Hegseth Announces Creation of Military Office of Religious Affairs

Earlier this week, Secretary of War Pete Hegseth delivered his State of the Force Address (full text). Among his announcement in the Address was the creation of an Office of Religious Affairs. He said in part:

When an American warrior raises their right hand to defend our Nation, you sign away a lot more than just time.  You miss births, you miss first steps, you miss final goodbyes.  You miss other civilian careers.  But one of the costs that is rarely thought about or talked about is the loss of your religious community.

Every time we issue orders to move a warrior to a new location, they leave behind the faith community, the church that grounds them.  For people of faith, that community isn't just a "nice to have."  In many ways, it's an extension of their family.  It's their moral foundation or their personal and spiritual accountability.  The very bedrock of their warrior ethos.  

When you actually look at the numbers, and this will be good for the press, less than 5% of our force identifies as non-religious.  Less than 5%.  Meaning, 95% of our force recognizes an Almighty God.  Accordingly, our department therefore has a sacred duty — first-class religious support wherever we send our warriors. 

Now for far too long, you know, we didn't prioritize that duty at all.  It was an afterthought.  Political correctness and secular humanism got a vote — chaplains did not.  Budgets were cut.  Resourcing and manpower needs were ignored.  Base chapels fell apart.  Decisions about faith and religion were made by secular careerists in cubicles and lawyers running around with red tape. 

We don't put non-lawyers in charge of our JAG Corps.  Or non-doctors in charge of our military surgeons.  Yet for decades, we let people with no expertise in faith or religion dictate the spiritual life of our warriors.  The people who actually practice faith and religion, our chaplains, were buried echelons deep, waiting for permission.  We asked chaplains to serve and sacrifice and then sidelined them with paperwork and process.  And that ends now.

Today, at my direction, I am establishing the Office of Religious Affairs.  Starting today, and for Secretaries of War after me, the Office of Religious Affairs will report straight to the top.  No staff filters . No bureaucratic dilution.  A direct line to the Secretary.  This won't be a paper pushing shop.  It will have real teeth.  It will protect budgets, demand infrastructure, and strengthen religious support.  The experts, our chaplains, will finally have an advocate at the highest levels.  Policy and resources will serve the mission, not smother the mission.

As Psalm 33:12 extols us:  "Blessed is the Nation whose God is the Lord."  Two hundred and fifty years ago we rejected an earthly King an ocean away, appealing instead to a Heavenly King above.  George Washington made sure the Continental Army had chaplains back at the beginning, back in 1775.  That force appealed to Heaven, and we still do today.

Our national motto is, after all "in God we Trust."  Today we reaffirm that trust.  We are placing spiritual health at the same level as physical health.  Our department is, you might say, is putting on the full Armor of God.  Because while we wage physical war, we all know the real battle is spiritual.  God is good.  Evil is not.  America's military must understand the difference.

To our incredible chaplains and religious support teams, live your calling.  Stand firm. Preach Truth.  Minister to the Flock.  Fear no man.  Or, as the Psalmist put it, "The Lord is on my side; I will not fear:  What can man do unto me?"  Amen to that.

Supreme Court Grants Review in RLUIPA "Substantial Burden" Case Involving Denial of Zoning Variance for a Grotto

The U.S. Supreme Court yesterday granted review in Missionaries of St. John, Inc. v. Frederic, (Docket No.25-1131, certiorari granted 10/1/2026).  In the case, the Kentucky Supreme Court held that RLUIPA was not violated by denying a conditional use permit to a church that wished to build a grotto to honor the Virgin Mary’s appearance at a grotto in Lourdes, France. The Court concluded that denial of a permit and variances did not impose a substantial burden on the church's religious exercise. (See prior posting.) The Supreme Court limited its grant of review to Question 1 in the petition for certiorari:

Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under ... the Religious Land Use and Institutionalized Persons Act (RLUIPA)....

First Liberty Institute issued a press release announcing the Supreme Court's action. The Supreme Court at this page provides links to all the filings in the case.

Government's Allegations of Confrontations Near Synagogue Did Not Adequately Allege FACE Act Violations

In United States v. Party for Socialism and Liberation New Jersey, (D NJ, Sept. 30, 2026), a New Jersey federal district court dismissed with leave to amend, a civil action by the United States against several individual and organizational defendants (including American Muslims for Palestine, New Jersey). Defendants demonstrated outside a Jewish synagogue where an event that included prayer, a memorial service, teachings about the obligation to live in Israel and an Israel real estate fair was taking place. The suit charged violation of a provision of the Freedom of Access to Clinics Act that prohibits a person from intentionally injuring, intimidating or interfering with anyone who is lawfully exercising or seeking to exercise their 1st Amendment right of religious freedom at a place of worship. 

The court held that the complaint, while it "describe[s] a rapidly escalating sequence of physical confrontations did not adequately allege the required elements of a violation." The court said in part:

The Court does not read § 248(a)(2) of the FACE Act as federalizing every physical confrontation that occurs on the grounds of a place of worship, which is the essence of what is pleaded in the complaint....

The court went through the charges against each defendant and concluded as to each that the required elements of an offense had not been adequately alleged. For example, it said:

The pleaded facts, while colorfully set forth, do not allege that Sharif’s alleged use of force was directed at halting, disrupting, or otherwise affecting prayer, the memorial service, the Torah sermon, or any other religious observance taking place in the synagogue, or at preventing Glick or Silberberg from entering, leaving, or participating in the scheduled events....

