Ministerial Exception Doctrine Applies to Title VII Claim of Business Prof at Christian University

In Schmidt v. University of Northwestern- St. Paul, (D MN, June 5, 2025), a Minnesota federal district court held that the ministerial exception doctrine bars the court from deciding plaintiff's Title VII claim but sought further briefing on whether it also bars plaintiff's negligent supervision claim. At issue was the hostile environment experienced by plaintiff who had been hired as an Assistant Professor of Business and Program Manager at a Christian university. Plaintiff claims she was subjected to racial discrimination, intimidation and retaliation, and when she reported it, the University took no action. The court said in part:

... Schmidt’s primary argument is that the University is not a religious institution because it did not exercise ecclesiastical decision-making authority over Schmidt.  Schmidt argues that an entity should not qualify as a religious institution for the ministerial exception unless it employs a form of ecclesiastical governance within its structure—in other words, unless an affiliated church is vested with authority to make decisions within the entity. 

The Court finds that the University is a religious institution for the ministerial exception....

Everything considered, and though a close call, the Court finds that Schmidt was a minister for the ministerial exception.  Though Schmidt did not have “minister” in her title, and her position did not require significant formal religious training, the record indicates that the University entrusted her directly “with the responsibility of educating [her] students in the faith” and “expected [her] to guide [her] students, by word and deed, toward the goal of living their lives in accordance with the faith.”...

The above caselaw emphasizes the importance of keeping courts out of religious institution’s internal governance decisions, even if the claims arise under state law.  But it is unclear at this juncture whether the negligent supervision claim here would implicate ecclesiastical matters, and thus whether the ministerial exception applies to Schmidt’s negligent supervision claim....

EEOC Sues Over Denial of Dress Code Religious Accommodation for Apostolic Christian Employee

The EEOC announced this week that it has filed a Title VII lawsuit against CEMEX Construction Materials Florida, LLC, alleging that it failed to grant a religious accommodation to an Apostolic Christian employee.  The employee wanted to wear a skirt over her work pants. According to the EEOC:

The company denied the accommodation because of its policy against loose-fitting clothing. The employee only wore close-fitting skirts over her work pants and was in compliance with company policy. Ultimately, the company forced the employee to choose between wearing a skirt or losing her job. The employee chose to continue wearing a skirt, which led to her termination.

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

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

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

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

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

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

Justice Thomas filed a concurring opinion, saying in part:

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

Justice Jackson filed a concurring opinion, saying in part:

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

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

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

SCOTUSblog reports on the decision. 

Texas Supreme Court: AG May Begin Proceedings to Close Down Catholic Refugee Agency for Harboring Illegal Migrants

In Paxton v. Annunciation House, Inc., (TX Sup. Ct., May 30, 2025), the Texas Supreme Court held that a state trial court was in error in refusing to allow the state Attorney General to file a quo warranto action as a first step in his attempt to revoke the corporate charter of a Catholic agency serving migrants and refugees in El Paso. The Attorney General claims that the agency is sheltering migrants who have entered the country illegally. The Supreme Court observed:

Bound up in the dispute are a host of serious questions: What kind of conduct constitutes unlawfully harboring illegal aliens?  Has Annunciation House engaged in such conduct?  Under what conditions may the attorney general demand access to Annunciation House’s records?  Can harboring illegal aliens provide a valid basis for the attorney general to file a quo warranto action?  Does Texas law that protects religious liberty forbid the attorney general from proceeding against Annunciation House under these circumstances?  And more still.

Ordinarily, before this Court addresses such significant issues, the parties would have developed a full record.... This case, however, comes to the Court as a direct appeal because, very early in the litigation, the trial court held that several Texas statutes are unconstitutional.  We accordingly must address this dispute far earlier than we typically would. 

Among other defenses, Annunciation House invoked the state's Religious Freedom Restoration Act. Rejecting that defense, the Supreme Court said in part:

... [T]he relevant government action for purposes of applying RFRA here is not the charter revocation that may or may not arrive, but only the filing of the quo warranto information.  Engaging in litigation is generally not itself the sort of burden that RFRA forecloses— RFRA purposefully provides a tool to be deployed within litigation.  In this case, it has been invoked as an affirmative defense focusing not on the mere existence of the litigation but on a potential end result of that litigation.  Undoubtedly, RFRA can be powerful however it is deployed, and its potency often may be felt quite early.  But it is not a tool to convert a proceeding focused on whether litigation may even commence into one that reaches and resolves ultimate issues.  Were we to say more about RFRA at this stage, we would have to reach issues that go well beyond the narrow question of the attorney general’s authority to file a quo warranto counterclaim—and to do so without the benefit of a sufficiently developed record or even the refining that ordinarily comes through the usual litigation and appellate process.

Here are links to the pleadings and numerous amicus briefs filed in the case. Here is a link to video of oral arguments in the case. El Paso Times reports on the decision.

Washington Bishops Sue Challenging Expanded Child Abuse Reporting Law

Last week, the Catholic bishops in Washington state filed suit challenging the constitutionality of a recently adopted amendment to the state's mandatory child abuse reporting law. The amendment requires clergy to report child abuse or neglect when they have reasonable cause to believe that it has occurred, even when a priest learns of the abuse or neglect in a confessional. The complaint (full text) in Etienne v. Ferguson, (WD WA, filed 5/29/2025) alleges in part:

1. Consistent with the Roman Catholic Church’s efforts to eradicate the societal scourge of child abuse, the Roman Catholic Archdiocese of Seattle and the Dioceses of Yakima and Spokane have each adopted and implemented within their respective dioceses policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect....

3. Yet despite these self-imposed reporting policies—policies that go beyond what Washington law requires—Washington is targeting the Roman Catholic Church in a brazen act of religious discrimination.  Without any basis in law or fact, Washington now puts Roman Catholic priests to an impossible choice: violate 2,000 years of Church teaching and incur automatic excommunication or refuse to comply with Washington law and be subject to imprisonment, fine, and civil liability....  Washington has done so at the same time that it expanded exemptions from mandatory reporting requirements for certain non-clergy.  The object of this law is clear: subject Roman Catholic clergy to dictates of the state. 

4. Putting clergy to the choice between temporal criminal punishment and eternal damnation, interfering with the internal governance and discipline of the Catholic Church, and targeting religion for the abrogation of all privileges, is a patent violation of both the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and a violation of Article I, Section 11 of the Washington Constitution.

The Pillar reports on the lawsuit.

9th Circuit Hears Oral Arguments Over Religious Exemptions from Washington Antidiscrimination Law

On June 3, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Union Gospel Mission of Yakima Washington v. Brown. In the case, a Washington federal district court granted a preliminary injunction to a religious organization that operates a homeless shelter and thrift stores. The injunction bars the state's attorney general from enforcing the Washington Law Against Discrimination (WLAD) against plaintiff for limiting all its hiring to coreligionists who adhere to the organization's religious tenets and behavior requirements. In 2021 the Washington Supreme Court interpreted the exemption in the WLAD for non-profit religious organizations to apply only to hiring for ministerial positions. (See prior posting.) Washington State Standard reports on the oral arguments.

