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

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

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

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

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

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

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

Judge Thapar filed a concurring opinion, saying in part:

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

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

Satanic Temple Sues Over Denial of Use of Iowa Capitol Rotunda for Holiday Events

In Iowa, private organizations and individuals may request use of space on the Capitol Grounds, including the Capitol Rotunda, for events that are open to the public. Earlier this month, The Satanic Temple filed suit in an Iowa federal district court alleging that applications for holiday events they have filed have been denied in violation of the organization's 1st Amendment rights and its rights under Iowa law. The complaint (full text) in The Satanic Temple, Inc. v. Campbell, (SD IA, filed 8/13/2026), alleges in part:

11. The First and Fourteenth Amendments protect TST-Iowa’s right to expression. Defendants’ ongoing exclusion of TST-Iowa from engaging in protected religious speech, grounded in their beliefs of Satanism and the governing tenets of TST, at the Rotunda is based on their religious viewpoint. This exclusion constitutes impermissible viewpoint discrimination and is presumptively unconstitutional. The exclusion is also a content-based restriction and is not narrowly tailored to, or the least restrictive means of, achieving a compelling interest.... 

12. The First and Fourteenth Amendments and the Iowa Religious Freedom Restoration Act (“Iowa RFRA”) protect TST-Iowa’s right to freely exercise their religion. By denying TST-Iowa’s applications to hold an event at the Rotunda because of their religious beliefs, Defendants have violated their clearly established constitutional and statutory right to the free exercise of religion, and this exclusion cannot survive strict scrutiny.  

13. Additionally, by allowing other religious events, but prohibiting TST-Iowa’s events, Defendants have engaged in unlawful disparate treatment against TST-Iowa based on their religion, protected speech, and membership in a suspect class. This exclusion cannot survive strict scrutiny and violates the Equal Protection Clause of the Fourteenth Amendment.  

14. Finally, Defendants have also violated TST-Iowa’s statutory rights under the Iowa Civil Rights Act (“ICRA”). For the past two years and on an ongoing basis, Defendants have discriminated against TST-Iowa by denying them services and public accommodations, both (1) on the basis of their religion and/or their perception of their religion and (2) in retaliation for their prior reports of discrimination.....

ACLU issued a press release announcing the filing of the lawsuit.

Ministry Loses Challenge to Ban on Sex Offenders Living Near Places That Children Gather

In Hope Prison Ministries v. City of Fort Worth, Texas, (ND TX, Aug. 14, 2026), a Christian ministry that operates transitional housing for former inmates, including sex offenders, challenged a Fort Worth Ordinance that bars registered child sex offenders from residing within 2,000 feet of any premises where children regularly gather. Apparently, this restriction makes it difficult for HPM to locate appropriate housing. Rejecting plaintiff's claim under the Fair Housing Act, the court said in part:

While Plaintiff may house individuals with a disability apart from them being a child sex offender, Plaintiff fails to identify any provision in the Ordinance that discriminates against persons on the basis of a qualifying disability.

The court rejected plaintiff's free exercise claim, saying in part:

Here, Plaintiff fails to plead any facts showing that the Ordinance is not “neutral” or “generally applicable.”....  A plain reading of the Ordinance shows the restriction is not aimed at any religious practice—it is aimed at protecting children from the risks associated with having child sex offenders near areas where children gather. This neither facially discriminates against adherents of any particular faiths nor targets any religious conduct. Moreover, the Ordinance is generally applicable because it does not restrict housing based on any religious or secular conditions. The Ordinance applies universally to residences under the Ordinance’s jurisdiction. Thus, all conduct—secular and religious—is limited equally, without consideration of any religious commitments or individual exceptions....

The court rejected plaintiff's equal protection claim, saying that "sex offenders are not a suspect class under the Equal Protection Clause." It rejected plaintiff's RLUIPA claim, saying that the challenged Ordinance is not a land use regulation. The court declined to exercise supplemental jurisdiction over plaintiff's claim under the Texas Religious Freedom Restoration Act.

