New Case Challenges Oklahoma's Rejection of Religious Charter School Application

The battle over the constitutionality of Oklahoma authorizing and funding a religious charter school took another step forward on Monday. As previously reported, in May 2025, the U.S. Supreme Court split evenly, 4-4, on the constitutionality of such a school. The even split was caused by Justice Barrett recusing herself. Subsequently, a new test case was created as the National Ben Gamla Jewish Charter School Foundation. applied to create for a statewide virtual high school. The Oklahoma Statewide Charter School Board voted to reject the application and gave as its formal reason only that under Oklahoma law, a charter school is a public school and must be nonsectarian. 

The Oklahoma Attorney General, apparently in an attempt to create a record that would allow the Supreme Court to avoid the constitutional issue, filed suit against the Charter School Board in a state trial court seeking a writ of mandamus to require the Board to identify and incorporate into the record other valid, non-constitutional grounds for the rejection that exist. (See prior posting). With that case apparently still pending, on Monday the Ben Gamla school filed suit in an Oklahoma federal district court against the Charter School Board and the Attorney General, seeking to overturn the Charter School Board's rejection of its application 

The complaint (full text) in National Ben Gamla Jewish Charter School Foundation, Inc. v. Drummond, (WD OK, filed 3/24/2026), alleges in part:

... Under the Free Exercise Clause ...  a system that precludes religious entities from obtaining generally available state benefits solely because of an organization’s religious character or conduct is unconstitutional unless the government can satisfy strict scrutiny. Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 484 (2020)...

... The exclusion of Plaintiffs serves no compelling, substantial, or legitimate government interest....

The Equal Protection Clause prohibits discrimination on the basis of religion. 

... Okla. Stat. Ann. tit. 70, § 3-136(A)(2) discriminates against religion on its face because it excludes applicants seeking to run religious charter schools from the charter school program. 

... Defendants must therefore satisfy strict scrutiny. 

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

Israel's Knesset Expands Jurisdiction of Rabbinic and Sharia Courts

Israel's Knesset yesterday, by a vote of 65-41, gave final passage to a bill that expands the jurisdiction of the government's Rabbinic and Sharia court systems. According to Times of Israel:

The law, sponsored by the ultra-Orthodox United Torah Judaism and Shas parties, gives the religious tribunals the power to arbitrate civil disputes which are currently the purview of the secular court system. Rabbinical courts were allowed to act as arbitrators in financial disputes until 2006, when a court decision determined that they had no standing to do so....

The law, which initially was set to allow the courts to rule on child custody issues, was amended during the legislative process so that it does not apply to married or formerly married couples. It also does not apply to labor law cases unless the matter was freely initiated by an employee rather than an employer.

The legislation stipulates that religious courts are only allowed to rule on such issues with the consent of both parties and that the rulings reached through rabbinic arbitration cannot violate the Women’s Equal Rights Law or other civil rights statues.

However, critics have asserted that such protections are not enough, given the pressures litigants in religiously conservative communities are likely to face, and that the law will create a power imbalance that’s harmful to weaker segments of society, with women’s rights likely to be affected.

According to the Jerusalem Post, criminal or administrative matters, as well as proceedings in which the state or a local authority was a party are also excluded.

3rd Circuit: Prison Officials Have Qualified Immunity in Inmate's Lawsuit Over Right to Receive Religious Pamphlets

In Cordero v. Kelley, (3rd Cir., March 19, 2026), the U.S. 3rd Circuit Court of Appeals held that prison officials who refused to allow an inmate to receive a bulk mailing of religious pamphlets had qualified immunity in a damage action against them alleging violation of the 1st Amendment. The court said in part:

Cordero asserts that his Christian religion requires him to spread the Word of God by sending religious pamphlets, or tracts, to friends and family.  Prior to 2015, Cordero was able to receive hundreds of pamphlets at a time via mail at NJSP without incident.  However, from 2015 to 2017, Gregory Kelley, a correctional officer working in the NJSP mailroom, rejected multiple bulk mailings containing 100 or more religious pamphlets....

We agree with the District Court that the defendants were entitled to qualified immunity on Cordero’s First Amendment claim for damages.  We have found no caselaw clearly establishing a right to either receive through the mail bulk quantities of religious materials, or the right to receive a yearly bulk order of Christian tracts....

