School Bus Driver Distributing Religious Candy Was Not Engaged In Private Speech

In Robinson v. Mattawan Consolidated School District, (WD MI, Oct. 22, 2026), a Michigan federal district court dismissed a suit brought by a former school bus driver who was fired for repeatedly distributing candy with religious messages to students as they were exiting her bus.  The court said in part:

Plaintiff’s claim ... rests on the premise that she was engaged in “private religious expression,” “not government speech,” because her “nonverbal speech and religious expression occurred after the bus had stopped when the bus driver was a private citizen who was permitted to engage in speech on matters of faith”....  Even accepting as true the factual portion of Plaintiff’s allegations—that she “at all times” distributed candy only after stopping the school bus ...— her alleged facts do not support the legal conclusion that her conduct falls within the realm of protected “private” religious expression.... 

The operational duties of bus drivers have been evaluated in the Sixth Circuit under constitutional standards applicable to state actors, not private citizens. ...

A school bus driver does not transform from a state actor into a private citizen simply because she stopped her bus to let off a child.  Rather, the driver’s status as a public-school employee and the scope of her duties are intact throughout the stop.  Indeed, even though the bus is stationary, this phase of its operation—the loading and unloading of children—implicates significant job duties....

Plaintiff alleges that Defendants failed to accommodate proselytizing—“the ability to express her faith respectfully” ... The Court again assumes that proselytizing is her sincerely held religious practice....  But the Court cannot overlook the complete lack of factual content about any accommodation request.... 

AlterNet reports on the decision.

Court Again Refuses to Enjoin Ban That Prevents Rabbi from Carrying Firearm to His Synagogue

In Silver Spring Jewish Community Center v. Montgomery County, Maryland, (D MD, Oct. 27, 2026), a Maryland federal district court denied a motion to amend a prior judgment in the case or alternatively to grant an injunction pending appeal in 2nd Amendment and Free Exercise challenges to a Montgomery County firearms law. The prior decision, while enjoining enforcement of a ban on firearms in plaintiffs' synagogue, refused to enjoin a provision that prevents the synagogue's rabbi who walks to synagogue on the Sabbath for religious reasons from carrying a firearm to the synagogue. His walk takes him past other places of public assembly. If he were driving to his synagogue, the law would permit carrying a firearm in the car even if it passed close to a place of public assembly. (See prior posting.) Again rejecting plaintiffs' free exercise challenge, the court said in part:

Unlike their robust arguments about their sincerely held religious beliefs to carry a firearm within their places of worship, SSJC and Rabbi Shapiro provided much less about walking while armed through the 100-yard buffer zones to get there.... Their preliminary relief briefing ...  seems to emphasize how Jewish law obligates Rabbi Shapiro to walk to synagogue on the Sabbath and Jewish holidays but does not clearly articulate a religious mandate to do so while armed....  And in their complaint, each of the religious texts SSJC and Rabbi Shapiro provide seem to have been framed as supporting their desire to carry firearms as part of their Security Team within their place of worship, not carry firearms to such places....   

But even if the 100-yard buffers incidentally burden religion, such laws “are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.”... The 100-yard buffer provision is neutral because it does not discriminate on its face—it does not mention religion....  It is also neutral because it was not enacted “because of,” but instead “in spite” its effect on religion....

The 100-yard buffer provision is also generally applicable. A law is not generally applicable if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”... SSJC and Rabbi Shapiro contend that the court should have evaluated the vehicle exemption ... as a comparable secular activity....  But the court did not do so because the vehicle exemption does not undermine the Code’s asserted interests “in a similar way” as non-secular carry by foot....