It alleges that the group of protestors made passage to or from the synagogue unreasonably difficult or hazardous, but does not allege that Sharif blocked a route, stood at an entrance, directed others to obstruct passage, or otherwise participated in the alleged physical obstruction... 

... Because FACE regulates conduct that may occur alongside core political expression, courts must distinguish the force, threats of force, and physical obstruction the statute prohibits from protected—even if forceful, unwelcome, or upsetting—protest activity....

As with Sharif’s motion, the Court carefully examines what the complaint says about Camins, and the allegations are very narrow.  The government does not allege that he personally struck Silberberg, physically restrained him, blew a vuvuzela, physically obstructed access to the synagogue, or communicated a threat of force.  Nor does the claim rest on Camins’s presence at the protest, his political views, or his criticism of the event.  Instead, the government relies on a single allegation that Camins incited violence.  The government contends .. that when Camins pointed toward Silberberg and uttered “the Jew is here!” that “[i]n context ..., this phrase can be seen as an exhortation to the mob to an imminent lawless action—i.e., to an attack David Silberberg.”...  [T]he  question is whether what Camins said plausibly supports an inference that Camins used the statement to solicit or facilitate force.  

The Court concludes that it does not.  There needs be context to infer that “the Jew is here” is a statement inciting violence.  The complaint does not supply that....

The court went through a similar type of analysis for three other defendants.

Church Autonomy Doctrine Is Not Broader Than Ministerial Exception in Title VII Cases

In Ference v. Roman Catholic Diocese of Greensburg, (WD PA, Sept. 30, 2026), a Pennsylvania federal district court refused to dismiss a Title VII suit brought by a secular teacher at a Catholic school who was fired from his position because he was in a same-sex marriage. The school claimed that the exception in Title VII for religion-based hiring by religious institutions protected it from Title VII liability. The court said in part:

Was Mr. Ference’s firing permissible religious discrimination, or prohibited sex discrimination?...

The central question is how expansive Congress intended the religious exemptions to be....

... [T]he Court now turns to whether application of Title VII in this case raises serious constitutional questions.  The Court concludes that it does.  More precisely, it raises a single serious question: whether religious employers are subject to employment discrimination laws that “directly conflict” with their religious doctrine.... Mr. Ference’s claim implies that Title VII prohibits Aquinas Academy’s “right to implement Catholic teachings on marriage.”...

... [T]he Court finds that Congress clearly intended for Title VII’s religious exemptions not to apply to religiously motivated sex discrimination.  The Court therefore concludes that the exemptions don’t apply to Mr. Ference’s firing.  But that doesn’t mean religious employers will always face liability in such cases; the First Amendment provides them with its own robust protections....

... [T]he church autonomy doctrine does not protect employees who are not “ministerial” under the exception.  An employee cannot be non-ministerial for purposes of the exception but still occupy a role “important” enough to trigger the church autonomy doctrine....

Outside the possible applicability of the ministerial exception, the only burden on Aquinas’s religious autonomy in this case stems from Title VII’s direct conflict with the school’s ability to implement Catholic views on marriage.  And that burden is not heavy enough to trigger the church autonomy doctrine.  Holding otherwise would effectively give religious employers constitutional carte blanche to discriminate on any basis—not just sex—in the name of religious autonomy, so long as their beliefs require such discrimination.  The Court declines to take such a radical step.

Furthermore, such an expansive interpretation of the church autonomy doctrine “would render the ministerial exception superfluous.”...

The expressive-association analysis in this case involves balancing the “burden imposed on the school’s associational expression” against the government’s compelling interest in combatting sex discrimination in the workplace....  But the Court concludes that applying Title VII in Mr. Ference’s case would not “significantly affect” Aquinas Academy’s ability to advocate its viewpoints....  For that reason, the burden on the school’s expressive freedom does not outweigh the compelling government interest in this case....

... [A]ll the burden on Aquinas Academy’s freedom of expressive association flows from Mr. Ference’s marriage status alone....  Until the incidental disclosure on the waiver form, his marriage status was apparently a complete secret at Aquinas; and nothing about the circumstances of that disclosure imply that Mr. Ference would not, or could not, remain discreet about his marriage at work.  The Court therefore concludes that applying Title VII to this case would not significantly affect Aquinas Academy’s expressive interest....

Requiring Foster Parents to Affirm Child's Religious Beliefs That They Reject Violates 1st Amendment

In McIntire v. Senn, ((WD WA, Sept. 29, 2026), a Washington federal district court refused to require Washington's Department of Children, Youth, and Families (DCYF) to issue plaintiff a foster care license even though the court found that plaintiff had plausibly alleged free speech and free exercise violations. The court found that DCYF had a neutral independent ground for denying the license-- the condition of plaintiff's home. However, the court extensively discussed plaintiff's 1st Amendment claim that requiring plaintiff as a foster care parent to support a child's religious and spiritual practices violates plaintiff's free speech and free exercise rights. The court said in part:

DCYF interprets the requirement to "support" and "affirm" a foster child's religious beliefs as limiting what McIntire may say about her own beliefs. This is a content-based restriction because it "applies to particular speech because of the topic discussed or the idea or message expressed."...  It is also a viewpoint-based restriction....

... DCYF argues that the protection of a foster child's religious freedom is a compelling interest. It asserts that this minor restriction on speech is "narrowly tailored to protect foster children while allowing McIntire unbridled freedom to speak in every other context."...

Viewing the facts in McIntire's favor, the Court concludes that McIntire has plausibly alleged that DCYF unconstitutionally denied her application because she would not refrain from stating her religious beliefs were true. Whether DCYF can ultimately establish that the restriction satisfies strict scrutiny as applied presents a separate question that the Court need not resolve at this stage. This is especially true here, where WAC 110-148-1520 has since been amended to provide foster parents with a choice of whether to connect foster children with resources that support and affirm their needs or refrain from impeding DCYF's efforts in facilitating those resources....

