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.]

Ban On Pride Flag on City Poles Does Not Violate Establishment Clause

 In Gordon v. City of Hamtramck, (ED MI, July 14, 2025), a Michigan federal district court held that a ban on religious, ethnic, racial, political, or sexual orientation group flags on city flag poles does not violate the plaintiffs' free speech rights or the Establishment Clause, saying in part:

The plaintiffs also bring a claim under another part of the First Amendment, positing that the enactment of Resolution 2023-82 that effectively banned display of the Pride flag violated the Establishment Clause because it was promulgated “to accommodate a segment of the Hamtramck community which was hostile to the rights of the gay community based on their personal religious views.”  The plaintiffs cite several statements in this record by city councilpersons condemning homosexuality and expressing hostility to the sentiments that the Gay Pride flag may symbolize.   

However, the plaintiffs’ “evidence” of subjective motivation to advance a religious viewpoint is irrelevant to the analysis of alleged Establishment Clause violations....

The justifications advanced here — foreclosing public controversy and avoiding contentious litigation over displays of competing viewpoints — have been found to be constitutionally valid by courts that upheld regulations with indistinguishable limitations on flagpole displays.

Christian Bookstore Challenges Colorado Anti-Discrimination Law

Suit was filed this week in a Colorado federal district court by a Christian bookstore challenging on free speech, free exercise, equal protection and due process grounds recent amendments to Colorado's Anti-Discrimination Act. The complaint (full text) in Doxa Enterprise, Ltd. v. Sullivan, (D CO, filed 7/16/2025), alleges in part:

2. Colorado recently passed HB25-1312 (the “Act”) and amended the Colorado Anti-Discrimination Act (“CADA”) to define “gender expression” to include “chosen name” and “how an individual chooses to be addressed.” The Act then declares that Coloradans have a right to access “public accommodations[] and advertising” free of discrimination on that basis— except if the requested language is “offensive” or made for “frivolous purposes.”  Under this revised CADA language, it is now illegal for public accommodations like independent bookstores to refer to transgender-identifying individuals with biologically accurate language in their publications and customer interactions. 

3. This puts CADA on a collision course with the First Amendment rights of Plaintiff Doxa Enterprise, Ltd (“Born Again Used Books” or the “Bookstore”), a Christian bookstore in Colorado Springs that sells Christian literature, homeschool curricula, and classics. The Bookstore also publishes a website and social media accounts to promote its Christian faith and products.

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

Christian Evangelist Challenges Town's Permit Requirement for Carrying Sign

Suit was filed this week in a South Carolina federal district court challenging the application of Chapin, South Carolina's "Parades, Demonstrating, Picketing" Ordinance to plaintiff's carrying of a religious sign on public rights of way. The complaint (full text) in Giardino v. Town of Chapin, South Carolina, (D SC, filed 7/15/2025), alleges in part:

2. Chapin interprets and applies the Ordinance regulating “demonstrations” to engulf Giardino’s use of religious signs while standing on public rights-of-way in town limits, requiring him to (i) apply for a permit to hold a sign on a public way, (ii) supply fourteen-day advance notice of his use of a sign, (iii) divulge identity and content of his sign, (iv) conditioned on standardless approval of the Mayor, and, if approved, (v) limit his time holding a sign to thirty minutes, and (vi) to move to a different spot after fifteen minutes...

12. Giardino is an evangelical Christian driven by his faith to share the good news of Jesus Christ (gospel) with others. 

13. He wants to inform others of the salvation they can find by believing in Jesus Christ and accepting Him as their savior.   

14. To convey this evangelistic message, Giardino holds a 20-inch by 24-inch sign attached to a short handle containing a short, pithy statement about the gospel while standing on a public sidewalk or public right-of-way in the town limits of Chapin, South Carolina.

The complaint alleges that enforcement of the Ordinance violates plaintiff's free speech, free exercise and due process rights, as well as South Carolina's Religious Freedom Act. Plaintiff also filed a Memorandum in Support of Motion for Preliminary Injunction.

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

Section 1981 Suit Can Move Ahead Against Defendants Who Disrupted Jewish Religious Celebration

Congregation Hazon Ovadya, Inc. v. Rabbinical Council of California, (CD CA, July 1, 2025), is a suit by a Sephardic Jewish synagogue against several individuals of Ashkenazi Jewish origin as well as a group of Ashkenazi rabbis. The court describes the dispute:

On or about July 13, 2022, CHO organized a procession and solemn, religious ceremony centered around the dedication of a Torah.... In preparation for the Ceremony, CHO contracted with various rabbis and vendors, including musicians, a disc jockey, and equipment providers....

