Court Allows Suit by Jewish School Denied Zoning Approval to Move Ahead

Bet Midrash Ohr Hachayim Hakadosh, Inc., v. City of Hollywood, Florida, (FL Bkr., Aug. 28, 2026), is a civil rights action being pursued in federal bankruptcy court because plaintiff is in Chapter 11 federal bankruptcy proceedings and the case is related to those proceedings. The court said in part:

Plaintiff Bet Midrash Ohr Hachayim Hakadosh, Inc., is a Jewish religious nonprofit that operates a synagogue. It purchased commercial property ... in Hollywood, Florida with the intention of opening a K–12 Jewish day school. To do so, it needed a special exception under the City of Hollywood’s Zoning and Land Development Regulations. The City denied Bet Midrash’s special exception application. Bet Midrash contends the denial was unconstitutional – that the City applied a zoning scheme that has already been found unconstitutional in another case by a District Court Judge in this District, and that the denial violated its First and Fourteenth Amendment rights.

Defendant City of Hollywood moved to dismiss the complaint ..., arguing that the special exception criteria are facially neutral and generally applicable, that they are subject only to rational basis review....

... [T]he City argues that the as-applied challenge ... is deficient because Bet Midrash does not allege that the City applied the special exception criteria in a manner that was hostile to its expressive activity, or that the City selectively enforced the special exception provision against it.... Second, Bet Midrash argues that it is engaged in First Amendment protected activity – operating a synagogue and seeking to expand into religious education – and that the Free Exercise Clause protects that activity...

The First Amendment protects the free exercise of religion. Religious education – particularly the operation of a Jewish day school by a religious nonprofit that also operates a synagogue – is a form of religiously motivated conduct protected by the Free Exercise Clause.  At the pleading stage, the Court accepts these allegations as true. Whether Bet Midrash can ultimately prove that its proposed school constitutes protected religious exercise is a question for another day. For now, the allegations are sufficient....

Maine Supreme Court Upholds Ending Mother's Sharing in Control of Daughter's Religious Upbringing

In Bickford v. Bradeen, (ME Sup. Ct., Sept. 1, 2026), the Maine Supreme Court upheld a trial court's decision to modify an order originally issued in 2013 that gave the separated parents of an infant daughter shared parental rights on all matters. In modifying the order, the trial court concluded that the parties were unable to co-parent on matters of the child's religious upbringing (as well as on medical decision making for the child). The Amended Order allocated religious decision making (as well as medical decision making) to the father. The mother contended that the Amended Order's provisions on religious decision making violated her 1st Amendment rights. The Maine Supreme Court upheld the trial court's modifications, though on different grounds than the trial court used. The Supreme Court said in part:

... [W]e determine that the [trial] court erred by applying strict scrutiny.  We instead conclude that courts may always use the best-interest standard to allocate parental rights between two parents, and that the Constitution protects the religious rights of parents by prohibiting religious bias or hostility from influencing a court’s best-interest analysis.

The Maine Supreme Court described the evidence that led to the trial court's conclusion: 

[The mother, Emily] Bickford started attending church services at Calvary Chapel Greater Portland in May 2021, bringing the child to multiple services per week....

 ... Calvary Chapel teaches the Bible “verse by verse, chapter by chapter.”  This entails sermons that include ... “quite vivid description[s]” of Hell....  [The church's pastor] testified that he preaches about the “Second Coming of Christ,” which will involve “seven years of . . . pure hell on earth under the persecution of ...  the Antichrist” for those who have not “accept[ed] the terms of God.”  

The child has experienced fear and anxiety associated with these teachings.  The child has asked [her father, Mathew] Bradeen a lot of questions about Heaven and Hell and about why Bradeen and his other child would not be in Heaven with her.  The child has left notes around Bradeen’s house because she fears that the Second Coming is approaching and that Bradeen will be left behind.  The child has experienced panic attacks related to these topics.

Bradeen reached out to Bickford to express his concerns.... Bickford’s response was that she lives under God’s law, not the state’s law.  Bickford does not believe the child is, or should be, experiencing any anxiety, because she and the child “just pray” and “give it to God.”...

In a press release, Liberty Counsel that represents the mother said it will petition The U.S. Supreme Court for review.  AP reports on the decision.

Federal Court Settles Application of Michigan's Civil Rights Act to Catholic Institutions

In two lengthy opinions issued last month, a Michigan federal district court granted summary judgment to the state, dismissing pre-enforcement civil rights actions, one brought by a Catholic parish-run school and school parents, and the second brought by a Christian medical services ministry. Both suits allege that Michigan's Elliot-Larsen Civil Rights Act (ELCRA) violates plaintiffs' 1st and 14th Amendment rights by interfering with their faith-based employment policies and other policies reflecting their religious views. In 2025, the parties agreed to the application of the ELCRA to a number of situations. The recent decisions dismissing the complaints settle a number of remaining issues.