Fellowship of Christian Athletes Sues to Challenge School's Ban on Outside Adults at Student Religious Club Meetings

Suit was filed this week in a New Jersey federal district court by the Fellowship of Christian Athletes (FCA) challenging a New Jersey school district's ban on outside adults attending on-campus meetings of student religious groups. The ban was put in place after a complaint from the Freedom from Religion Foundation.  Fellowship of Christian Athletes organizes student chapters called "huddles" in which students pray, engage in Bible study, support one another in their faith and athletics, and eat pizza. FCA staff and adult volunteers also attend the huddles. The complaint (full text) in Fellowship of Christian Athletes v. Board of Education of the Hopewell Valley Regional School District, (D NJ, filed 8/11/2026), alleges in part:

... [T]he District’s new religious-clubs-only volunteer ban does indeed discriminate against religious clubs and single them out for disfavored treatment. While FFRF had claimed that FCA’s adult supporters were being given “unique access” to students, this is simply false. The District expressly permits adult visitors on its campuses for a variety of different reasons. And other non-religious student groups are allowed to—and regularly do—take advantage of this permission as a matter of course....

... FCA’s student leaders want to meet with fellow students and adult volunteers on campus so they can model to fellow students and coaches what it looks like to follow Christ in their school communities—something they cannot do if they’re forced to meet elsewhere.  

Having adult staff and volunteers present on campus is also critical to FCA’s religious mission because it allows FCA to see how student leaders are doing and give the students invited feedback and guidance....

Plaintiffs allege that the school's action violates their free exercise, free speech and equal protection rights as well as the federal Equal Access Act and the New Jersey Law Against Discrimination. 

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

Suit Challenges Town's Refusal to Permit Nativity Display on Town Square

Suit was filed last week in a New York federal district court challenging an upstate New York town's refusal to permit placing of a privately-sponsored nativity display in the town square during the Christmas season. The complaint (full text) in Polverino v. Town of Brighton, New York, (WD NY, filed 7/21/2026), alleges that the town every year permits a Menorah display sponsored by Chabad Lubavitch, while Brighton town officials have ignored, evaded and effectively denied plaintiff's Nativity display requests for more than two years. Plaintiff alleges that this violates his free speech and free exercise rights, as well as the 1st Amendment's Establishment Clause and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

9th Circuit: Plan to Convince Vaccination Objectors to Reconsider Did Not Show Hostility To Religion

 In Seagraves v. Wahington State Department of Children, Youth and Families, (9th Cir., July 21, 2026), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of claims by 18 former employees of the Department of Children, Youth and Families who were separated from the agency after their requests for religious exemptions from the state's 2021 Covid vaccine mandate were rejected. The court said in part:

The [complaint] does not plausibly allege personal involvement by any of the Officials [named as defendants] in constitutional violations of the Employees’ free exercise, equal protection, or procedural due process rights.  All the Employees’ requests for accommodations in their current roles were denied, based on determinations that they could not perform the essential functions of their positions unvaccinated without endangering the health and safety of others in the workplace, including children and families.  Accordingly, their supposed constitutional injuries flow from this determination.  Yet the [complaint] does not allege that any of the Officials [named as defendants] personally participated in evaluating the Employees’ accommodation requests or that they played a role in denying them pre-termination hearings....

The remaining factual allegations that the Employees provided in their pleadings undermine the plausibility of their “religious animus” theory.  First consider Hunter’s August 23, 2021, email discussing DCYF’s communications plan for vaccination.  The goal of this plan was to convince as many DCYF employees as possible to get vaccinated.  Part of the plan involved addressing various potential objections to vaccination: medical safety, convenience, religious objections, and political tribalism.  This plan did not single out religiously motivated objections for special treatment.  Religious objections were included among several secular objections, and the aim of the plan was to convince DCYF employees that their concerns about vaccination were unfounded, regardless of the religious or secular character of those concerns.  That religious objections were one of several objections to address does not, without more, indicate hostility toward religion....

Detainee Sues Wrong Parties Over Available Religious Texts on Jail's Android Tablets

In Coleman v. LVMPD, (D NV, July 8, 2026), a Nevada federal district court at the screening stage dismissed with leave to amend a religious discrimination complaint filed by Oronde Coleman, a pre-trial detainee at the Clark County Detention Center (CCDC). According to the court:

Coleman generally sues Las Vegas Metropolitan Police Department (LVMPD) and ViaPath, the owner and provider of android tablets at CCDC....

