Splintered 5th Circuit Says Suit Against City for Failing to Train Police on 1st Amendment Rights Can Move Ahead

 In Hershey v. City of Bossier City, (5th Cir., Oct. 7, 2025), the U.S. 5th Circuit Court of Appeals in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place.  The arena is in a public park, is managed by a private company and was rented out for the concert. Both police and private security guards provided security. They informed plaintiff that he could not hand out his material because he was on private property. Plaintiff sued the officers and guards for violating his 1st Amendment rights and sued the city for failing to train the police and the security guards. The case generated three separate opinions which, when put together reversed the trial court's dismissal of the claim against the city, but affirmed on qualified immunity grounds, the dismissal of claims against the police and security guards.

Judge Ho wrote in part:

“The dissemination of ... religious views and doctrines is protected by the First Amendment.”...

This right plainly encompasses the distribution of religious pamphlets—the activity at issue in this case....

So anyone who is “rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.”...

Hershey’s right to evangelize on a public sidewalk is not undermined by the fact that the city-owned facility abutting the sidewalk happens to be managed by a private corporation.  Nor should it matter that his rights were violated by private security guards working alongside police officers.  Municipalities cannot abrogate the constitutional rights of their citizens simply by delegating their coercive governmental powers to private agents.

He also concluded that the city's failure to train amounted to deliberate indifference.

Judge Dennis said in part:

The City’s failure to train officers that the park was a public forum led officers to believe that the park was private property and that citizens could be ejected without violating their First Amendment rights. Hershey also alleged that the officers who removed him from the park held this belief and told him he had to leave the park because it was private property. Hershey has pleaded facts sufficient to show that the City’s complete lack of training was the cause of his injury.

Judge Richman would have upheld the dismissal of the claim against the city, saying in part:

This is a single-incident case in which Hershey relies on his own confrontation with city officers and private security guards to establish municipal liability.  This case does not present the “rare” and “narrow and extreme circumstances” that our court and the Supreme Court has said permit “drawing the inference” of “deliberate indifference.”

The court also by a different 2-1 vote upheld dismissal of damage claims against the officers and security guards on qualified immunity grounds. Judge Dennis would have reversed the trial court's dismissal on qualified immunity grounds, saying in part:

Because the law clearly established Hershey’s right to leaflet in a traditional public forum without viewpoint discrimination, qualified immunity is inappropriate.

Judge Richman disagreed, saying in part:

... [G]iven that the Supreme Court has indicated that sidewalks on public property are not automatically public forums and that the district court considered several cases concerning the forum status of spaces surrounding arenas that do not speak in unison, the forum status of the space in question was not clearly established.... 

Judge Ho reluctantly agreed that precedent required concluding that the right involved was clearly established, but expressed his disagreement with that precedent, saying in part:

 “[i]t seems absurd to suggest that the most egregious constitutional violations imaginable are somehow immune from liability precisely because they’re so egregious.  It would make a mockery of our rights to grant qualified immunity just because no one in government has yet to be abusive enough to commit that particular violation—and then stubborn enough to litigate it, not only before a district court, but also in the court of appeals (or the Supreme Court).”

Supreme Court Hears Oral Arguments in Conversion Therapy Ban Case on Tuesday

Tomorrow (Oct. 7), the U.S. Supreme Court hears oral arguments in Chiles v. Salazar. In the case, the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. (See prior posting.)  Only the free speech issue was raised in the petition for review by the Supreme Court. At issue tomorrow is whether the ban on talk therapy for minors aimed at changing their gay or transgender identity is fully protected speech. Or may that therapy be regulated as primarily professional conduct that the legislature deems to constitute substandard medical care.

Here is the SCOTUSblog case page that provides link to all the briefs and motions filed in the case, as well as to commentary on the case. The oral arguments will be live streamed by the Court at this page beginning at 10:00 AM Eastern Time. Links to a recoding and written transcript of the arguments can be accessed here later in the day on Tuesday.