In Sacred Heart of Jesus Parish v. Nessel, (WD MI, August 5, 2026), the court said in part:

In summary, the ELCRA survives the challenges posed in this case. Sacred Heart has not demonstrated that either the "co-religionist doctrine" or the right to expressive association protect its employment choices. Conversely, the ELCRA, via § 403 and the First Amendment, adequately protects Sacred Heart, including its policies regarding admissions, pronouns, sexual orientation, restrooms, uniforms, and sports teams. Consequently, the relief Plaintiffs seek is not warranted. Defendants, in contrast, are entitled to judgment as a matter of law on these issues.

In Christian Healthcare Centers, Inc. v. Nessel, (WD MI, August 5, 2026), the court said in part:

In summary, the ELCRA survives CHC's challenges. CHC has not demonstrated that the "co-religionist doctrine," the right to expressive association, or the right to assembly protect its employment choices. Conversely, the ELCRA, via the First Amendment, provides that CHC can hire whomever it chooses for its Biblical Counsel and Physician positions and can maintain its pronoun policies and gender-affirming care policies that are grounded in sincere religious beliefs. Consequently, the declaratory and injunctive relief CHC seeks is not warranted. Defendants, in contrast, are entitled to judgment as a matter of law on these issues.

4th Circuit Debates When the Reason for Seeking an Accommodation Under Title VII Is "Religious"

In Wilkins-Bailey v. Essity Professional Hygiene North America, LLC, (4th Cir., Sept. 1, 2026), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that a North Carolina federal district court wrongly granted summary judgment to an employer charged with religious and racial discrimination under Title VII. The employer denied an exemption from its Covid vaccine mandate to a black female sales administrator who is a Jehovah's Witness. Plaintiff's refusal to be vaccinated led to her dismissal by the company. The company contended that plaintiff's reasons for seeking an exemption were secular, not religious. In rejecting that contention, the 4th Circuit's majority said in part:

... Wilkins-Bailey, by connecting her refusal to vaccinate to her belief that her “body is a temple,” has based her claim on a belief which is religious....  She blends her explanation of her beliefs with numerous references to personal safety and the natural or non-natural character of vaccination and other medical treatments, as well as historical concerns about discriminatory practices in medicine.....

Even so, we think it is plainly clear that Wilkins-Bailey has connected her refusal to receive the COVID-19 vaccine with her religious beliefs by stating that it “is God’s law” that she must “be protective of [her] temple.”... Indeed, a claimant’s mixed secular and religious motives do not preclude protection under Title VII....

Wilkins-Bailey has clearly provided sufficient evidence to permit a jury to find that her refusal to vaccinate is connected to her religious beliefs....

Moreover, “courts should not expect, much less require, exemption requests to sound like they were written by someone with legal training.”...

Even though Wilkins-Bailey’s beliefs are sufficiently religious, it may be that they do not impose on her a “religious obligation to refuse” vaccination....  Essity contends that because Wilkins-Bailey believes she may personally interpret the requirements of her religion, that her interpretation is therefore the product of a “personal decision.”...

We do not agree.  This interpretation of Title VII would leave millions of religious Americans unprotected in their workplaces.  Many religions permit and even encourage their adherents to discern or interpret official texts, teachings, and tenets in order to decide for themselves which actions are required to fulfill religious obligations.  Some religions have no centrally managed canons, nor agreed-upon sacred commandments.... Title VII protects even those religions which do not require strict adherence to a written catechism....

The court, however, affirmed dismissal of plaintiff's racial discrimination claim, saying in part:

Essity has proffered a nondiscriminatory reason for its differential treatment of Wilkins-Bailey and her posited white comparators: it viewed their requests as stating “religious” reasons, while Wilkins-Bailey’s stated “secular” reasons....  For the purposes of a race discrimination claim, that differentiation is a legitimate nondiscriminatory reason....

Judge Floyd dissented as to the religious discrimination claim, saying in part: 

I would ... require a plaintiff bringing a religious accommodation claim to put forward more than a mere scintilla of evidence to factually support the conclusion that her belief is connected with her refusal to comply with an employment requirement....

Wilkins-Bailey has not presented the court with a record that could allow a jury to find that her refusal to receive the vaccine is connected to her religious beliefs....

In practice, the majority’s low evidentiary bar would allow any plaintiff who brings a religious discrimination claim to reach a jury so long as they testify that their personal decisions are cloaked in religiosity.  This is improper at summary judgment stage....  Under the majority’s reasoning, an employee who obliquely references Psalm 127:2 ... (“In vain you rise early and stay up late, toiling for food to eat—for he grants sleep to those he loves.”) to refuse to work before noon creates a jury question as to whether the company religiously discriminates when it declines to accommodate that employee’s schedule....

... Wilkins-Bailey prays and then reaches a personal decision, and she concedes that she is not obliged by her religion to come to a particular conclusion.  Her belief that her religion vests her with the ability to make that personal decision is one step removed from her ultimate decision.  Indeed, Wilkins-Bailey “concedes that none of her religious beliefs requires [sic] her to object to the COVID-19 vaccine.”...

