Religion Clause

Wednesday, October 15, 2025

Supreme Court Denies Review of School Policy on Hiding Students' Gender Dysphoria from Parents

The U.S. Supreme Court yesterday denied certiorari in Lee v. Poudre School District R-1, (Docket No. 25-89, certiorari denied (10/14/2025) (Order List). In the case, parents of two 6th graders sued a Colorado school district for damages after their children were invited by teachers to a Gender and Sexuality Alliance meeting. After the meeting, one of the students decided that she was transgender and the other started to suffer from suicidal ideations. The parents claimed that the school's policy of discouraging disclosure to parents of a child's transgender status violates parents' substantive due process rights. The U.S. 10th Circuit Court of Appeals dismissed the suit because plaintiffs had not alleged the existence of a school policy that was the moving force behind their constitutional injury. Parents' petition for Supreme Court review framed the question presented as:

Whether a school district may discard the presumption that fit parents act in the best interests of their children and arrogate to itself the right to direct the care, custody, and control of their children

In denying certiorari, Justice Alito, joined by Justices Thomas and Gorsuch, filed a concurring Statement, saying in part:

I concur in the denial of certiorari because petitioners do not challenge the ground for the ruling below. But I remain concerned that some federal courts are “tempt[ed]” to avoid confronting a “particularly contentious constitutional questio[n]”: whether a school district violates parents’ fundamental rights “when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process.”... Petitioners tell us that nearly 6,000 public schools have policies—as respondent allegedly does—that purposefully interfere with parents’ access to critical information about their children’s gender identity choices and school personnel’s involvement in and influence on those choices.... The troubling—and tragic—allegations in this case underscore the “great and growing national importance” of the question that these parent petitioners present....

CBS News reports on the Court's action

Monday, October 13, 2025

Death Row Inmate's RLUIPA Claim Rejected

In Shockley v. Adams, (ED MO, Oct. 11, 2025), a Missouri federal district court dismissed a death row inmate's RLUIPA lawsuit concluding that his religious exercise was not substantially burdened by a refusal to allow his daughters to be present in the execution chamber, administer communion, anoint him and pray over him there. Plaintiff has delayed his execution with decades of litigation. The court said in part:

Respondents claim that safety and security considerations, borne of their experience as corrections officials who have overseen several state-mandated executions, counsel strongly against allowing family members into the execution chamber.... Respondents have expressly agreed that Shockley’s daughters are welcome to be execution observers. And, Respondents have offered various accommodations, including having a non-family minister of Shockley’s own choosing provide and perform the exact same religious sacraments and rituals that Shockley desires....

In finding that the accommodations Respondents have offered do not substantially burden Shockley’s free exercise of religion, the Court also emphasizes what’s not in the record:

• Shockley does not assert that his daughters are his only spiritual advisors;

• Shockley does not assert that his daughters are the only ministers able or qualified to provide the religious sacraments and rituals he seeks;

• Shockley does not articulate how the accommodations substantially burden, or burden at all, his exercise of religion. Instead, he leaves it to be assumed;

• Shockley nowhere claims that he has a particularly unique spiritual bond with his daughters. Again, he leaves it to be assumed.

... Shockley has known of this issue for months and chose to file suit five days before his execution, so in this regard, the Court finds that Shockley’s delay and lack of development of the record are equitable considerations weighing against the extraordinary equitable relief of a stay of execution....

UPDATE: In Shockley v. Adams, (8th Cir., Oct. 13, 2025), the U.S. 8th Circuit Court of Appeals denied Shockley's motion for a stay of execution. On Oct. 13, Missouri Governor Mike Kehoe announced that he would not grant clemency to Shockley. In Shockley v. Adams, (Sup. Ct., Oct. 14, 2025), the U.S. Supreme Court denied Shockley's application for a stay of execution, denied certiorari, and permitted Respondent of file a supplemental appendix under seal. On Oct. 14, Shockley was executed. (CBS News).