DCYF's motion to dismiss McIntire's First Amendment free speech claim is DENIED.

McIntire also claims that DCYF violated her First Amendment right to free exercise when it denied her application because she "could not support a child's religion or spiritual practices" as required by WAC 110-148-1520(8). Dkt. 1-2 at 103.

DCYF moves to dismiss, asserting that the purpose of the regulation is not to infringe upon the religious practices of foster care applicants but rather to ensure that the religious rights of foster care children are protected....

McIntire acknowledges that, if a foster child asked her what she believed to be true, she would answer that she believes the Bible and that "her beliefs in God consistent with Christianity are true."...  But she maintains that "she would respect the beliefs of others if different from hers and she would not refuse care based on differing beliefs."... She asserts that DCYF forced her to "choose between being a licensed foster parent or adhering to her Christian faith."...

Viewing the evidence in the light most favorable to McIntire, the Court concludes that McIntire has plausibly alleged that WAC 110-148-1520(7) and (8) are not applied neutrally in practice. McIntire asserts:  

If I had a child placed in my care who was part of another religion, I would support and happily transport them to/from their regular services in close proximity. If they are part of established youth groups or classes, I would support them with transport as well as any ‘at home’ work they wanted/needed to do. . . I also do not want to be forced to say that I approve of or condone a thing I don’t agree with.... 

Yet, in denying her application, DCYF focused not on what McIntire would do to support the child’s religion, but on what she would say about her own.... 

New York Mayor Releases Strategy to Combat Antisemitism

New York City Mayor Zohran Mandani released a 33-page report (full text) titled Tackling Hate: The Mamdani Administration's Strategy to Combat Antisemitism. The Report includes a Statement of Core Values which reads in part as follows:

The Jewish people and their contributions to New York City are inextricably woven into the fabric of this city, and they must remain an enduring part of its future....

Every New Yorker deserves to safely be who they are in the five boroughs. No New Yorker can or should face discrimination due to their real or perceived religion, race, ethnicity, national origin, gender identity or sexual orientation,,,,

The experiences of every New Yorker — in all their diversity and complexity — are legitimate.

Antisemitism is corrosive to all people — whether they are Jewish or not — and to democracy As has often been argued, antisemitism is the canary in the coal mine of hatred and authoritarianism.

Antisemitism has long functioned as a conspiracy theory that blames the Jewish people for the problems of the day, and reinforces unjust systems by keeping communities divided and distracted about the source of their true concerns

One form of hatred cannot be combatted in a vacuum. Antisemitism can, and must, be addressed hand in hand with all other forms of hatred....

New York City must, and will, combat antisemitism with a whole-of government approach....

A press release from the Office of the Mayor says in part:

The Mayor’s Office to Combat Antisemitism will support implementation of Mayor Mamdani’s historic $26 million investment in the Office for the Prevention of Hate Crimes. The Mamdani administration will also relaunch the once-disbanded interagency Security Infrastructure Working Group, providing technical and strategic support to Jewish houses of worship and cultural institutions seeking to strengthen their security....

9th Circuit Refuses En Banc Review of Decision Allowing Transfer of Apache Holy Area to Copper Mining Company

In the long-running litigation over the transfer of 2500 acres of National Forest land that includes Apache ceremonial religious ground to Resolution Copper Mining LLC, the U.S. 9th Circuit Court of Appeals again refused to grant a rehearing or a rehearing en banc of the decisions allowing the land transfer to go through. In Arizona Mining Reform Coalition v. United States Forest Service, (9th Cir., Sept. 29, 2026), three opinions dissenting from the denial of en banc review were filed. Chief Judge Murguia said in part:

Unless the Supreme Court steps in, a mining project will obliterate Oak Flat and destroy “the very foundation of the Apache religion.” 

Judge Graber, joined by 4 other active judges and 5 senior judges filed an opinion respecting the denial of an en banc rehearsing, saying in part:

The proposed mining project at issue here— which will convert the sacred site into a crater approximately 2 miles across and 1,000 feet deep—plainly will “substantially burden a person’s exercise of religion.”  42 U.S.C. § 2000bb-1.  In Apache Stronghold v. United States, 101 F.4th 1036 (9th Cir. 2024) (en banc) (per curiam), a bare majority of the en banc court held to the contrary. 

We were wrong....  Our interpretation in Apache Stronghold indisputably contradicts the plain meaning of the statutory text.  The complete destruction of the sacred site here clearly qualifies as a “substantial[] burden” on the exercise of religion, under any dictionary or ordinary meaning of the phrase....

Judge Bumatay, joined by 4 other judges filed a dissenting opinion, saying in part:

Would turning a holy site into a giant crater “substantially burden” the exercise of religion?  “To ask the question is to answer it.” ...  Yet for the second time, a panel of this court says no. 

It’s not the panel’s fault.  Its hands were bound by our badly fractured decision in Apache Stronghold v. United States, 101 F.4th 1036 (9th Cir. 2024) (en banc).  There, an en banc majority said that the Religious Freedom Restoration Act of 1993 (“RFRA”) categorically doesn’t apply to the “disposition of government real property” absent some minor exceptions.....  