InterVarsity Christian Fellowship Sues for Recognition as Student Organization

Suit was filed last week in a New York federal district court by a Christian student organization at Broome Community College that is part of the State University of New York system. The group was denied recognition as an official student organization because its proposed constitution requires all student leaders of the organization to affirm its Statement of Faith. The school says that this religious leadership requirement violates the school's non-discrimination policy. The complaint (full text) in Intervarsity Christian Fellowship/USA v. SUNY Broome Community College, (ND NY, filed 8/21/2026), alleges in part:

... [I]n over 150 years of precedent, the Supreme Court has emphasized that religious organizations have the right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”... SUNY Broome’s actions here not only interfere but also seek to control a core component of InterVarsity’s governance, faith, and doctrine....

... [I]n the past decade, the Supreme Court has warned governments three times that they cannot deny religious organizations access to benefits because of their religious beliefs....

In 14 counts, the complaint alleges violation of the free exercise, free speech and equal protection provisions of the U.S. and New York constitutions as well as violation of New York's Human Rights Law. InterVarsity Christian Fellowship also filed an emergency motion for a preliminary injunction and a Memorandum of Law supporting that motion.

Becket Fund has issued a press release announcing the filing of the lawsuit.

10th Circuit: Misrepresentation Suit Against LDS Church Was Filed After Statute of Limitations Had Run

In In re: The Church of Jesus Christ of Latter-Day Saints Tithing Litigation, (10th Cir., Aug. 31, 2026), the U.S. 10th Circuit Court of Appeals held that a class action lawsuit claiming misrepresentations regarding the use of funds donated to the LDS Church was filed after the statute of limitations had run. Church investment of some donated funds ran counter to the Church's public statements that contributions were promptly used for charitable purposes, and counter to its representations that it was not using tithes to pay for developing a mall in order to revitalize an area near the Church’s Temple Square.

If plaintiffs should have learned of the Church's misrepresentations before October 2020, their October 2023 lawsuit would be untimely. At issue is whether a whistleblower's report that was covered in the Wall Street Journal, Washington Post, Forbes, Fox News and CNN would have caused a reasonable person to investigate. The court said in part:

... [W]e emphasize that it is incorrect to say, as Plaintiffs do, that our holding means that “ordinary donors to a charity are legally obliged to read the Wall Street Journal or Washington Post to ensure that their donations are being honestly and legally used.”... We merely affirm the well-recognized principle that a plaintiff can be charged with knowledge of events that are so widely reported that a plaintiff exercising reasonable diligence should have learned of them.

Compliance With Building Code Does Not Impose Substantial Burden on Plaintiff's Religious Exercise

In Hadez v. City of Springfield, Illinois, (CD IL, Aug. 28, 2026), a state trial court had ordered plaintiff to cease residing in structures on his property that inspectors found to be unsafe and in violation of the city's Building Code. The structures lack toilets, a sewage system, running water and smoke alarms. Plaintiff seeks a preliminary injunction from an Illinois federal district court granting him emergency occupancy of his property. He argues that the city's land use regulations impose a substantial burden on his religious exercise in violation of RLUIPA and the 1st Amendment. According to the court:

Plaintiff claims he is an adherent of the Celestican Church of Christ and holds sincere religious beliefs that require him "to live off-grid in a faith-based tiny-home or POD structure on real property that he owns or controls.".... Plaintiff states that Scripture teaches him Jesus was a carpenter and he acquired the vacant lot at 1705 E. Carpenter Street as an "intentional act of religious exercise and devotion." ... Plaintiff is allegedly homeless due to the state court injunction and order.

Rejecting plaintiff's petition, the court said in part: 

... [T]he City's Zoning and Building Codes are facially neutral ordinances that pertain to public safety, welfare, and the single family nature of the residence. The ordinance does not treat Plaintiff's exercise of his religion differently from any other activity that he might do in his home.... The City is not simply prohibiting Plaintiff from exercising his faith at the property. It is prohibiting him from doing anything at the property while residing there based on health and safety concerns. If Plaintiff's home was built in compliance with the City's Codes, the City would not be seeking to enjoin Plaintiff from living on the property and Plaintiff could practice his religion at his home. Plaintiff has not shown how a structure that meets the City's Code would substantially burden his religious practice. The fact that he might incur significant costs in bringing his property up to code is not enough to show that the regulation imposes a substantial burden on Plaintiff's religious exercise.

Idaho's Abortion Ban Is Found to Be Too Broad; Court Expands Exceptions

In Seyb v. Members of the Idaho Board of Medicine, (D ID, August 13, 2026), decided three weeks ago, an Idaho federal district court in an 81-page opinion held that portions of Idaho's abortion law that impose a nearly total ban on abortions are unconstitutional. The court said in part:

...  [This case] is not an attempt to relitigate Dobbs....  Rather, it is about a pregnant woman’s ability to seek necessary obstetric care under the most difficult and tragic circumstances. It is about whether the state may pick and choose which life-threatening conditions can justify an abortion.... [T]he Due Process and Equal Protection Clauses of the Fourteenth Amendment establish a narrow but fundamental right to abortion when a pregnancy threatens the woman’s life or health....

...  Idaho’s failure to permit a health-of-the-mother exception to the abortion ban represents an outlier position that contravenes basic principles of our constitutional order....  By banning health preserving abortion, Idaho attempts to deny this fundamental right on the basis that the threat of harm comes from a fetus, which depends on the woman for survival. But a pregnant woman’s health is not a state resource to be allocated at the legislature’s whim....

