HHS Issues Guidance On Defining Gender-Based Terms

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

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

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

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

Catholic Bishops Sue Feds Over Cutoff of Refugee Resettlement Funding

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

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

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

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

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

ED's Title IX Rule Violates 1st Amendment

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

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

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

ADF issued a press release announcing the decision.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AP reports on the decision.

Recent Articles of Interest

From SSRN:

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

From SSRN (Non-U.S. Law)

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

From SmartCILP:

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

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

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

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

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

Anti-Abortion Pregnancy Centers Sue Challenging Delaware Disclaimer Requirements

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

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

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

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

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

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

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

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

Reporting on these developments, Kansas Reflector said in part:

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

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

New Report on Antisemitism in the U.S. Released

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Designation of Catholic Church as Historic Structure Is Enjoined

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

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

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

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

Indiana Supreme Court Broadly Interprets Churches' Partial Tort Immunity

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

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

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

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

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

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

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

[Thanks to Josh Tatum for the lead.]

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

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

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

Lord Justice Falk filed a brief concurring opinion.

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

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

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

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

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

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

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

Missouri and Christian Counselors Sue Localities Over Conversion Therapy Bans

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

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

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

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

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

Plaintiffs also challenge the ordinances on vagueness grounds. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump Establishes White House Faith Office

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

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

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

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

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