Canceling Concert Because of Reaction to Jewish Musician's Pro-Israel Posting Is Not Religious Discrimination

In Pauker v. Heart Consciousness Church, Inc., (ND CA, Oct. 9, 2025), a California federal district court dismissed religious and racial discrimination claims brought by a Jewish musician against a concert venue that cancelled his Hanukkah concert because of negative community reaction to the musician's Facebook post in support of Israel. The court said in part:

All of Pauker’s claims require at least racial or religious discrimination to be actionable. But the allegations in Pauker’s complaint fail to raise a reasonable inference of such discrimination. To the contrary, the complaint offers an alternative basis for Harbin’s decision to cancel Pauker’s performance: a severe, negative community reaction. For that reason, among others, Pauker fails to state a claim upon which relief could be granted.....

The parties differ on whether Pauker’s Facebook post implicates his religion or race. Pauker centers his allegations on his Zionist beliefs—insisting that Zionism is a proxy for Judaism or Jewish racial identity.... Heart rejects this argument, contending that Zionism is purely political.... The Court notes that the relationship between Zionism and Judaism is “hotly disputed.”... But parsing this issue is ultimately unnecessary because Heart is correct that Pauker fails to allege Harbin targeted him because he is Jewish....

... Pauker alleges that Harbin reiterated it was “canceling the event due to community complaints about” Pauker’s Zionism, particularly his Facebook post.... Harbin conveyed that the backlash to Pauker was widespread and came from “community members, including performers and presenters.”...Pauker does not allege that Harbin’s stated reasoning was pretextual or that Harbin commented critically on his beliefs or Jewish faith.

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

Saturday, October 11, 2025

NY Court Dismisses Suit by Parishes Challenging their Bishop's Decision to Close Them

In Rozak v Diocese of Buffalo, (NY Erie County Sup. Ct., Sept. 26, 2025), a number of Catholic parishes sued the Diocese of Buffalo in an attempt to prevent the Bishop of Buffalo from forcing the parishes to merge into other parishes. The parishes had already filed Canon Law appeals to the Vatican's Dicastery for the Clergy challenging the validity of the Bishop's merger decrees. The Dicastery issued an order suspending the merger decrees while the Canon Law appeals were proceeding. The parishes, however, also filed this suit in a New York civil court under the New York Religious Corporation Law asking for a preliminary injunction to prevent enforcement of the Merger Decrees while the ecclesiastical appeals proceeded.

The New York trial court dismissed the suit on jurisdictional grounds, saying in part:

Central to the pending actions is the inescapable fact that while the plaintiffs make overtures and attempt to frame their complaints to include a companion reference that the "temporalities and property" of the subject parishes are contemporaneously at risk of misappropriation vis-à-vis the manner by which and the purpose for which the mergers were declared by Bishop Fisher, these are not per se typical or traditional common law property disputes under any provisions of applicable New York civil law. More compelling in these actions is the undisputed fact that the Suspension Letters have operatively controlled and stayed all aspects of the challenged Merger Decrees and more recently, the first Dicasterium Decree that has been issued makes a plain declaration of the matters raised in the complaints, to wit, formally "confirming the extinctive union, for which sufficient cause has been shown" and directing the treatment and handling of the "temporal goods of the suppressed Parish."

Though avidly and forthrightly argued by plaintiffs that the disposition rendered by the Dicastery in the Dicasterium Decree is supportive of their position for the Court to grant the relief sought in these actions, it is plain and obvious from the averments made in their supplemental papers that the plaintiffs acknowledge, accept and completely reconcile themselves to the decisional authority of the Canon Law and ecclesiastical governance of the Roman Catholic Church to be solely and ultimately responsible for the lawful disposition of all the issues raised in these actions....

Friday, October 10, 2025

Law and Religion Blogosphere Is Shrinking

The blogging platform Typepad closed down on September 30. As reported by Lexblog, "Typepad was arguably once the most popular publishing platforms with legal bloggers." Some Typepad blogs migrated to other platforms. Others closed down, including many that were part of the Law Professors Blog Network. One which closed down, at least for now, is Mirror of Justice blog which for over 20 years had been a rich source for discussion of Catholic Legal Theory. The blog, co-founded by Notre Dame Law Professor Rick Garnett, was affiliated with the Program on Church, State and Society at Notre Dame Law School. Thank you Mirror of Justice for your many contributions to intelligent online discussion of law and religion. You will be missed. It is sad to see the legal blogsphere shrinking.

