Religion Clause

Tuesday, July 01, 2025

HHS Office of Civil Rights Charges Harvard with Title VI Violations Because of Indifference to Antisemitic Harassment

On June 30, the Department of Health and Human Services Office of Civil Rights issued a Notice of Violation (full text) to Harvard University charging it with antisemitic discrimination in violation of Title VI of the 1964 Civil Rights Act. The Notice was transmitted along with a Letter (full text) from the Task Force to Combat Antisemitism. The 57-page Notice of Violation concludes:

5. OCR finds that specific and repeated examples uncovered during our investigation establish a pattern of unlawful and unchecked discrimination at Harvard through: • direct student-on-student harassment; • targeted harassment by student groups; • exclusion from campus spaces; and • institutional-level acceptance of antisemitism....

As stated above, a school may be held liable under Title VI for its deliberate indifference to student-on-student harassment when it can be shown that: (1) students were “subject to ‘severe, pervasive, and objectively offensive’ … harassment”; (2) the harassment “caused the [students] to be deprived of educational opportunities or benefits”; (3) the school “knew of the harassment”; (4) the harassment occurred “in its programs and activities”; and (5) the school “was deliberately indifferent to the harassment such that its response (or lack thereof) is clearly unreasonable in light of the known circumstances.” ... Based upon our investigation, OCR finds that Harvard University acted with deliberate indifference towards student-on-student harassment in violation of Title VI.

The Letter from the Task Force on Antisemitism reads in part:

Harvard’s inaction in the face of these civil rights violations is a clear example of the demographic hierarchy that has taken hold of the University. Equal defense of the law demands that all groups, regardless of race or national origin, are protected. Harvard’s commitment to racial hierarchies—where individuals are sorted and judged according to their membership in an oppressed group identity and not individual merit—has enabled anti-Semitism to fester on Harvard’s campus and has led a once great institution to humiliation, offering remedial math and forcing Jewish students to hide their identities and ancestral stories.

Failure to institute adequate changes immediately will result in the loss of all federal financial resources and continue to affect Harvard’s relationship with the federal government. Harvard may of course continue to operate free of federal privileges, and perhaps such an opportunity will spur a commitment to excellence that will help Harvard thrive once again....

JNS reports on these developments.

Suit Challenges Texas Requirement for 10 Commandments in Classrooms

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.

Monday, June 30, 2025

Ohio's School Voucher Program Held to Violate State Constitution

In Columbus City School District v. State of Ohio, (OH Com. Pl., June 224, 2025), an Ohio state trial court held that Ohio's school voucher program, known as EdChoice, is unconstitutional under the Ohio Constitution, Art. VI, Sec. 2 which provides:

The General Assembly shall secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.

The court said in part:

... EdChoice procedure mandates that payments be made directly from the State to private schools.... Where EdChoice participating private schools are inexplicably receiving double the per pupil state funding than public schools, it is difficult to say that EdChoice is simply a scholarship that follows and/or benefits the student as opposed to a system that benefits private schools.

Taken together, the evidence presented by the Plaintiffs supports their assertion that, in expanding the EdChoice program to its current form, the General Assembly has created a system of uncommon private schools by directly providing private schools with over $700 million in funding. This evidence proves beyond a reasonable doubt that EdChoice violates Article VI Section 2 of the Ohio Constitution....

Despite receiving more funding in each successive year, the Plaintiffs’ public-school districts struggle to educate their students with inadequate funding.... Meanwhile, private religious schools receive EdChoice funding in addition to unknown amounts of non-public revenue. Such a system is not thorough and efficient. Thus, the Court finds that the Plaintiffs have proven beyond a reasonable doubt that the EdChoice voucher program violates Article VI Section 2 of the Ohio Constitution....

... [A]n order determining that the EdChoice voucher program is unconstitutional because it bestows the exclusive right to, or control of, any part of the state’s school funds to one or more “religious or other sect, or sects” does not violate the Free Exercise Clause of the First Amendment because the voucher program does not prohibit any religious organization from participating based on its religious viewpoint....