Plaintiffs allege that the Rabbinical Defendants contacted hundreds of people, including the Individuals Defendants, to organize a riot and frustrate the Ceremony.... Plaintiffs further allege that Defendants were motivated by their bias and animosity towards people of Sephardic origin.... In addition to playing sirens and other noises, some of the Individual Defendants shouted racial slurs at Plaintiff Vanounou, including but not limited to calling him "Arab."....

Due to the riot, the musicians and other vendors were unable to perform their contractual duties during the Ceremony....

Plaintiffs sued under 42 USC §1981 which prohibits discrimination on account of race in the making and enforcement of contracts. The court denied defendants' motion to dismiss the case under California's anti-SLAPP law, saying that the suit does not seek to hold defendants liable for their speech. The court refused to dismiss the suit against three individual defendants, saying in part:

The Court acknowledges that § 1981 is not "meant to provide an omnibus remedy for all racial injustice."... And the facts at issue in this action certainly do not fall within the typical kinds of claims raised under § 1981. However, having been presented with no authority expressly precluding claims of this nature, the Court does not view dismissal on this ground appropriate at this stage. At bottom, Plaintiffs have sufficiently pled that their contractual rights were impaired...

However the court dismissed charges against the Rabbinical organization, saying in part:

Even if the Rabbinical Defendants organized the riot and some of the participants engaged in racial chants, Plaintiffs have failed to allege facts supporting the idea that the Rabbinical Defendants engaged in this conduct themselves or otherwise ordered or condoned it....

Cert. Granted in Street Preacher's Suit Challenging Protest Zone

Yesterday the U.S. Supreme Court granted review in Olivier v. City of Brandon, Mississippi, (Docket No. 24-993, certiorari granted 7/3/2025). (Order List.) In the case, a Christian street preacher challenges a city ordinance that limits demonstrations to a designated area within three hours of an event at the city's amphitheater. The certiorari petition frames the question in part as follows:

Gabriel Olivier is a Christian who feels called to share the gospel with his fellow citizens.  After being arrested and fined for violating an ordinance targeting “protests” outside a public amphitheater, Olivier brought a § 1983 suit under the First and Fourteenth Amendments to declare the ordinance unconstitutional and enjoin its enforcement against him in the future.   

The Fifth Circuit, applying its precedent construing this Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), held that Olivier’s prior conviction barred his § 1983 suit because even the prospective relief it seeks would necessarily undermine his prior conviction....

Links to briefs and pleadings in the case are available here.

11th Circuit: Florida Can Bar Transgender Teacher's Use of Preferred Pronouns to Refer to Herself in Classroom

In Wood v. Florida Department of Education, (11th Cir., July 2, 2025), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, held that a transgender woman teacher's right to free speech was not violated by a Florida statute that  prohibits her from using the title “Ms.” and the pronouns “she,” “her,” and “hers” in exchanges with her high school students during class time. The majority concluded that the teacher "cannot show, with respect to the expression at issue here, that she was speaking as a private citizen rather than a government employee." The majority said in part:

... [W]e needn’t—and don’t—consider whether Wood has a First Amendment right to use gendered identifiers or don a “she/her” pin when conversing with colleagues in the faculty lounge, or, for that matter, even whether she has a right to do those things in her classroom after the students have departed for the day....

When a public-school teacher addresses her students within the four walls of a classroom—whether orally or in writing—she is unquestionably acting “pursuant to [her] official duties.”  Interacting with students during class time, quite literally, is a teacher’s “official dut[y].”  We reiterate that our decision is a narrow one.  We hold only that when Wood identified herself to students in the classroom using the honorific “Ms.” and the pronouns “she,” “her,” and “hers,” she did so in her capacity as a government employee, and not as a private citizen....

Judge Jordan dissented, saying in part:

The preferred personal title and pronouns of a teacher are, like her name, significant markers of individual identity.  They exist outside of, and do not depend on, the school or the government for their existence.... 

The majority’s expansive application of the government speech doctrine essentially leaves the First Amendment on the wrong side of the schoolhouse gate.  As this case demonstrates, “the government speech doctrine [is being] used as a subterfuge for favoring certain private speakers over others based on viewpoint.” ...