Supreme Court Term Opens Monday with Several Cases of Interest on Its Docket

The U.S. Supreme Court's fall term opens tomorrow, Oct. 6. There are a number of cases on the Court's Docket for this term that are of interest to readers of Religion Clause Blog. Here are the cases with links to their case pages on SCOTUSblog:

Chiles v. Salazar (to be argued on Oct. 7). Is Colorado's ban on conversion therapy for minors constitutional.

Landor v. Louisiana Department of Corrections and Public Safety, (to be argued Nov. 10, 2025). Can a government official be sued in his individual capacity for violating the Religious Land Use and Institutionalized Persons Act.

First Choice Women’s Resource Centers v. Platkin, (argument date not yet set). Can a faith-based pregnancy resource center that has been served with a state investigatory subpoena challenge the subpoena on free speech grounds in federal court, or must the challenge be adjudicated in state court.

Little v. Hecox, (argument date not yet set). West Virgina v. B.J.P, (argument date not yet set). Do laws that bar transgender women from participating on women's sports teams in public schools and colleges violate Title IX or the 14th Amendment's Equal Protection Clause.

Olivier v. City of Brandon, Mississippi, (argument date not yet set). Can a street preacher can sue to enjoin a city ordinance that limits demonstrations to a designated area within three hours of an event at the city's amphitheater, or would that undermine his prior state conviction for violating the ordinance.

______________

There are also two cases of interest on the Court's Emergency Docket (sometimes called its "Shadow Docket") These cases are usually decided without full briefing and oral argument. 

Trump v. Orr. Asks the Supreme Court should stay a district court injunction that requires the State Department to allow passport applicants to select the sex designation that will appear on their passports. Applicants have the choice of "M", "F", or "X", regardless of their biological sex.

We the Patriots USA v. Ventura Unified School District. Asks the Supreme Court to issue an injunction allowing school children whose parents object to vaccines on religious grounds to attend school while challenges to the absence of religious exemptions from school vaccine mandates are being appealed.

Canceling Church's Sunday Lease on School Gym Violated 1st Amendment

 In Truth Family Bible Church Middleton v. Idaho Housing and Finance Association, (D ID, Sept. 22, 2025), an Idaho federal district court held that plaintiff's First Amendment rights were violated when its lease to use a public charter school's gymnasium for Sunday services was terminated. The court said in part:

... Truth Family had a month-to-month lease with Sage International Network of Schools (“SAGE”), a public charter school, where they would pay rent for the use of the school’s gymnasium on Sundays for church services.... SAGE submitted an application to IHFA to participate in the Public Charter School Facilities Program [under which] it could receive bonds for facility improvements and construction.  

IHFA reviewed SAGE’s application and indicated the lease with Truth Family could be a problem because the bond proceeds could not be used for religious purposes under Article IX Section 5 of the Idaho Constitution (otherwise known as the “Blaine Amendment”).... Ultimately, SAGE decided to terminate the lease in order to proceed with bond financing.....

IHFA did not single out Truth Family’s lease in a way that was neutral or generally applicable, and SAGE did not terminate Truth Family’s lease in a manner that was neutral or generally applicable. Therefore, Truth Family met its burden of showing there was a violation of the Free Exercise Clause here....

To refuse the issuance of bonds to anyone who contracts with a religious organization to use their facilities is likely not narrowly tailored to any government interest that could possibly be served by the Blaine Amendment....

... [T]he government is still indicating a preference for a certain religion or non-religion when it excludes another. When Truth Family was prevented from using facilities to participate in worship services, that indicated IHFA and SAGE’s preference for non-religion in violation of the Establishment Clause....

SAGE terminated the lease solely due to Truth Family’s status as a religious organization. While the motivation might have been money rather than a direct issue with the message itself, the result is the same: Truth Family could no longer spread its message at the school because it was a religious one. This is a violation of the Free Speech Clause, and summary judgment is proper....

Idaho Ed News reports on the decision.

