Religion Clause

Sunday, June 22, 2025

5th Circuit Upholds Preliminary Injunction Against Louisiana's 10 Commandments In Classrooms Law

In Roake v. Brumley, (5th Cir., June 20, 2025), the U.S. 5th Circuit Court of Appeals affirmed a district court's grant of a preliminary injunction against enforcement of a Louisiana statute that requires public schools to display the Ten Commandments in every classroom. In a lengty opinion the appellate court found that plaintiffs had standing to challenge the statute and that plaintiffs had shown a substantial likelihood of succcess on the merits of their Establishment Clause claim. The court said in part:

The precedents of the Supreme Court and this court establish that, in an Establishment Clause case, a plaintiff can generally satisfy the injury-infact element of standing when he experiences—or certainly will experience—unwanted exposure to government-sponsored religious displays or exercises in the course of his regular activities....

Although the Supreme Court set aside the Lemon test in Kennedy [v. Bremerton School District],... Kennedy did not overrule Stone [v. Graham]. Kennedy does not mention Stone or purport to overrule the decisions (other than Lemon) on which Stone relies, i.e., Schempp or Engel. Stone remains good law andtherefore controls....

An H.B. 71 display that meets the statute’s minimum requirements is materially identical to the displays challenged in Stone....

It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] stateand national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font.... When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext....

... [T]he question before us is whether the permanent posting of the Ten Commandments in public school classrooms fits within, or is consistent with, a broader tradition of using the Ten Commandments in public education....

Plaintiffs presented the expert testimony of Dr. Steven Green, a religious and constitutional legal historian. Dr. Green testified that the public school system did not exist at the founding; rather, public education originated sometime around the late 1820s. Dr. Green also found no evidence that the Ten Commandments were permanently displayed in early American public schools. He testified that no state enacted a law allowing the display of the Ten Commandments in public schools until North Dakota did so in 1927, and that a court later stuck down the statute....

Judge Dennis filed a concurring opinion, saying in part:

I join the majority opinion in full. I write separately to offer two additional bases for affirming the district court’s judgment. First, the Plaintiffs have standing under settled Supreme Court precedents recognizing “offended observer” standing in Establishment Clause cases.... Second, Louisiana vastly overstates both the holding and reach of Kennedy v. Bremerton School District.... That decision did not undermine—much less overrule—Stone v. Graham.... Nor did it eliminate the component parts of Lemon v. Kurtzman....

Axios reports on the decision.

Friday, June 20, 2025

In Britain, Commons Passes Bill Removing Prosecution of Women for Their Own Abortion; Extending Time Sue for Child Sex Abuse

On June 18, Britain's House of Commons by a vote of 312-95 passed and sent to the House of Lords the Crime and Policing Bill. Among the provisionsin the 444-page bill are Section 82 which removes the limitation period in damage actions claiming child sexual abuse and Section 191 which provides:

For the purposes of the law related to abortion, including sections 58 and 59 of the Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, no offence is committed by a woman acting in relation to her own pregnancy.

Discussing Section 191, WGBH reports:

In a landslide vote late Tuesday, lawmakers in the lower house of British parliament, the House of Commons, endorsed new legislation that bars women in England and Wales from ever being investigated, arrested, prosecuted or imprisoned for terminating their own pregnancies — no matter what term or trimester they’re in. The vote was 379 to 137.

Abortion is allowed up to 24 weeks of pregnancy, and beyond that in certain cases, if the woman’s life is in danger. But abortions have to be approved by two doctors, except for those that are terminated at home within 10 weeks....

The bill now goes to the House of Lords for its approval.

Thursday, June 19, 2025

Wednesday, June 18, 2025

Supreme Court Upholds Tennessee's Ban on Gender Affirming Care for Minors

In United States v. Skrmetti,(Sup.Ct., June 18, 2025), the U.S. Supreme Court today by a vote of 6-3 upheld Tennessee's law that bars both hormonal and surgical gender transition procedures for minors. The case generated 5 separate opinions spanning 118 pages. Chief Justice Roberts' majority opinion held that the Tennessee law does not trigger heightened scrutiny. He said in part:

This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status. As we have explained, SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second....