Cordero also argues that the New Jersey Administrative Code mandates that he “be permitted to receive, retain and send out religious literature without quantity limitations.”... However, “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”  Davis v. Scherer, 468 U.S. 183, 194 (1984).  Rather, the “clearly established right must be the federal right on which the claim for relief is based.”  Doe v. Delie, 257 F.3d 309, 319 (3d Cir. 2001).  And a “state statute cannot ‘clearly establish’ the federal right for qualified immunity purposes.”  Id.  

1st Circuit: Equal Benefit Requirement for Religious Schools Does Not Extend to All Private Schools

 In Hellman v. Massachusetts Department of Elementary and Secondary Education, (1st Cir., March 20, 2026), parents contended that their children who are enrolled in private schools should be entitled to identical special education services as public school students. Under Massachusetts law, private school students only received such services at off-site locations, while public school students received them in their normal school buildings. Rejecting the parents' due process, equal protection and privileges or immunities claims, the court said in part:

The crux of the Parents' argument is that once the state establishes an otherwise generally available benefit, it may not deny that benefit to a student simply because their parents exercise their fundamental right to enroll their child in private school.  But every case they cite arises under the Free Exercise Clause, not the parental rights doctrine involved here.  (The Parents did not bring a Free Exercise claim; the Place Regulation applies to all private schools, secular and religious alike.)  And those holdings have no bearing on their parental rights claim.  They rest on a distinct, First Amendment principle that prohibits the state from imposing even indirect coercion or penalties on religious exercise... 

That principle does not apply to the parental right.....  [I]t does not require the state to extend public benefits on identical terms to private and public school students to protect the parents' choice of forum.

Recent Articles of Interest

From SSRN:

• Tomas Griskevicius, Institutional Violence: The Case of an Alleged US CIA Prison Operating in Lithuania, (February 28, 2026).
• Caroline Mala Corbin, Law Office Science. (March 20, 2026).
• Abu Hayyan Saeed, Islamic History , Bride of Orientalism or Witch of Atheism?, (January 01, 2026).
• Allison Whelan, The Case for Professional Disobedience, (Georgia State University College of Law, Legal Studies Research Paper (2026)).
• Heric Martell Sanctis, The Limits of Agency: A Neurobiological and Praxeological Defense of Abortion Rights from Liberal Self-Ownership, (March 07, 2026).
• Ethan Perkins, After Dobbs: A Neuroscientific Standard for Constitutional Personhood, (February 28, 2026).
• Caitlin Millat, Parents As Regulators, (74 UCLA L. Rev. __ (2027) (forthcoming)).
• Paul Benjamin Linton, Therapeutic Abortions Before Roe: An Examination of the Language and Interpretation of Abortion Prohibitions (February 25, 2026).

From SmartCILP:

• Ali Rod Khadem, Islamic Finance, Commercial Law, and Economic Justice: Apocalyptic Challenges to the Global Order, 39 Emory International Law Review 643-704 (2025).

Detroit Abortion Clinic Buffer Zone Ordinance Challenged

Suit was filed last week in a Michigan federal district court challenging a Detroit ordinance that bans picketing within 15-feet of abortion clinics and bans sidewalk counselors from approaching closer than 8 feet from persons entering clinics. The complaint (full text) in Sidewalk Advocates for Life v. City of Detroit, (ED MI, filed 3/18/2026) alleges in part:

The Ordinance, which is enforceable through criminal penalties, violates the Free Speech, Free Exercise, and Freedom of Assembly Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as well as the Michigan Constitution....

... The legislative record contains no evidence that the City attempted to address its asserted interests through less restrictive means before enacting the Ordinance. The City did not pursue targeted injunctions against specific individuals. It did not increase enforcement of existing harassment, assault, obstruction, or trespass statutes. It did not seek dispersal orders. It moved directly to a blanket ordinance outlawing an entire category of expressive activity on public sidewalks....

...The Free Exercise Clause of the First Amendment ... prohibits the government from imposing substantial burdens on the exercise of sincerely held religious beliefs unless the burden is imposed by a neutral law of general applicability....