1st Amendment Challenges to Actor's Rape Convictions Are Rejected

In The People v. Masterson, (CA App., Oct. 27, 2026), a California state appellate court, in an 89-page opinion, affirmed the forcible rape convictions of actor Danny Masterson. In 2024, Masterson, the star of That '70's Show, was sentenced to 30 years to life in prison for the forcible rape of two women. Both Masterson and his victims were members of the Church of Scientology. On appeal, Masterson argued in part that the trial court's admission of evidence about Scientology's teachings violated the First Amendment. The court said in part:

The trial court ruled that defendant lacked standing to assert a First Amendment violation on behalf of Scientology; but even if he had standing, admission of Scientology evidence would not violate the First Amendment, the ecclesiastical abstention doctrine, or Evidence Code section 789.  The trial court found the Scientology evidence relevant to provide context for the victims’ delayed reporting of the crimes and to understand the victims’ meetings and relationships with defendant; defendant’s actions toward the victims; the victims’ actions before, during, and after the incidents; the victims’ initial acceptance of defendant’s behavior and the families’ subsequent reactions....

The trial court permitted Headley to testify as an expert “on the subjects of 1) Scientology teachings that a person in an intimate relationship cannot be raped; 2) that Scientologists cannot use the word rape and 3) that Scientologists are prohibited or discouraged from reporting other Scientologists in good standing to outside law enforcement or face repercussions for doing so....

J.B. and N.T. both testified that Scientology tenets prohibited them from reporting defendant to the police, a police report would constitute a suppressive act, and Scientology policy required them to use Scientology’s internal justice system instead.  J.B. testified that on pain of expulsion from Scientology, family members who are Scientologists must dissociate from any family member labeled as a suppressive person....

Defendant’s criminal trial did not involve adjudication of an internal church dispute over church property, church discipline, religious authority, or dogma....  The ecclesiastical abstention doctrine accordingly did not apply....

The jury in this case was not asked to determine the truth or falsity of Scientology doctrine or beliefs.  The jury instructions clearly limited the purposes for which the jury was to consider Scientology evidence—to explain the victims’ delay in reporting defendant’s actions; to explain the victims’ behavior before, during, and after the charged crimes; to explain the witnesses’ ties to Scientology....  Admission of Scientology evidence for those purposes did not contravene the First Amendment....

Defendant cites several statements by the trial court that he claims demonstrate a lack of neutrality and even hostility toward Scientology.  Those statements, viewed in context, evidence no animus or departure from neutrality regarding Scientology.....

Courthouse News Service reports on the decision.

Tax Injunction Act Bars Federal Court Relief for Denial of Property Tax Exemption for Church Property

In Jordan v. Henriquez, (MD FL, Oct. 26, 2026), a Florida federal district court held that the Tax Injunction Act requires it to dismiss a suit by the Senior Pastor of a church challenging the denial of a property tax exemption for parsonage property which was rented out and whose income went back to the church. The Tax Injunction Act bars federal jurisdiction where the suit seeks to enjoin, suspend or restrain a tax assessment.  The court rejected plaintiff's argument that a determination of whether property is entitled to a religious exemption does not amount to an “assessment.” Plaintiff also alleged that the county appraiser applied more lenient standards to Catholic religious organizations than to Protestant groups.The court said in part:

... [E]ven if “assessment” in these circumstances were limited to the “official recording of taxpayer liability” as Plaintiff argues, Plaintiff’s requested relief would nevertheless enjoin, suspend, or restrain the assessment of taxes. Plaintiff asks the Court to prevent Defendant from denying any applications for religious exemptions....

Even if the Tax Injunction Act did not preclude jurisdiction in this case, Plaintiff’s claims are due to be dismissed on comity grounds. The comity doctrine is a doctrine of abstention that reflects the “belief that the National Government will fare best if the States and their institutions are left free to perform their functions in separate ways.”...

New York Catholic Archdiocese Reaches $800 Million Settlement with Sex Abuse Survivors

In an October 24 press release, attorneys for claimants who had filed sex abuse claims against the Catholic Archdiocese of New York announced:

Survivors of clergy sexual abuse and their attorneys have agreed to an $800 million settlement with approximately 1,300 survivors of the Archdiocese of New York. All survivors who filed claims against the Archdiocese of New York have agreed to the settlement plan....