The Court thus holds that the right to a health-preserving abortion is one of the liberties guaranteed by the Due Process Clause. Idaho may not criminalize abortions deemed medically necessary to save the pregnant woman’s life or prevent serious and long-term impairments to her health unless the restriction is narrowly tailored to a compelling state interest. A blanket ban on health-preserving abortions is not narrowly tailored.

... Idaho also may not criminalize abortions that are necessary to prevent the death of the woman from self-harm. The Equal Protection Clause of the Fourteenth Amendment restricts states’ authority to privilege or disadvantage different classes of citizens..... The brain is an organ of the body, and healthcare providers use empirical tools to reliably assess the risk of suicidality and the most effective treatments. It is an affront to human dignity to bar pregnant women from receiving life-saving care on the basis that the threat comes from a mental health condition rather than a physical health condition.

The final question concerns Idaho’s ban on abortion when the fetus will die shortly after birth and for high-order pregnancies where the termination of one fetus increases the chance that the others will survive.... [F]or women without an elevated health risk, no fundamental right is at stake. Under these circumstances, the state remains free to prohibit abortion as long as the restriction is rationally related to a legitimate state interest. Here, Idaho’s policy forces women to remain pregnant for weeks or months knowing that the outcome will be to watch their child die, often within minutes of birth. Nonetheless, the law is rationally related to the state’s interests in, for example, preventing abortions based on mistaken fetal diagnoses and affirming the dignity of people with profound disabilities. This aspect of Idaho’s abortion ban passes constitutional muster....

The Lawyering Project issued a press release announcing the decision and has posted links to all the pleadings in the case.

Immediately, the Idaho Attorney General announced that he would be appealing the case and sought an emergency stay of the injunction, pending appeal. In an August 25 decision, the district court narrowed the injunction to ban enforcement only against the plaintiff in the case while the appeal is pending, rather than more broadly against all doctors. KTVB News reports on these developments.

On August 26, Idaho's Attorney General filed an emergency motion and a memorandum in support of it asking the 9th Circuit Court of Appeals to stay the district court's injunction while an appeal is pending. Zeale News reports on this filing.

Court Says No "Substantial Burden" On Religion When Impacted Belief Is Not Central to Plaintiff's Religion

 In John v. Aviles-Ramos, (ED NY, Aug. 27, 2026), a New York federal district court rejected claims by a former special education teacher that his former colleagues and supervisors discriminated against him because he was a Jehovah's Witness and placed a substantial burden on his practice of his religion. Rejecting plaintiff's free exercise claim, the court said in part:

This claim is based on three alleged instances of misconduct.  First, that he was forced to sing “happy birthday” during school birthday celebrations; second, that he was required to bring his students to a school Christmas party; and third, that he was asked to take down a “God is love” sign....  Plaintiff fails to demonstrate that Defendants imposed any policy targeting his religion, and none of the alleged incidents of misconduct rises to the level of a violation of his right to free exercise of his religion....

As an initial matter, Plaintiff has not shown that the alleged incidents of misconduct resulted from non-neutral policies.... The Complaint does not allege any facts suggesting that the school’s policies surrounding the birthday parties, the Christmas celebration, or the affixing of religious signs were created specifically to target Jehovah’s Witnesses. 

In any event, Plaintiff fails to demonstrate that the incidents he describes substantially burdened his freedom to exercise his religious beliefs.  The determinative question in assessing whether an action imposes a substantial burden “is whether participation in the [event] . . . is considered central or important to [the plaintiff’s] practice of [his religion].” Ford v. McGinnis, 352 F.3d 582, 593–94 (2d Cir. 2003). “A burden on religious exercise is not substantial when it ‘comfortably could be said that a belief or practice is so peripheral to the plaintiff’s religion that any burden can be aptly characterized as constitutionally de minimis.’”  ...

... Though Plaintiff does not celebrate birthdays due to his religious beliefs, ... there is no basis for his claims that being instructed to sing “happy birthday” at a student’s birthday celebration ... would meaningfully burden his ability to practice as a Jehovah’s Witness.

Plaintiff next alleges that Granger informed him “that he would have to bring the kids to the room” for a Christmas party, and that he “was told there were no exceptions.” ... [A] requirement to merely escort students to a school Christmas party — but without requiring him to actually participate in the celebrations at that party — is not a substantial burden protected by the Free Exercise Clause....

Finally, Plaintiff claims that he was told to take down a sign he had “put up” reading “God is love.” ...  However, it is well established that “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” ...

The court also held that plaintiff failed to allege adequate facts to support his disparate treatment and failure to accommodate claims.

Suit Challenges New Jersey School Policy on Social Transitioning

Suit was filed last week in a New Jersey federal district court challenging a school board's policy on dealing with students who seek social gender transition. The school policy provides in part:

Once a student notifies a school official that s/he would like to be referred to by a different pronoun or name, or requests to use the facilities associated with a different gender, his/her school counselor will meet with the student to confidentially discuss the request. During such meeting, the school counselor will also assess the student’s parent/guardian’s knowledge, if any, of the student’s request. If the student’s parent/guardian is not aware of the request, the school counselor will assess whether, and to what extent, parents/guardians can be involved….