The Ordinance is not generally applicable because § 31-14 4(b)(2) exempts “[a]uthorized security, personnel, employees, or agents” of healthcare facilities who are “engaged in assisting patients and other persons to enter or exit” the facility. This exemption permits clinic employees and escorts to engage in the precise conduct the Ordinance forbids for everyone else: standing within 15 feet of the entrance, approaching patients, speaking to them, and walking alongside them within the buffer zone. Under the framework of Tandon v. Newsom ... and Fulton v. City of Philadelphia ... whenever the government treats comparable secular activity more favorably than religious exercise, the law is not generally applicable and strict scrutiny applies automatically. One exemption suffices to create constitutional infirmity.

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

Justice Department Sues Harvard for Title VI Violations

In a press release on Friday, the Justice Department announced that it has filed suit in a Massachusetts federal district court against Harvard University for discrimination against Jewish and Israeli students in violation of Title VI of the 1964 Civil Rights Act.  The 44-page complaint (full text) in United States v. President and Fellows of Harvard College, (D MA, filed 3/20/2026) alleges in part:

In the wake of Hamas’ October 7, 2023, terrorist attack on the State of Israel, Jewish and Israeli students at Harvard University were harassed, physically assaulted, stalked, and spat upon. For several years, Jewish and Israeli students endured a hostile educational environment. They were repeatedly denied access to educational facilities by antisemitic demonstrators. Fearful for their safety, Jewish students wore baseball caps to conceal their yarmulkes or kept out of sight, effectively denying them access to Federally funded educational opportunities. 

Harvard’s response to this: do nothing. Its faculty and leadership turned a blind eye to antisemitism and discrimination against Jews and Israelis. Students and faculty violated Harvard’s time, place, and manner rules with impunity; rules that Harvard has and would enforce against anyone else.... Harvard fostered and continues to foster a campus climate where hostile antisemitism and anti-Israeli conduct thrives....  

...  Harvard has failed to enforce its rules or meaningfully discipline the mobs that occupy its buildings and terrorize its Jewish and Israeli students. Harvard instead rewarded students who assaulted, harassed, or intimidated their Jewish and Israeli peers. 

Whenever Harvard accepts a grant from the United States, or seeks to draw funds, it certifies compliance with Title VI of the Civil Rights Act of 1964.... Harvard is currently set to receive more than $2,615,000,000 of taxpayer money under active federal grants from the Department of Health and Human Services alone (to say nothing of other agencies).... Harvard remains in violation of its Title VI obligations....

... The United States cannot and will not tolerate these failures and brings this action to compel Harvard to comply with Title VI, and to recover billions of dollars of taxpayer subsidies awarded to a discriminatory institution.

Supreme Court Says Street Preacher May Challenge Limit on Demonstrations Despite His Prior Conviction

In Oliver v. City of Brandon, Mississippi, (Sup. Ct., March 20, 2026), the U.S. Supreme Court held that a street preacher may move ahead with his challenge to a city ordinance that limits protests and demonstrations around the city's amphitheater to a designated area when events are scheduled at the amphitheater. The city argued that because the preacher had been convicted of violating the same ordinance several years earlier, the Supreme Court's decision in Heck v. Humphrey bars the suit. Heck prohibits the use of 42 USC §1983 to challenge a prior conviction or sentence in order to obtain release from custody or to obtain an award of damages. Today the Supreme Court held that this does not bar the street preacher's suit because he is only seeking an injunction to prevent future enforcement of the ordinance. The fact that a victory in his suit would mean that his prior conviction was unconstitutional does not mean that it is barred. Justice Kagan's opinion for a unanimous court said in part:

Olivier’s suit does not ... “collateral[ly] attack” the old conviction.....  It thus cannot give rise, as Heck feared, to “parallel litigation” respecting his prior conduct.... The suit, after all, is not about what Olivier did in the past...  Unlike in Heck, the suit merely attempts to prevent a future prosecution....

... [T]he City says, a judgment in Olivier’s favor would “necessarily imply the invalidity of [his] prior conviction[].”... To declare the city ordinance unconstitutional, as Olivier seeks, would be to imply that no one—including Olivier—should have been convicted under that law. 