Although the settlement plan has been agreed to, additional steps must be completed before funds can be distributed to survivors....

Reporting on the agreement, EWTN News said in part:

The settlement allows the Archdiocese of New York to avoid filing for Chapter 11 bankruptcy. Along with the Diocese of Brooklyn, it is one of only two of New York’s eight Catholic dioceses that have not sought bankruptcy protection.

The archdiocese confirmed to EWTN News that it is still engaged in litigation with its longtime insurer Chubb, which it sued in 2024, claiming the company was “attempting to evade their legal and moral contractual obligation” to pay out claims to sex-abuse victims....

Iowa Supreme Court: Nursing Student Did Not Have Sincerely Held Religious Objection to Covid Vaccine

 In Perry v. Dordt University, (IA Sup. Ct., Oct. 23, 2026), the Iowa Supreme Court affirmed a trial court's holding that plaintiff, a Dodt University nursing student, did not have a sincerely held religious objection to the Covid vaccine. Thus, the University's refusal to grant him a religious exemption from the Covid vaccine mandate did not violate the Iowa Civil Rights Act. The court said in part:

... [W]e agree with the Fifth Circuit that “judicial inquiry into the sincerity of a person’s religious belief ‘must be handled with a light touch, or judicial shyness. shyness.’ ...  This means that the sincerity inquiry must be carefully limited to a “credibility assessment.”  It must be limited to whether the student’s claim of a religion-based objection “is honest.”... The inquiry must not spill into unconstitutional questions about whether the belief itself is religiously valid....

 As part of its sincerity analysis, the district court found that some of Andrew’s dangerous behaviors—his vaping and binge drinking—were inconsistent with Andrew’s claimed religious belief that he must reject a vaccine that he considered dangerous....

It is true that courts must not replace the sincere-belief test with a pharisaical perfect-performance test.... After all, “even the most sincere practitioner may stray from time to time.”...

As we have already mentioned, though, it is not improper for courts to consider whether the claimant’s words and deeds align with the claimant’s claimed beliefs....

Here are links to briefs in the case.  Sioux County Radio reports on the decision.

No 1st Amendment Violation in Requiring Seller of Pre-Designed Wedding Outfit to Sell It for Same-Sex Wedding

In In re New York State Division of Human Rights v. D. Auxilly NYC LLC, (NY App., Oct. 22, 2026), a New York state appellate court upheld the award of $5000 compensatory damages and a $20,000 civil penalty in a suit alleging that a clothing retailer violated the New York Human Rights Law by refusing to sell a bridal jump suit to a bride for her same-sex wedding. The court said in part:

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages.... Complainant also informed D. Auxilly that as her fiancÉ had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding. ... D. Auxilly's owner and operator, responded ... advising complainant ... that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancÉ to reconsider getting married....

The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v Colorado Civil Rights Comm...., D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v Elenis.... Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment...

Enforcement of the NYSHRL here also does not violate D. Auxilly's right to free exercise of religion. The statute is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment"....

Recent Articles of Interest

From SSRN:

• Yusuf Akintunde Ademola & Saoban Ashimi, Sharīʿah Courts within the Nigerian Constitutional Order: Law, Misconception, and Legitimacy in South-Western Nigeria, (February 24, 2026).
• Lael Daniel Weinberger, Church Autonomy, Religious Leaders, and Non-Minister Employees, (University of Chicago Law Review Online (forthcoming)).
• Marc Spindelman, Amy Coney Barrett's Sex Equality Constitution: The View from United States v. Skrmetti, (6 American Journal of Law and Equality 382 (2026)).
• Jon D. Michaels, Matthew Segal & David Eliot Bernstein, Brief of Legal Scholars in Support of Plaintiffs, Torres v. Carlson, No. 26-1773 (U.S. Court of Appeals, Second Circuit), (January 10, 2026).
• Mary Ziegler, Maxine Eichner & Naomi R. Cahn, The New Parental Rights Absolutism, (__ Stan. L. Rev. (forthcoming 2027)).
• Jennifer Lee Koh, Framing Race and Religion in an Era of Hardened Borders, (25 Rutgers Journal of Law and Religion 230 (2026)).
• Greer Donley, Dana Loll & Tamar Krishnamurti, Is the Viability Limit Necessary to Win Back Abortion Rights? An Empirical Study, (76 Emory Law Journal (forthcoming 2027)).

