Bankruptcy Court Rejects Diocese's Reorganization Plan Because of Abuse Survivors' Objections

In In re Roman Catholic Bishop of Oakland, (ND CA Bkrptcy., Oct. 2, 2926), the federal Northern District of California Bankruptcy Court, in a 109-page opinion, rejected the Oakland Diocese's proposed Plan of Reorganization, finding that the Plan does not satisfy the Bankruptcy Code's requirement that it be in the best interest of any non-consenting class of creditors.

Under to proposed Plan, a Survivor's Trust would be set up and would pay known abuse claimants $172.3 million in total, which amounts to just over $499,000 per claimant. A reserve of $7.7 million would be set aside for unknown future abuse claimants. The Abuse Claimants voted overwhelmingly (331-8) against approval of the Plan.

The court rejected the Diocese's claim that certain requirements for confirmation of the Plan violate its rights under the 1st Amendment's Free Exercise Clause or under RFRA, saying in part:

First, the Court is unaware of any Code provision, or any case law interpreting the Code, that applies any of the requirements of the Code ... differently or more leniently, because the debtor is a religious entity....   

Second, the Court does not believe that the Debtor has articulated any basis on which the actual requirements for confirmation of a plan of reorganization would implicate any of the protections provided under the First Amendment or RFRA....  

Third, even if there were some theoretical basis to consider the application of the First Amendment or RFRA to this case, the actual provisions and requirements of those laws would either (a) render them inapplicable to plan confirmation issues or (b) make it impossible to assess the effect of those laws on the Debtor’s requirements for confirmation....

The Debtor argues that the Court would violate the Church Autonomy Doctrine, and by analogy, the Ministerial Exception, if it were to “weigh in on a dispute between the Committee and Debtor regarding how many Churches the Debtor needs to fulfill its mission...."

Here, the court is not resolving a dispute between the Committee and the Debtor about the number of churches to sell, nor is it requiring Debtor to sell anything.  It is also not second guessing the decisions Debtor has, in good faith, made. ....

... Debtor simply does not articulate a basis for the Court to conclude that the confirmation standards are imposing a substantial burden on Debtor ‘s exercise of religious rights.... 

However, the Court concluded that it could not find that the plan satisfied the "best interest of creditors" test, questioning the accuracy of the amount of assets the Diocese claimed would be available to creditors. The court, though, rejected claims that the Diocese had not proposed the Plan in good faith.

NBC Bay Area reports on the court's decision.

Federal Antisemitism Task Force Is Beginning a National Tour

The Department of Justice yesterday announced that its Task Force to Combat Anti-Semitism is beginning its American Tour Against Hate. Its first stop, on October 14, will be in Southfield, Michigan. According to the DOJ's press release:

The Tour is a first-of-its-kind federal initiative, bringing government resources and officials directly to local communities experiencing hate and discrimination.

“President Trump has made clear that this Administration will not tolerate antisemitism, and the Department of Justice is committed to implementing that directive,” said Attorney General Todd Blanche. “This national tour is an important step in ensuring communities across the country know the federal government stands ready to work with them to confront antisemitic threats, protect public safety, and uphold civil rights.”

"No American should live in fear of unjust discrimination or violence,” said Associate Attorney General Stanley E. Woodward, Jr. “The Department of Justice is working tirelessly to protect and defend all Americans’ right to freedom of speech and free exercise of religion. This event is sure to be a powerful evening.”...

Trump's Columbus Day Proclamation Includes References to Religious Faith

Yesterday, President Trump issued a Proclamation (full text) declaring October 12 as Columbus Day. The Proclamation contains several religious references. It reads in part:

More than five centuries ago, Christopher Columbus embarked westward across uncharted waters and discovered the New World — bringing with him the rich traditions of Western civilization.... Above all, we remember with gratitude that the triumph of freedom and the glory of our Republic are the fruits of his faith and unrelenting devotion.....

When Columbus and his crew made landfall on the islands of the present-day Bahamas, they first believed they had reached the shores of Asia.... When they arrived, as a sign of devotion to God and respect to Ferdinand and Isabella of Spain, Columbus raised a mighty cross in the newly discovered land as a sign that “Your Highnesses hold this land for your own, but chiefly as a sign of our Lord Jesus Christ.” ...

Coumbus Day also holds special significance for our incredible Italian-American citizens.  Like Columbus, they have embodied a steadfast love of country and faith in God, and they continue to strengthen our communities and propel our country to even greater heights.