... [T]here is a rational basis for SB1’s classifications. Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty....

Justice Thomas filed a concurring opinion, saying in part:

This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.

Deference to legislatures, not experts, is particularly critical here. Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones, and surgical interventions, despite mounting evidence to the contrary. They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own. They have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.

Justice Barrett, joined by Justice Thomas, filed a concurring opinion, saying in part:

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class.... I write separately to explain why, in myview, it does not....

Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of “closely scrutiniz[ing] legislative choices” in all these domains....

Justice Alito filed an opi nion concurring in part, saying in part:

I do notjoin Part II–A–2 of the opinion of the Court, which concludes that SB1 does not classify on the basis of “transgender status.” There is a strong argument that SB1does classify on that ground, but I find it unnecessary to decide that question. I would assume for the sake of argument that the law classifies based on transgender status, but I would nevertheless sustain the law because such a classification does not warrant heightened scrutiny. I also do not join Part II–A–3 of the Court’s opinion because I do not believe that the reasoning employed in Bostock v. Clayton County ... is applicable when determining whether a law classifies based on sex for Equal Protection Clause purposes.

Justice Sotomayor filed a dissenting opinion, joined by Justice Jackson and joined in part by Justice Kagan, saying in part:

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it... Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims....

Justice Kagan filed a dissenting opinion, saying in part:

I take no view on how SB1 would fare under heightened scrutiny.... So I would both start and stop at the question of what test SB1 must satisfy. As JUSTICE SOTOMAYOR shows, it is heightened scrutiny...

SCOTUSblog reports on the decision.

Religious Liberty Commission Holds First Hearing

On June 16, the new Justice Department Religious Liberty Commission held it first hearing at the Museum of the Bible in Washington, DC. Video of the full hearing is available in three parts on YouTube: Part 1, Part 2, Part 3. OSV News reports on some of the testimony. A critical slant on the hearing was published by Americans United.

California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Monday, June 16, 2025

Cert. Granted In Litigation Over Investigatory Demands

The U.S Supreme Court today granted review in First Choice Women's Resource v. Platkin, (Docket No. 24-781, certiorari granted 6/16/2025). (Order List). The petition for certiorari describes the complex fact situation involved:

New Jersey’s Attorney General served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors’ names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General’s motion to enforce the Subpoena but expressly did not decide First Choice’s federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice’s constitutional claims were not ripe in federal court.

The Third Circuit affirmed in a divided percuriam decision.. [T]he majority concluded First Choice’s claims were not yet ripe because First Choice could litigate its constitutional claims in state court.... It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

Supreme Court GVR's Battle Over Health Insurance Abortion Coverage

In Roman Catholic Diocese v. Harris, (Sup. Ct., June 16, 2025), the U.S. Supreme Court granted certiorari, vacated the judgment of New York's highest court and remanded the case for further consideration in light of the Supreme Court's recent decision in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. At issue in the case that was gvr'd today was whether the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow. The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. (See prior posting.)

Texas Supreme Court Interprets Religious Services Clause of State Consitution

As previously reported, in a suit by members of the Lipan Apache tribe challenging improvements to a park that destroyed their ability to use a sacred site for certain religious ceremonies, the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court a question on the meaning of a 2021 amendment to the Texas Consitution that prohibits the government from interfering with religious services. In Perez v. City of San Antonio,(TX Sup. Ct., June 13, 2025), the Texas Supreme Court in an 8-1 opinion said in part:

When the Texas Religious Services Clause applies, its force is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government’s interest in that limitation or how tailored the limitation is to that interest, but the scope of the clause’s applicability is not unlimited, and it does not extend to governmental actions for the preservation and management of public lands. We express no opinion on whether the Free Exercise Clause or the Texas RFRA protect the religious liberties Perez asserts, and we leave it to the federal courts to apply our answer in the underlying case.

Justice Sullivan filed a dissenting opinion, saying in part:

With deepest respect for my esteemed friends on the Fifth Circuit and on our Court, I would decline this expansive invitation to issue an advisory opinion on a “new provision” of our Bill of Rights that “[n]o Texas court has construed.”