The argument is a fair one, but hardly dispositive.  We have to agree that if Olivier succeeds in this suit, it would mean his prior conviction was unconstitutional.  So, strictly speaking, the Heck language fits. But that could just show that the phrasing was not quite as tailored as it should have been....

We think, with the benefit of hindsight, that ... the sentence relied on swept a bit too broad.  That language was used in Heck to identify claims that were really assaults on a prior conviction, even though involving some indirection.

Cert. Petition Filed in RLUIPA Zoning Case

 A petition for certiorari (full text) was filed yesterday seeking U.S. Supreme Court review in Missionaries of St. John the Baptist, Inc. v. Frederic. 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 in Park Hills, Kentucky to honor the Virgin Mary’s appearance at a grotto in Lourdes, France. The Kentucky Supreme Court concluded that denial of a permit and variances did not impose a substantial burden on the church's religious exercise. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

HHS Launches Investigations of 13 States for Violating Conscience Rights

Yesterday, the Department of Health and Human Services, Office for Civil Rights, announced that it has launched investigations of 13 states for potential violations of the Weldon Amendment's protection of conscience rights. According to the Release, these states may be relying on a now-rescinded interpretation that allowed states to require health plan sponsors and employers to provide abortion coverage because they do not meet the definition of “health care entity” under the Weldon Amendment. According to the Release:

The Weldon Amendment ... protects Americans’ conscience rights by prohibiting federal, state, or local government discrimination against health care entities that choose not to pay for, or provide coverage of, abortion. OCR ... earlier this year ... repudiated a 2021 case-specific letter that excluded employers and plan sponsors from the scope of health care entities that the Weldon Amendment protects.  OCR informed states ... that they should no longer rely on the now-repudiated legal position.

“OCR launches these investigations to address certain states’ alleged disregard of, or confusion about, compliance with the Weldon Amendment,” said Paula M. Stannard, Director of the HHS Office for Civil Rights. “Under the Weldon Amendment, health care entities, such as health insurance issuers and health plans, are protected from state discrimination for not paying for, or providing coverage of, abortion contrary to conscience. Period.”

High School Teacher Did Not Violate Constitution in Counseling Muslim Student Who Converted to Christianity

In Chaudhry v. Thorsen, (ND IL, March 18, 2026), an Illinois federal district court rejected Establishment Clause, substantive due process, and equal protection claims against Pierre Thorsen, a high school history teacher, brought by Muslim parents of one of Thorsen's students. According to the court:

Entering Jacobs High School, Aliya—the daughter of Chaudhry and Alvi—identified as Muslim but was actively questioning her faith. In two classes with Thorsen, she established a strong rapport with him. She trusted him enough to approach him and ask personal questions related to her faith, having conversations before and after school....  As Aliya gradually chose to convert from Islam to Christianity, Thorsen grew concerned for her well-being given the ongoing family dynamics that she professed to him. He connected her to resources in the community, some of which included his own personal connections: a neighbor, a pastor, and former students. He also, at her request, gave her a Bible from one of these connections.....

Parents suffer no legal injury when their child uses his or her own free will and independent judgment to embrace beliefs that differ from their own.... 

Thorsen’s actions weren’t coercive. He never forced Aliya to talk to him. Rather, she initiated their conversations. When they talked, he didn’t badger Aliya into changing her beliefs. Instead, he talked with her about his own beliefs while also encouraging her to speak to her parents and an imam when she expressed doubts about her religion. It may not have been appropriate for Thorsen to ... connect her with adults in the community, particularly without at least looping in Jacobs’ administration or social workers, if not Aliya’s parents. But this doesn’t violate the Constitution, because Aliya wasn’t coerced into religious activity. Inappropriateness doesn’t necessarily violate the Constitution....

Distinguishing between “historical” teachings consistent with what every high school history student should know and “theological” lessons better reserved for Sunday School is a difficult line to draw, but, wherever it is drawn, Thorsen didn’t cross it. 

As a matter of law, Thorsen’s actions didn’t impermissibly establish religion in violation of the Establishment Clause....