In 1892, on the occasion of the 400th anniversary of Columbus’ epic voyage, Pope Leo XIII published an encyclical hailing “the greatness of his mind and heart,” which “can be compared to but few in the history of humanity.”  The Pope continued:  Columbus “looked for a something greater and higher than did these others.”  Today, as we celebrate the anniversary of Christopher Columbus’ arrival in the New World, we honor his unrivaled greatness.  We embrace our duty to prove worthy of the inheritance he left us, to match his courage with our own, and to never abandon, forsake, or forget the beauty of our faith, the glories of our culture, and the stories of our heroes.

Catholic Clergy Sue ICE Detention Center for Restricting Their Ability to Minister to Detainees

 A suit was filed on Monday in a Missouri federal district court alleging that a detention center housing 150 immigration detainees is violating the free exercise rights of detainees and Catholic clergy. The complaint (full text) in Rozanski v. Stolzer, (ED MO, filed 10/5/2026), the Archdiocese of St. Louis alleges in part:

1. Under the First Amendment—and federal and state statutes that protect the rights enshrined in it—the government may not (a) ban the exercise of religion or (b) treat religious practice differently than it treats analogous secular activity.  Yet the Ste. Genevieve County Detention Center manages to commit both sins by imposing a visitation policy that prevents Catholic priests from meaningfully ministering to Catholic federal detainees housed there (while readily allowing exceptions to the policy for non-religious reasons). 

2.   ...The jail’s visitation policy prohibits this basic religious exercise in two ways.  First, it allows only “no contact” visits, which are not private and prevent face-to-face interactions.  This prevents priests from administering the sacraments of confession and communion.  Second, the policy permits clergy visits for only a single, four-hour period once a week.  This severely restricts priests’ ability provide pastoral care, as priests cannot meet with all detainees who wish to see a Catholic priest (and have only limited time with those they do visit).   Priests are also prohibited from saying Mass.... 

3. Worse still, the policy applies to clergy but not to lawyers or consular officials, for whom exceptions to the policy are readily made.  That constitutes more favorable treatment for secular activity than religious exercise....   

4. ... [T]he visitation policy violates the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Free Exercise Clause of the First Amendment, the Missouri Religious Freedom Restoration Act ... and the federal Religious Freedom Restoration Act (“RFRA”)....

St. Louis Public Radio reports on the lawsuit.

Ecclesiastical Abstention Doctrine Leads to Dismissal of Complaint By 37 Churches Over Disaffiliation Rules

In Methodist Church of Cape St. Claire v. Baltimore Washington Conference of the United Methodist Church, (MD App., Oct. 5, 2026), a Maryland state appellate court held that the ecclesiastical abstention doctrine prevents civil courts from adjudicating the claim of 37 local churches that their parent body wrongly imposed a charge of 50% of the value of a church's property on local congregations that wished to disaffiliate and retain their property. The General Conference had created a procedure for local congregations that objected to the church's policy on human sexuality to disaffiliate, with regional Conferences being able to add conditions. The 50% payment requirement was added by the BW Conference. The appeals court said in part:

The Local Churches argue first that the circuit court ignored viable exceptions to the ecclesiastical abstention doctrine and dismissed their constructive fraud, breach of fiduciary duty, and breach of contract claims incorrectly....

Resolving the claims alleged in this case would require a trial court to examine the UMC’s religious doctrine and the Conference’s management of church resources in a manner prohibited by the First Amendment. We look first at the Local Churches’ allegation that the Conference engaged in constructive fraud and breached its fiduciary duty by failing to act in their best interest and in accordance with the UMC’s doctrine, custom, and practices....

We reach the same conclusions with respect to the Local Churches’ claims that the Conference committed constructive fraud and breached its fiduciary duty by mismanaging church funds or by making misrepresentations about its use and management of those funds....

In this case, the circuit court properly declined to enforce the Book of Discipline against the Conference as the Local Churches requested because it couldn’t interpret the Book of Discipline “under ‘neutral principles of [contract] law,’ without court involvement ‘in any theological or doctrinal matter.’” ...

Whether the General Conference’s amendment of the Book of Discipline to include Paragraph 2553 contradicted longstanding church practices and existing provisions of the Book of Discipline allegedly allowing local churches to disaffiliate without forfeiting their real property is a question for the UMC’s Judicial Council to answer. And according to the Conference, the Judicial Council has, in fact, answered it.