Thus, the utter destruction of Oak Flat—land used by the Western Apache to commune with their Creator—isn’t subject to RFRA’s protection simply because it’s federal land.  But even if RFRA could be read as carving out the government’s property when it was enacted in 1993, that interpretation simply cannot survive Congress’s 2000 update to RFRA.  Congress has now expressly decoupled RFRA from the Supreme Court’s Free Exercise caselaw and added protection for the religious use of “real property.”  Thus, the land transfer of Oak Flat must meet RFRA’s demanding requirements....

Employer's Religious Refusal to Cover Gender Dysphoria in Its Health Plan May Violate Title VII, But Not ADA

In Bernier v. Turbocam, Inc., (D NH, Sept. 28, 2026), Lillian Bernier, a transgender woman, sued her employer because the company refused to provide coverage in its health plan for gender-affirming care. The president of the company and his wife are evangelical Christians who operates the company according to their religious tradition. That includes a belief that a person's sex is ordained by God and that it should not be obscured through medical treatment. The court dismissed plaintiff's claim of disability discrimination under the Americans with Disabilities Act because the Act excludes from its definition of "disability" gender identity disorders not resulting from physical impairments. However, the court refused to dismiss plaintiff's Title VII sex discrimination claim, saying in part:

Bernier argues that Turbocam adopted the exclusion (and decided not to modify it for her) because of Turbocam’s discriminatory, sex-based animus....

The record here is sufficient for a jury to find that Bernier’s sex is a but-for cause of Turbocam’s refusal to cover the care she seeks. Turbocam states that it adopted the exclusion, declined to modify it, and refused to grant Bernier an exception from it based on Turbocam’s moral disapproval of Bernier’s effort to obscure or change her sex. Further, there is evidence from which a jury could find that Turbocam’s owner harbored personal animus toward Bernier because of her transgender status....

Turbocam contends that, even if a reasonable jury could find that Bernier carried her burden of showing a Title VII violation, Turbocam is nevertheless entitled to summary judgment on Bernier’s Title VII claim because a jury would find in Turbocam’s favor on its RFRA defense.. Bernier responds that RFRA is inapplicable to lawsuits between private parties. The court agrees with Bernier, as do most of the Courts of Appeals to have considered the issue...

Because Bernier sued only after the United States Equal Employment Opportunity Commission (EEOC) issued her a right-to-sue letter, Turbocam contends that the EEOC has effectively delegated governmental enforcement authority to Bernier such that she is for all intents and purposes the “government” under RFRA.... The court is not persuaded. As a matter of law, the EEOC’s “[m]ere approval” of Bernier’s right to initiate a lawsuit does not convert Bernier into a state actor.....

Turbocam asserts that, even if it may not raise RFRA as a defense to Bernier’s Title VII claim, it may raise a defense under the Free Exercise Clause of the First Amendment. Turbocam cites no case in which a court has permitted an employer (other than a church or religious institution) to raise the Free Exercise Clause as a defense in an employment discrimination suit brought by a private plaintiff.  Even assuming such a defense is available in this case, Turbocam agrees that it is subject to the test articulated by the Supreme Court in Smith.  

Smith held “that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’” 

...Title VII is a neutral law of general applicability. 

While Bernier claims that Turbocam admits it has denied coverage to her because Turbocam opposes gender-affirming care, a reasonable jury could conclude that this does not reflect an intent to discriminate against Bernier because she is transgender.... Moreover, while there is evidence of transgender-based animus in the record, it is also undisputed that Turbocam accommodated Bernier’s name change and addressed another employee’s harassment to Bernier’s satisfaction. Construing the evidence in the light most favorable to the nonmovant, a reasonable jury could find for Turbocam on Bernier’s Title VII claim....

Court Rejects Religious Challenge to Nebraska's Ban on Midwives Attending Home Births

In Tvrdy v. Hilgers, (D NE, Sept. 26, 2026), a Nebraska federal district court upheld a state law prohibiting certified nurse midwives (CNM) from attending home births without a physician also being present. Midwives may attend births alone only in a license health care facility. In the case, two pregnant mothers sued claiming that the ban violates their religious beliefs. The court explained:

The plaintiffs assert they are devout, practicing Christians.... They explain there are “two religious commitments” at play here.  The first is that childbirth “should occur in a manner consistent with their convictions regarding family life, maternal responsibility, and the proper exercise of parental judgment”... Those convictions include their beliefs that “children are gifts from God and that parents are entrusted with the responsibility to make conscientious decisions regarding childbirth” and “the welfare of their children”...   

The second is that they have a “religious obligation to act as faithful stewards of the lives and health of both mother and child by taking reasonable measures to promote safety during labor and delivery”....  In their view, neither a hospital birth nor an unassisted home birth allows them to honor both commitments.  They believe a CNM attended home birth does.

Plaintiff sought a preliminary injunction under Nebraska's First Freedom Act and the First Amendment. The court said in part:

The Court concludes, at least at this preliminary stage, that the defendants have demonstrated the government has a compelling interest in protecting the health and safety of the plaintiffs and their children....

 ,,, At least two children have died in Nebraska in the last four years in home births attended by midwives....

The Court also concludes that the defendants have demonstrated the Act’s restriction on solo CNM-attended home births is the least restrictive means of furthering that compelling interest, as to both Nebraska mothers and children and as to the plaintiffs in this particular instance.....

The Act does not prevent physicians or PAs from attending home births, and it does not prevent CNMs from attending births in birthing centers—low-intervention environments which aim to simulate the home-birth experience.  In summary, the plaintiffs have not persuaded the Court that they are likely to prevail on their Freedom Act claim.

The court rejected plaintiffs' 1st Amendment claim because the restriction is a neutral law of general applicability.

Pacific Legal Foundation provides additional background on the case. 