Coleman alleges the following. He is a religious member of the House of Yahweh.... Coleman needs the Book of Yahweh and the Book of Yahweh Study Guide to worship his religion. However, the ViaPath tablets do not contain either of those ebooks even though they have other religious books for other religions such as Protestant, Catholic, Muslim, Jewish, Latter-Day Saints, Orthodox Hindu, Buddhist, Jehovah's Witness, Moorish American, Nation of Islam, and Sundar Gutka. LVMPD had approved these religious texts to be on the android tablet but discriminated against the House of Yahweh.

When Coleman reached out to ViaPath to add the Book of Yahweh onto ebooks, ViaPath responded that it was not a recognized religion, and they would not add it to the contents of the tablets. Coleman told ViaPath that he needed the two books to give praise to his heavenly father and his son in their rightful names. ViaPath told Coleman to write a grievance to LVMPD's religious services unit. Years ago, Coleman wrote grievances to the religious services unit, who told him they do not stock those books....

Although Coleman could potentially state colorable First Amendment free exercise of religion and Fourteenth Amendment equal protection claims, he does not do so in his complaint because he has not established that ViaPath and LVMPD are the parties he should be suing. I thus dismiss the complaint but grant Coleman leave to amend....

Coleman's complaint does not allege how ViaPath is a state actor other than its apparent contract with LVMPD. This alone is insufficient to establish that ViaPath is a state actor who deprived Coleman of his federal rights....

Coleman does not allege that his inability to obtain House of Yahweh religious books is due to a LVMPD custom or policy....

Suit Seeks Accommodation for Christian Library Employee Who Objects To Using Co-Workers' Preferred Names and Pronouns

Suit was filed yesterday in a Louisiana federal district court by a Library Technician who was fired for refusing to comply with the library's Inclusivity Policy that requires employees to refer to fellow employees by their chosen name and pronoun.  Plaintiff Luke Ash is also a Christian pastor. The complaint (full text) in Ash v. City of Baton Rouge Louisiana, (MD LA, filed 7/9/2026) alleges in part:

Ash has sincerely held religious beliefs that God created mankind in his own image, and that each individual is created either male or female.... Ash also has sincerely held religious beliefs that biological sex is immutable....  Because of his sincerely held religious beliefs, Ash has sincere religious convictions and beliefs that referring to a person by pronouns inconsistent with their biological sex both dishonors God’s design for that person and constitutes a lie and a grave sin....  Ash believes that he is compelled to tell the truth, even to those who may disagree....

Ash had never, at any point, referred to any co-worker directly using pronouns inconsistent with their preference, and he had certainly never done so after being told by such individual that the pronoun he used was incorrect....

Ash contends that his firing violated his federal and state free speech, free exercise and equal protection rights and that under Title VII the Library was required to provide him a reasonable accommodation from the Inclusivity Policy. The complaint alleges in part:

Permitting Ash to maintain respectful communications to those with whom he interacts at the Library while maintaining compliance with his sincerely held religious beliefs would have been a reasonable accommodation that would impose no hardship whatsoever on the Defendants or the Library. 

The complaint also asks for an injunction barring enforcement of the Inclusivity Policy and asks for reinstatement of plaintiff. Liberty Counsel issued a press release announcing the filing of the lawsuit.

1st Circuit: University's Rejection of Property Sale to Church Was Not Religious Discrimination

In Calvary Chapel Belfast v. University of Maine System, (1st Cir., June 30, 2026), the U.S. 1st Circuit Court of Appeals affirmed the district court's refusal to stop the sale by the University of Maine of the Frederick Hutchinson Center property to a bidder that was competing with Calvary Chapel Belfast to obtain the property.  Originally, the University selected Calvary Chapel to negotiate a purchase agreement. However, according to the court:

In the days following the public announcement, numerous area residents as well as University alumni, donors, students, faculty, and staff criticized the University's selection of a religious entity, and Calvary in particular, as the winning bidder.  One online commentor, for example, referred to the decision as "disappointing," with another writing, "[t]hese evangelists from [Calvary] are just another religious cult that believes in magical thinking."...

Calvary asserts an intentional discrimination claim, arguing that the University violated the Equal Protection Clause by carrying out the facially neutral public procurement process in a discriminatory way. ... Specifically, Calvary argues that the court created a "novel rule" when it required Calvary "to make a direct 'showing connecting the animus in the community to the government action' to raise an inference of discriminatory intent."  ...