State Court Order to Cooperate in Religious Divorce Cannot Be Challenged in Federal Trial Court Proceeding

In Azimi v. Worrell, (WD VA, June 3, 2025), plaintiff appearing pro se, challenged on Free Exercise and Establishment Clause grounds an order by a Virginia state trial court judge in plaintiff's divorce proceeding. The state court had ordered that plaintiff "cooperate with any and all actions and procedures necessary to accomplish a religious divorce pursuant to the Islamic Religion with all due speed and dispatch." A Virginia federal district court dismissed the case for lack of jurisdiction. The court invoked the Rooker-Feldman doctrine that bars federal courts from hearing cases that amount to appellate review of a state court judgment when plaintiff instead should have appealed through the state court system.

Jury Must Decide Reason for Evangelists' Exclusion from Pride Event

In Cocchini v. City of Franklin, Tennessee, (MD TN, June 3, 2025), in an opinion covering three consolidated cases, a Tennessee federal district court held that because disputed questions of fact remain, the cases must go to trial rather than the court issuing summary judgment for either side.  At issue are claims by five Christian evangelists that they were wrongly removed, asked to leave or denied entrance to the 2023 Franklin Pride Festival in violation of their 1st Amendment free speech rights. Those who entered the Festival particularly spoke with representatives of churches that supported LGBTQ+ rights. The court concluded that plaintiffs were engaged in protected speech that did not constitute "fighting words" and that they were not attempting to make their views part of the Festival's message. The court also concluded that the city park remained a quintessential public forum even though the city had issued it a permit to use the park for the Pride Festival. The court then concluded:

... [T]here is a genuine dispute of fact on the rationale for the City and Officer Spry restricting Plaintiffs’ speech that precludes a finding of summary judgment in any party’s favor.... [A]lthough there is evidence in the record suggesting that the City and Officer Spry restricted Plaintiffs’ speech on account of the Franklin Pride staffers’ disagreement with their religious messages, Defendants present conflicting evidence that they restricted Plaintiffs’ speech based on Franklin Pride’s request that they do so to maintain their use of their permit, prevent Plaintiffs’ disruptive behavior, and enforce Franklin Pride’s ban on distributing outside materials. Any one of these content-neutral reasons for curbing Plaintiffs’ speech ... would satisfy the applicable standard.... Given this critical material dispute of fact in the record, the Court finds that the question of what motivated Plaintiffs’ exclusion from the Park must be decided by a jury.  Accordingly, both Plaintiffs’ and the City’s motions for summary judgment on Plaintiffs’ First Amendment claims must be denied on this ground.

HHS Rescinds Prior Administration's Interpretation of Emergency Room Abortion Practices Under EMTALA

 In January 2025, the U.S. 5th Circuit Court of Appeals upheld an injunction issued by a Texas federal district court barring enforcement of a 2022 Guidance Document and related Letter on emergency abortion care issued by the Department of Health and Human Services. HHS had taken the position that under the Emergency Medical Treatment & Labor Act, emergency rooms must sometimes perform abortions as a method of stabilizing pregnant women who have pregnancy complications. HHS also took the position that this federal requirement pre-empts Texas laws barring abortions. The 5th Circuit concluded that EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child and that doctors must comply with state law in balancing those obligations. (See prior posting.) On May 29, 2025, HHS placed a statement on the 2022 Guidance Document that it was being rescinded. However, it went on to apparently limit the rescission to plaintiffs in the 5th Circuit case, saying:

HHS may not enforce the Guidance and Letter’s interpretation of EMTALA—both as to when an abortion is required and EMTALA’s effect on state laws governing abortion—within the State of Texas or against the members of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA).

Then today (June 3, 2025), HHS issued a Statement (full text) saying that it is rescinding the prior policy for all hospitals, not just for parties to the prior litigation.  The Statement said in part that the 2022 Guidance Document and Letter (which has also been stamped "Rescinded"):

do not reflect the policy of this Administration. CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy. CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions.

Meanwhile, ADF today issued a press release saying that in light of the rescission of this policy it has filed a voluntary dismissal of another lawsuit it had filed challenging the Guidance Document.

Recent Articles of Interest

From SSRN:

• Bakht Munir, Islamophobic Artificial Intelligence in the USA: A Critical Analysis of Religious Bias in Datasets, (The Law Library Journal (2025)).
• Brandon L. Paradise, Soul Force and Social Change: Martin Luther King Jr. Beyond Liberalism and Critical Race Theory, (Journal of Law and Religion (2025)).
• Stephanie H. Barclay, Constructing Constitutional Rights, (138 Harv. L. Rev. F. 140 (2025)).
• Kevin Paul Lee, Aligning to Nothing: Apophatic Prayer, the Limits of AI Alignment, (May 28, 2025).
• Fatih Öztürk, Will Kymlicka's Multicultural Citizenship, (May 27, 2025).
• Jack Lucas, Protecting Life Practically: Why the Pro-Life Movement Should Pursue Frequency Limits and Interstate Mechanisms, (April 19, 2025).
• Andrew Hull, "Otherwise Called the First Book of the Kings": The Eighth Chapter of 1 Samuel During the Puritan Revolution, (May 07, 2025).
• Perry Dane, In a Time of Crisis: Reflections on the Fortieth Anniversary of the Journal of Law and Religion, (Journal of Law and Religion (2025)).
• Michael Foran, A Great Forgetting: Common Law, Natural Law, and The Human Rights Act, (in Richard Johnson and Yuan Yi Zhu (eds) Sceptical Perspectives on the Changing Constitution of the United Kingdom (Hart 2023)).
• Andrew Hull, Is Jimmy Hoffa Catholic? Labor Unions and the Religion Clauses of the First Amendment, (April 30, 2025).
• Benjamin Eidelson & Deborah Hellman, Antisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed, (Forthcoming, Harvard Law Review Forum (June 2025)).
• Habeeb Olayinka Lawal, Examination of Anti-Polygyny Clauses in Islamic Marriage Contracts: A Jurisprudential Analysis, (April 14, 2025).
• Douglas NeJaime, Before Losing, (May 24, 2025).

From SmartCILP:

• Elizabeth Sepper & Lindsay F. Wiley, Religious Resistance and the Public's Health, [Abstract], 50 American Journal of Law & Medicine 43-58 (2024).
• I. Glenn Cohen, Dyson Keynote Lecture. The Alabama Embryo Decision in Ethics, Law, and Politics, 45 Pace Law Review 11-24 (2024).

Suit Challenges Exclusion of Religious Training from Virginia Tuition Grant Programs

Suit was filed last week in a Viginia federal district court challenging the exclusion from Virginia's Tuition Assistance Grant Program and its National Guard Grants of educational programs that provide religious training or theological education. The complaint (full text) in Johnson v. Fleming, (ED VA, filed 5/28/2025), alleges that the exclusions violate the Free Exercise, Establishment and Equal Protection clauses.  The complaint reads in part:

297. Defendants’ religious exclusions violate the Free Exercise Clause several ways....

298. The government violates the Free Exercise Clause when it disqualifies otherwise eligible persons or organizations from receiving otherwise available government benefits “solely because of their religious character,”....

327. Because the VTAG and National Guard religious exclusions are not neutral or generally applicable, they trigger strict scrutiny....

335. So the State Council [of Higher Education] considers CIP Code 39 programs as too religious and excludes them from participation in the Tuition Assistance Grant Program. This requires the State Council to entangle itself in religious matters. 

336. The [Virginnia] Department [of Military Affairs] likewise does not deem religious majors at secular private schools and public schools to be for “religious training or theological education” and students who pursue those programs at those schools can receive a National Guard Grant. 

