Religious Influence, (forthcoming: European Business Law Review).
• L. Ali Khan, The Ministry of Jesus: A Comparative Study of the Qur'an and New Testament, (March 30, 2025).
• Jay Wexler, The Endorsement Test’s Early Years, 1983-1985: Notes from the O’Connor Files, (Boston Univ. School of Law Research Paper No. 25-7 (2025)).
• Jill Wieber Lens, Stillbirth & the Law (Book Introduction), (March 25, 2025).
• B. Sullivan, The Myth of Legal Neutrality and Its Role in Undermining Abortion Rights in The United States, (McGill Undergraduate Law Review No. 10 (2025)).
• Mark David Hall, Ten Commandments in the Public Square and Public Schools, (William and Mary Bill of Rights Journal (forthcoming)).

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

• Thomas Latendresse, Evaluating the Constitutionality of Bill 21 Amid Restricted Judicial Review, (McGill Undergraduate Law Review No. 10 (2025)).
• L. Ali Khan, Rigveda as a Proto-Islamic Scripture of the Indus Valley, (March 26, 2025). 
• Soliu Dagbo Abdulllahi, An Overview of Legal and Regulatory Framework for Islamic Finance in Nigeria, (March 18, 2025).
• Ashlynn Kendzior,  Remaining Barriers to Abortion Access in Post-Repeal Ireland, (15 Creighton Int'l. & Compar, L. J. (forthcoming 2025).

From SmartCILP:

• Nicole V. Godfrey, Group Prayer in Federal Prison, 103 Nebraska Law Review 19-44 (2024).
• Michael Allan Wolf, "Zoning" Matters: RLUIPA and the New Normal of Religious Discrimination, 61 San Diego Law Review 343-406 (2024).

"Religious" Belief Defined Broadly in Title VII Claim

Numerous cases challenging employers' refusal to grant exemptions to Covid vaccine mandates during the height of the Covid epidemic continue to wend their way through the courts. Here is the latest.

In Huber v. TIAA, (WD VA, April 17, 2025), a Virginia federal district court refused to dismiss a former employee's Title VII failure to accommodate claim and allowed the parties to move on to discovery.  The employer had refused to grant a religious accommodation, claiming that the employee's objections were secular, not religious.  According to the court:

... [Plaintiff] subscribes to “a faith based holistic healing process” promoted by the Optimum Health Institute in Southern California....  A page from the Optimum Health Institute’s website, which Huber attaches as an exhibit to the amended complaint, describes the Institute as “a healing ministry of the Free Sacred Trinity Church, which promotes healing through the use of non-medical, all-natural, holistic healing practices.”...

Shortly after Huber filed her amended complaint, the Fourth Circuit clarified that courts evaluating religious discrimination claims should not rigorously examine whether a plaintiff’s beliefs are “religious in nature.”...  It confirmed that courts should limit the inquiry to “whether ‘the beliefs professed . . . are, in the claimant’s own scheme of things, religious[.]’”...  An employee’s claim that her belief “is an essential part of a religious faith must be given great weight” in this analysis....

... [T]his court finds that Huber has plausibly alleged the beliefs she communicated to TIAA were “religious in nature.” Huber’s asserted faith, which “comes from the belief in a universal force and energy” and focuses on holistic healing ... is different than the biblical Christianity employees often invoke when seeking exemptions to COVID-19 vaccine requirements....  But Title VII protects nonconventional as well as conventional religious beliefs—courts “are not free to reject beliefs because they consider them ‘incomprehensible.’...

The amended complaint does not provide a clear or complete account of Huber’s conversation with the TIAA interviewer, and it is possible that later fact development will show she did not communicate an objection that was based on a sincerely held religious belief.  But the court finds that her allegations are sufficient to allow for discovery on this issue....