The court recognized that widespread religious animus in the community can, in certain circumstances, support an inference that a government official acted with discriminatory intent by essentially adopting the community's view even if the official did not personally share that view.... But the presence of community opposition does not, without more, imply a conclusion of intentional discrimination by the decisionmaker.... And here the court found scant evidentiary support for the alleged irregularities -- "the more" -- urged by Calvary....

Supreme Court Allows Schools to Exclude Transgender Females from Girls' and Women's Sports Teams

In West Virginia v. B.J.P., (Sup. Ct., June 20, 2026), the U.S. Supreme Court held that states may exclude transgender females from girls' and women's athletic teams without violating either Title IX or the 14th Amendment's Equal Protection Clause. The Court's opinion, written by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch and Barrett said in part:

Notably, B. P. J. does not seriously contest that the term “sex” in Title IX, the Javits Amendment, and the regulations means biological sex.  Moreover, B. P. J. agrees ... that Title IX permits schools to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams.  B. P. J. disagrees with West Virginia and the United States only about whether schools must make an exception to that general rule for biological males who identify as female and have taken puberty blockers or hormones.

But the texts of Title IX, the Javits Amendment, and the Title IX regulations do not say (or even hint) that schools must allow certain biological males to participate in women’s and girls’ sports....

Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within (or below) the range of typical female physical and athletic capabilities. But the plaintiffs acknowledge that States may still exclude those biological males from women’s and girls’ sports, given the general physical differences between males and females.

And the Equal Protection Clause does not prohibit the States from applying that same principle to all biological males, including those who identify as female. In the distinctive sports context, in other words, the States may treat all biological males the same and treat all biological females the same, given the inherent physical differences between biological males and biological females.....

In so ruling, we emphasize one last point.  Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties.  Those student athletes want to play sports. Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.

Justice Thomas filed a concurring opinion, saying in part:

Men and boys with gender dysphoria are not women or girls, even if they believe that they are.  Sex is an immutable “biological” characteristic ...; it is binary; and “man” and “woman,” “boy” and “girl,” are the terms that correspond to adults and children of each sex.... To use language to obscure reality—to show “indifference regarding the truth”— is to lie to the public and cease to treat our fellow citizens “as equal[s].”...

Justice Gorsuch filed a concurring opinion, saying in part:

... Nothing in Title IX clearly and unambiguously alerts funding recipients that they are prohibited from restricting a school-sponsored sports team to biological women or girls....

Justice Sotomayor, joined by Justices Kagan and Jackson filed an opinion concurring only in the judgment, saying in part:

 ... West Virginia might be right that transgender girls retain some inherent athletic advantage over cisgender girls due to their sex identified at birth even after receiving the hormonal therapy B. P. J. identifies. All agree, moreover, that States do have some room to legislate around issues when there exists significant, and genuine, scientific debate. At this point, however, neither the District Court nor the Fourth Circuit has passed upon any of the available evidence or made the necessary factual findings about the state of the scientific debate....

Justice Jackson filed an opinion concurring in the judgment in part and dissenting in part, saying in part:

... [T]he majority is wrong to suggest that the term “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.”...  Title IX makes room for individuals to live in the gender they choose; it cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity.  Because West Virginia’s law forces B. P. J. to live—in this case, to play—as a boy though she is a girl, it might well run afoul of Title IX properly construed.

Reuters reports on the decision.

European Court of Human Rights Rules in Favor of Jehovah's Witnesses in Two Cases

The European Court of Human Rights has handed down opinions in two cases involving the rights of Jehovah's Witnesses. The official opinion in each is available only in French. Excerpts below are from unofficial translations:

In Velev and Others v. Bulgaria, (ECHR, June 9, 2026), the court held that a Bulgarian town's prohibition on door-to-door religious propaganda violates Article 9 of the European Convention on Human Rights. The court said in part:

67. The Court is prepared to accept that the measure at issue pursued a legitimate aim, namely the protection of the rights and freedoms of others, and in particular the right to respect for the home and private life of the inhabitants of the municipality of Shumen.

68. It therefore remains to be determined whether the interference was 'necessary in a democratic society'....

69. ,,, [T]he prohibition at issue is general and absolute. It is not limited to coercive, intrusive or abusive behaviour, but targets indiscriminately any form of "religious propaganda" in the homes of residents. Door-to-door preaching is an essential manifestation of Jehovah's Witnesses .... . A general prohibition of such a practice therefore calls for a particularly rigorous examination of proportionality.