337. The Department favors students who pursue religious programs at secular private schools and public schools to the detriment of students who pursue religious programs at religious schools....

347. Defendants’ religious exclusions create arbitrary and irrational distinctions based on nothing more than government officials’ discretion about whether a certain program is too religious.

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

3rd Circuit: Fireman's Free Exercise and Title VII Challenge to Grooming Rules Should Move Forward

In Smith v. City of Atlantic City, (3d Cir., May 30, 2025), the U.S. 3rd Circuit Court of Appeals vacated a New Jersey federal district court's grant of summary judgment for Atlantic City in a suit by a fireman claiming violation of his free exercise rights and his right to reasonable religious accommodation under Title VII. However, the court affirmed dismissal of plaintiff's equal protection and retaliation claims. In the case, plaintiff who is a Christian challenged the city's requirements that prohibit him from growing a beard of any length, contending that the requirement violates his religious beliefs. Finding free exercise and Title VII reasonable accommodation violations, the court said in part:

Firefighters engaged in fire suppression face danger from smoke and fume inhalation. The City protects its firefighters by requiring them to don air masks in “hazardous” and  “confined” spaces.... These “self-contained breathing apparatuses,” or “SCBAs,” form a seal on the firefighter’s face to keep out hazardous air and pump in clean air....

... [T]wo exceptions—one practical exception and one discretionary regime—render the City’s policy not generally applicable. First, the City has long permitted administrative staff, all of whom are firefighters subject to the SCBA rule, to forgo fit testing...

Second, the City’s grooming regime has built-in discretion. Captains may “deviate” from the SCBA policy and permit any sort of conduct as long as they “bear[] full responsibility for the results of any deviation.” ...

Strict scrutiny is the appropriate standard in all free-exercise cases failing either Smith’s neutrality requirement or its general-applicability requirement....

But the City fails narrow tailoring. “[N]arrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest.”... The City could remove Smith from fire suppression duty as it did before 2020 or reclassify him as a civilian who is not subject to the SCBA and grooming policies. It could, as a simple fix, at least try and fit test Smith with facial hair to see if his facial hair, at any length, would interfere with the SCBA to a point that creates the risk of air leakage that the City fears. 

Judge Chung dissented in part, saying she would affirm the district court's dismissal of plaintiff's free exercise claim, because "the Grooming Standards are facially neutral and were applied equally to both religiously-motivated and secularly-motivated requests for accommodation...."

Judge Porter dissented in part, saying he would have upheld plaintiff's Title VII retaliation claim.

First Liberty issued a press release announcing the decision.

Texas Passes 3 Bills Promoting Religion in Public Schools

In addition to the much-publicized Ten Commandments bill (see prior posting), the Texas legislature this week gave final passage to three other bills relating to religion in public schools:

S.B. 11 (full text) (legislative history) creates an elaborate structure that school districts may adopt to provide for a daily period of prayer and reading of the Bible or other religious text in each school. The daily ceremony is to be open to both students and employees but must be outside the hearing of those who are not participants. Also, it may not be a substitute for instructional time. To participate, a student's parent must sign a consent form that includes a waiver of a right to bring an Establishment Clause claim to challenge the prayer/ Bible reading policy. For an employee to participate in the daily sessions, they must sign a similar consent and waiver. Districts may not broadcast the prayer or Bible reading over the school's public address system.

SB 965 (full text) (legislative history) provides:

The right of an employee of a school district ... to engage in religious speech or prayer while on duty may not be infringed on by the district or school or another state governmental entity, unless the infringement is: (1) necessary to further a compelling state interest; and (2) narrowly tailored using the least restrictive means to achieve that compelling state interest.

SB 1049 (full text) (legislative history) requires all public schools to adopt policies that provide for students, at their parents' request, to attend for 1 to 5 hours per week off-premises released time programs operated by private entities and which offer religious instruction. Under the mandated policy, students remain responsible for any schoolwork issued during the student's absence.

Texas Legislature Passes Bill to Require Ten Commandments in Every Classroom

The Texas legislature this week gave final approval to SB10 (full text) which requires public schools to post a copy of the Ten Commandments in every classroom. The bill sets out the language of the version of the Ten Commandments that must be used. Schools must accept privately donated posters or framed copies that meet the requirements of the Act and may also use school district funds to buy posters or copies. Three civil liberties groups yesterday announced that they will sue Texas to challenge the new law once it is signed by Governor Gregg Abbott.

Missouri Supreme Court Orders Re-evaluation of Injunction Barring Enforcement of Abortion Clinic Licensing

In State ex rel. Kehoe v. Zhang, (MO Sup. Ct., May 27, 2025) the Missouri Supreme Court held that a state trial court judge who enjoined enforcement of licensing requirements imposed on abortion clinics applied the wrong standard in determining whether preliminary injunctions should be granted. The Court ordered the trial court judge to vacate her orders granting preliminary relief and re-evaluate the requests under the new stricter standard two abortion clinics' requests for preliminary injunctions. St. Louis Public Radio reports on the Court's decision.

Suit Challenges Refusal to Recognize Ministers Ordained Online

Suit was filed last week in a Virginia federal district court challenging Augusta County and the City of Staunton's refusal to recognize ministers of the Universal Life Church who obtained ordination online as ministers authorized to perform marriage ceremonies under Virginia Code §20-23. Instead, they are required to register under §20-25 as a civil officiant which includes posting a $500 bond. The complaint (full text) in Universal Life Church Monastery Storehouse v. Landes, (WD VA, filed 5/22/2025) alleges that this violates the 1st and 14th Amendment, saying in part:

69. The Clerk defendants violate the Establishment Clause by interpreting and applying Va. Code Ann. §§20-23 and 20-26 to categorically deny ULC Monastery ministers the authority to solemnized marriages as religious officiants, solely because they were ordained by and are in regular communion with the ULC Monastery and not another approved religious society. This conduct impermissibly prefers certain denominations over others.....

77. Many of plaintiff ULC ministers ... choose to exercise their religion by officiating marriage ceremonies.... The Clerk Defendants' interpretation an application of Va. Code Ann. §§20-23 and 20-26 ... accordingly places an impermissible burden on Plaintiffs' religious practice in violation of the Free Exercise Clause....

84. ... The Equal Protection Clause prohibits intentional discrimination against similarly situated individuals and prohibits state action that burdens fundamental rights, including religious freedom.  Discrimination based on religious affiliation must survive strict scrutiny....

91. Defendants' actual and threatened enforcement of Va. Code Ann. §§20-23, 20-26 and 20-28 against ULC Monastery and its ministers burdens speech based on its content and viewpoint, and is accordingly subject to strict scrutiny....

Augusta Free Press reports on the lawsuit. 

[Thanks to Dusty Hoesly for the lead.] 

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Sports Apparel Company Challenges Colorado's Public Accommodation Law Protection of Transgender Athletes

Suit was filed this week in a Colorado federal district court by an online athletic apparel company, "XX-YY Athletics," that promotes banning of transgender women from women's sports through logos on its apparel and through advertisements.  The company claims that Colorado's Anti-Discrimination Act violates the 1st and 14th Amendments when its public accommodation provisions declare that Coloradans have a right to access advertising that is free from discrimination on the basis of gender expression and chosen name. The complaint (full text) in Committee of Five, Inc. v. Sullivan, (D CO, filed 5/27/2025), alleges in part:

191. The most common way that XX-XY Athletics demonstrates why male competition in women’s sports is unfair or unsafe is by reference to specific transgender-identifying male athletes....