9th Circuit Upholds Requirement to Use Only Secular Curricular Materials in Charter School Home Instruction Programs

In Woodlard v. Thurmond, (9th Cir., Sept. 11, 2025), the U.S. 9th Circuit Court of Appeals rejected First Amendment challenges to California's refusal to purchase and permit the use of religious curricular materials in home-based independent study programs of two charter schools. The court said in part:

Plaintiffs ... argue that the defendant charter schools’ independent study programs are really homeschooling and that the schools’ provision of curricular materials should be treated as a generally available public benefit in aid of homeschooling, access to which cannot be denied based on Plaintiffs’ religious beliefs. The argument is premised on three recent Supreme Court decisions holding that when a state creates a generally available public benefit, it cannot exclude a potential recipient from the benefit because of religious status or religious use....

... [N]ot all government decisions that engender religious objections impose burdens on religion that fall afoul of the Free Exercise Clause. As the Supreme Court made clear in Carson, a state’s decision to provide a “strictly secular” public education does not do so....

... [I]n contrast to private homeschooling, parents in independent study programs can teach only under the supervision of state employees. The extensive legal requirements applicable to the defendant charter schools’ independent study programs make the programs sufficiently public to defeat Plaintiffs’ free exercise claim....

Plaintiffs’ compelled speech claim fares no better. It is premised on the argument that “[w]hen parents in the Blue Ridge and Visions programs select a diverse array of curricula for their children’s diverse needs,” the parents are speaking, not the government. However, we have held that a public school’s curriculum is an “expression of its policy,” ... and that “information and speech ... present[ed] to school children may be deemed to be part of the school’s curriculum and thus School District speech,” 

School Rules on Non-gendered Pronouns Do Not Violate Free Exercise or Free Speech Rights

In Hyland v. State Board of Education, (NJ App., Sept. 9, 2025), a New Jersey state appellate court rejected a 1st and 14th Amendment challenge to amended Board of Education rules that, among other things, eliminated gendered pronouns in the rules. The court said in part:

Hyland argues the State Board may not establish a "religion of secularism" by adopting amendments that define gender as "indeterminate," which can be decided based on the student's feelings, resulting in the treatment of comparable secular activity more favorably than religious exercise.  He further argues the amendments force students who adhere to a "Biblical worldview," to act and operate under a law that directly contradicts those beliefs, and the students or parents are not allowed to opt out of the imposition of those beliefs....

A fair reading of the amended chapter demonstrates the State Board does not seek to promote a "religion of secularism," nor does it create a constitutionally prohibited entanglement.  The students and parents retain the right to opt-out of any instruction related to health, family life education, or sex education or educational activity that violates their religious beliefs.... Thus, the amendments do not violate either the Free Exercise or Establishment Clauses, as they apply uniformly to all students and do not seek to regulate religious conduct or belief.,,,

We are satisfied that the record establishes there is no violation of the First Amendment free speech rights.  Here, the amendments to Chapter 7 do not regulate or target the speech of students or parents.  While the amendments define gender identity, they neither compel nor coerce students or parents to endorse this definition.  Nor do they prevent students or parents from publicly expressing a different view....

11th Circuit: Government Can Insist on Secular Presenters in Intervention Program for Domestic Abusers

In Nussbaumer v. Secretary, Florida Department of Children and Families, (11th Cir., Sept. 4, 2025), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise challenges to Florida's requirements for becoming certified as a provider in the state's batterers' intervention program. Anyone convicted of domestic violence is required to complete the intervention program offered by a certified provider.  Nussbaumer is a Florida minister and licensed clinical Christian psychologist. He was denied certification because state rules require that the program's curriculum not include any faith-based ideology associated with a particular curriculum and not identify poor impulse control as a cause of domestic violence or suggest anger management techniques to prevent domestic violence. The court held that plaintiff's free speech rights were not violated because the curriculum and its presentation are government speech. Similarly, it held that his free exercise rights were not infringed, saying in part:

“the government’s own speech cannot support a claim that the government has interfered with a private individual’s free exercise rights.”... “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”

Christian Families Challenge Foster Care Rules on Support of Transgender Children

Two families, asserting Christian religious beliefs, filed suit yesterday in a Massachusetts federal district court challenging on 1st and 14th Amendment grounds a policy of the Massachusetts Department of Children and Families that requires foster parents to agree that they will "[s]upport, respect, and affirm the foster child’s sexual orientation, gender identity, and gender expression." The complaint (full text) in Jones v. Mahaniah, (D MA, filed 9/3/2025), alleges in part:

3. Both families will provide a loving and respectful home for any child, including transgender, gay, or lesbian foster children. But that is insufficient for Massachusetts....