Finally, the court held that the trial judge who is a Methodist did not need to recuse himself, saying in part:

Ultimately, the judge’s sole connection to the controversy in this case is that he is a parishioner of a church that falls under the regional purview of a party to the case, the BW Conference. His religious affiliation and status as a parishioner, without more, do not qualify as grounds to question his impartiality and do not, on their own, suggest that the judge had an interest in the outcome of the case one way or the other....

Pennsylvania Supreme Court: 1st Amendment Free Exercise Claim Requires "Burden", Not "Substantial Burden" On Religious Practice

In  Alsyrawan v. Department of Human Services, (PA Sup. Ct., Oct. 5, 2026), the Pennsylvania Supreme Court held that to show a 1st Amendment free exercise violation, litigants only need to show a "burden", rather than a "substantial burden", on their religious exercise. At issue in the case was the denial of a Muslim family's application for a waiver of a rule (the 40/60 Rule) that limited the number of hours each week that a state program would compensate relatives for acting as caregivers, here for a Down Syndrome adult male. According to the court:

 Alsyrawan adheres to Islamic law, as established in the Quran, which forbids unrelated males and females from being alone together and prohibits unrelated males from offering personal care concerning nudity or uncovered private parts to other males....  As articulated by Mother, due to Alsyrawan’s religious obligations, only immediate relatives (such as sisters, brothers, father, mother, and grandparents) are permitted to administer private personal care to him.... Mother testified further that even if an unrelated male aide did not provide Alsyrawan with private personal care — thus, not breaching Alsyrawan’s religious obligations — her religious beliefs prohibit her from being alone with an unrelated male, even if this unrelated male is taking care of Alsyrawan.

The majority reviewed a number of recent U.S. Supreme Court free-exercise opinions and found that the Supreme Court has been referring only to a "burden" and not to a "substantial burden" in those opinions. The majority concluded:

... [A] litigant satisfies the threshold showing of a burden on their religious practice by demonstrating that they must choose between receiving a government benefit or abiding by their religious beliefs.  In other words, they must make a “forced choice” – the state actor does not provide a benefit option where the litigant can have both.

RFPA [Pennsylvania’s Religious Freedom Protection Act ] and the Free Exercise Clause are different legal routes for litigants to allege violations of their right to freely exercise their religion.  The Supreme Court’s recent decisions indicate that a violation of the Free Exercise Clause may occur only when an individual’s religious exercise is simply burdened, as opposed to substantially burdened as required prior to Smith. Therefore, analysis of constitutional claims under the U.S. Constitution and statutory claims under RFPA cannot be conflated.  Evidence of a substantial burden is required for claims under RFPA, but only a burden is required for such claims under the Free Exercise Clause. The appropriate standard of review — strict scrutiny or rational basis — is determined by assessing whether the burden is imposed by government policy or conduct that is not neutral or generally applicable....

Justice Mundy filed a dissenting opinion, saying in part:

I would hold that because the 40/60 Rule is neutral and generally applicable, and survives rational basis scrutiny, Appellant lacks a valid First Amendment claim.  I would also conclude the 40/60 Rule does not impose a substantial burden on Appellant’s religious exercise, meaning he also lacks a valid RFPA Claim.  Therefore, I would affirm the order of the Commonwealth Court.

Justice Wecht filed an opinion concurring in the majority's analysis, but contending that the court should have vacated and remanded the lower court's decision, rather than reversing and remanding it so the lower court could more fully consider whether the 40/60 Rule was generally applicable.

Backers of Hasidic School May Move Ahead with Challenges to Zoning Denials

Congregation Rabbinical Institute of Tartikov, Inc. v. Village of Pomona, NY, (SD NY, Sept.28, 2026), is the latest decision in a long-running attempt by members of the Hasidic Jewish community to build a rabbinical institute in Pamona, New York, that will provide facilities to train rabbinical judges and will include housing for its students and their families.  In an 80-page opinion, a New York federal district court allowed plaintiffs to move ahead with their as-applied federal and state equal protection, free exercise, freedom of speech and association, Fair Housing Act and RLUIPA claims. At issue are plaintiff's compliance with two local laws--one allowing only accredited educational institutions to be constructed in the village, and the second placing a number of restrictions on design of dormitories.

The court said in part:

... Plaintiffs plausibly allege that Defendants enforced the Challenged Laws with discriminatory intent.

  ... [T]he New York State Education Department no longer provides institutional accreditation....  