206. Although CADA prohibits XX-XY Athletics from speaking consistently with its view that sex is immutable, the law allows other businesses that also qualify as public accommodations to speak according to their view that sex can be changed.  

207. This distinction in treatment is based on a particular view that the business holds about human sexuality and gender identity....

222. The First Amendment’s Free Speech, Press, and Assembly Clauses protect XX-XY Athletics’ ability to speak, create, publish, sell, and distribute speech; to associate with others and with their messages for expressive purposes; to adopt and act on certain speech-related policies; to decline to associate with others and their message for expressive purposes; to decline to create, publish, sell, and distribute speech; to be free from content-based and viewpoint-based discrimination; and to be free from overbroad and vague restrictions on speech that give enforcement officials unbridled discretion....

225. As applied to XX-XY Athletics, CADA impermissibly discriminates against the company’s speech based on content and viewpoint by prohibiting it from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex.  

226.  As applied to XX-XY Athletics, CADA impermissibly inhibits the company’s ability to form expressive associations it desires to form and to avoid expressive associations it desires to avoid by requiring the company to refer to individuals by their preferred name, pronouns, and other terminology and prohibiting the company from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex....

The complaint also alleges that the Colorado law is void for vagueness and violates the Equal Protection clause. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Display of Statues of Saints on Public Safety Building

Suit was filed yesterday in a Massachusetts state trial court seeking to enjoin the city of Quincy and its mayor from installing statues of two Catholic saints, St. Michael and St. Florian, on the facade of its new public safety building.  The city has already spent over $760,000 for creation of the statues. The suit also seeks to bar additional expenditures. The complaint (full text) in Fitzmaurice v. City of Quincy, (MA Super., filed 5/27/2025), alleges that the decision to acquire the statues was made by the city's mayor without notice to the public. Only some members of City Council knew of the plan before it was disclosed in a February 2025 news article. The complaint alleges that installation and display of the statues will violate Art. III of the Massachusetts Declaration of Rights.

Americans United issued a press release announcing the filing of the lawsuit.

Court Vacates EEOC Rule Requiring Accommodation of Employees' Abortions

In State of Louisiana v. Equal Employment Opportunity Commission, (WD LA, May 21, 2025), a Louisiana federal district court set aside an EEOC rule that interprets the Pregnant Workers Fairness Act to require employers to provide reasonable accommodation for abortions. The court had previously issued a preliminary injunction ("PI") in the case. In setting the rule aside, the court said in part:

Given the political, social, and religious significance of the abortion issue in this country, the PI Ruling explained that EEOC must point to “clear congressional authorization” for the power it claims in the Final Rule....  And as the PI Ruling emphasized, “[n]ot only is the EEOC unable to point to any language in the PWFA empowering it to mandate the accommodation of elective abortions, but there can be little doubt in today’s political environment that any version of the PWFA that included an abortion accommodation requirement would have failed to pass Congress.”...  That finding remains true today, and the Court concludes that the EEOC has failed to point to clear congressional authorization for the inclusion of abortion protection in a statute intended only to accommodate and protect female employees during pregnancy.

The case was consolidated with U.S. Conference of Catholic Bishops v. EEOC.

AP reports on the decision.

Supreme Court Denies Cert. In School's Ban on Anti-Transgender T-Shirt

The U.S. Supreme Court yesterday denied review in L.M. v. Town of Middleborough, Massachusetts, (Sup. Ct., certiorari denied May 27, 2025).  In the case, the U.S. 1st Circuit Court of Appeals upheld middle school officials' decision that a student was in violation of school rules by wearing a T-shirt that proclaims: "There Are Only Two Genders." Justice Alito, joined by Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). 

The First Circuit’s decision calls out for our review....

I would grant the petition for two reasons. First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear.... Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.  By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption.

Justice Thomas also filed a separate brief dissenting opinion.  NBC News reports on the Court's action.

Supreme Court Denies Review of Apache's Loss of Sacred Land

By a vote of 6-2, the U.S. Supreme Court today denied review in Apache Stronghold v. United States, (Sup.Ct., certiorari denied May 27, 2025). 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. Justice Gorsuch, joined by Justice Thomas, today filed a lengthy dissent to the Supreme Court's denial of certiorari, saying in part:

Exactly nothing in the phrase “substantial burden”—or anything else in RFRA’s text—hints that a different and more demanding standard applies when (and only when) the “disposition” of the government’s property is at issue....

... [A]t bottom, it seems the Ninth Circuit was concerned that a ruling for Apache Stronghold would effectively afford tribal members a “‘religious servitude’” on federal land at Oak Flat....  And, the argument goes, those who adopted RFRA could not have intended to afford Tribes or others that kind of power over the disposition of federal property....  But unexpressed legislative intentions are not the law. And even if we were to abandon the statutory text in favor of guesswork about unenacted congressional purposes, it is far from clear why we should make the guess the Ninth Circuit did....

While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake—one with consequences that threaten to reverberate for generations.  Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning.  I have no doubt that we would find that case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less.  They may live far from Washington, D. C., and their history and religious practices may be unfamiliar to many.  But that should make no difference. “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to . . . religious freedom.”

AP reports on the Court's action.

Evidence of Religious Differences Between Accused and Victim Did Not Require Reversal of Murder Conviction

In State of Washington v. Darraji, (WA App., May 22, 2025), a Washington state appellate court by a 2-1 vote affirmed a second-degree felony murder conviction of defendant, an Iraqi immigrant. Defendant, Yasir, was charged with murdering his former wife, Ibthal.  The court explained:

At trial, the State’s theory was that Ibtihal’s rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses.  Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal’s body inside. 

On appeal, Yasir argues that the State committed prosecutorial misconduct by introducing irrelevant and inflammatory evidence of Islamic beliefs to invoke anti-Muslim bias with jurors.

The majority rejected defendant's arguments, saying in part:

The comments and questions by the prosecutor were based on evidence and introduced to show motive.  The State maintained that Yasir believed Ibtihal’s changing behaviors failed to conform to Iraqi culture and Islamic beliefs and were disrespectful, insulting, and reflected poorly on him.... The non-conforming behavior included drinking, smoking, going to bars, dating, driving, working, not covering her hair, and attending a Christian church.  While Yasir’s appeal focuses primarily on evidence of the couples’ religious differences, the State maintained that Ibtihal’s conversion to Christianity and decision to wear her hair uncovered was part of the larger picture....

The foregoing questions and comments were based on relevant evidence and reasonable inferences ... and were introduced to show motive.  An objective observer could not view these questions and comments as an appeal to bias or prejudice against Muslims or persons from Iraq.

Judge Fearing dissented, saying in part:

... [B]ecause of the divisive subject of Islam and stereotypes of Middle Eastern men, the State needed to selectively, thoughtfully, and carefully present its evidence rather than turn the trial into a contest between American culture and Christianity, on the one hand, and Iraqi culture and Islam, on the other hand....  

The State gratuitously painted victim Ibtihal Darraji as Christian and American and defendant Yasir Darraji as Muslim and un-American.  The State even went as far as suggesting Ibtihal was a martyr to Christianity.  With its testimony and arguments to the jury, the State employed the ancient, but common, practice of portraying the victim as “us” and the accused as “them” in order to assure a conviction.  I would reverse and remand for a new trial because Yasir Darraji did not receive a fair trial....    