4. ... [T]he State requires the Joneses and the Schrocks to promise to use a child’s chosen pronouns, verbally affirm a child’s gender identity contrary to biological sex, and even encourage a child to medically transition, forcing these families to speak against their core religious beliefs. 

5. Second, DCF infringes on Plaintiffs’ free-exercise rights through a policy that is not neutral or generally applicable,,,,  A foster parent must promise in advance to use opposite-sex pronouns and encourage a hypothetical child’s gender transition, even if they never have and never will host a child who struggles to accept their natural body....

120. Because DCF compels applicants to speak and express the DCF’s preferred views on human sexuality while prohibiting speech expressing other views it regulates speech based on content and viewpoint, it engages in unconstitutional viewpoint discrimination....

134. 110 C.M.R. 7.104(1)(d) is not neutral nor generally applicable because it imposes special disabilities based on religious beliefs, categorically excludes people from foster-care licenses based on religious beliefs, prefers certain religious and secular beliefs over the Plaintiffs’ religious beliefs, and provides for categorical and individualized exemptions without extending an exemption to religious persons like Plaintiffs.

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

Supreme Court Review Sought by California Baker

A petition for certiorari (full text) was filed this week in Miller v. Civil Rights Division, (Sup. Ct., certiorari filed 8/26/2025). In the case, a California state appellate court held that a bakery, Cathy's Creations, and its owner violated the anti-discrimination provisions of California law when they refused to sell a predesigned cake to a customer because the cake would be used at a same-sex wedding reception. The California court rejected defendant's free exercise and free speech defenses. (See prior posting.) The California Supreme Court denied review. Washington Times reports on the petition seeking U.S. Supreme Court review.

LA Sued Over Its handling of Permit Application for Christian Revival Event

Suit was filed last week in a California federal district court by leaders of May Day USA, a nationwide Christian revival event, contending that the manner in which Los Angeles officials handed their application for a permit to hold a revival on Hollywood Boulevard violated their 1st and 14th Amendment rights. The 54-page complaint (full text) in Donnelly v. City of Los Angeles, California, (CD CA, filed 8/21/2025), alleges in part:

15. LAPD wielded the unconstitutionally unbridled discretion afforded it under the City’s permitting scheme to subject MayDay to lengthy and pretextual administrative hurdles....

16. Among the LAPD’s many demands was a requirement that MayDay conduct a petition of Hollywood Boulevard’s business owners and vendors to ensure at least 51% approved of MayDay’s expressive activity and speech....

19. The City’s permitting scheme thus enshrined an unconstitutional heckler’s veto upon MayDay and its expressive activities....

21. The City refused to provide MayDay with any concrete answer on its permit application until the last minute, prohibiting MayDay from finalizing their planned event, advertising it, or otherwise adequately preparing to engage in the event....

23. Three days prior to its requested event, the City denied the permit actually requested by MayDay ...and “granted” the application to host the event at a location ... it never requested and out of the site of the hecklers who Defendants believed would veto MayDay’s speech. In essence, the City tried to put MayDay unconstitutionally out of sight, and out of mind....

25. Simply put, the City said MayDay could speak, but only if it did it quietly, quickly, and where no one who might object would be forced to hear it. Defendants denied MayDay’s permit application on the basis of the views it planned to espouse and out of concern that Hollywood Boulevard was not an appropriate place for their religious speech, exercise, and expression.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

School Counselor's Office Display of Anti-Trans Books Is Permissible Only When No Students Are in His Office

In Theis v. Intermountain Education Service Board of Directors, (D ORA, Aug. 20, 2025), a social worker employed by the district to administer standardized tests individually to students sued claiming his constitutional rights were violated when the district found that his display of two particular books in his office violated the district's bias policy. The district found that the display of the books-- titled He is He and She is She--constituted a hostile expression toward a person because of their gender identity. Plaintiff was ordered to stop displaying the books. 