The leap required to get from his actions—assisting Aliya in a pre-existing religious journey—to a nefarious discriminatory intent against Muslims as a class, is far beyond the capabilities of a reasonable jury, and the Court can’t allow the claim to proceed as a matter of law.

4th Circuit Hears Oral Arguments In 3 Employment Discrimination Cases Involving Religiously Affiliated Institutions

On March 17, the U.S.4th Circuit Court of Appeals heard oral arguments in three cases of interest:

(1) In Zinski v. Liberty University, Inc., (audio of full oral arguments) the court heard an appeal in a Virginia federal district court case. The district court had refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. (See prior posting).

(2) In Doe v. Catholic Relief Services, (audio of full oral arguments), the court heard an appeal in a Maryland federal district court case that held that the religious corporation exemption from the Maryland Fair Employment Practices Act does not apply to the termination of spousal health care benefits of the same-sex spouse of a data analyst and advisor working for Catholic Relief Services. (See prior posting.)

(3) In General Conference of Seventh-Day Adventists v. Horton, (audio of full oral arguments) the court heard an appeal in a Maryland federal district court case which denied a preliminary injunction in a suit challenging the Maryland Supreme Court's interpretation of the religious exemption in the Maryland Fair Employment Practices Act. The Maryland Supreme Court has held that the exemption is limited to claims brought by employees who perform duties that directly further the core mission of the religious entity. (See prior posting).

President Issues Eid al-Fitr Message

 The White House yesterday posted a Presidential Message on Eid al-Fitr which reads:

The First Lady and I send our best wishes to every American celebrating Eid al-Fitr.

Eid al-Fitr, also known as the Festival of Breaking the Fast, unites Muslim families, friends, and communities in honor of their spiritual devotion at the conclusion of Ramadan.  It also serves as a reminder of the foundational American principle of religious liberty, which my Administration is fighting for every day.

We offer our warmest greetings for a blessed Eid al-Fitr to all who celebrate.

Husband's Religious Objections to Divorce Were Inappropriate Basis for Sanctions or Restraining Order

Hoch v. Hoch, (CA App., Feb. 17, 2026) (certified for publication 3/12/2026), is an appeal from family court orders relating to sanctions and domestic violence restraining orders (DVRO) issued in marriage dissolution proceedings involving a Jehovah's Witness couple. Among other holdings, the California state appellate court reversed the DVRO issued against the wife and affirmed the DVRO against the husband. The court also reversed monetary sanctions issued against the husband under Section 271 of the Family Code, but affirmed other monetary sanctions issued against him. The court said in part:

Michael contends that imposition of sanctions against him under section 271 violated his rights under the free exercise clause of the First Amendment to the United States Constitution. He claims that as a practicing and devout member of the Jehovah’s Witness faith, he could not stipulate to allowing Marcie to amend her petition for legal separation to allege dissolution instead without violating his religious beliefs. 

We need not address whether the sanctions against Michael under section 271 violated his constitutional right of free exercise of religion. The trial court abused its discretion under section 271 by imposing monetary sanctions against Michael for not stipulating to permit Marcie to amend her petition for legal separation by converting it into one for marital dissolution. Stipulating by its nature is not obligatory. Michael expressed what he believed to be a “conscientious” reason for declining to stipulate: Due to his religious beliefs, he was not comfortable with “facilitating” a divorce. Whether or not that reason amounts to a legitimate claim under the federal constitution’s free exercise of religion clause is a question we need not decide. Michael’s concern was reasonable and, it appears to us, held in good faith. No evidence was presented that would lead us to conclude to the contrary....

Among the actions which the family court cited as giving rise to a restraining order [against the husband] was Michael’s “inappropriate use of religion to control [Marcie], including, but not limited to, in the instant marital dissolution action.”... The only such instance of inappropriate use of religion expressly identified by the family court was “compelling [Marcie]’s filing of a dissolution action because [Michael] wanted to control whether or not [Marcie] could seek a legal separation and, later, a dissolution of marriage.” We need not decide whether the court infringed Michael’s right of free exercise in order to conclude this was an erroneous ground for a restraining order. Michael had a statutory right not to agree to a legal separation if he did not want one. The other grounds cited by the trial court are, however, sufficient in themselves to support the DVRO against Michael.