Memorial Day Proclamation

Today is Memorial Day. President Trump's Proclamation Prayer for Peace, Memorial Day 2025 (full text) reads in part:

Memorial Day is a sacred day of remembrance, reverence, and gratitude for the brave patriots who have laid down their lives in service to our great Nation....

We are eternally indebted to our Nation’s fallen heroes.  On this solemn day, as we honor their sacrifice, the First Lady and I ask all citizens to join us in prayer that Almighty God may comfort those who mourn, grant protection to all who serve, and bring blessed peace to the world.

In honor of all of our fallen heroes, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people might unite in prayer.  The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance....

Recent Articles of Interest

From SSRN:

• Godfrey Lukindo Alternative Dispute Resolution ADR), (May 16, 2025).
• Denis Wieboldt, Our Natural Law Moment(s), (Georgetown Journal of Law and Public Policy (forthcoming)).
• Vincent Phillip Muñoz, Michael W. McConnell & Andrew M. Koppelman, Religious Exemptions? What the Free Exercise Clause Means, (April 28, 2025).
• Tobias Lock, Article 10 CFR (Second Edition of the Oxford Commentary, 2024), (March 02, 2024).
• Joshua J. Craddock,, Personhood After Dobbs , (74 Cath. U. L. Rev. 536 (2025)).
• Marc Greendorfer & Vanessa Hites, When Words Wound: Pure Speech Meets Federal Antidiscrimination Law, (May 22, 2025).
• Katie R. Eyer, Transgender Equality: An Inflection Point for Equal Protection?, (University of Cincinnati Law Review, Vol. 93, Iss. 4 [2025], Art. 1).
• Dale Carpenter, The Volokh Briefs: Drawing the Line Against Compelled Speech in Public Accommodations, (39 Const. Comm. 143 (2024)).
• Hesam Nourooz Pour, Transitional Justice and Online Social Platforms: Facebook and the Rohingya Genocide, (June 10, 2024).
• Katharine Young, Human Rights in the Constitutional Era of Dobbs, (Columbia Human Rights Law Review, Volume 56, 2025).
• Sophia Chima, Religious Tourism as a Means of Fostering Religious Tolerance: A Pathway to Global Understanding and Peace (March 14, 2025).

From SSRN (Islamic Law):

• Mohammad Ibrahim, Book review: Dawood Ahmed and Muhammad Zubair Abbasi, Democracy Under God: Constitutions, Islam and Human Rights in the Muslim World (Cambridge University Press, 2023), (Comparative Constitutional Studies (forthcoming)).
• Saud M. Alholiby Albin Zaid, Mubarak M. Alkhaldi & Mohammad A. Alghamdi, The Zakatability of AI: A Dual Analysis from Sharia and Saudi Law, (Journal of Posthumanism, volume 5, issue 5, 2025).
• Nadia Ahmad, The Imperceptibility of Muslim Identity, (28 CUNY Law Review 169 (2025)).
• Anuqa Munir & Abdullah Bhatti, Fosterage Marriage in Islam: Legal Perspectives on Prohibition, Establishment, Proof, and the Status of Children, (December 01, 2024).
• Badreddine Badreddine, Fatma Lalaymia Berrahlia & M. Kabir Hassan, Waqf Governance in Algeria: Current Status and Future Prospects, (April 16, 2024).

From SSRN (Hindu Law):

• Sanjay Koul, Karma and Rebirth -How Actions Shape Destiny and the Cycle of Samsara, (May 19, 2025).
• Sanjay Koul, The Varna-Ashrama Dharma System: Misconceptions, Relevance and Evolution, (May 20, 2025).

From SmartCILP:

• Michael A. Helfand, Contractual Commitments and the Right to Change Religions, 103 North Carolina Law Review 1-68 (2024).

Plaintiff May Move Ahead with Claim That Iowa RFRA Protects His Religious Use of Cannabis

In Olsen v. State of Iowa, (IA Dist. Ct., May 22, 2025), an Iowa state trial court allowed plaintiff, a member of the Ethiopian Zion Coptic Church, to move ahead with his suit seeking an injunction to bar enforcement of Iowa's controlled-substance laws against his religious use of cannabis.  The suit contends that his religious use of marijuana is protected by Iowa's Religious Freedom Restoration Act enacted last year. That Act contains its own definition of "compelling governmental interest." Even though in federal court litigation in 2008 plaintiff lost his claim that the federal Religious Freedom Restoration Act exempts his religious use of marijuana from federal and state controlled-substance laws, the Iowa state court rejected the state's argument that this suit should be dismissed on collateral estoppel grounds, saying in part:

The issue raised in this litigation is the same as the Petitioner’s prior actions as cited in the briefing, that being whether the compelling state interest test was met regarding the restriction of the Petitioner’s use of cannabis. This issue was central to the Petitioner’s prior cases. 

The Petitioner argues the legal landscape has changed since the prior rulings were issued. Collateral estoppel does not apply if controlling facts or legal principles have changed significantly since the Petitioner's prior judgments. Olsen v. Mukasey, 541 F.3d at 831. The court finds that based on this particular argument, that the Petitioner’s should not be dismissed at this time....

In this case, the Petitioner is asserting the claim under Iowa Code Chapter 675. Although it is markedly similar to the federal RFRA and the Petitioner has made similar unsuccessful claims in the past, this court cannot conclude to a certainty that there is no possibility of success under the newly-passed Iowa RFRA. 

Plaintiff, who is litigating pro se, issued a press release announcing the decision.

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

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

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

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

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

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

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

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

SCOTUSblog and The Washington Stand report on the decision.

Suit Challenges School District's Speech Policy

Suit was filed this week in an Oregon federal district court by a clinical social worker employed by an Oregon school district challenging the application of the district's Speech Policy to his display on a shelf in his office of three books that reject notions of transgender identity. The complaint (full text) in Theis v.  InterMountain Education Service District Board of Directors, (D OR, filed 5/21/2025), alleges in part:

He is He and She is She ... explain how every child should embrace and love herself exactly as God made her to be....

... [A]n employee at one of Mr. Theis’ schools saw the covers of the Books and complained that they were “transphobic.” IMESD labeled the display as “a hostile expression of animus toward another person relating to their actual or perceived gender identity” and ordered Mr. Theis to remove them. IMESD then warned him that “further conduct of this nature” may result in discipline, including termination of his employment....

2. Plaintiff is ... a professing Christian who bases his beliefs on the Bible and strives to live out his Christian faith at work and in the community.

3. Plaintiff’s sincerely held religious beliefs govern his views about all aspects of life, including human nature, sex, and gender....

217. Defendants’ censorship of Plaintiff’s display of the Books while permitting books and other decorations with different messages on related topics is content and viewpoint discrimination, which is unconstitutional in any type of forum....

220. Defendants’ Speech Policy and practice also impose an unconstitutional heckler’s veto because they permit the restriction of protected employee expression merely because school officials deem an employee’s expression “offensive” to others....

249. Plaintiff’s sincerely held religious beliefs motivated him to display the Books in his office. 

250. Defendants substantially burdened Plaintiff’s religious exercise when they forced Plaintiff to choose between exercising his religious beliefs and being dismissed or violating his conscience.