The court concluded that the district's policy did not violate plaintiff's free exercise rights, saying in part:

... Plaintiff has failed to show that Defendant’s Speech Policy is not neutral. There is no indication that the ESB Policy restricts any religious practices because of their religious motivations. Indeed, the policy explicitly seeks to prevent discrimination or harassment based on religion. And even if the ESB Policy adversely impacted religious practices, it is addressing the legitimate concern of ensuring an open and welcoming school environment for all students and employees.

Plaintiff also has not shown that Defendants were “hostile” towards his religious beliefs....

The court however agreed in part with plaintiff's free speech claim, saying that "only his display when no students are present is protected under the First Amendment." It explained: 

When no students were present in Plaintiff’s office, the message of the books would not be reasonably attributable to IMESD, and the display could not press Plaintiff’s views on impressionable or captive students.

Good News Clubs Must Have Equal Access to School Facilities

In Child Evangelism Fellowship NorCal, Inc. v. Oakland Unified School District Board of Education, (ND CA, Aug. 15, 2025), a California federal district court issued a preliminary injunction barring the Oakland School District from denying Christian Evangelism Fellowship and its Good News Clubs access to school facilities after school on an equal basis with the access provided similarly situated nonprofit organizations. Plaintiff had been denied use of school facilities, in part because all space was being used by two broad afterschool programs that choose subcontractors to provide content. The court said in part:

Even assuming that afterschool space is now controlled by the lead agencies, as OUSD seems to urge, Plaintiff has provided an example of a lead agency similarly denying CEF access as a subcontractor because of its religious affiliation....

In short, the Court finds that the law and facts clearly favor Plaintiff’s position that OUSD violated CEF’s free speech rights.

Catholic News Agency reports on the decision.

9th Circuit: Oregon Religious Non-Discrimination Rule for Grantees Is Mostly Valid

 In Youth 71Five Ministries v. Willliams, (9th Cir., Aug. 18, 2025), a Christian youth program sued after the Oregon Department of Education's Youth Development Division withdrew the conditional award of a grant. Plaintiff requires that its board members, employees, and volunteers agree to a Christian Statement of Faith and be involved in a local church. The Division contended that this violates its religious non-discrimination policy.  Plaintiff contended that the withdrawal violated its free exercise, religious-autonomy, and expressive-association rights. 

 The U.S. 9th Circuit Court of Appeals said in part:

... [T]he Rule does not deny funding based on a practice exclusive to religious organizations. Government agencies, secular corporations, and religious ministries alike might engage in religion-based employment discrimination....

Based on the evidence properly before the district court, it was not an abuse of discretion to conclude that the Division likely treats comparable secular and religious activity the same....

... 71Five argues that merely tailoring services to a target demographic is comparable to 71Five’s categorical exclusion of non-Christians. We disagree....

The Division adopted the Rule to, among other reasons, better reflect its “commitment to equitable access, equal opportunity, and inclusion.” That is a legitimate interest.... The Rule rationally furthers that interest by ensuring that Division-funded initiatives are equally open to employees, volunteers, and participants regardless of race, sex, religion, or any other protected characteristic. The district court therefore did not abuse its discretion in determining that 71Five is not likely to succeed on the merits of its free-exercise claim....

71Five claims that the Rule abridges its expressive association by requiring it to accept employees and volunteers “who disagree” with its message “or would express a contrary view.” ... We hold that 71Five has established that it is likely to succeed, at least in part. As to Division-funded initiatives, the Rule is likely permissible as a reasonable and viewpoint-neutral regulation of expressive association in a limited public forum—the Grant Program. But to the extent that it restricts 71Five’s selection of speakers to spread its Christian message through initiatives that receive no Division funding, the Rule likely imposes an unconstitutional condition....

71Five’s complaint does not allege a violation of any clearly established right under the First Amendment, so the Defendants are entitled to qualified immunity, and the district court did not err in dismissing 71Five’s damages claims with prejudice.