From SmartCILP:

• Mark Lammey, Scientology's Frankenstein Clause: The Stitched Monstrosity of Religious Arbitration Contracts, 87 University of Pittsburgh Law Review 68-122 (2025).

Pew Survey Reports on Mid-Term Voting Preferences by Religious Affiliation

In anticipation of the November 3 mid-term elections, last week the Pew Research Center released the results of a survey conducted between Sept. 28 and Oct. 4 on the mid-term preferences of voters, categorized by religious affiliation. In a posting titled Religious Groups Differ Widely in Their 2026 Midterm Preferences, a senior associate research director at the Center said in part:

Overall, registered voters are more likely to support Democratic candidates than Republican ones. And registered voters who support Democratic candidates are more engaged in the election and more motivated to vote than those who back Republican candidates....

Roughly three-quarters of White evangelical Protestant registered voters (73%) now say they would vote for their congressional district’s Republican candidate for the House if the election were held today. A far smaller share (12%) say they would support the Democratic candidate.

White Catholic voters also express more support for Republicans than for Democrats in their districts, though by a much narrower margin (50% vs. 32%).

White nonevangelical Protestant voters are split about evenly. The difference between the shares supporting Republican candidates (45%) and Democratic candidates (37%) is not statistically significant.

There is far more support for Democrats than Republicans among Black Protestants, Hispanic Catholics, atheists, agnostics and those who describe their religion as “nothing in particular.”

This analysis is based on all registered voters, but many are not expected to vote in the midterm elections....

New Law Allows Clergy to Opt Back Into Social Security and Medicare

On Oct. 20, President Trump signed into law H.R. 227, the Clergy Act. The new law (P.L. 119-125) (full text) is summarized by the Congressional Research Service in part as follows:

This act establishes a two-year window for members of the clergy who have opted out of Social Security and Medicare taxes (and are thus ineligible for benefits under those programs) to opt back in.

Under current law, certain ministers, members of religious orders, and Christian Science practitioners who object to participation in public insurance programs on religious or conscientious grounds may apply to the Internal Revenue Service (IRS) for an exemption from Social Security and Medicare taxes on ministerial earnings. Individuals who are approved for the exemption do not receive Social Security or Medicare benefits in retirement unless they have qualifying credits from other employment. The exemption is irrevocable.

Under the act, clergy members may choose to revoke their exemption by filing an application with the IRS by ...  April 15, 2031.... A revocation under the act is permanent.

Clergy members who opt back in will generally need 10 years of covered employment ... to be eligible for .. benefits ....

D.C. Circuit: Religious Organizations Have Standing to Challenge Policy Changes On Immigration Enforcement Near Places of Worship

In Mennonite Church USA v. U.S Department of Homeland Security, (DC Cir., Oct. 20, 2026), the D.C. Circuit Court of Appeals in a 2-1 decision held that a group of Christian and Jewish organizations have standing to challenge the rescission of the prior administration's "sensitive locations Policy" which restricted immigration enforcement activities in sensitive locations such as places of worship. The new policy allows case-by-case decisions on enforcement near sensitive locations The majority said in part:

We focus on plaintiffs’ allegations of harm to their members from the imminence of increased enforcement actions, and we hold that all plaintiffs likely have associational standing under that theory to pursue both forms of relief that they seek — i.e., a reversion to the Mayorkas Memo’s Sensitive Locations Policy and an order prohibiting the government from conducting enforcement operations at houses of worship in the absence of a judicial warrant or exigent circumstances....