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

Wedding Photographer Gets Temporary Injunction Excusing Her from Photographing Same-Sex Engagements and Weddings

In Carpenter v. James, (WD NY, May 22, 2025), a New York federal district court granted a preliminary injunction to a wedding photographer who objects to same-sex marriage, enjoining enforcement against her of provisions of New York's public accommodation law that would require her to offer her services for same-sex engagements and weddings and would prevent her from posting her policies on social media. The court said in part:

In light of the Supreme Court’s binding precedent in 303 Creative, and for the reasons discussed below, Plaintiff’s motion is GRANTED.  The Court will issue a narrow injunction barring Defendants from applying New York’s public accommodation laws “peculiarly to compel expressive activity” with which Plaintiff disagrees.... Beyond that “peculiar” circumstance, however, Plaintiff remains fully obligated to comply with New York’s public accommodation laws, and she remains subject to all remedies and penalties for their violation.  Conversely, except to the limited extent directed herein, New York’s public officials remain fully empowered to police the public marketplace to ensure that “gay couples [are not] treated as social outcasts . . . inferior in dignity and worth.”

The case was on remand from the Second Circuit. (See prior posting.)

Religious Broadcasters Win Challenge to FCC Disclosure Requirements

In National Religious Broadcasters v. FCC, (5th Cir., May 19, 2025), the U.S. 5th Circuit Court of Appeals held that the Federal Communications Commission exceeded the authority granted to it by Congress when in 2024 it reinstated the requirement that broadcasters annually file Form 395-B which calls for disclosure of race, ethnicity, and gender data for employees in specified job categories. Co-plaintiff in the case was the American Family Association, a conservative Christian pro-family organization.  Their suit was consolidated with a similar challenge brought by the secular Texas Association of Broadcasters. While the court's opinion does not discuss free exercise rights and avoids adjudicating plaintiffs' free speech arguments, a Press Release by National Religious Broadcasters after the 5th Circuit's decision was handed down focuses on 1st Amendment concerns, saying in part:

NRB has always fought to protect Christian communicators from baseless attempts to restrict their First Amendment liberties which hinder their work of proclaiming the Gospel. This ruling helps ensure that the government cannot create a backdoor to control broadcasters through public intimidation, misuse private data against them, or interfere with the sacred and constitutionally protected mission of religious broadcasters.

Supreme Court Splits 4-4 In Oklahoma Charter School Case

In Oklahoma Statewide Charter School Board v. Drummond and the companion case of St. Isidore of Seville Catholic Virtual School v. Drummond, (Sup. Ct. May 22, 2025), the U.S. Supreme court today in a brief order affirmed by an equally divided court the judgment of the Oklahoma Supreme Court. At issue in the cases was whether Oklahoma can authorize and fund a religiously-sponsored charter school. 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 U.S. Supreme Court's Order indicates that today's tie vote, which comes only three weeks after oral arguments in the case, resulted from Justice Barrett's recusing herself from the case. While Justice Barrett gave no reason for recusing herself, earlier media reports suggest it was because of her close friendship with Notre Dame law professor Nicole Stelle Garnett who was an early legal adviser to the school and is a faculty fellow with Notre Dame's Religious Liberty Clinic which represents St. Isidore. Bloomberg reports on today's Supreme Court decision.

California Agrees to Consent Decree Allowing Sectarian Schools to Participate In IDEA

 As previously reported, last October the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of special needs children and by two Orthodox Jewish schools. The suit challenges as a violation of the Free Exercise and Equal Protection Clauses California's rules that preclude sectarian schools from receiving payments for special needs children under the federal Individuals With Disabilities Education Act (IDEA). This week, in the district court the parties filed a Joint Motion for Entry of Consent Judgment and Permanent Injunction in Loffman v, California Department of Education, (CD CA, May 19, 2025). The injunction bars California from enforcing requirements that schools be nonsectarian in order to participate in the IDEA program. Fox News reports on these developments.

Jewish Teacher Claims Anti-Israel Position of Teachers' Union Violates His 1st Amendment Rights

Suit was filed this week in an Oregon federal district court against the Portland school system and the Portland teacher's union by a Jewish teacher who was born in Israel who contends that his First Amendment rights are violated by forcing him to be part of a bargaining unit represented by a union that promotes anti-Israel, pro-Palestinian positions and by the school becoming a one-sided forum for anti-Israel rhetoric. He also claims a hostile working environment has been created. Even though plaintiff chose not to become a dues-paying member of the teacher's union, under Oregon law the union remained his collective bargaining representative.  The complaint (full text) in Doe v. Portland Association of Teachers, (D OR, filed 5/19/2025) alleges in part:

63. [Palestinian] flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person.

64. These symbols ... cause severe emotional distress to Plaintiff because of his experiences growing up in Israel, including personal exposure to acts of terrorism committed to destroy the State of Israel, and because of his deeply held religious beliefs....

97. When Plaintiff reached out to PAT for support, PAT assigned him a union representative who publicly shared anti-Zionist views on social media, thus the Plaintiff did not receive fair or unbiased representation from PAT....

121. Oregon’s statutory requirement of exclusive representation, placing the Plaintiff in a bargaining unit exclusively represented by PAT, violates the Plaintiff’s free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs....

127. Oregon’s exclusive representation laws compel Plaintiff ... to tacitly affirm beliefs that violate his deeply held religious beliefs and personal convictions as a condition of employment....

140. ... [C]urricula put forward in the District’s classrooms purports to define aspects of Plaintiff’s faith, which includes the belief in a Jewish homeland, in ways that are inconsistent with his beliefs, but that are consistent with the religious teachings of other faiths, including the beliefs of some Muslims.

141. The District allows displays of overtly anti-Israel messaging, including maps that fail to display the nation of Israel....

144. By these actions, the District prefers and promotes religious views and practices in violation of the Establishment Clause of the First Amendment,,,,

The Oregonian reports on the lawsuit.

Exclusion of Religious Organization from Non-Profit Discount Challenged Under California's Unruh Act

Suit was filed yesterday in a California federal district court by a Christian non-profit claiming that OpenAI's non-profit discount policy that excludes academic, medical, religious, and governmental institutions violates plaintiff's rights under California's Unruh Civil Rights Act. The complaint (full text) in Holy Sexuality v. OpenAI, Inc., (SD CA, filed 5/21/2025), alleges in part:

1. Plaintiff Holy Sexuality is a Christian nonprofit based in Texas that uses video courses to teach young people and their families about biblical principles on human sexuality.  

2. To operate more effectively, Holy Sexuality contacted Defendant OpenAI, Inc., a San Francisco-based tech company, to receive OpenAI’s 20% nonprofit discount for a ChatGPT subscription....  

4. But OpenAI and Goodstack denied Holy Sexuality the discount because “religious … institutions are not eligible.” 

5. This categorical denial, OpenAI’s published policy, and Goodstack’s enforcement of that policy are invidious religious discrimination. And they are illegal under California’s Unruh Civil Rights Act....

6. People of faith aren’t second-class citizens in California, and tech companies cannot provide lesser services to customers simply because they are religious....

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

Colorado Law Banning Deadnaming and Misgendering Challenged as Free Speech Violation

Suit was filed this week in a Colorado federal district court challenging on free speech and vagueness grounds provisions in recently enacted Colorado HB25-1312. The lawsuit focuses on provisions that define deadnaming and misgendering as discriminatory acts under Colorado's Anti-Discrimination Act. The complaint (full text) in Defending Education v. Sulivan, (D CO, filed 5/19/2025), alleges in part:

5. ... H.B. 25-1312 amends the definition of “gender expression,” a protected category under the Colorado Anti-Discrimination Act, to include the use of a “chosen name” and other words by which an individual “chooses to be addressed.”...