The complaint (full text) in Moms for Liberty v. School District of Chathams Board of Education, (D NJ, filed 8/24/2026) contends that this policy violates recent U.S. Supreme Court decisions. The complaint contends in part:

Parents A and B are practicing Christians who sincerely believe that God created only two genders, male and female....  As Christians, they believe it would be morally wrong to deny one’s God-given status as male or female and purport to be the opposite gender. They also believe that no public school has any right to interfere with the moral and religious formation of their children contrary to their religious beliefs against what they view as the immoral ideology of “transgenderism.”...

These provisions ... further violate the parental rights of Parents A and B by allowing the District to change a student’s name and “gender identity” without parental consent and then allowing the “transitioning” student to live an entire double life at school hidden from his or her parents, solely at the student’s request as affirmed by a school counselor who has no right to interfere in the student’s moral and religious development or to handle the obvious psychological issues involved in a student’s professed gender dysphoria....

Parents A and B have counseled Students C and D to adhere to their Christian beliefs by refusing to pretend that a fellow student has changed his or her gender and must now be referred to by a different name and/or different pronouns that do not correspond to the reality of that student’s God-given gender of male or female.  

Students C and D wish to speak what they believe is the truth of this matter in all its aspects without fear of punishment, both in school and away from school grounds...; For example, they would refuse to say that Tommy is now Sally or that he is now to be referred to as “they” as this would involve uttering what they believe to be lies that contradict their own religious and moral beliefs....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Joshua McDaniel, Courts and Commanders: Regulating Religious Freedom in the Military, (August 24, 2026).
• John M. Breen & Lee J. Strang, Jesuit Identity in American Legal Education: An Historical Examen, (July 23, 2026).
• Jon D. Michaels & Mathew Segal, Misdiagnosing Anti-Jewish Animus: How the Judiciary's Approach to Anti-Zionism Risks Distorting the First Amendment, Excusing Antisemitism, and Imperiling All Civil Rights, (Forthcoming, 48 Cardozo Law Review __ (2027)).
• L. Joe Dunman, Ignoring Religious Sincerity, (August 05, 2026).
• L. Joe Dunman, Mahmoud v. Taylor's Unanswered Questions, (August 26, 2026).
• Michael L. Selmi, Discounting Discrimination:  Title VII's Damage Caps, (Arizona State University Sandra Day O'Connor College of Law Paper No. 7351259 (August 27, 2026).
• Brendan Conner, Self-Misgendering Mandates and the First Amendment Official Duty Doctrine, (Harvard Civil Rights-Civil Liberties Law Review Forum, Vol. 62, pp. 1–59 (2026)).

From SSRN (Abortion Issues):

• Richard T. Stith, An Abortion Option Can Make Women More Vulnerable to Exploitation and Abandonment, (August 26, 2026).
• Paul Benjamin Linton, Are Physicians at Risk for Performing Abortions Permitted Under Exceptions to State Laws Prohibiting Abortion? What The Record Shows, (February 28, 2025).
• B. Jessie Hill, The Reemergence of Religious Freedom Arguments in Abortion Rights Litigation, (26(1) Houston Journal of Health Law & Policy 101 (2026)).

From SSRN (Non-U.S. Law):

• Hein Htet Kyaw, Heretics of the Saffron State: The Rise and Suppression of Sky-Blue Buddhism in Myanmar, (August 24, 2026).
• Yaoharee Lahtee When Interpretation Hardens Epistemic Authority, Asymmetric Revisability, and Conflict in Muslim Knowledge Regimes, (August 27, 2026).
• Liaqat Ali Khoso, Sources of Islamic Law, (August 23, 2026).

Justice Department Issues New Opinion on Federal Grants to Religious Organizations

This week, the Department of Justice Office of Legal Counsel issued a 39-page Opinion captioned:   Constitutionality of Religious Restrictions on the Use of Federal Funds, 50 Op. O.L.C. __ (Aug. 25, 2026). The Opinion updates guidance given in 2019 on the constitutionality of statutes that bar federal funding for programs of faith-based institutions where the funds will be used for religious purposes. The Opinion responds to questions from the Department of Health and Human Services regarding restrictions in several statutes that it administers. The Opinion reads in part:

HHS has asked whether it must update its framework for assessing grants to faith-based organizations in the light of the Supreme Court’s intervening precedent.... Specifically, HHS asked: (1) whether the religious restrictions applicable to HHS are required by the Establishment Clause; and (2) if not, whether they are constitutional under the Free Exercise Clause.... The answer to both questions is no. To the extent our 2019 opinion indicated otherwise,... , it no longer reflects the current state of the law....

The Supreme Court has now “instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings’” from the time the First Amendment was ratified....

To identify the historical practices and understandings relevant to the Establishment Clause, the Supreme Court has pointed us toward the “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”....

“[C]oercion . . . was among the foremost hallmarks of religious establishments....  Additional hallmarks include:  Governmental “control over the doctrine and personnel of the established church.” ... Punishment and suppression of dissenting churches and individuals for their religious exercise.... Restricted political participation for dissenting churches and individuals.... Compelled “financial support for the established church.... Giving the established church “monopolistic control over civil functions”....