70. ... [T]he domestic authorities have not demonstrated the existence of specific or repeated disturbances of such gravity as to justify such a broad measure.... [I]n a democratic society characterized by pluralism and tolerance, the mere fact of being exposed to religious ideas or convictions that one does not share cannot in itself justify a general prohibition of peaceful missionary activities.

The court issued a press release announcing the decision. EWTN also reports on the decision.

In Jehovah's Witnesses Christian Congregation v. Italy, (ECHR, June 11, 2026), the court held that the refusal of Italy to enter into an agreement with Jehovah's Witnesses that would allow it to share in tax revenues constitutes religious discrimination in violation of Articles 9 and 14 of the European Convention on Human Rights.  The court rejected the government's arguments that Jehovah's Witnesses' positions on blood transfusions, military service and voting justify the state's refusal. The court said in part:

62. ... [W]hile freedom of religion does not imply that churches or their followers must be accorded a tax status different from that of other taxpayers...,  the Court has already held that where the national authorities grant tax privileges to certain communities without necessarily being bound to do so by Article 9 of the Convention, they must also comply with Article 14 of the Convention.... Thus, once the State voluntarily decides to grant religious organizations a right to subsidies and other benefits – which right then falls within the broader scope of Articles 9 and 11 of the Convention – the measures it takes to grant such benefits cannot be discriminatory....

75.... [T]he Court considers that the applicant is in a situation comparable to that of registered religious communities which have concluded an agreement with the State under Article 8 of the Constitution. It therefore remains to be determined whether the difference in treatment at issue is based on an objective and reasonable justification under Article 14 of the Convention....

95.... The Court considers that it has not been shown that the difference in treatment between the applicant and the religious cults which may have concluded agreements with the Italian State was based on an 'objective and reasonable justification'.

Two judges filed a concurring opinion saying in part that "the Court should ... have focused ... on the lack of sufficient safeguards against discriminatory treatment...."

The court issued a press release announcing the decision and providing additional information on the court's reasoning. Courthouse News Service also reports on the decision.

10th Circuit: Suit Challenging Religious Exception to Trapping Ban Is Not Justiciable

In New Mexico Trappers Association v. Torrez, (10th Cir., June 8, 2026), the U.S. 10th Circuit Court of Appeals dismissed on justiciability grounds a challenge by trappers' organizations to a New Mexico statute banning capturing or killing wildlife on public lands. Trappers challenged the law because it contains an exception for "enrolled members of a federally recognized Indian nation, tribe or pueblo when trapping is conducted solely for religious or ceremonial purposes pursuant to rules issued by the department of game and fish...." The court rejected plaintiffs' equal protection arguments, holding that the trappers' injuries caused by their inability to trap would not be redressed by a decision in their favor. Severing the exception from the law would still leave the ban on Trappers' activity in place.

The court also dismissed plaintiffs' Establishment Clause challenges, saying in part:

The second type of injury is more attenuated: that the exception communicates that the government favors Native Americans and religion, and the Trappers are excluded from the favored group....

The claims based on this harm are not ripe for review....

The Act’s exception applies only “pursuant to rules issued by the department of game and fish...." No such rules have been promulgated, and we do not know if such rules will ever be promulgated.  Meaning today, the prohibition against trapping stands, regardless of Native American status.  Unless and until there are regulations putting the exception into effect, the Trappers are asking us to issue an impermissible advisory decision on the issue....

They argue that the very existence of the statutory exception, for which the Trappers could never qualify, injures the Trappers now because it communicates that the government prefers Native Americans over other groups. 

Even if ripe, this is not the sort of concrete and particularized injury that we can review under Article III. ...

 And even if this was a concrete injury, it is not particularized because anyone in the country, without ties to New Mexico or an interest in trapping, could similarly claim that the exception communicates a preference for Native Americans.  That is a generalized grievance that does not confer standing....