Thursday, October 09, 2025

5th Circuit Grants En Banc Review of Louisiana 10 Commandments Law

On Oct. 6, the U.S. 5th Circuit Court of Appeals granted en banc review in Roake v. Brumley, (Full text of court's Order.) In the case, a 3-judge panel 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. (See prior posting.) The court's Order vacates the panel decision and calls for new briefs and oral arguments in the case. Baptist News Global reports on the court's action.

Religious Institutions Are Among Plaintiffs Challenging New H-1B Visa Fees

Three religious institutions and a pastor are among the eleven plaintiffs that filed suit last week against the President and four federal departments and agencies challenging the Presidential Proclamation that imposed a $100,000 fee on applications for H-1B visas. These visas allow foreign workers in highly skilled specialty occupations to work in the United States for 3 or 6 years. The Presidential Proclamation says in part:

The H-1B nonimmigrant visa program was created to bring temporary workers into the United States to perform additive, high-skilled functions, but it has been deliberately exploited to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.

The complaint (full text) in Global Nurse Force v. Trump, (ND CA, filed 10/3/2025), alleges in part:

3. The H-1B program ... allows religious organizations to retain priests and pastors who have the language skills, cultural competency, and religious training needed to minister to underserved populations, including poor refugee and migrant communities and economically distressed Appalachian communities....

The suit alleges that the President acted beyond his statutory authority and violated the Administrative Procedure Act in promulgating the new visa fee.

The Hill reports on the lawsuit.

Wednesday, October 08, 2025

Splintered 5th Circuit Says Suit Against City for Failing to Train Police on 1st Amendment Rights Can Move Ahead

In Hershey v. City of Bossier City, (5th Cir., Oct. 7, 2025), the U.S. 5th Circuit Court of Appeals in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place. The arena is in a public park, is managed by a private company and was rented out for the concert. Both police and private security guards provided security. They informed plaintiff that he could not hand out his material because he was on private property. Plaintiff sued the officers and guards for violating his 1st Amendment rights and sued the city for failing to train the police and the security guards. The case generated three separate opinions which, when put together reversed the trial court's dismissal of the claim against the city, but affirmed on qualified immunity grounds, the dismissal of claims against the police and security guards.

Judge Ho wrote in part:

“The dissemination of ... religious views and doctrines is protected by the First Amendment.”...

This right plainly encompasses the distribution of religious pamphlets—the activity at issue in this case....

So anyone who is “rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.”...

Hershey’s right to evangelize on a public sidewalk is not undermined by the fact that the city-owned facility abutting the sidewalk happens to be managed by a private corporation. Nor should it matter that his rights were violated by private security guards working alongside police officers. Municipalities cannot abrogate the constitutional rights of their citizens simply by delegating their coercive governmental powers to private agents.

He also concluded that the city's failure to train amounted to deliberate indifference.

Judge Dennis said in part:

The City’s failure to train officers that the park was a public forum led officers to believe that the park was private property and that citizens could be ejected without violating their First Amendment rights. Hershey also alleged that the officers who removed him from the park held this belief and told him he had to leave the park because it was private property. Hershey has pleaded facts sufficient to show that the City’s complete lack of training was the cause of his injury.

Judge Richman would have upheld the dismissal of the claim against the city, saying in part:

This is a single-incident case in which Hershey relies on his own confrontation with city officers and private security guards to establish municipal liability. This case does not present the “rare” and “narrow and extreme circumstances” that our court and the Supreme Court has said permit “drawing the inference” of “deliberate indifference.”

The court also by a different 2-1 vote upheld dismissal of damage claims against the officers and security guards on qualified immunity grounds. Judge Dennis would have reversed the trial court's dismissal on qualified immunity grounds, saying in part:

Because the law clearly established Hershey’s right to leaflet in a traditional public forum without viewpoint discrimination, qualified immunity is inappropriate.