30. Under H.B. 25-1312, then, someone who operates in a public accommodation commits a discriminatory act when they refer to a transgender-identifying individual using the individual’s birth name or biological pronouns instead of their chosen name or preferred pronouns ... because that speech supposedly denies the transgender individual the “full and equal enjoyment” of the place of public accommodation based on their “gender expression.” ...

86. ... Colorado’s public accommodation laws as amended by H.B. 25-1312 make it impossible for [plaintiffs} ... to effectively exercise their constitutionally protected right to speak in a manner that reflects their sincere belief that sex is immutable and fixed at birth....

122. That H.B. 25-1312 does not literally require Coloradans to speak is of no consequence. Even if Plaintiffs and their members could avoid the law’s penalties by holding their tongues, compelled silence is compelled speech..... In any event, using pronouns and names is a “‘virtual necessity’” for engaging in any conversation....

136. The Unwelcome Provision clearly prohibits speech based on content and viewpoint. It prohibits all speech that makes someone feel “unwelcome, objectionable, unacceptable, or undesirable.” But “[g]iving offense is a viewpoint.”... It also compels speech by, for example, requiring published speech to be “[w]elcom[ing]” and “[un]objectionable.” Even assuming this provision only regulated speech based on content, Defendants have no compelling interest for prohibiting this type of speech....

The Lion reports on the lawsuit.

DOJ Sues Idaho City for Denying Zoning Approval for Evangelical Church

The Justice Department announced yesterday that it has filed suit against the City of Troy, Idaho alleging that it violated the Religious Land Use and Institutionalize Persons Act when it denied a conditional use permit that would have allowed an evangelical Christian church to hold worship services and church meetings in a building zoned for businesses. The complaint (full text) in United States v. City of Troy, Idaho, (D ID, filed 5/20/2025), alleges in part:

49. At the public hearing, 19 citizens personally appeared to express their views, with one speaking in favor of, one neutral to, and 17 against granting the CUP. 

50. Many of views expressed at the hearing reflected animus against Christ Church’s beliefs or its members, including that the Church was proposing an “evangelical community” that was not “open to everyone.”...

56. The City also received and considered 32 written comments regarding the CUP application that were submitted by residents. Of the written submissions, 26 commenters opposed the CUP and six supported it. 

57. Many of the written comments spoke negatively about Christ Church and its members’ beliefs, practices, and conduct....

The complaint alleges that the City has violated the Equal Terms, the Substantial Burden and the Nondiscrimination provisions of RLUIPA. KMVT News reports on the lawsuit.

Suit Challenges Minnesota Policies Allowing Transgender Girls to Compete on Girl's High School Teams

A Title IX suit was filed this week in a Minnesota federal district court by an advocacy organization challenging Minnesota's high school policies on participation in sports by transgender women. The complaint (full text) in Female Athletes United v. Ellison, (D MN, filed 5/19/2025), alleges in part:

120.  Minnesota allows athletes to participate in sports solely based on gender identity. There are no limitations based on testosterone level, whether male puberty has been started or completed, or other metrics know to magnify the physiological advantage males have over women, advantages raising safety concerns for female athletes....

180. Under Title IX, Defendants are required to provide competitive opportunities for females that accommodate them by “equally reflect[ing] their abilities” and offer “equal opportunity in . . . levels of competition” as compared to the competitive opportunities enjoyed by boys. 

181. Because of the measurable physical advantages that male athletes enjoy both before and after puberty, regardless of whether puberty blockers or testosterone suppression was administered, the athletic opportunities of girls are unequal when males are allowed to compete against them or compete with them for spots or playing time on their team....

187. Providing equivalent treatment and opportunities entails ensuring that both sexes have equal opportunities to participate and compete in competitive athletics, both in-season and post-season. Further, it precludes policies that are “discriminatory in language or effect” or have the effect of denying “equality of athletic opportunity.”  

188. Minnesota’s Policy has a detrimental effect on girls’ opportunities to compete safely and on a level playing field....

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

New Montana Law Requires Schools to Offer Released-Time Programs

On May 12, Montana Governor Greg Gianforte signed HB 343 (full text) which requires public schools to create released time programs under which a student, on request of their parent or guardian, is released for at least one hour per week to receive off-site religious instruction. The new law makes mandatory released-time programs that previously were optional. Public funds may not be used for the programs. The new law adds an option for schools to award academic credit for released-time religious instruction. Schools must use neutral secular criteria similar to the criteria used for other courses in order to determine the amount of credit to be awarded. ADF issued a press release discussing the new law.

Court Invalidates EEOC Guidance on Gender Identity and Sexual Orientation Discrimination

In State of Texas v. EEOC, (ND TX, May 15, 2025), a Texas federal district judge held that portions of the EEOC's 2024 Enforcement Guidance on Harassment in the Workplace are contrary to law.  The court held that Guidance requiring bathroom, dress and pronoun accommodations for transgender employees are inconsistent with the text, history and tradition of Title VII. The court said in part:

First, the Enforcement Guidance contravenes Title VII's plain text by expanding the scope of "sex" beyond the biological binary: male and female....

The court invalidated the portions of the Enforcement Guidance which define "sex" in Title VII to include "sexual orientation" and "gender identity" and which define sexual orientation and gender identity as protected classes. The court also specifically invalidated an Example of a Hostile Work Environment that focused on regular and intentional misgendering (using pronoun that does not match gender identity) of a transgender employee by supervisors, coworkers, and customers. AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Ioanna Tourkochoriti, LGBTQ Wedding Party: Conscientious Objections to the Enforcement of Anti-Discrimination Law, (60 Tulsa Law Review 421-485 (2025)).
• Victoria Litman, Psychedelic Policy, Religious Freedom, and Public Safety: An Overview, (August 07, 2023).
• Barak D. Richman, On Rabbis and Mentors, (GWU Law School Public Law Research Paper Forthcoming).
• Reva B. Siegel, Foreword: Democratizing Constitutional Memory,  (Forthcoming 123 Mich. L. Rev. (2025)).
• Catherine E. Smith, et. al., Brief of Amici Curiae in Support of Respondents: Mahmoud v. Taylor, (April 17, 2025).
• Amy J. Sepinwall, The Conduct-Status Connection and Expressive Wedding Vendor Cases, (Wayne Law Review, forthcoming).
• Ainslee Johnson-Brown, On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, (15 ConLawNOW 195 (2024)).

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

• Michael P. Foran, It's Not What You Said, It's The Way That You Said It: Manifesting Protected Beliefs in the Workplace Following Higgs v Farmor's School, (Industrial Law Journal (2025) (forthcoming)).
• Jeffrey A. Brauch, Freedom of Religion under the African Charter on Human and Peoples' Rights, (Forthcoming in Volume 28 Issue 2 of the Gonzaga Journal of International Law).
• Chagai Schlesinger, Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918-1921, (October 24, 2024).
• Chagai Schlesinger, Religious Legal Pluralism in the Shadow of the Centralistic State, (Oxford Journal of Legal Studies, 2025).
• Xing Wang, Jennifer Griffiths, Adam Gibson & Pakhee Kumar, Disaster Management Practices in Churches in London, UK, (2025).
• Godfrey Lukindo J, Critical Examination Of The Execution Of Death Penalty In The East Africa: A Case Study Of The Law And Practice In Tanzania And Uganda, (June 20, 2022).
• Inebu C. Agbo-Ejeh, Regulating 'God's Business': A Legal Analysis of Part F of The Companies and Allied Matters Act, 2020, (June 14, 2023).