...  Having given those legal developments close consideration, we now conclude that the government has less discretion to exclude faith-based funding uses from facially neutral grant programs than our 2019 opinion suggested. ...

From this series of cases ... we draw three free-exercise principles, which together establish an updated framework for analyzing religious restrictions: 

• First, strict scrutiny applies whenever a generally available benefit is denied or burdened on account of religion, whether the trigger is the recipient’s religious status ...  or its “anticipated religious use” of the benefit 

• Second, a funding condition that requires a religious recipient to segregate or suppress religious exercise as the price of its participation is such a burden, and the government may not avoid that conclusion by “reconceptualiz[ing]” the restriction as part of “the definition of a particular program.”... 

• Third, line-drawing among practices that involve “worship,” “instruction,” and “proselytization” is itself constitutionally suspect because it requires the government to make theological judgments and risks denominational favoritism, thus collapsing back into status-based discrimination requiring strict scrutiny.....

Prof. Stephanie Barcclay discussed the Opinion in a posting on X.

[Thanks to Greg Chafuen for the lead.]

Vagueness Challenge to South Carolina's Abortion Law Will Move to Trial

In Bingham v. Wilson, (D SC, Aug. 25, 2026), a suit brought by ob-gyn physicians, a South Carolina federal district court held that there is a genuine dispute as to whether exceptions in South Carolina's Fetal Heartbeat and Protection From Abortion Act are unconstitutionally vague. The court said in part:

Plaintiffs contend that the Health Exception is vague because ... “Serious Risk” and “Substantial and Irreversible Impairment of a Major Bodily Function” are not medical terms that are easily understood and applied by practicing physicians in obstetrics and gynecology.... They also argue that the Health Exception lacks a scienter requirement and instead relies on a “reasonable medical judgment” standard, which they assert worsens its vagueness and fails to provide sufficient guidance for permissible medical practices or enforcement of the Act.... 

Defendants argue that they are entitled to summary judgment because the terms of the Exception can be readily understood and have a plainly legitimate sweep....  Additionally, they argue that ... statutory terms similar to the Health Exception have been utilized for decades.... 

The expert testimony before the Court shows that there is a genuine dispute as to whether the language in the Health Exception is vague....

Plaintiffs argue that the Fatal Fetal Anomaly Exception is vague, in particular because the statutory language “incompatible with sustaining life after birth” is susceptible to numerous interpretations.... Additionally, they again argue that the Fatal Fetal Anomaly Exception lacks a scienter requirement and does [not] provide sufficient guidance for permissible medical practices or enforcement of the Act. ...

Defendants contend ...  the Fatal Fetal Anomaly Exception has an understandable core and a plainly legitimate sweep.... Additionally, they argue that even if the Fatal Fetal Anomaly Exception is vague, it is severable from the rest of the Act.... 

The expert testimony before the Court shows that there is a genuine dispute as to whether the language in the Fatal Fetal Anomaly Exception is vague....

... [T]he Court finds that a bench trial in this case is appropriate because it will allow the Court to more appropriately weigh competing evidence and expert testimony, subject to cross-examinations and objections....

USCIRF Urges Sanctions Against India During Visit of Hindutva Leader

 As reported by The Hindu, India's Mohan Bhagwat, head of the Hindu nationalist Rashtriya Swayamsevak Sangh (RSS) organization, arrived in the United States on Tuesday as part of RSS's 100th anniversary global outreach efforts. He is scheduled to speak to an audience of around 5000 people at Madison Square Garden in New York City on Saturday. On Wednesday, the U.S. Commission on International Religious Freedom issued a Statement (full text) urging the United States to take action to hold India accountable for its religious freedom violations. The Statement reads in part:

... As USCIRF has reported in recent years, members of RSS subgroups have perpetrated violent attacks against religious minorities, including Christians, Dalits, Muslims, and Sikhs.

Under Prime Minister Narendra Modi, India’s ruling Bharatiya Janata Party (BJP) has enforced policies that closely align with the RSS’ Hindutva ideology, inherently discriminating against religious minority communities. The government has also engaged in acts of transnational repression to target religious minorities beyond its borders, including assassination and assassination attempts on members of Sikh communities in North America. 

“Religious freedom conditions in India continue to deteriorate as violence and incitement are frequently used to target religious minority communities,” said [USCIRF] Chair Asif Mahmood. “We urge the U.S. government to consider targeted sanctions against RSS members and Indian officials complicit in religious freedom violations, including revoking the visa issued to Mohan Bhagwat and making him ineligible for future entry into the United States.”

Under the BJP-led government, Indian authorities have failed to prevent, investigate, or punish egregious mob violence against Muslims and Christians. Such vigilante violence is often predicated on enforcing the Indian government’s strict anti-conversion laws predominately targeting Christians and other religious minorities....