Muslim High Schoolers Sue After Being Disciplined for Instagram Video

Suit was filed yesterday in a Virginia federal district court against Fairfax County schools by four Muslim students who were disciplined because of a skit they posted on the Muslim Students Association Instagram site.  The complaint (full text) in Doe v. School Board for Fairfax County Public Schools, (ED VA, filed 6/4/2026), alleges in part:

2. Plaintiffs, students at Thomas Jefferson High School for Science and Technology (“TJHSST”), created a lighthearted promotional video for their chapter of the Muslim Student Association. The video contained no threats, no weapons, and no reference to any real-world event. It was a skit, modeled on a viral online trend, intended to invite students to their events.  

3. After bad-faith actors outside of TJHSST made Islamophobic, racist, and anti-Palestinian characterizations about the video, FCPS and TJHSST adopted those characterizations as their own. 

4. Defendants suspended Plaintiffs, labeled their conduct “antisemitic,” barred one Plaintiff from wearing a sweatshirt displaying the map of Palestine, and placed disciplinary marks on the students’ records.  

5. These actions were entirely without justification, damaging the reputations of the students before their peers and teachers and significantly affecting their educational performance and future opportunities. 

6. Because Defendants punished Plaintiffs’ protected speech, and treated Plaintiffs differently because they were Muslim, Arab, and Palestinian, Plaintiffs are entitled to relief under the First Amendment, the Fourteenth Amendment, and Title VI.

CAIR issued a press release announcing the filing of the lawsuit.

D.C. Circuit: Transgender Troops Can Remain in Military, But Ban on New Trans Enlistees Remains for Now

As previously reported, in March 2025 the federal district court for the District of Columbia issued a preliminary injunction barring the military from implementing Executive Orders and military memoranda that exclude transgender persons from serving in the military. Now in Talbott v. United States, (DC Cir., June 1, 2026), the D.C. Circuit Court of Appeals upheld the preliminary injunction insofar as it applies to named plaintiffs who are already serving in the military but vacated the preliminary injunction insofar as it applies to the named plaintiffs seeking to enlist. This result came in a fragmented vote of the 3-judge panel which generated three separate opinions spanning a total of 107 pages.

Judge Wilkins concluded that all the plaintiffs are likely to succeed on the merits of their equal protection challenge and that those already serving in the military are entitled to a preliminary injunction.  However, he held that the case should be remanded to the district court for it to consider whether the balance of equities that justify a preliminary injunction are different for those who are merely seeking to enlist.

Discussing the merits, Judge Wilkins concluded that the current policy on transgender service contains classifications that are not sufficiently related to a legitimate government interest; the policy is grounded on archaic and overbroad generalizations about sex, rather than on a diagnosis of gender dysphoria or medical treatment for the condition; gender dysphoria is treated differently than any other medical condition; and the policy contains classifications that are based on invidious discrimination. He concluded in part:

What has been clearly and repeatedly explained are the foundational premises of the Hegseth Policy:  persons with a “false gender identity” are unfit for the military, and persons with a history of gender dysphoria are also unfit because they lack “honesty, humility, . . . and integrity.”... [T]hose animus-filled reasons were expressly given to justify aspects of the Hegseth Policy....  Unless we are going to fall for the old Groucho Marx line—“who are you going to believe, me or your lying eyes?”—we have direct evidence in this case that animus motivated the classifications in the Hegseth Policy. 

Senior Circuit Judge Rogers filed an opinion concurring in part and dissenting in part. He would affirm the district court's preliminary injunction in full, saying in part:

Given the uncontested record evidence and the nature of this court’s review for abuse of discretion, the district court did not abuse its discretion in enjoining the Hegseth Policy on accession.  This is so even if based on the evidence and argument before it, the district court could have concluded that the retention policy imposes “a much greater hardship” on those currently in the military than those who seek to join it, as Judge Wilkins concludes,... and only enjoined the Hegseth Policy on retention due to  national security concerns.  But the existence of a permissible alternative is not the same as showing that the district court abused its discretion by choosing another permissible alternative....

Judge Walker filed a dissenting opinion. He would reverse in full the district court's grant of a preliminary injunction. He said in part:

Sometimes a case will present an open question informed only by confusing and contradictory precedents.  This is not one of those cases.  Rather, ... an unbroken line of unambiguous authorities directs us to uphold a military policy (1) when it does not conflict with a statutory command, (2) when it reflects a “professional military judgment[],” and (3) when it addresses a perceived, military-wide need regarding the “composition, training, equipping, [or] control” of the armed forces.