 Judge Rao filed a dissenting opinion, saying in part:

Plaintiffs have failed to make a clear showing of standing. In particular, the guidance they seek to restore has no effect on the Executive Branch’s legal authority or enforcement discretion. Plaintiffs ultimately offer only speculation that restoring policy guidance from a previous administration will change the enforcement practices of this one. Because redressability requires more than conjecture, the district court correctly denied a preliminary injunction. I respectfully dissent....

... Because plaintiffs have failed to demonstrate any predictable consequences from reinstatement of the Memo, the injunction they seek will not redress their alleged injuries. ...

UM News reports on the decision.

Did Pressure on Foster Child to Be Baptized Amount to Neglect of Child's Emotional Needs?

In A.P. v. Department of Children and Families, (MA App. Ct., Oct. 21, 2016), a Massachusetts state appellate court vacated and remanded a decision of a Department of Children and Families Hearing Officer. The Hearing Officer had upheld a staff finding that A.P., a foster mother, had neglected needs of Beth, her foster child. The court said in part:

The hearing officer found that Beth "expressed not feeling safe within the [foster] home" because she was "feeling pressured to be baptized."  Yet the hearing officer also found that A.P. had given "notice to [DCF] prior to [the foster] placement [that Beth] would need to be baptized to remain in placement."  This finding was supported by a DCF supervisor's testimony that A.P. and her husband, before Beth was placed with them, had made clear that Beth would need to be baptized for them to adopt her.  The supervisor further testified that, although the clinical team had warned A.P. that Beth might not accept being baptized, "it's likely that [Beth] told the foster family that she would agree to be baptized so that she could have a family."   

In finding that A.P.'s pressuring Beth to be baptized constituted neglect of Beth's emotional needs, the hearing officer failed to address the "troublesome facts" that (1) DCF and Beth were on notice of A.P.'s commitment to having Beth baptized, (2) DCF nevertheless placed Beth in A.P.'s home, and (3) Beth likely agreed to be baptized.  Again, it is difficult to see how DCF could later find that A.P.'s pressuring Beth to be baptized constituted neglect, without either Beth or DCF having first given notice to A.P. that they had changed their minds and that further pressure was unwelcome and inappropriate. The hearing officer must resolve this issue.

3rd Circuit: Preliminary Injunction Denied Even When Ultimate Success of RLUPA Challenge Is Likely

In Holy Trinity Ukrainian Catholic Church v. Township of Collier, (3d Cir., Oct. 19, 2026), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision affirmed the denial of a preliminary injunction to bar enforcement of zoning provisions that prevent a Church from building shrine on land it owns. The majority held that even though the Church is likely to ultimately succeed on the merits of its claim under RLUIPA, it has not shown the risk of irreparable injury necessary to obtain preliminary injunctive relief. The majority said in part:

We think Holy Trinity is likely to show that the township’s rejection effectively bars the project and thus substantially burdens its chosen land use. First, although Holy Trinity was just taking the first step of seeking rezoning (to be followed by project-specific applications), the Board focused on the ultimate shrine project. Second, residents overwhelmingly disapproved of the shrine project, not just the rezoning application. 

Finally, and most troubling, both community and Board members objected to the shrine’s pro-life message....

... Preliminary relief does not automatically follow whenever a party is likely to win on the merits. That is because the “goal of preliminary injunctive relief” is not to decide the case, but merely to “preserv[e] the status quo” as it proceeds....

... [A] preliminary injunction is not a shortcut to that final relief. It is a temporary patch to ensure that a court can see a case through to final judgment.... Holy Trinity wants to raise funds for a shrine, secure in the knowledge that it can build it. But that is a promise that preliminary relief cannot make. What the parish needs is expedited final judgment. The District Court has moved with admirable swiftness, proceeding from complaint to preliminary-injunction ruling in three months. We trust that it will continue with that speed....