Judge Rawlinson concurred only in the judgment and did not join the majority's opinion, saying in part:

I concur in the judgment because, and only because, of our truncated review of a district court's decision granting or denying injunctive relief, and our obligatory deference to a district court's discretionary decision to decline consideration of arguments and evidence presented in a Reply Brief. ...

I decline to join the majority opinion's analysis because it relies heavily on the premise (mistaken, in my view), that Youth Five's website evidenced discrimination, while websites from the secular organizations applying for grants did not evidence discrimination....

[Thanks to Steven Sholk for the lead.]

9th Circuit Rejects Christian Day Care's Challenge to Licensing Requirement

In Foothills Christian Ministries v. Johnson, (9th Cir., Aug. 14, 2025), Foothills, a Christian day care center, challenged a California licensing provision requiring that day care centers ensure that children are free to attend religious services or activities of their parents' choice. The U.S. 9th Circuit Court of Appeals held that plaintiff lacks standing to challenge the regulation on free exercise grounds because the state has repeatedly taken the position that the regulation does not prohibit operating a day care center with a mandatory religious curriculum, where parents are made aware of this in advance of enrollment. 

However, the court held that Foothills does have standing to challenge the general licensing requirement on the ground that some secular child day care centers are exempt from licensing. But the court rejected that claim on the merits, saying in part:

Foothills contends that the Act’s exemption of “recreation programs conducted for children by” the YMCA “or similar organizations,”...  But this provision only exempts recreation programs from the licensure requirement; it explicitly does not exempt “child day care programs conducted by” the same organizations and so creates no mechanism for granting individualized exemptions for such facilities....

Foothills points to the exception for any “child daycare program that operates only one day per week for no more than four hours on that one day.”... This exemption applies to, among other things, Sunday schools. But a program that oversees children for only four hours a week does not present a threat to children’s health and safety comparable to that of a facility that can operate up to 24 hours a day....

Foothills alleges that the Act’s exemption of certain sectarian organizations—such as the YMCA and Boy Scouts of America—from licensing gives preferential treatment to certain religions in violation of the Establishment Clause.... 

If Foothills sought to operate a recreation program, it would not be subject to the Act. And if the YMCA or the Boy Scouts sought to operate a child day care facility, they would. This exemption draws no lines based on religion....

The court also held that the required disclosure to parents of the right for their child to attend religious activities of their choice does not infringe Foothills' free speech rights, distinguishing the Supreme Court case of Nat’l Inst. of Fam. & Life Advocs. v. Becerra , saying in part:

 Because the Act merely requires Foothills to inform parents of their children’s rights and does not “convey a message fundamentally at odds with its mission,” the required disclosure is not controversial....

8th Circuit: Rejection of Prison Course on Manhood From Christian Biblical Lens Violated Volunteer's 1st Amendment Rights

In Schmitt v. Robertus, (8th Cir., Aug. 14, 2025), the U.S. 8th Circuit Court of Appeals in a 2-1 decision held that Minnesota prison officials likely violated the 1st Amendment in  refusing to allow plaintiff, a volunteer, to teach a program titled The Quest for Authentic Manhood at the Minnesota Correctional Facility.  The program defines manhood through a Christian biblical lens. Officials rejected the program as violating the prison's diversity, equity and inclusivity values, saying in part:

Throughout all sessions reviewed, men were only identified as heterosexual, seeking ideal relationships and marriage with women. It is evident that throughout this curriculum, manhood can only be achieved through heterosexual relationships.

Additionally, throughout many of the sessions, women are also identified as the problem for creating “soft males[,”] described as indecisive and weak....

The 8th Circuit focused on the test in prison cases announced by the Supreme Court in Turner v. Safley. Under that test prison regulations must have a valid rational connection to a legitimate governmental interest. The 8th Circuit said in part:

The first Turner factor, however, requires more than a legitimate penological interest. “[T]he governmental objective must be a legitimate and neutral one.”... “This means that the proffered mechanism by which the regulation promotes the legitimate government interest must be ‘unrelated to the suppression of expression.’” ...