Ohio Legislators Lack Standing to Claim Reproductive Rights Amendment to State Constitution Is Invalid

In Dean v. Yost, (OH Com. Pl., Sept. 22, 2026), two members of the Ohio state legislature and a city council member sued contending that the Reproductive Rights Amendment to the Ohio Constitution adopted by voters in 2023 is invalid because it amounts to a "revision" of the state constitution, not a mere "amendment" of it.  In the case, an Ohio trial court dismissed the lawsuit, finding that plaintiffs lacked standing to bring it. Plaintiffs had contended that the amendment deprived them as legislators of legislative authority to enact laws barring late-term abortions from being performed near churches or schools, and of authority to protect informed consent. The court said in part:

Defendant points out that Plaintiffs" complaint makes it clear that they are suing in their personal capacity. Legislatures may not claim rights tied only to their official capacities when they are suing in their private capacity. Additionally, even if suing in their capacity as Legislatures they do not have standing since this is not a mandamus action and they have not identified any votes they cast for laws that are allegedly not being enforced.

The court also rejected claims by one of the plaintiffs that she has standing as a parent under parental consent laws. The court said: "any contention that Section 22 invalidates or limits Ohio's parental-consent law is incorrect and speculative...."

Cleveland.com reports on the decision.

[Thanks to Thomas Rutledge for the lead.]

North Dakota Supreme Court Upholds State's Ban on Gender-Affirming Care for Minors

In T.D. v. Wrigley, (ND Sup. Ct., Sept. 17, 2026), the North Dakota Supreme Court rejected a facial attack on North Dakota's ban of both hormonal and surgical gender-affirming treatment for minors suffering from gender dysphoria. The court held unanimously that the statute does not violate North Dakota's state constitution. The court said in part:

Dr. Casas contends the Act “infringes on fundamental and inalienable rights enshrined in Article I, § 1 of the North Dakota Constitution.....

... [T]he issue is whether a minor has a fundamental right to a particular course of medical treatment. 

Having identified the right at issue, we address whether the right is one the people intended when they adopted Article I, § 1...

Dr. Casas performs no meaningful historical inquiry tied to the alleged right at issue. He does not argue the records of the constitutional convention discuss a right for a minor to receive a particular course of medical treatment. He points to no newspaper coverage of the convention reporting public discussion of the right he asserts on behalf of his minor patients. Dr. Casas also does not cite a single case before or around 1889 interpreting another state’s natural rights provision to include the right of a minor to receive a particular course of medical treatment.... To the contrary, since statehood, the State has regulated the practice of medicine and prohibited certain medical practices. It has also protected minors’ health and welfare by limiting their rights to make certain decisions or participate in certain activities....

... The State has regulated the practice of medicine since statehood, including prohibiting particular medical procedures notwithstanding physician approval....

Dr. Casas argues the Act classifies based on sex and discriminates against transgender individuals, a class he asserts should be recognized as a suspect class. He argues the district court erred by reviewing the Act under the rational basis standard instead of the strict scrutiny standard. The State responds the Act classifies based on age and medical purpose, not sex or transgender status, and therefore is subject to rational basis review....

Because the Act neither burdens a fundamental right nor classifies based on a suspect class, it is subject to rational basis review....

Contrary to Dr. Casas’s argument, the legislature’s response to the medical uncertainty about the risks and benefits of gender-affirming treatment is not arbitrary. Gender-affirming treatment of minors is relatively novel..... In light of the debate among medical experts about the potential serious and irreversible risks associated with providing gender-affirming treatment to minors, the legislature could rationally decide the procedures are too dangerous for minors, particularly because they may not fully appreciate the long-term consequences of the treatment. ...

Justice Tufte, joined by Justice Jensen, filed a concurring opinion, saying in part:

I write separately because the briefs rest on a premise our modern cases have repeated but never examined: that §§ 21 and 22 [of the North Dakota Constitution] are “equal protection” clauses administered through three tiers of scrutiny determined by suspect classes and a judicial ranking of rights. That construction was assembled between 1974 and 1988 from borrowed federal materials, without examining the text of the state constitution or the history that produced it. The sections themselves are much older. They were copied from an identifiable source and had a settled public meaning when North Dakota’s voters approved them on October 1, 1889. The majority applies our traditional analysis in its discussion of N.D. Const. art. I, § 1. It asks what the words of § 1 meant to the people who adopted them in 1889.... No party asked us to do the same for §§ 21 and 22. Because it appears to me our modern doctrine has strayed from its proper sources, I set forth some of these sources below so that the meaning of these provisions may be more carefully examined in a future case...

Liberty Counsel issued a press release reporting on the decision.

6th Circuit: Tennessee's Ban on Recruiting a Minor to Obtain an Abortion Is Unconstitutional

In Welty v. Dunaway, (6th Cir. Sept. 24, 2026), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional both as applied and on its face a provision of Tennessee law that criminalizes recruiting a minor for purposes of obtaining an abortion, even if the abortion is to be performed in another state where it is legal. The law was challenged by two anti-abortion activists who regularly counsel minors seeking abortions. The majority, in a 45-page opinion, said in part:

As applied to Welty and Behn, the Recruitment Provision restricts their ability to speak freely about abortion; it is therefore a content-based regulation that is presumptively unconstitutional….

… The Supreme Court’s recent decision in Chiles is instructive on this point.  Chiles concerned an as-applied challenge by a mental health counselor to a Colorado statute proscribing mental health professionals from engaging in conversion therapy with minors….