Plaintiffs further allege that Tartikov explained to the ZBA that it cannot obtain accreditation through private means because AARTS requires a rabbinical institute to be operational before it can obtain accreditation, leaving Tartikov unable to obtain accreditation without first operating and unable to operate in the Village without first obtaining accreditation....  Rather than address this alleged “Catch-22,” the ZBA chairperson suggested that Tartikov rent a facility outside the Village, operate there until it obtained accreditation, and then return to the Village....  

The ZBA subsequently denied Tartikov’s variance application because Tartikov had not sufficiently established that it could not become accredited.... It did so despite the Rockland County Department of Planning’s conclusion that lack of accreditation, standing alone, presented no significant land-use impacts....

Thus, despite Tartikov’s repeated efforts to obtain permission for student-family housing, Defendants effectively conditioned consideration of that request on Tartikov first overcoming the Accreditation Law—the same requirement that Plaintiffs allege Tartikov cannot satisfy without first operating its rabbinical institute....  These procedural irregularities and alleged delays further support an inference that Defendants acted with discriminatory intent....

At this early stage, Plaintiffs’ allegations of repeated procedural irregularities, the circumstances surrounding Defendants’ application of the Challenged Laws, and alleged anti-Hasidic animus among Village officials and community members plausibly support an inference that Defendants applied the Challenged Laws in a discriminatory manner. ...

The Court concludes that Plaintiffs have plausibly alleged that Defendants’ application of the Challenged Laws imposes a substantial burden on their religious exercise. 

... Plaintiffs allege that the Institute requires a Torah community, which in turn requires prospective students to reside with their families....  Yet the Dormitory Law prohibits the very housing necessary to accommodate Tartikov’s Torah community by excluding single-family, two-family, and multifamily dwelling units from the definition of a dormitory and prohibiting separate cooking, dining, or housekeeping facilities.... These allegations plausibly establish more than a “minimal impact on religious exercise”.... 

These allegations plausibly allege that the Institute would foster protected expression and that Defendants burdened that expression through their application of the Accreditation Law....

Plaintiffs have also plausibly alleged that the Accreditation Law burdens their ability to associate for the purpose of engaging in that protected activity...

Although Plaintiffs will ultimately bear the burden of demonstrating that the Dormitory Law has a significantly adverse or disproportionate impact on Hasidic Jews, they need not make that evidentiary showing at this stage in the litigation....

Supreme Court Opens Its October 2026 Term

The Supreme Court opened its October 2026 Term yesterday, issuing its traditional long list of certiorari denials. Yesterday's 42-page Order List includes a denial of certiorari in Peterson v. Snohomish Regional Fire & Rescue, (Docket No. 25-1210, cert. denied 10/5/2026). In the case, the U.S. 9th Circuit Court of Appeals rejected claims by eight firefighters that the Snohomish fire department violated Title VII and Washington state law by refusing to accommodate their requests for religious exemptions from the state's Covid vaccine mandate for all healthcare providers. (See prior posting.)

The Court already has four religion cases on its Merits Docket for this Term. They are (links are to each case's SCOTUSblog page): 

• St. Mary Catholic Parish, et al. v. Roy. (25‑581)  
• International Partners for Ethical Care, Inc. v. Ferguson (25-840) 
• Missionaries of Saint John the Baptist, Inc. v. Frederic (25-1131)
• Grand v. City of University Heights (25-965)

Student Organizations Challenge University's Consolidation of Christian Student Groups Under One Campus Minister

Suit was filed last month in a Virginia federal district court by two Christian student groups at Virginia State University challenging the school's new Campus Ministries Policy.  The complaint (full text) in Women of Victory at Virginia State University v. Branch, (ED VA, filed 9/24/2026), alleges in part:

3. ... VSU recently instituted a Campus Ministries Policy ... that strips religious organizations of their registered student organization (“RSO”) status and accompanying benefits, brings student-led ministries under the “governance and influence” of a University-appointed Campus Minister, and yet exempts secular student groups as well as the Muslim and non-Christian student ministries on campus from the Policy’s onerous requirements. 

4. The burden of this Policy falls on the Plaintiff chapters of Women of Victory and Bethel Campus Fellowship. These are VSU chapters of national organizations that provide religious support to students on college campuses through Bible studies, leadership trainings and events, and numerous other opportunities for spiritual growth, both on- and off-campus....

8. ... [O]n August 6, 2026, VSU’s Campus Ministries office circulated its new Campus Ministries Policy, informing student leaders that “student-led ministries” could no longer affiliate with their national organizations or hold RSO status. Instead, faith-based groups (unlike secular groups) would be absorbed into VSU’s Campus Ministries, subject to the sole authority of VSU’s Campus Minister and a newly appointed Board of Advisors, made up of various faculty members, including a Public Safety officer, a Facility Quality Assurance Director, and the VSU President’s Deputy Chief of Staff, among others. 