Judge Richman disagreed, saying in part:

... [G]iven that the Supreme Court has indicated that sidewalks on public property are not automatically public forums and that the district court considered several cases concerning the forum status of spaces surrounding arenas that do not speak in unison, the forum status of the space in question was not clearly established....

Judge Ho reluctantly agreed that precedent required concluding that the right involved was clearly established, but expressed his disagreement with that precedent, saying in part:

“[i]t seems absurd to suggest that the most egregious constitutional violations imaginable are somehow immune from liability precisely because they’re so egregious. It would make a mockery of our rights to grant qualified immunity just because no one in government has yet to be abusive enough to commit that particular violation—and then stubborn enough to litigate it, not only before a district court, but also in the court of appeals (or the Supreme Court).”

Monday, October 06, 2025

Supreme Court Hears Oral Arguments in Conversion Therapy Ban Case on Tuesday

Tomorrow (Oct. 7), the U.S. Supreme Court hears oral arguments in Chiles v. Salazar. In the case, the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. (See prior posting.) Only the free speech issue was raised in the petition for review by the Supreme Court. At issue tomorrow is whether the ban on talk therapy for minors aimed at changing their gay or transgender identity is fully protected speech. Or may that therapy be regulated as primarily professional conduct that the legislature deems to constitute substandard medical care.

Here is the SCOTUSblog case page that provides link to all the briefs and motions filed in the case, as well as to commentary on the case. The oral arguments will be live streamed by the Court at this page beginning at 10:00 AM Eastern Time. Links to a recoding and written transcript of the arguments can be accessed here later in the day on Tuesday.

Taxpayer With Religious Objections to U.S. Funding of Israel's Military Operations Lacks Standing to Sue

In Kikkert v. Trump, (WD WA, Oct. 1, 2025), plaintiff, an army veteran and federal taxpayer, sued the President and various members of Congress. According to the court:

Plaintiff alleges that by using federal taxes to fund Israel’s recent military operations, Defendants have breached numerous international treaties, federal statutes, and provisions of the U.S. Constitution.... Plaintiff further alleges that he has standing to bring this suit, claiming that his “$72.72 in 2023 excise taxes are part of the $3.8 billion in annual U.S. military aid to Israel” and said aid is “causing Plaintiff irreparable spiritual harm by forcing him to contravene his faith and his veteran’s oath to defend the Constitution, a sacred text in his religion, and desecrating his familial legal of military service spanning give generations.”

The court dismissed the suit for lack of standing, saying in part:

... [T]he mere fact of being a taxpayer is not enough to establish Article III standing. The only exception to this general rule is a narrow exception provided by Flast v. Cohen.... But the Supreme Court has also “repeatedly emphasized that the Flast exception has a narrow application”...

... Flast and its progeny are primarily focused on Establishment Clause challenges.... Here, however, Plaintiff does not bring an Establishment Clause challenge....

As for his Free Exercise argument, Plaintiff fails to allege specific facts to give rise to Article III standing....

Plaintiff’s claim that the government’s funding of Israeli military operations using federal taxes operations has “force[d] him to commit sacrilege” and is causing “irreparable spiritual distress,” ... does not amount to an alleged injury to his ability to exercise his religion. It is thus insufficient to establish Article III injury-in-fact.

Photographer Entitled to Nominal Damages for Injury from Threat to Require Her to Photograph Same-Sex Weddings

In Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov't., (WD KY, Sept. 30, 2025), in a case that has been in litigation for over five years, a Kentucky federal district court held that a Christian wedding photographer who has moral and religious objections to photographing same-sex marriages is entitled to $1 in nominal damages for the injury she suffered through a credible threat of enforcement and the chilling effect on her speech of Louisville's Fairness Ordinance. The Ordinance prohibits a business from denying services to an individual based on the person's sexual orientation, and from advertising that it will engage in such discrimination. ADF issued a press release announcing the decision.