Viewing the term through Ohioans’ eyes in 1851, “sect” is not limited to religious groups, but refers to any person or collective of persons with like philosophy. As such, “other sect, or sects,” distinguishes from a “religious sect,” and refers to any non-religious group or groups...

Though the notes from the debates occurring during the 1850 Constitutional Convention demonstrate that the delegates were primarily concerned with religious sects attempting to control the school funds of the State, the plain language of this clause evidences their intent to prohibit any non-state actor, actors, entity, or entities from controlling school state funds....

Statehouse News Bureau reports on the decision.

Sunday, June 29, 2025

Supreme Court Upholds Appointment of Task Force That Recommended Insurance Coverage for Anti-HIV Drugs

In Kennedy v. Braidwood Management, Inc., (Sup. Ct., June 27, 2025), the U.S. Supreme Court in a 6-3 decision held that the method of appointing members of the U. S. Preventive Services Task Force does not violate the Constitution's Appointments Clause. The majority opinion was written by Justice Kavanaugh. Underlying the controversy were the religious objections of plaintiffs to the Task Force's mandate requiring insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contended that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. As set out in a footnote by the majority:

Braidwood also brought a claim under the Religious Freedom Restoration Act of 1993.... It prevailed on that claim and secured an injunction against enforcement of the specific requirement that it cover certain HIV-prevention medications without cost sharing. The Government did not appeal that aspect of the District Court’s judgment, and this Court’s decision will not affect the injunction premised on Braidwood’s RFRA claim.

Justice Thomas, joined by Justices Alito and Gorsuch, filed a dissenting opinion. AJMC reports on the decision.

Saturday, June 28, 2025

Supreme Court: Parents Have Free Exercise Right to Opt Children Out of Class Discussions That Undermine Religious Beliefs

In Mahmoud v. Taylor, (Sup.Ct., June 27, 2025), the U.S. Supreme Court in a 6-3 decision upheld the granting of a preliminary injunction to parents who objected to a Maryland school district's removal of parents' right to opt their children out of class discussions involving LGBTQ+ inclusive” storybooks. The parents objected to exposing their children to discussions of sexuality and gender that were inconsistent with parents' religious beliefs. The majority, in an opinion authored by Justice Alito, said in part:

The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution....

In light of the record before us, we hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that [Wisconsin v.] Yoder found unacceptable....

To start, we cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.”...

In any event, the Board and the dissent are mistaken when they rely extensively on the concept of “exposure.” The question in cases of this kind is whether the educational requirement or curriculum at issue would “substantially interfer[e] with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parent wishes to instill in the child.... Whether or not a requirement or curriculum could be characterized as “exposure” is not the touchstone for determining whether that line is crossed....

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable....

Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny. That much is clear from our decisions in Yoder and Smith....

Justice Thomas filed a concurring opinion, saying in part:

... [T]he Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the “fully inclusive environment” that the Board purports to foster....

The curriculum itself also betrays an attempt to impose ideological conformity with specific views on sexuality and gender....

The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights. Most straightforwardly, rather than attempt to “weave the storybooks seamlessly into ELA lessons,” the Board could cabin its sexual- and gender-identity instruction to specific units.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instill in their children.... Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny..... That novel rule is squarely foreclosed by our precedent and offers no limiting principle. Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.

The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools....

... [N]ever, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim....

The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs? It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects....

SCOTUSblog reports on the decision.

Friday, June 27, 2025

Supreme Court: Medicaid Recipients Cannot Sue Under Sec. 1983 To Challenge State Cutoff of Medicaid Funds to Planned Parenthood

In Medina v. Planned Parenthood South Atlantic,(Sup. Ct., June 26, 2025), the U.S. Supreme Court held that Medicaid recipients cannot sue under 42 USC §1983 to challenge South Carolina's cutoff of coverage under Medicaid of Planned Parenthood's non-abortion services. In a 6-3 decision, the Court held that the remedy for wrongly excluding a provider from state Medicaid was for the Secretary of Health and Human Services to withhold federal Medicaid funding to the state. Justice Thomas filed a concurring opinion calling for a broader review of the Court's §1983 jurisprudence. Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

Congress enacted the Medicaid Act’s free-choice-of-provider provision to ensure that Medicaid recipients have the right to choose their own doctors. The Court’s decision to foreclose Medicaid recipients from using §1983 to enforce that provision thwarts Congress’s will twice over: once, in dulling the tool Congress created for enforcing all federal rights, and again in vitiating one of those rights altogether.