Friday, June 13, 2025

Court Denies TRO In Challenge To Trump's Executive Orders on Antisemitism

In McClanahan v. Trump, (WD MO, June 9, 2025), a Missouri federal district court refused to grant a temporary restraining order in a challenge to President Trump's Executive Orders directing federal agencies to use the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in enforcing Title VI of the Civil Rights Act and which direct federal agencies to withhold funding from universities that do not bar criticism of Israel. According to the court:

Plaintiff brings his action challenging the constitutionality of Executive Orders 13899 and 14188 based on alleged violations of his First Amendment Right of free speech, Violation of his Fifth Amendment Right under the Due Process Clause; and violation of the Establishment Clause of the First Amendment....

Plaintiff identifies five constitutional arguments he believes have a likelihood of succeeding on the merits. Those arguments are First Amendment – Viewpoint Discrimination; First Amendment – Chilling Effect; First Amendment – Right to Petition; Establishment Clause; and Fifth Amendment – Due Process and Vagueness. Defendants argue that Plaintiff has alleged not facts indicating a reasonable belief that he will lose his federal benefits and no link betweean y prospective loss of his federal benefits and the challenged executive orders.

The court concluded that plaintiff's likelihood of success on any of these claims was low.

Thursday, June 12, 2025

Supreme Court Review Sought In High School Football Game Prayer Dispute

A petition for certiorari (full text) was filed with the U.S.Supreme Court last week in Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (Sup. Ct., cert. filed 6/6/2025).In th e case, the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. (See prior posting).

Wednesday, June 11, 2025

DOJ Sues California Coffee House for Discriminating Against Jewish Customers

On Monday, the Justice Department filed suit in a California federal district court against an Oakland, California coffee house alleging violations of Title II, the Public Accommodation provisions, of the 1964 Civil Rights Act. The suit alleges that the coffee house refuses to serve Jewish patrons. The complaint (full text) in United States v. Harara, (ND CA, filed 6/9/2025), alleges in part:

Among the drinks the coffee house sells are "Iced In Tea Fada," an apparent reference to intifada and "Sweet Sinwar." The coffee house announced these new drinks on Instagram on the one-year anniversary of the October 7, 2023 Hamas terrorist attacks on Israel....

The Justice Department's press release announcing the filing of the suit summarizes the discrimination charges in the complaint, saying in part:

The lawsuit ... alleges that defendants discriminated against Jewish customers through policies and practices that denied them the full and equal enjoyment of the Jerusalem Coffee House’s services, accommodations, and privileges. Specifically, the lawsuit alleges that on two separate occasions, Harara ordered Jewish customers — identified because they were wearing baseball caps with Stars of David on them — to leave the coffee house. During one incident, an employee told a Jewish customer who was trying to make a purchase, “You’re the guy with the hat. You’re the Jew. You’re the Zionist. We don’t want you in our coffee shop. Get out.” During another incident, Harara accused another Jewish customer who was with his five-year-old son of wearing a “Jewish star,” being a “Zionist,” and supporting “genocide.” Harara repeatedly demanded that the customer and his son leave and falsely accused them of “trespassing” to the Oakland police....

Tuesday, June 10, 2025

Iowa Enacts Law Allowing Released-Time Religious Instruction in Schools

On June 6, Iowa Governor Kim Reynolds signed a bill that gives students in public and accredited nonpublic schools the right to attend up to five hours per week of off-site released time religious instruction offered by private organizations. HF 870 (full text) provides that the students must agree to make up any school work that they do not complete while attending the religious classes. The new law also provides:

A child’s parent, guardian, or legal or actual custodian ... who alleges that a school district has violated this section may bring a civil action for injunctive relief and actual damages against the school district....

ADF issued a press release commenting on the new law.

