Religion Clause

Tuesday, September 29, 2026

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.

Monday, September 28, 2026

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.]

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.

Friday, September 25, 2026

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.

Thursday, September 24, 2026

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....

Wednesday, September 23, 2026

Whose Rule Governs Clergy-Communicant Privilege When the Communication Was Made in Another State?

In Campbell v. State of Texas, (TX Ct. Cr. App., Sept. 17, 2026), the Texas Court of Criminal Appeals (the state's highest court for criminal cases) refused to grant review in a case posing the question of which state's rule on clergy-communicant privilege applies when the communication takes place in a different state from the one in which defendant is being tried. The majority did not issue an opinion along with its order denying review. However, Judge Yeary filed a dissenting opinion explaining the case and urging review. He said in part:

Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.

While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement.

Appellant had asked the trial court to suppress the statements he made to the bishop in accordance with our Texas Rule of Evidence addressing the clergy-communicant privilege. But the trial court overruled his motion. The bishop's testimony about Appellant's statements was admitted into evidence at Appellant's trial and he was ultimately convicted. The First Court of Appeals then affirmed the trial court's decision to admit the bishop's testimony, concluding that the North Carolina clergy-communicant privilege applies, rather than the Texas rule....

The Restatement urges state courts to use the "most significant relationship test" when determining which state's law applies. However, the Restatement is not the law of this state....

Applying a different state's law or rule can have a massive impact on the outcome of cases.... In this case, Appellant's mother appears to have been present during the call between Appellant and the bishop when Appellant made the statements at issue. Under Texas Rule of Evidence Rule 505(a)(3), Appellant's mother's presence might not serve to preclude Appellant from asserting the clergy-communicant privilege. It is therefore conceivable that, if the Texas Rule had been applied, Appellant might have been able to prevent the bishop from testifying....

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

8th Circuit Hears Arguments on Posting of 10 Commandments in Classrooms

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Samantha Stinson v. State of Arkansas, (Docket No. 26-1722, argued 9/22/2026). In the case, an Arkansas federal district court, finding both Establishment clause and Free Exercise clause problems with the law, issued a permanent injunction barring the state from enforcing Arkansas' statute that requires the posting of a particular version of the Ten Commandments in every public-school classroom. (See prior posting.) Arkansas Advocate reports on the oral arguments.

Trump Urged to Press Xi on Religious Freedom Issues at Tomorrow's Summit

Tomorrow President Trump meets with China's leader President Xi Jinping who arrives today on a state visit to Washington. Last week, the U.S. Commission on International Religious Freedom issued a press release that reads in part:

The U.S. Commission on International Religious Freedom (USCIRF) has reported for years that China’s violations of freedom of religion or belief (FoRB) have been too numerous to count and too heinous to ignore. USCIRF asks President Donald J. Trump to directly raise with President Xi Jinping China’s systematic, ongoing, and egregious violations of FoRB during the U.S.-China summit in Washington, D.C. on September 24, 2026....

Sam Brownback who was ambassador at large for International Religious Freedom from 2018-2021 and who is now co-chair of the International Religious Freedom Summit published an op-ed on Fox News similarly urging the President to raise religious freedom issued with President XI. Brownbacck said in part:

The CCP is increasingly waging a campaign of harassment, disinformation and lawfare — called transnational repression — against religious and political dissidents in the United States. Falun Gong practitioners alone have suffered nearly 300 bomb and death threats. Not to mention the persecution of them still raging within China itself....

Just days ago, Anthropic reported disrupting China-based intelligence operations using its Claude AI platform to build surveillance dossiers on overseas dissidents and Tibetan Buddhist, Falun Gong, Christian and Uyghur communities, including the U.S....

Americans will not accept Beijing’s meddling when it follows people across borders and tries to stifle, silence or punish them for choosing both faith and freedom.

When Xi arrives in Washington, President Trump should make that clear.