Wednesday, June 25, 2025

DOJ Intervenes In Challenge To Washington Law Removing Clergy Privilege

The Department of Justice on Monday filed a Complaint in Intervention (full text) in Etienne v. Ferguson, (WD WA, filed 6/23/ 2025) to become a party in a suit by Catholic bishops in Washington state challenging a recently adopted amendment to the state's mandatory child abuse reporting law that requires clergy to report child abuse or neglect even if they learn of it in a confessional. The DOJ's petition alleges in part:

7. SB 5375 directly interferes with the fundamental right of Catholic priests to freelyexercise th eir religion by forcing them to violate the sanctity and confidentiality of confessionalcommunications. No other mandatory reporter is required to forego his or her fundamental rights under the Constitution in this manner. Furthermore, a second provision of this bill expressly strips “clergy,” and no one else, from relying on any legal privileges, including the confessional privilege, as a defense to reporting child abuse and neglect. All non-religious “supervisors” may continue to rely on applicable state law privileges.

8. In addition, at about the same time SB 5375 w as enacted to deprive Catholic priests oftheir privileges under state law, Governor Ferguson signed another bill into law ... which restored legal privileges to attorneys who are mandatory reporters because they happen to work for colleges and universities, including at law school clinics.

The Justice Department issued a press release announcing their motion to intervene in the lawsuit.

Texas Enacts Requirement That Schools Offer Released-Time Programs

On June 20, Texas Governor Gregg Abbott signed SB 1049 (full text) which requires all public and charter schools to permit students to attend released-time religious classes for up to five hours per week. The student must assume responsibility for any school assignments issued during his attendance at religious classes. ADF issued a press release endorsing the new law.

Tuesday, June 24, 2025

Challenge To Narrow Religious Exemption in Maryland Employment Law Is Dismissed In Part

In General Conference of Seventh-Day Adventists v. Horton, (D MD, June 18, 2025), a Maryland federal district court 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. As summarized by the court, plaintiffs allege in part:

(1) the exemption violates Plaintiffs' church autonomy rights under the Religion Clauses of the First Amendment; (2) it violates the Establishment Clause of the First Amendment because it excessively entangles government with religion; (3) it violates the Free Exercise Clause of the First Amendment; (4) it violates the Establishment Clause by discriminating against Plaintiffs based on their denomination; (5) it violates Plaintiffs' First Amendment right to expressive association; (6) it violates Plaintiffs' First Amendment right to assembly; and (7) it violates the right to due process of law under the Fifthand Fourteenth Amendments because it is unconstitutionally vague.

In a 43-page opinion, the court found that plaintiffs are not likely to succeed on the merits of any of these claims. However it refused to dismiss outright three of plaintiff's claims, saying in part:

... [T]he Court recognizes that Plaintiffs are in good faith seeking an extension of the law in Count 1 [church autonomy], and that on Count 3 [free exercise], Plaintiffs have a different interpretation of the law on the issue of the applicable level of scrutiny that is not strictly foreclosed by precedent. Ordinarily, a court should refrain from dismissing outright a claim asserting a novel legal theory that can better be assessed after factual development....

... [T]he Court finds that under its view of the legal landscape, Plaintiffs have not stated a viable claim of a violation of the right to expressive association. Nevertheless, as with Counts 1 and 3, where Plaintiffs are seeking an extension of the law to have claims based on expressive association apply to the employment context, and further factual development is arguably warranted before full disposition of this claim, the Motion to Dismiss will be denied as to this claim.