Parents Seek State Funds for Catholic School Attendance Without Requirement to First Attend Failing Public School

Suit was filed this week in a Georgia state trial court challenging on free exercise grounds the eligibility requirements for participating in the Georgia Promise Scholarship Program. Plaintiff families live in districts with low-performing public schools. The Promise Scholarship Program requires a student to be enrolled for one year in a failing school in order to qualify for funds to use for alternatives. The complaint (full text) in Tootle v. Green, (GA Super., filed 8/24/2026), alleges in part:

3. Each family knows they could obtain a free education at their assigned public schools.  But they also know that their assigned public schools would substantially interfere with their children’s religious education and that public schools impose a pressure to conform to contrary viewpoints and lifestyles.  From experience, they know that every subject would be taught in a secular manner, and that full school days would leave their children with little time for additional religious instruction.  Plaintiffs also know that peers and teachers would favor secular ways of thinking that denigrate their children’s faith and pressure their children to hide their rich spiritual heritage....

6. ... [T]o be eligible, the Promise Scholarship generally requires that a child must have been enrolled in a public school through two consecutive state enrollment counts—roughly one full school year—before becoming eligible (the attendance requirement), and the child must be assigned to a failing public school (the assignment requirement). 

7. Plaintiffs regard both the attendance requirement and the assignment requirement as burdens on their free exercise.  The attendance requirement substantially burdens free exercise by opening scholarship access only if Plaintiffs forfeit their right to provide a religious education to their children by enrolling them in public school for two semesters.  The assignment requirement substantially burdens free exercise by opening scholarship access only if Plaintiffs subject their families to the stress and financial loss of moving to a failing public school district—harms Plaintiffs believe their religion obliges them to avoid.

8. These substantial burdens would be resolved if Defendant granted a religious accommodation from the attendance and the assignment requirements, so that Plaintiffs would no longer be compelled to forfeit their religious exercise to access public benefits....

WRDW News reports on the lawsuit.

9th Circuit: Futile Reassignment Process Did Not Reasonably Accommodate Religious Objections to Covid Vaccine

In Cherry v. Washington Department of Fish and Wildlife, (9th Cir., Aug. 21, 2026), the U.S. 9th Circuit Court of Appeals held that the Department of Fish and Wildlife did not make adequate efforts in 2021 to reasonably accommodate employees' religious objections to complying with the state's Covid vaccine mandate as required by Title VII. The court said in part:

The Department merely invited the Employees to participate in a “reassignment process” with the caveat that “opportunities may be limited,” which the Employees—perhaps understandably—did not complete.  Title VII requires that the Department take the initial step of proposing a reasonable accommodation that would then trigger any concomitant duty on the employee’s part to cooperate. We disagree with the district court’s conclusion that offering this reassignment process was, as a matter of law, an offer of a reasonable accommodation....

Efforts “to engage in the interactive process” is not the test; rather, the test is for the “employer to prove that it made good faith efforts to accommodate [the] employee’s religious belief.”... [W]hether the process here constituted a reasonable accommodation is best left to a jury.  We cannot say that offering this reassignment process constituted offering an accommodation as a matter of law....

Our conclusion is reinforced all the more by the Department’s failure to offer any material facts suggesting that its “reassignment process” would likely yield a reasonable accommodation.  And the bare-bones facts that the Department does offer do little to assure us of such a prospect.  The State’s data about its “reassignment process” show just a 14 percent chance of placement into some job....

The scheme that Title VII sets forth is straightforward.  The Department has a choice.  Either it proposes a reasonable accommodation ... or it must prove that a reasonable accommodation would produce an undue hardship on the conduct of the Department’s business....

Parents and Students Sue School District Over Field Trip to Mosque

Earlier this month, a number of parents, students and community members filed suit against the Palo Alto school district contending that a 2005 school field trip to a mosque violated the 1st and 14th Amendments as well as various provisions of California law. The complaint (full text) in Community Members for Neutrality in Public Schools v. Kline, (ND CA, filed 8/7/2026), alleges that the field trip violated the Establishment Clause and free-speech rights, saying in part:

2. During the Fall 2025 school-sponsored visit to a mosque, students allegedly were encouraged to wear Islamic religious attire, were given Qurans, observed prayer, engaged with participants in a Quran-memorization program, and were exposed to messaging that portrayed Islam as uniquely aligned with social justice work.  

3. Further, students were photographed in religious attire inside the mosque and that identifiable images of students were later publicly disseminated by the host institution without specific, informed parental consent for photography and public use in a religious context.  

4. Plaintiffs also allege that students were exposed during the same field trip to speaker Zahra Billoo, who is a controversial outside speaker with publicly documented hostile statements concerning Jews, without adequate district vetting, safeguards, or balancing presentation....

56. Defendants, acting under color of state law, organized, sponsored, facilitated, endorsed, and/or permitted school-sponsored activities that had the purpose and effect of endorsing and preferring one religion, specifically Islam, through a public-school program....

61. By allegedly encouraging or requiring students to don religious attire, participate in a religious setting, and appear in photographs that publicly associated them with a particular faith, Defendants compelled expressive conduct and religious association that students and their parents may not have wished to adopt or convey....

The complaint also alleges that the field trip violated federal protection of parental rights as well as the Equal Protection Clause and state law privacy protections, prohibitions on religious discrimination and involved negligent supervision.

On August 19, the Muslim Community Association issued n statement in response to the lawsuit, saying in part:

MCA has a long-standing tradition of welcoming students, teachers, neighbors, and people of all faiths to learn about Islam and the rich diversity of our community. We believe that mutual understanding, rather than fear, builds a stronger and more connected society.