From SSRN (Islamic Law):

• Masood Ahmed, Zakah in Non-Islamic Countries: Addressing Economic Struggles and Religious Commitments of Muslims (September 09, 2024).
• Tanzeela Shafique, International Best Practices in Policy Formation for Sharīʿah Governance, (May 13, 2025).
• Ghazal Hisham Daadoush, The Intersection Of The Cisg (Convention On Contracts For The International Sale Of Goods) And Islamic Law (Saudi Arabia), (January 22, 2025).
• Badreddine, The UNIDROIT Principles and the SSs: Any Room For Cooperation?, (May 15, 2024).

From SmartCILP:

• Neil H. Buchanan, Feminism, Theocracy, and Righteous Anger: Sherry Colb Unbound, 109 Cornell Law Review 1765-1778 (2025).
• Catherine L. Fisk, Jewish Lawyers and the Labor Movement, 93 Fordham Law Review 1159-1176 (2025).
• Ria Ivandic, Tom Richmaier & Stephen Machin, International Terror Attacks and Local Out-Group Hate Crimes, 67 Journal of Law & Economics 589-610 (2024).
• Wejdan Hleihel, Ido Shahar & Karin Carmit Yefet, Transforming "Transformative Accommodation": Palestinian–Muslim Women's Maintenance Suits as a Case Study, 49 Law & Social Inquiry 2102-2127 (2024).

Members of Religious Liberty Commission Advisory Boards Named

As previously reported, earlier this month President Trump issued an Executive Order creating a Religious Liberty Commission.  Members of the Commission were also named at that time. Now (May 16), the White House has announced names of members of three Advisory Boards to the Commission: an Advisory Board of Religious Leaders, an Advisory Board of Legal Experts, and an Advisory Board of Lay Leaders. The Board of Religious Leaders and the Board of Legal Experts each includes Catholic, Protestant and Jewish representation. The Board of Lay Leaders includes Protestant and Muslim representation.

Trump Issues Proclamation on Jewish American Heritage Month

Jewish American Heritage Month began May 1. On May 16, President Trump issued a Proclamation (full text) formally declaring May as Jewish American Heritage Month. The Proclamation reads in part:

Since the day I resumed my duties as President — and following President Washington’s example — my Administration has been determined to confront anti-Semitism in all its manifestations.  I say that at home and abroad, on college campuses and in city streets, this dangerous return of anti-Semitism — at times disguised as anti-Zionism, Holocaust denialism, and false equivalencies of every kind — must find no quarter.

We proudly celebrate the history and culture of the Jewish people in America, and we hold that President Washington’s words, though nearly 250 years old, still carry the revolutionary promise of our Republic:  that every citizen who demeans himself as a good citizen shall sit in safety under his own vine and fig tree — a covenant added to a blessing.

I believe there has never been a greater friend to the Jewish people than my Administration.  We will never deviate from our conviction that anti-Semitism has no place in the greatest country in the world.  As the 47th President of the United States, I will use every appropriate legal tool at my disposal to stop anti-Semitic assaults gripping our universities.  We will proudly stand with our friend and ally, the State of Israel.  I will never waver in my commitment.

South Carolina Supreme Court Interprets State's Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., May14, 2025), the South Carolina Supreme Court interpreted the state's ban on abortion after a fetal heartbeat has been detected to mean the time at which:

electrical impulses are first detectable as a "sound" with diagnostic medical technology such as a transvaginal ultrasound device and the medical professional observes those electrical impulses as a "steady and repetitive rhythmic contraction of the fetal heart" during any stage of the heart's development "within the gestational sac."

This point is generally at the end of six weeks of pregnancy. Planned Parenthood had argued for a different definition of "fetal heartbeat" that would have placed it approximately after nine weeks of pregnancy.

Justice Hill filed a concurring opinion focusing on the language of the 2023 Fetal Heartbeat Act and the Woman's Right to Know Act, rather than on legislative history of the law.

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

Montana Court Strikes Down Ban on Gender-Affirming Care for Minors

In Cross v. State of Montana, (MT Dist. Ct., May 13, 2025), a Montana state trial court in a 59-page opinion held that Montana Senate Bill 99 that bars hormonal or surgical treatment of minors for gender dysphoria is unconstitutional. The court said in part:

First, concerning the right to privacy, Plaintiffs have met their burden ... by providing evidence that the major medical organizations in the United States endorse gender-affirming medical care as a safe, effective way to treat gender dysphoria. Defendants ... fail to demonstrate a medically acknowledged, bona fide health risk with respect to the care banned by SB 99....

Second, Plaintiffs have met their burden ... on their equal protection claim by demonstrating that SB 99 classifies based on similarly situated classes, infringes on several fundamental rights, and denies minors equal protection of the laws on the basis of sex and transgender status because it prohibits health care providers from administering certain care when sought to treat adolescents with gender dysphoria, but it allows the same providers to administer the same care to all other adolescent patients for all other purposes....

Finally ... Plaintiffs successfully demonstrate that SB 99 unconstitutionally regulates medical providers' speech based on content and viewpoint discrimination, and that it is presumptively invalid.... Moreover, Plaintiffs successfully demonstrate that SB 99 prohibits minors with gender dysphoria and their parents from hearing from health care providers....

The Hill reports on the decision. [Thanks to Scott Mange for the lead.]

Mass. Top Court Says Rastafarian Parents Can Bar Vaccination of Their Child Who Is In Temporary State Custody

In Care and Protection of Eve, (MA Sup. Jud. Ct., May 15, 2025), the Massachusetts Supreme Judicial Court held that the Department of Children and Families could not vaccinate a child in its temporary custody over the religious objections of the child's parents. The Department was granted emergency custody of the child two days after she was born following incidents of domestic violence by the husband against his wife. The couple's three other children had previously been removed because of domestic violence. They are being raised by a relative. At the custody hearing, the parents testified that their Rastafarian religious beliefs were to avoid Western medicine, including vaccines. The lower court held that the child's best interests outweighed the parents' religious beliefs. Massachusetts' highest court reversed the trial court's order that would have allowed vaccination. The Supreme Judicial Court said in part:

Parents who have temporarily lost custody of their child retain a constitutional right to direct the religious upbringing of the child.  When they object to vaccinations of their child on religious grounds, the department must demonstrate that allowing that child to remain unvaccinated would substantially hinder the department's compelling interest in the vaccinations.  As the Commonwealth allows religious exemptions from vaccination for parents who have not lost temporary custody of their children and the department has not demonstrated a consistent application of the vaccination requirement for children within its custody, even as between this child and her siblings, the department has not demonstrated that leaving this child unvaccinated would substantially hinder the department's compelling interests.

NYC Mayor Creates Office to Combat Antisemitism

Earlier this week, New York City Mayor Eric Adams issued Executive Order 51 , (May 13, 2025), creating a Mayor's Office to Combat Antisemitism. The Executive Order provides in part:

The Office shall identify and develop efforts to eliminate antisemitism and anti-Jewish hate crime; coordinate non-law enforcement responses to incidents of antisemitism on behalf of the Office of the Mayor; and serve as a liaison with the Jewish community to address issues related to services for victims of hate crimes and bias incidents motivated by antisemitism, and security for vulnerable populations and institutions.

JNS reports on the Executive Order.