The policy challenged today meets those criteria.

ABC News reports on the decision.

Federal Court Won't Order Public School to Allow Homeschooler to Play Interscholastic Sports

 In Palmer v. Virginia High School League, Inc., (WD VA, May 27, 2026), a Virginia federal district court rejected an equal protection challenge to a policy of Virginia's public high school interscholastic sports league that prohibits homeschooled students from participating in interscholastic competitions. Plaintiffs home school their 9th grade son primarily because of their Christian religious beliefs. Their son had been able to participate in track and field events in middle school. The court said in part:

The parties agree that, because there is no fundamental right or suspect classification at issue, rational basis review is the appropriate level of constitutional scrutiny to employ....

Requiring RCSB and VHSL to expend funds to support homeschooled athletic participation without receiving corresponding enrollment-based funding would be a financial burden.  As such, there is a reasonably conceivable basis for excluding homeschooled students from VHSL-sponsored competitions. ....

The court also finds persuasive defendants’ arguments regarding the logistical and competitive challenges associated with permitting homeschooled students to participate in VHSL athletics.  Under the current system ... schools with larger enrollments compete against similarly sized schools, while smaller schools compete against one another.  If homeschooled students were permitted to participate, the VHSL would need to decide whether those students should count toward a school’s enrollment numbers even though they are not actually enrolled in the school.  Counting all homeschooled students within a “high school zone” could artificially inflate a school’s enrollment and force it into a higher competitive division, potentially disadvantaging the students who are actually enrolled.  On the other hand, if homeschooled students were allowed to play without being counted toward enrollment totals, schools could gain a competitive advantage by drawing from a larger pool of athletes without moving into a higher classification.

The court refused to exercise supplemental jurisdiction over plaintiffs' claims under the free exercise clause of the Virginia Constitution and the Virginia Religious Freedom Restoration Act, saying in part:

Article I, Section 16 of the Constitution of Virginia and the VRFRA provide far broader protections for religious liberty than their federal counterparts.  However, the outer limits of those protections are not clearly defined....

...  [T]his case presents difficult and unresolved questions of Virginia law.  While this court often considers state-law matters, some of which are unsettled, considerations of judicial economy, convenience, fairness, and comity lead the court to decline exercising supplemental jurisdiction over the Virginia state-law claims here.  Those claims raise novel and undeveloped issues of Virginia constitutional and statutory law that are best left to the courts of the Commonwealth to resolve.

Denial of Burial Permit Did Not Violate 1st Amendment or RLUIPA

In Baxter v. San Berdino County, (CD CA, May 5, 2026), a California federal magistrate judge recommended dismissing plaintiff's challenges to a refusal by the county to grant him a permit to bury the remains of his father on his own property. The court rejected plaintiff's RLUIPA claim. RLUIPA would apply here only if the land use regulation involved the government's making an individualized assessment of the proposed use of the land. According to the court, "Plaintiff's permit was denied pursuant to non-discretionary health and safety statutes."

The court rejected plaintiff's First Amendment free exercise claim because the statute requiring burial of human remains in a cemetery is neutral and generally applicable. It rejected his equal protection argument because there were no facts indicating religious discrimination against him. It rejected his procedural due process claim because Plaintiff did not allege facts that establish a property interest in the human remains.

Exclusion of Religious High Schools from Vermont's Tuition Payment Program Does Not Violate Free Exercise Clause

In Mid Vermont Christian School v. Saunders, (D VT, May 12, 2026), a Vermont federal district court upheld against constitutional attack a Vermont statute that reduces from 48 to 18 the number of independent schools that are eligible for town tuition payments, i.e. tuition payments for enrollment by students who live in districts that do not have a public high school. The reduction of 30 schools eligible for payments included the elimination of all 14 of the Catholic and Christian schools that were previously eligible. Rejecting plaintiff school's free exercise and equal protection challenges, the court said in part:

If the only issue was whether the language of the statute was neutral, the State would win in a walk....

Mid Vermont has a second string to its bow. Drawing on the "animus" cases such as Masterpiece Cakeshop v. Colorado Civil Rights Comm 'n...., it offers evidence of what it describes as prejudice against public support for religious schools by some of the legislators who voted for Act 73. Whether this court should consider subjective evidence of legislative intent to restrict the free exercise of religious belief is a relatively novel issue....