Here, although the MDOC set forth a legitimate government interest, its termination of Quest was not “in a neutral fashion, without regard to the content of the expression.”...

Judge Kelly dissented, saying in part:

As I see it, it is common sense that a prison, like a school, can curate the programming it provides. ...

It thus seems natural to me to conclude that MDOC’s rehabilitative programming constitutes government speech, casting doubt on Schmitt’s free-speech and free-exercise claims....

8th Circuit: Jury Should Decide If Anti-Abortion Facebook Posting Impacted Delivery of Public Services

In Melton v. City of Forrest City, Arkansas, (8th Cir., Aug. 13, 2025), the U.S. 8th Circuit Court of Appeals held that a district court should have sent factual questions to a jury instead of granting summary judgment in a retaliation suit by a fireman who was dismissed because of the firestorm caused by a controversial posting on his personal Facebook page. The fire chief had received complaints about the posting from city council members and members of the public. The court said in part:

Steven Melton is a pro-life, evangelical Christian.  In June 2020, he reposted a black-and-white image on Facebook that depicted a silhouette of a baby in the womb with a rope around its neck.  His intent was to convey that he was “anti-abortion.”...

Others did not view the image the same way.  Two weeks after he posted it, a retired fire-department supervisor complained to Melton that he thought it looked like a noose around the neck of a black child.  It upset him because the caption of the image, “I can’t breathe!,” was associated with the protests surrounding George Floyd’s death.  Melton agreed to delete it immediately....

The problem is that there was no showing that Melton’s post had an impact on the fire department itself.  No current firefighter complained or confronted him about it.  Nor did any co-worker or supervisor refuse to work with him.  Granting summary judgment based on such “vague and conclusory” concerns, without more, runs the risk of constitutionalizing a heckler’s veto.

ADF issued a press release announcing the decision.

Denial of State Reimbursement for Religious Home School Material Does Not Violate 1st Amendment

In Trakel v. Critchfield, (D ID, Aug. 6, 202), an Idaho federal district court rejected parents' claim that they are entitled to reimbursement for religiously influenced supplemental materials that they purchased for their children who are enrolled in the state's home learning program, the Idaho Home Learning Academy. The court said in part:

IHLA is an accredited public charter school that provides Idaho students with a customizable online education. The school offers its own online curriculum options but also reimburses families for the costs of certain self-selected supplemental and enrichment materials. Some of these items are “preapproved,” while others require IHLA to first determine that the items are educationally appropriate, reasonable, and an efficient use of tax dollars....

The school denied the reimbursement request, citing State Department of Education policies and Article IX, Section 5 of the Idaho Constitution, known as the Blaine Amendment,  which prohibits the use of public money for religious purposes....

The Trakels argue this denial violates the Free Exercise and Free Speech Clauses of the First Amendment. Specifically, they view IHLA’s reimbursement policy as a public benefit, which is unconstitutionally limited to secular curriculums....

... [T]he Trakels seek to compel IHLA to provide a religious education. IHLA’s reimbursement policy is not a public benefit that allows parents to make fully independent decisions regarding their children’s education. Although families have an unusual degree of input and flexibility, IHLA is ultimately a public school that sets its own curriculum. To qualify for reimbursement, supplemental materials must receive approval and meet a variety of standards set by the school.... To put it simply, reimbursed materials become part of the IHLA curriculum. The question, then, is whether the Trakels have a free exercise or free speech right for their children to receive a public religious education. The answer is clearly no.

Office of Personnel Management Says Federal Employee Religious Speech In Workplace Is Protected

Yesterday, the federal Office of Personnel Management issued a Memo (full text) to heads of federal departments and agencies on Protecting Religious Expression in the Federal Workplace. The cover letter transmitting the Memo says in part:

The memo provides clear guidance to ensure federal employees may express their religious beliefs through prayer, personal items, group gatherings, and conversations without fear of discrimination or retaliation....

The memo builds on OPMʼs July 16 guidance on reasonable accommodations for religious purposes....