... [T]he statute expressly allowed mental health professionals to provide “acceptance, support, and understanding for the facilitation of an individual’s identity exploration and development,” as well as “assistance to a person undergoing gender transition.”…  The only question before the Court in Chiles was whether this statute was subject to strict scrutiny, and the Court concluded that it was, because it discriminated based on content and ... viewpoint…. 

Like Chiles, Welty and Behn regularly counsel minors.  But when one of their minor clients seeks guidance regarding her pregnancy, the Recruitment Provision “regulates how [Welty and Behn] may respond.”…  Nothing in Tennessee’s law would prevent them from encouraging a minor to carry her pregnancy to term.... But the Recruitment Provision does restrict Welty’s freedom to share with clients her view that abortion is “safe, common and normal.”  It likewise prevents her and Behn alike from supporting and encouraging their clients’ decisions to obtain legal abortions and sharing information about how they may do so…. 

… [T]he Recruitment Provision discriminates based on content as well as the viewpoint of the speaker…..

… [T]he Recruitment Provision is unconstitutional as applied to speakers who seek to encourage and support minors to obtain legal abortions.  This represents a substantial portion of speech to which the statute might apply... Such applications could include the speech of adults who occupy a virtually limitless range of roles in a pregnant minor’s life (except her parents or legal guardians), as long as they encourage her to obtain a legal abortion.  These adults could be an aunt or uncle, grandparent, older sibling, teacher, school counselor, therapist, physician, pastor, youth minister, family friend, mentor, or anyone else a pregnant minor might encounter or herself seek out whose speech might impact her decision.  As the adage goes, it takes a village to raise a child.  Anyone in that village is capable of “recruit[ing]” her to obtain a legal abortion….

By its own terms and under Tennessee law, the Recruitment Provision could also apply to out-of-state residents who recruit minor Tennesseans to obtain legal abortions elsewhere….

Because “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep,”... we hold that the Recruitment Provision is substantially overbroad and facially unconstitutional….

Chief Judge Sutton filed a 28-page dissenting opinion, saying in part:

… Welty and Behn’s abortion counseling and advocacy, in their own words, do not include efforts to induce Tennessee minors to obtain abortions without their parents’ knowledge, within the State or outside the State.  In providing information about abortion options and in allowing minors to “make [their] own decision[s],” … they are committed pro-choice advocates.  But they do not, in the words of the statute, claim to “intentionally” “recruit[]” minors to obtain abortions or otherwise engage in abortion “trafficking” of minors without parental consent…. 

That should be the end of this case, and it should take less than ten pages to say so….  In the absence of a limitation on the words they plan to use, their free-speech case disappears…. 

All of this back and forth returns us to one mystery of this case already mentioned and identifies another.  The one:  Why won’t Welty and Behn and the court simply agree to eliminate any risks to their work by supporting and announcing a decision that the Act does not cover anything the plaintiffs have done in the past or wish to do in the future?  The other:  Does the court think there is any way to write a law that bans “abortion trafficking of a minor” without violating the First Amendment?...

Welty and Behn perceive unconstitutional vagueness in “recruiting,” which they say breaks the boundaries of clarity.  This argument collides with the Act’s text, which not only prohibits recruiting but also requires that the recruiting be “intentional[]” and “for the purpose of” concealing or obtaining an abortion for the minor….  A word that is already clear, plus a mental state that clarifies it still further, provides all the notice that citizens need….

... A litigation loss for Welty and Behn, it’s worth adding, would amount to a “real-world win.”... Such a decision, it is true, would not enjoin the Act.  But such a decision, it is also true, would lead to a federal court ruling that the Act does not apply to the activities that Welty and Behn want to undertake.  That is difficult to describe as a loss.

The Tennessean reports on the decision.

[Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Northon Salomão De Oliveira, Constitutional Agnosticism: The Secular State, Epistemic Abstention, and the Legal Impossibility of Proving God, (September 20, 2026).
• Northon Salomão De Oliveira, Constitutional Agnosticism: Doubt, Reason, and the Epistemic Limits of Constitutional Authority (September 22, 2026).
• Northon Salomão De Oliveira, Science, Religion, and Epistemic Manipulation: Intelligent Design, Scientific Integrity, and the Law of Public Science Education, (September 21, 2026).
• Michael Lewyn, How to Teach a Course on Land Use and Anti-Jewish Discrimination, (April 01, 2025).
• Gila Stopler, The Decline of Liberal Democracy and the Revival of the Patrimonial State, (September 18, 2026).
• Sheikh Islam, The Sea as Āyah: Ethical Maritime Sovereignty and the Epistemic Tragedy of Islamic Naval Civilization (650-1600 CE), (March 01, 2026).
• Sheikh Islam, Philosophical Reorientation of Muslim Adoption Law: From Lineage to Person, (September 24, 2026).
• Jonathan Yovel, The Dreyfus Affair: A Law and Literature Account of a Law and Literature Affair, (35 Yale Journal of Law & the Humanities 887 (2026)).
• Victor Amoguez, The Disposable Church Model, (September 25, 2026).
• Kay Crosby, Trans Surgeries and Reproductive Justice (February 23, 2026).

Ohio Pastor's Conviction for Fire Code Violations Reversed and Remanded

In State of Ohio v. Avell, (OH App., Sept. 25, 2026), an Ohio state appellate court reversed the criminal conviction of Christopher Avell, the founder of Dad's Place, a Christian church in Bryan, Ohio, which offers an "overnight ministry" to provide shelter to anyone who needs it.  Avell and the city have been in litigation (both civil and criminal) over whether the "overnight ministry" triggers fire code requirements for residential use, including an expensive sprinkler system.  A Municipal Court convicted Avell of knowingly violating the city's fire code and sentenced him to a suspended jail sentence and a $200 fine. On appeal, in a 2-1 decision, the Ohio appellate court remanded the case to the trial court because the trial court had failed to rule on Avell's constitutional arguments.