Judge Matey dissented, criticizing the majority for relying on a recent decision refusing to preliminarily enjoin enforcement of campaign finance laws.  He said in part:

It might be easy to lament today’s opinion as another curia dedit, curia abstulit with one panel decision washing away the foundation of another before the ink dried. ... That is how the majority is able to acknowledge that Holy Trinity is likely to succeed on the merits of its RLUIPA claim and that re-application would be futile,yet still force the Church to return to municipal purgatory to await the inevitable denial of their proposed religious shrine. That result would have been impossible at the beginning of August under our decision in Anash, Inc. v. Borough of Kingston.... But thirty days changed the world—of equity, RLUIPA, the First Amendment, and perhaps all constitutional claims raised in our Circuit—because, writes the majority, the freshly minted decision in Americans for Prosperity Foundation v. Albence, ... insists on preserving the status quo of religious discrimination....

Religion is the “duty which we owe to our Creator and the Manner of discharging it,” consisting of “offering service and ceremonial rights to a superior nature that men call divine.” What a strange place to plant new equitable vines that will entangle efforts to honor that solemn duty and choke the virtuous impulse to worship from our collective will....

4th Circuit Refuses to Expand Exemptions from Anti-Discrimination Laws for Religious Employers

In Doe v. Catholic Relief Services, (4th Cir., Oct. 16. 2026), the U.S.4th Circuit Court of Appeals in a 2-1 decision affirmed a Maryland federal district court's holding that Catholic Relief Services violated Title VII and the Maryland Fair Employment Practices Act by denying health insurance coverage to an IT analyst's same-sex spouse. In a 66-page majority opinion, the court said in part:

Here, CRS asks us to expand both statutory and constitutional protections for religious employers.  CRS argues that either Title VII’s exemption or the Religion Clauses should immunize all employment decisions by religious organizations so long as the decision is based on the employer’s religious belief, regardless of whether race, sex, or national origin is a but-for cause of the decision or whether the employee plays a ministerial role.  We will not.  The extremely broad and nearly unbounded immunity CRS seeks is not required by any statute or constitutional provision.

Judge Wynn also filed a concurring opinion responding in length to the dissent. Judge Wynn said in part:

Constitutional doctrines require boundaries. The dissenting opinion offers none that can reliably confine its principle to the circumstances it evidently has in mind. If a religious employer possesses constitutional immunity whenever an adverse employment decision confronts sincerely held religious doctrine, it is difficult to see why the principle would stop with objections concerning sexual orientation or gender identity. A sincere religious belief might likewise be asserted for an employment decision based on sex, race, national origin, or some other characteristic protected by law. 

Recognizing the problem, the dissenting opinion simply asserts that employers would not do such a thing—at least when it comes to race....  [C]onstitutional law cannot rest so comfortably upon assurances of self-restraint....

Judge Quattlebaum filed an 88-page dissenting opinion, saying in part: 

Rooted in the text, history and tradition of the First Amendment, the church autonomy doctrine prevents courts from reviewing a religious organization’s conduct based on its faith, doctrine or governance. John Doe’s lawsuit against Catholic Relief Services (CRS) asks the federal courts to do just that....

Recent Supreme Court precedent makes clear that regulations that burden the exercise of religion must satisfy strict scrutiny if their exceptions favor secular interests over religious ones. The majority interprets the statutes to do just that, and none are narrowly tailored to a compelling governmental interest....

This appeal involves the use of secular laws to regulate churches and religious organizations, not the general use of religion to justify discriminatory conduct. That’s why I attempted to describe the history of conflict between governments and the church on the church’s autonomy. On that point, it’s accurate that until recently, the government’s use of antidiscrimination laws to interfere with the internal doctrinal decisions of churches and religious organizations on issues that relate to their mission was uncommon. It’s also accurate that until recently, religious employers have not commonly faced claims under antidiscrimination laws for setting employment terms that require compliance with their sincerely held beliefs....

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