9. Under the new Policy, Christian organizations lose access to RSO benefits, including funding, event-planning resources, and event-promotion rights. Further, the VSU Campus Minister is granted control of all Christian, student-led ministries, with complete discretion to approve or reject requests for religious meetings, events, guest speakers, and all other religious activities on campus....

148. Forcing Christian student organizations to submit to a single religious figure employed by a public university violates religious students’ constitutional rights.....

The complaint alleges that the new policy violates plaintiffs' rights under the Free Exercise Clause, Establishment Clause, and Equal Protection Clause and violates their rights of expressive association and freedom of assembly.  Christian Post reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Michael Lewyn, Disparate Impact and Synagogue Location, (September 01, 2025).
• Scott Skinner-Thompson, The Court's Queer Erasure, (October 01, 2026).
• Peter J. Smith & Robert W. Tuttle, The Union Gospel Mission Cases, Church Autonomy, and Co-Religionist Hiring: A Response to Professor Esbeck, (GWU Law School Public Law Research Paper Forthcoming).
• Dr. Pamela, Schulz, Antisemitism Across History and Media Discourse: Topoi, Othering, and Critical Theory Perspectives, (September 26, 2026).
• B. Jessie Hill, The Medicalization of Abortion Rights, (49 Harvard Journal of Law & Gender 213 (2026)).
• Nancy C. Marcus, Abortion and LGBTQ Healthcare Protections from Censorship and Compelled Speech After Chiles v. Salazar, (January 08, 2026).
• Ilana Redstone, Prescribed but Not Compelled: Institutional Orthodoxy and the Limits of Law, (September 30, 2026).
• Wes Henricksen, Legislating Orthodoxy: Academic Freedom, the First Amendment, and the New Speech Codes, (September 26, 2026).
• Thomas Wuil Joo, A Long Story: Queues, Dreadlocks, and Cycles in Civil Rights History, (February 19, 2026).

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

• Joel Harrison, Religion and Australian Constitutionalism: On Contribution and Ends, (September 01, 2026).
• Tourkia Rebhi, Syahwa Mastia Sofa Lubis, Aftab Haider, Zul Fahmi & Sadmir Karović, Between Sanctions and Judicial Reasoning: Contemporary Perspectives on Gender Justice in Khalwat Cases in Aceh, (Uqubah: Journal of Islamic Criminal Law, Volume 1, No. 1. Pp. 71-92 (2026)).

From SmartCILP:

• Jessica Carr, The "Kosher Ban" and the Chipping Away of Religious Freedom: From Nazi Germany to Modern-Day Belgium, 58 George Washington International Law Review 165-188 (2026).
• Atria A. Larson, Lucretia (and Lucia) and the Medieval Canonists: Guilt, Consent, and Chastity in the Early Canonistic Jurisprudence of Rape: Submission for Law and History Review, 43 Law & History Review 643-669 (2025).
• Alexandre Caeiro, The Appeal of Religious Law: Jurisdictional Politics and Modern State Formation in the Gulf Sheikhdoms, ca. 1950–2000, 43 Law & History Review 877-903 (2025).
• Jeffrey A. Dodge, Weaponizing Religion against the Human Emotion of Empathy: A Call to Fight Coercive Settlement Attempts on the Merits, 29 University of Pennsylvania Journal of Law & Social Change 83-120 (2026).

IRS Issues Regulations Governing New Federal Scholarship Tax Credit

In the October 2 Federal Register, the Internal Revenue Service published Temporary Regulations (full text) implementing the new Federal Scholarship Tax Credit. This credit provision allows taxpayers in states that have elected to participate in the program a credit (up to $1700) for contributions to scholarship granting organizations that award scholarships to elementary and high school students in public, private or religious schools. The tax credit was enacted last year as part of the One, Big Beautiful Bill Act and applies to contributions made beginning in 2027. The IRS also published identical Proposed Final Rules in the Federal Register. 

Qualified scholarship organizations, as defined by Internal Revenue Code 25F are non-profit organizations that provide scholarships to 10 or more students who do not all attend the same school. The organization must be included on a state’s list of scholarship organizations that meet the Internal Revenue Code’s requirements.

Politico reports on the new Regulations. Ed Choice has additional details.

Hegseth Announces Creation of Military Office of Religious Affairs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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