Presiding Judge Osowik dissented in part, saying that the court should have reversed the conviction, instead of remanding it for further proceedings. He based his decision in part on the city's loss last April in an action for an injunction against Dad's Place (See prior posting). Judge Osowik said in part:

To begin, this court recently determined that the City's enforcement of the fire code was not generally applicable and therefore, strict scrutiny applied to Dad's Place's Free Exercise claim under the U.S. Constitution....  

In [the prior civil decision] ... there was no dispute that appellant sincerely believed that he was called to operate a 24/7 ministry. Accordingly, we looked to whether Dad's Place's religious exercise was burdened by the enforcement of the fire code and determined that it was, noting that Dad's Place did not have the financial means to install a sprinkler system, that the installation of said sprinkler system would require Dad's Place to cease its religious exercise for a significant period of time, that Dad's Place could not open a second location for sleeping accommodations, nor would that satisfy its religious beliefs, because they required Dad's Place to welcome all people into the church, not an offsite homeless shelter....

Next, we found that the enforcement of the fire code was not generally applicable because "it allows the government to exercise significant discretion in the enforcement of the code."...

In sum, in [the civil case] ..., this court held that strict scrutiny review applied to Dad's Place's Free Exercise claim under the U.S. Constitution....

[The Ohio Constitution's Conscience Clause] provides broader protections of religious rights than that of the federal Constitution.... Therefore, laws that even "tangentially affect religion" and even simply interfere with the rights of the conscience are unconstitutional unless they pass strict scrutiny...

The City believes that its prosecution of appellant boils down to the enforcement of uniform fire safety codes on a building designated as mercantile and assembly, but is being used as a congregate residential facility. The City contends that appellant's "use places visitors to Dad's Place in danger as well as the residents of the second-floor apartments, neighboring businesses, and first responders. The safety of these people clearly demonstrates a compelling state interest." I disagree—the fact that many exceptions to the fire code exist and are applied to similarly situated facilities for non-safety reasons, destroys the State's argument that its enforcement of the fire code is for safety purposes.

The City attempts to rebut the comparisons between Dad's Place and the residential buildings exempted from the fire code by looking to differences such as communal space in the church versus separate apartments or hotel rooms.... Notably, however, the City continuously goes back to what it deems as the "most important" distinction between Dad's Place and the exempted residential facilities—that they received their occupancy based on the fire code in place at the time of issuance, or in other words, that these other buildings were grandfathered into the current fire code. I believe that this is fatal to the City's argument.

... The reality ... is that these buildings are not compliant with the City's fire code ...  because of a cost-based exemption that they are grandfathered into.

First Liberty Institute issued a press release announcing the decision.

Justice Department Brief Says Johnson Amendment Violates Church Autonomy Doctrine When Applied to Sermons

As previously reported, a Texas federal district, citing the Tax Anti-Injunction Act, refused to enter a consent judgment in a suit by religious groups challenging the constitutionality of the Johnson Amendment. In the appeal of that case to the Fifth Circuit, the Justice Department in a brief filed September 21 (full text) argues:

The Williams Packing test pushes the claim addressed in the proposed consent judgment outside the jurisdiction-limiting gates of the AIA. That test is satisfied if "it is clear under no circumstances could the Government ultimately prevail...,"

In the District Court, the Government agreed that the Johnson Amendment does not reach the speech covered by the proposed consent judgment because “[w]hen a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith, it neither ‘participate[s]’ nor ‘intervene[s]’ in a ‘political campaign,’ within the ordinary meaning of those words.”... Because the plain terms of the Johnson Amendment do not reach such speech, the church plaintiffs would certainly prevail on the merits in litigation based on enforcement of the Johnson Amendment against this narrowly defined category of speech.....

Moreover, IRS enforcement of the Johnson Amendment against such speech would be constrained by the “church autonomy doctrine,” as interpreted in this circuit....

Based on this precedent, the Government could not prevail in a tax-enforcement action premised on the type of speech described in the consent judgment: “speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.”... Deciding whether such speech violates the Johnson Amendment, such that a church should lose its tax-exempt status, would require picking apart the religious and political elements of a sermon, which contravenes the church autonomy doctrine.....

Religion News Service reports on the DOJ brief.

Oklahoma Cannot Require State-Funded Charter Schools to Be Secular

In National Ben Gamla Jewish Charter School Foundation v. Shellem, (WD OK, Sept. 24, 2026), an Oklahoma federal district court issued a preliminary injunction prohibiting Oklahoma from enforcing a provision in its Charter Schools Act that requires a charter school to be “nonsectarian.” The court said in part:

Here, like in Carson [v. Makin], the state created a generally available benefit: the opportunity to apply for and contract with a sponsor to establish a charter school. But the state categorically excludes religious institutions from participating. As Carson plainly stated, “[t]hat is discrimination against religion.”...  The nonsectarian requirement “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character” and in doing so, violates the Free Exercise Clause of the First Amendment. Trinity Lutheran, 582 U.S. at 462. Oklahoma’s purported interest in a “greater separation of church and State than is already ensured under” the federal constitution “cannot qualify as compelling” in the face of a free exercise violation....