The statements of the nine legislators identified by Mid Vermont are a thin basis for describing Act 73 - or just Section 21 - as motivated by religious animus. None of the statements were made in floor debate or as part of the Act's legislative history. Instead, most were made in response to an opinion survey and indicate no more than opposition to public funding of religious schools. They cannot reasonably be said to show "pervasive religious intolerance and hostility"....

Finally, Mid Vermont relies on statements by administration officials opposing public funding for religious schools.... It is a step too far, however, to attribute the views of executive officials to state legislators.....

If the court is correct in identifying Act 73 as a statute that is neutral as to religion, then its constitutionality is subject to a rational basis test. It is likely to pass such a test since it addresses multiple issues of educational policy through a program of comprehensive reform....

Suit Challenges Idaho's Ban on Transgender Use of Gender-Conforming Bathrooms

Six transgender residents of Idaho filed a class-action lawsuit last week in an Idaho federal district court challenging recently enacted HB 752, an Idaho law that prohibits "knowingly and willfully enter[ing] a restroom or changing room in a government-owned building or a place of public accommodation ... that is designated for use by the opposite biological sex of such person...." The statute includes exceptions to the ban for various emergency, health-related and similar situations. A violation is punishable by up to one year in prison. A second violation within five years is punishable by up to five years in prison. The complaint (full text) in Jackson-Edney v. Labrador, (D ID, filed 4/29/2026), alleges that the law is void for vagueness and violates the Equal Protection Clause by discriminating on the basis of sex and transgender status. It also contends that it violates plaintiffs' right to informational privacy by compelling disclosure of a person's transgender status.

ACLU issued a press release announcing the filing of the lawsuit.

Catholic Hospice Sues Over NY Standards for Care of Transgender Patients

Last week, Dominican Sisters who operate a home that provides palliative care for indigent, terminally ill cancer patients filed suit in a New York federal district court challenging New York's requirements for care of transgender patients. The complaint (full text) in Dominican Sisters of Hawthorne v. Hochul, filed 4/6/2026) alleges in part:

New York’s LGBTQ Long-Term Care Facility Residents’ Bill of Rights ...  require long-term care facilities to assign patients to rooms based on stated “gender identity” rather than biological sex even over the opposition of the roommate, to permit residents and their visitors of one sex to access bathrooms set aside for those of the opposite sex, to use patients’ “preferred pronouns” even when the patient is not present, to use language and to “create communities” affirming patients’ sexual preferences, to accommodate patients’ desire for extramarital relations, and to post notices affirming compliance with these requirements....

... The Dominican Sisters of Hawthorne and Rosary Hill Home operate in accordance with the Ethical and Religious Directives and the teachings of the Catholic Church. They cannot comply with the Mandate without violating these sincerely held religious beliefs.....

Requiring a person to identify another by a sex other than his or her God-gifted sex would therefore require such a person to act against central, unchangeable and architectural teachings of the Catholic faith. It would contradict the teachings of the Bible concerning God’s creative sovereignty, contradict reason and truth, and betray our sacred obligation not to knowingly harm other persons, particularly the most vulnerable. The implications are so much greater than whether to utter the words “he” or “she.” Indeed, to demand that a Catholic deny another’s sex is to require him or her to affirm another religious worldview....

The complaint alleges 7 counts: Free Exercise; Religious Autonomy Doctrine; Ministerial Exception; Establishment Clause; Equal Protection; Free Speech; and Expressive Association.

NewsNation reports on the lawsuit.

Exclusion of Religious Training from College Grant Program Is Upheld

In Johnson v. Fleming, (ED VA, March 31, 2026), a Virginia federal district court dismissed Free Exercise Clause, Establishment Clause, and Equal Protection Clause claims challenging religious exclusions from the Virginia Tuition Assistance Grant Program. The VTAG program provides grants to Virginia residents who attend private non-profit colleges, except for religious training or theological education. The court said so long as the Supreme Court's decision in Locke v. Davey remains good law, the claims against VTAG must fail.

The case also challenged a program that offers college grants, with similar exclusions, to Virginia National Guard members. The court did not dismiss the challenges to that program because the court had only a limited factual record about the procedures utilized to administer the program. However, the court refused to issue a preliminary injunction because it is unlikely that plaintiffs challenging the program will succeed on the merits.