Tuesday, September 22, 2026

EEOC Sues Frozen Snack Manufacturer Over Firing of Jewish Employee

The EEOC announced yesterday that it has filed suit against the Texas-based Bell Creameries, Inc. charging it with religious discrimination against a Jewish employee who was a body shop technician. The EEOC's press release announcing the lawsuit said in part:

According to the EEOC’s lawsuit, Blue Bell fired the employee in March 2025, less than a month after he refused to shave his beard due to his religious beliefs. The EEOC said that Blue Bell’s stated reason for firing the longtime employee, a timekeeping violation, was a pretext for religious discrimination and retaliation, and claimed that other workers routinely engaged in the same conduct without repercussion. The lawsuit also said a supervisor baselessly questioned the sincerity of the worker’s religious beliefs on multiple occasions.

WBRC News reporting on the lawsuit said in part:

According to the lawsuit, filed in the U.S. District Court for the Northern District of Alabama, the employee worked as a body shop technician refurbishing fiberglass vehicle parts. The company says that role requires a fully sealing respirator, which it claims is incompatible with certain facial hair.

Blue Bell held a respirator training and mask fit test for the department on Feb. 10, 2025. The employee was on leave and did not attend. The lawsuit alleges that none of the coworkers who did attend were required to shave their beards afterward, including some who had similar beards and did similar work requiring a respirator.

Sunday, September 20, 2026

President Trump Sends Yom Kippur Greetings

Yom Kippur begins at sundown this evening. Today the White House posted a" Presidential Message on Yom Kippur" (full text) which reads:

On the holiest day of the Jewish calendar, I send my best wishes to the entire Jewish community for a blessed Yom Kippur.

As it is referred to in the Torah as the “Sabbath of Sabbaths,” Yom Kippur empowers those of the Jewish faith to renew their unwavering relationship with the Creator through fasting, prayer, and charity. As the High Holy Days come to a close, and the fate of the year ahead is inscribed and sealed, my Administration is resolved to defend every American’s sacred right to freedom of religion.

May the Almighty bless you all with renewed strength and abundant faith on this holy day, and may He continue to bless the United States of America.

RLUIPA Does Not Apply to Addiction Treatment Center Imposed as Alternative to Criminal Sentence

In Bryson v. Page, (SD GA, September 17, 2026), a Georgia federal district court dismissed RLUIPA, Establishment Clause and free exercise claims brought against Augusta-Richmond County and against Crystal Page, Coordinator for the Richmond County Accountability Court. Georgia's Accountability Court program facilitates treatment for drug and alcohol offenders and allows for reduced criminal sentences. Plaintiff Ivan Bryson who is Jewish was forced to participate in Christian based activities at a treatment center (Penfield) for three months until he was transferred to another facility.

Rejecting plaintiff's RLUIPA claim, the court held that RLUIPA by its terms only applies to persons confined in a "jail, prison, or other correctional facility" and Penfield does not fall within that definition. The court said in part:

The Court finds the evidence does not support that Penfield was a jail, prison, or correctional facility under RLUIPA based on the Accountability Court DUI program and nature of the facility.... As referenced in RLUIPA, the plain meaning of the word "correctional facility" refers to a prison....

Although few courts have addressed this issue, courts generally have declined to apply RLUIPA in facilities beyond jails, prisons, or pretrial detention facilities.... Here, Plaintiff underwent treatment at a rehabilitation center following an alcohol offense as part of the Accountability Court program.... The Court refrains from broadening the meaning of an institution under RLUIPA....

The court rejected plaintiff's Establishment Clause claim, finding that county funds were given to Penfield for a secular purpose. It rejected plaintiff's free exercise claim, saying in part:

... [N]ot only did Defendant Page lack authority to move Plaintiff upon his initial request, but she was also unaware that Penfield would impose religious programing. As such, the Court finds that Defendant Page, in her individual capacity, did not substantially burden Plaintiff's practice of religion.