The Defendant-intervenors have a rejoinder to Carson and its forerunners. They argue that this line of authority does not apply because charter schools are either governmental entities, engaged in state action, and/or public schools, and it would plainly violate the Establishment Clause for a state actor or public school to promote religion. These arguments are not without force. But a district court is obliged to follow Supreme Court precedent and the Court is persuaded that the relevant cases support Plaintiffs’ position....

Oklahoma Voice reports on the decision.

Dispute Over Access to A Rabbinical Court Lands on Supreme Court's Shadow Docket

Last week, an Emergency Application (full text) was filed with the U.S. Supreme Court seeking a stay pending appellate review in Strulovich v. Bain, (Sup. Ct., filed 9/17/2026). The case involves a dispute between business associates over whether their business issues should be decided by a rabbinical court or a civil court, and if the former, which rabbinical court. (See prior posting and decisions below).  The Emergency Application filed with Justice Sotomayor says in part:

A New York trial court has directly intruded on the free exercise of religion by ordering Applicant Samuel Strulovitch, who is a religious Jew, to refrain from trying to resolve a monetary dispute in a rabbinical court (Hebrew: “beis din”), as he sincerely believes he must. That alone would be extraordinary. But the trial court went further still by ordering Strulovitch to attempt to convince that same rabbinical court to reverse a religious determination that he agrees with.  

In this case, Strulovitch brought an underlying commercial dispute between two Jewish parties to a beis din, attempting to have the parties voluntarily agree to resolve it under Jewish law—as he sincerely believes he must. The beis din then issued a seruv (a religious censure of recalcitrance, with no civil consequences) against Respondent Moshe Bain for having previously sought and obtained an order enjoining Strulovitch from fulfilling his obligation under Jewish law to pursue his case in Jewish court. Strulovitch believes the beis din was right, as a matter of Jewish law, to issue the seruv.... The trial court nonetheless ordered him to cease his efforts before the beis din and “take all steps necessary” to undo the seruv, including withdrawing the proceeding altogether....  

That unconstitutional order squarely violates the First Amendment....

Justice Sotomayor ordered Bain to file a response to the petition by Sept. 23.

National Review reports on the case.

Homeschooling Parent Sues Over Discrimination Against Religious Homeschooling Materials

Oregon's Hillsboro School District has a Homeschooling Partnership program that, among other things, reimburses homeschooling parents for educational materials. However, the district will not reimburse parents for curricular materials that are embedded with a religious perspective. A homeschooling parent filed suit this week in an Oregon federal district court challenging this policy. The complaint (full text) in Bulzan v. Hillsboro School District, (D OR, filed 9/22/2026), contends that the district's refusal to reimburse plaintiff for Christian centered curricular materials violates plaintiff's rights under the 1st and 14th Amendments. The complaint alleges in part:

83. Through HSDHP, the District reimburses materials and experiences that promote a wide range of worldviews, including instruction that contradicts Christian beliefs and instruction with other spiritual themes....

130. District and HSDHP staff repeatedly declined Mrs. Bulzan’s reimbursement based only on the religious character of her homeschooling curriculum....

212. For Mrs. Bulzan, government school is premised on assumptions that are antithetical to her faith, and thus a government-school curriculum cannot educate her children consistent with her religious beliefs....

246. ... States cannot “discriminate[] against otherwise eligible recipients by disqualifying them from a public benefit” based on “religious character.” Trinity Lutheran, 582 U.S. at 462. 

247. ... Oregon does not have to subsidize homeschool materials, but once it “decides to do so, it cannot disqualify some [homeschool materials] solely because they are religious.”...

271. Because Defendants substantially interfered with Mrs. Bulzan’s religious upbringing of her children—an “unacceptable” burden on religious exercise—Defendants’ actions receive strict scrutiny regardless of whether the policy is neutral and generally applicable....

288. Mrs. Bulzan’s right to direct her children’s education and upbringing includes the right to homeschool, and specifically the right to use religious instruction in her homeschool....

307. Defendants’ actions implicate—and violate—the First Amendment because they put “restraints on the way” that Mrs. Bulzan can speak by refusing to provide otherwise available funds for that speech,...

322. Where, as here, the government’s differential treatment is based on religion, the Equal Protection Clause demands strict scrutiny....

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

Injunction Pending Appeal Denied in Challenge to Maine's Vaccination Requirement for School Children

As previously reported, earlier this month a Maine federal district court rejected free exercise and Establishment Clause challenges to Maine's compulsory vaccination law for school children (20-A M.R.S. § 6355). The next day, plaintiffs filed a motion asking for an injunction barring enforcement of the compulsory vaccination law pending appeal. In We the Patriots USA, Inc. v. Makin, (D ME, Sept., 22, 2026, the court denied the motion, saying in part:

Plaintiffs first argue the Court erred by assessing the “character” of the burden § 6355 imposes rather than its “degree.”... Plaintiffs essentially argue the Order rested on a “distinction between the kind of burden and its degree” that is not recognized by the relevant Supreme Court case law.... Plaintiffs assert that, absent this error, the Court should have applied a strict scrutiny analysis to § 6355, which they contend would not have survived that standard....

As this Court’s prior Order recognized, Yoder, Mahmoud, and Mirabelli each involved a school itself acting directly toward a child to compete with the parents for the child’s own beliefs—conduct that § 6355 does not involve.... Further, the character of the burden on Mr. Childs’ sincere religious beliefs is not of the kind contemplated in the Yoder line of cases....  

... The Order ... applied the standard Tandon and Fulton prescribe: it identified Maine’s asserted interest in the vaccine mandate and asked whether each exemption undermines that interest to the same degree a religious exemption would.... Plaintiffs’ motion does not identify any exemption the Order failed to analyze under that standard....