NYC Mayor Adams Signs Executive Order on Antisemitism

On June 8, New York City Mayor Eric Adams signed Executive Order No. 52, Defining Antisemitism (full text), which instructs New York City Agencies to "consider as appropriate, the IHRA Working Definition of Antisemitism ... as well as the 11 contemporary examples." The Forward, reporting on Mayor Adams' action, said in part:

Mayor Eric Adams is getting the jump on his rivals in the November mayoral race by adopting a controversial definition of antisemitism, a key issue in the crowded campaign....

Adams has made combating antisemitism central to his campaign. Elected as a Democrat in 2021, he has since left the party and is running for reelection on an independent line dubbed “End Antisemitism.”...

Former Gov. Andrew Cuomo, former Controller Scott Stringer and investor Whitney Tilson pledged to adopt the IHRA definition if elected. Others, including Brad Lander, who is Jewish, have argued that the definition would suppress criticism of Israeli policy.

Zohran Mamdani, a Democratic Socialist and a vocal critic of Israel who identifies as anti-Zionist, has spoken out against the use of measures which he says silence Palestinian voices and their allies. Mamdani is running second behind front-runner Cuomo.

Monday, June 09, 2025

Sunday, June 08, 2025

Trump Issues Message to Christians Celebrating Pentecost

The White House today posted a Presidential Message on Pentecost, 2025 (Full text). The Message reads in part:

Today, I join in prayer with Christians joyfully celebrating the descent of the Holy Spirit at Pentecost—one of the most sacred events of the Christian faith. We commemorate the fulfillment of Jesus Christ’s earthly mission and the birth of His holy and living Church....

As we celebrate this glorious feast day, we also honor all Christians who, like the Apostles, have willingly endured persecution because of their faith. My Administration will always defend the right of every American to worship God freely and without fear. For this reason, I created the White House Faith Office and proudly instituted the White House Religious Liberty Commission to safeguard and promote America’s founding principle of religious freedom. Under my leadership, we are protecting God in the public square and emboldening every believer to live their faith freely, openly, and without threat of persecution....

USCCB Releases 2024 Report on Sexual Abuse by Clergy

On June 6, the U.S. Conference of Catholic Bishops announced the release of their 2024 Annual Report on the Implementation of the Charter for the Protection of Children and Young People (full text of Report). The Preface to the 85-page Report says in part:

Despite our progress, the evil of abuse continues to exist. It is a relentless adversary that demands our ongoing vigilance and initiative-taking measures.... There is a significant cultural shift taking place within the Church. This shift is characterized by an increased emphasis on transparency, accountability, and victim-survivor support....

During the current audit period, dioceses and eparchies provided outreach and support services to 146 victim-survivors and their families who reported during this audit period. Continued support was provided to 1,434 victim-survivors and their families who reported abuse in prior audit periods. The report notes the ongoing work of the Church in continuing the call to ensure the safety of children, the young, and vulnerable adults. In 2024, the Church conducted 2,237,906 background checks on clergy, employees, and volunteers. In addition, in 2024, over 2.2 million adults and over 2.8 million children and youth were trained in how to identify the warning signs of abuse and how to report those signs.

According to the Report's lengthy statistical sections:

Between July 1, 2023 and June 30, 2024, 902 allegations were reported by 855 victims/survivors of child sexual abuse by clergy throughout 195 Catholic dioceses and eparchies that reported information....

...[T]he responding dioceses and eparchies reported that between July 1, 2023 and June 30, 2024, they deemed 122 allegations of sexual abuse of a minor by a diocesan or eparchial priest or deacon to be credible. These allegations were made by 121 individuals against 97 priests or deacons. Of the 122 allegations deemed credible during this reporting period ..., eight allegations involved children under the age of 18 since 2005. All of the other allegations were made by adults who are alleging abuse when they were minors....

Dioceses and eparchies that responded to the survey and reported costs related to allegations, paid out $242,799,401 between July 1, 2023 and June 30, 2024. Like in previous years’ surveys, this includes payments for allegations reported in previous years....

... [T]he total costs for year 2024 ($242,799,401) is 7 percent lower than that reported for year 2023.... That decrease is mostly due to the change in the amount paid in settlements for the year 2024, which decreased by 15 percent.

Friday, June 06, 2025

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.

Thursday, June 05, 2025

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.