Religion News Service reports on the lawsuit.

DHS's Disqualification of Applicant Who Engages in Protected Religious Use of Psychedelics Supports Title VII Claim

In Reis v. Noem, (SD FL, Aug. 24, 2026), a Florida federal district court refused to dismiss plaintiff's claims under Title VII alleging disparate treatment on the basis of religion and failure to make reasonable religious accommodations. Plaintiff , a Brazilian-American, is a member of  União do Vegetal (UDV), a Christian Spiritist denomination. As part of her religious practices, she uses ayahuasca, a psychedelic tea. In its 2006 Gonzales decision, the U.S. Supreme Court held that under RFRA, the government needs to show a compelling interest in order to prosecute for sacramental use of ayahuasca by UDV members.

Plaintiff was provisionally offered a position as a Customs and Border Protection Officer by the Department of Homeland Security. However, the offer was withdrawn when plaintiff told examiners about her use of ayahuasca. Plaintiff sued. The court said in part:

Defendant ... argues that its drug-use policy constitutes a legitimate, non-discriminatory reason for the Withdrawal Notice because 5 C.F.R. § 731.202(b)(6) authorizes disqualification for "illegal use of narcotics, drugs, or other controlled substances, without evidence of rehabilitation." ... Without a more developed factual record, the Court does not see this argument as a reason to dismiss Plaintiff's remaining claims....  Because classifying Reis's sacramental ayahuasca use as per se "illegal" raises tension with Gonzalez, ..., not sufficiently addressed by Defendant, and because Defendant offers no other argument to buttress its theory on this point, the Court declines to dismiss these claims on the pleadings. Reis has plausibly alleged a disparate treatment claim....

Count II states a plausible claim for failure to make a reasonable accommodation under Title VII. Reis alleges that her sincere religious practice of consuming sacramental ayahuasca tea as a UDV member conflicted with CBP's blanket drug-use policy, that she informed CBP of this conflict and its lawful basis, and that CBP withdrew the offer without engaging in any interactive process or offering any accommodation whatsoever.... The burden of demonstrating undue hardship therefore falls on Defendant.... Defendant offers only generalized assertions that accommodating Reis would create "safety or security" risks.... Generalized assertions are not evidence of a "substantial" burden....

6th Circuit Questions Whether "Secular Purpose" Is Still Part of Establishment Clause Compliance

 In Gordon v. City of Hamtramck, (6th Cir., Aug. 21, 2026), the U.S. 6th Circuit Court of Appeals rejected Free Speech, Establishment Clause and Equal Protection challenges to a city Ordinance that changed the rules on what flags could be flown from a group of 18 city-owned flag poles. The flag poles historically were maintained by the city's Human Relations Committee (HRC). Originally, the city would fly any flag a resident requested. After the HRC honored a resident's request to fly the Pride flag, City Council passed a Resolution limiting flags that could be flown to the American, Michigan, Hamtramck, and Prisoner of War flags, and the flags of nations representing Hamtramck’s international character. When two members of the HRC, in defiance of this Resolution, again flew the Pride flag, they were removed from the HRC and the HRC's authority over city flag poles was removed. The two HRC members sued. The court said in part:

Before Resolution 2023-82, we assume without deciding that the flagpoles conveyed private speech and that they were a designated public forum.  But because we conclude that Resolution 2023-82 closed the flagpoles as a forum for private speech, we hold that the plaintiffs’ free-speech claim fails....

Gordon and Stackpoole ... altogether ignore Kennedy and do not attempt to grapple with its effects on Establishment Clause jurisprudence.  Instead, they cite Lemon and its progeny for the proposition that legislation must have a secular purpose...

... [A]lthough Kennedy recognized the abrogation of “Lemon and its progeny,” ...  it is unclear if it disturbed the Court’s pre-Lemon Establishment Clause case law that requires government action to possess a secular purpose....

Councilmember Choudhury’s statement, during an hours-long hearing, that “we have to respect the religious,” ...  fails to demonstrate that Resolution 2023-82’s primary purpose was to advance religion....

The court also concluded that plaintiffs had forfeited their Equal Protection claim by not developing the claim on appeal.

Judge Thapar filed a concurring opinion, saying in part:

The Resolution doesn’t resemble any founding-era hallmarks of established religion.  The City hasn’t exerted any control over religious belief or exercise by limiting the content of its flag display.  Even assuming religion motivated certain City Councilmembers to pass the ordinance, the City hasn’t compelled its residents to proclaim any religious creed or adopt those Council members’ beliefs.  Rather, Hamtramck’s residents remain free to express their contrary views....

... The Supreme Court couldn’t have been any clearer—Lemon is dead.  But the majority cracks the door open for the ghost of Lemon to keep haunting the Sixth Circuit.  That crack risks subjecting future Establishment Clause plaintiffs to an amorphous test “flawed in its fundamentals, unworkable in practice, and inconsistent with our history and our precedents.”... [W]e should recognize what our sister circuits have already understood:  Any inquiry into whether the government acted with a secular purpose has no place in Establishment Clause jurisprudence.