The Memo itself defines kind of religious speech that should be protected in the federal workplace, saying in part:

... Employees should be permitted to display and use items used for religious purposes or icons of a religiously significant nature ... on their desks, on their person, and in their assigned workspaces. 

... Agencies should allow ... employees to engage in individual or communal religious expressions in both formal and informal settings alone or with fellow employees, so long as such expressions do not occur during on-duty time...

... Employees may engage in conversations regarding religious topics with fellow employees, including attempting to persuade others of the correctness of their own religious views, provided that such efforts are not harassing in nature. Employees may also encourage their coworkers to participate in religious expressions of faith, such as prayer, to the same extent that they would be permitted to encourage coworkers participate in other personal activities. The constitutional rights of supervisors ...should not be distinguished from non-supervisory employees.... However, unwillingness to engage in such conversations may not be the basis of workplace discipline.   

...  [W]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.....

Among the specific examples of protected employee speech set out in an Appendix to the Memo are:

• An employee may invite another to worship at her church despite being belonging to a different faith. 
• On a bulletin board meant for personal announcements, a supervisor may post a handwritten note inviting each of his employees to attend an Easter service at his church....
• A park ranger leading a tour through a national park may join her tour group in prayer.
• A doctor at a Veterans Affairs (VA) hospital may pray over his patient for her recovery.....

The Hill reports on the Memo. [Thanks to Thomas Rutledge for the lead.]

Adoptive Parent Rule on Transgender Children Violates Plaintiff's Free Speech and Free Exercise Rights

 In Bates v. Pakseresht, (9th Cir., July 24, 2025), the U.S. 9th Circuit Court of Appeals held unconstitutional as applied to plaintiff Oregon's requirement that to be certified as an adoptive parent, a person must agree to respect and support an adopted child's gender identity and gender expression and use the child's preferred pronouns. Plaintiff contended that it violated her Seventh Day Adventist religious beliefs to use a child's preferred pronouns or take the child for gender transition medical appointments. In a 2-1 decision, the court agreed that the requirement violated plaintiff's free speech and free exercise rights. The majority, in a 50-page opinion, said in part:

We deal here with two vital such rights: the First Amendment’s protections for free speech and the free exercise of religion.  These rights work together, with “the Free Exercise Clause protect[ing] religious exercises, whether communicative or not,” and “the Free Speech Clause provid[ing] overlapping protection for expressive religious activities.”...  Fundamental as basic freedoms, these rights spring from a common constitutional principle: that the government may not insist upon our adherence to state favored orthodoxies, whether of a religious or political variety....

We hold that Oregon’s application of § 413-200-0308(2)(k) to Bates, in denying her certification to be an adoptive parent, triggers strict scrutiny for both her free speech and free exercise claims.  In Part A below, we explain why strict scrutiny applies to Bates’s free speech claim.  In Part B, we do the same for Bates’s Free Exercise Clause claim.  And in Part C, we explain why applying Oregon’s policy to Bates does not survive strict scrutiny.  Bates has therefore shown a likelihood of success on the merits of her claim that denying her certification under § 413-200-0308(2)(k) violates the First Amendment.

Judge Clifton dissented, saying in part in a 40-page opinion:

The only limitation imposed by the state in declining to approve her application to foster a child concerns her treatment of the child, not what she personally believes, how she speaks to the world, or how she practices her faith. Oregon should be permitted to put the best interests of the child for which it is responsible paramount in making the decision to place one of its children in the custody of a foster applicant. Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child’s self-determined gender identity, if that is something the parents have decided is important. Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given. 

Tennessee Law Barring Recruitment of Minor to Obtain an Abortion Is Unconstitutional

In Welty v. Dunaway, (MD TN, July 18, 2025), a Tennessee federal district court enjoined enforcement of a Tennessee statute that prohibits "recruiting" an unemancipated minor to obtain an out-of-state abortion that is legal where performed. The court said in part:

... [P]laintiffs have established that §39-15-201(a) unconstitutionally regulates speech based on content and is facially overbroad.

Axios reports on the decision. [Thanks to Thomas Rutledge for the lead.]