The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status.

California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Cert. Granted In Litigation Over Investigatory Demands

The U.S Supreme Court today granted review in First Choice Women's Resource v. Platkin, (Docket No. 24-781, certiorari granted 6/16/2025). (Order List). The petition for certiorari describes the complex fact situation involved:

New Jersey’s Attorney General served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors’ names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General’s motion to enforce the Subpoena but expressly did not decide First Choice’s federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice’s constitutional claims were not ripe in federal court.

The Third Circuit affirmed in a divided percuriam decision.. [T]he majority concluded First Choice’s claims were not yet ripe because First Choice could litigate its constitutional claims in state court.... It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

Court Denies TRO In Challenge To Trump's Executive Orders on Antisemitism

In McClanahan v. Trump, (WD MO, June 9, 2025), a Missouri federal district court refused to grant a temporary restraining order in a challenge to President Trump's Executive Orders directing federal agencies to use the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in enforcing Title VI of the Civil Rights Act and which direct federal agencies to withhold funding from universities that do not bar criticism of Israel.  According to the court:

Plaintiff brings his action challenging the constitutionality of Executive Orders 13899 and 14188 based on alleged violations of his First Amendment Right of free speech, Violation of his Fifth Amendment Right under the Due Process Clause; and violation of the Establishment Clause of the First Amendment....

Plaintiff identifies five constitutional arguments he believes have a likelihood of succeeding on the merits. Those arguments are First Amendment – Viewpoint Discrimination; First Amendment – Chilling Effect; First Amendment – Right to Petition; Establishment Clause; and Fifth Amendment – Due Process and Vagueness. Defendants argue that Plaintiff has alleged not facts indicating a reasonable belief that he will lose his federal benefits and no link betweean y prospective loss of his federal benefits and the challenged executive orders. 

The court concluded that plaintiff's likelihood of success on any of these claims was low.

Jury Must Decide Reason for Evangelists' Exclusion from Pride Event

In Cocchini v. City of Franklin, Tennessee, (MD TN, June 3, 2025), in an opinion covering three consolidated cases, a Tennessee federal district court held that because disputed questions of fact remain, the cases must go to trial rather than the court issuing summary judgment for either side.  At issue are claims by five Christian evangelists that they were wrongly removed, asked to leave or denied entrance to the 2023 Franklin Pride Festival in violation of their 1st Amendment free speech rights. Those who entered the Festival particularly spoke with representatives of churches that supported LGBTQ+ rights. The court concluded that plaintiffs were engaged in protected speech that did not constitute "fighting words" and that they were not attempting to make their views part of the Festival's message. The court also concluded that the city park remained a quintessential public forum even though the city had issued it a permit to use the park for the Pride Festival. The court then concluded:

... [T]here is a genuine dispute of fact on the rationale for the City and Officer Spry restricting Plaintiffs’ speech that precludes a finding of summary judgment in any party’s favor.... [A]lthough there is evidence in the record suggesting that the City and Officer Spry restricted Plaintiffs’ speech on account of the Franklin Pride staffers’ disagreement with their religious messages, Defendants present conflicting evidence that they restricted Plaintiffs’ speech based on Franklin Pride’s request that they do so to maintain their use of their permit, prevent Plaintiffs’ disruptive behavior, and enforce Franklin Pride’s ban on distributing outside materials. Any one of these content-neutral reasons for curbing Plaintiffs’ speech ... would satisfy the applicable standard.... Given this critical material dispute of fact in the record, the Court finds that the question of what motivated Plaintiffs’ exclusion from the Park must be decided by a jury.  Accordingly, both Plaintiffs’ and the City’s motions for summary judgment on Plaintiffs’ First Amendment claims must be denied on this ground.

Suit Challenges Refusal to Recognize Ministers Ordained Online

Suit was filed last week in a Virginia federal district court challenging Augusta County and the City of Staunton's refusal to recognize ministers of the Universal Life Church who obtained ordination online as ministers authorized to perform marriage ceremonies under Virginia Code §20-23. Instead, they are required to register under §20-25 as a civil officiant which includes posting a $500 bond. The complaint (full text) in Universal Life Church Monastery Storehouse v. Landes, (WD VA, filed 5/22/2025) alleges that this violates the 1st and 14th Amendment, saying in part:

69. The Clerk defendants violate the Establishment Clause by interpreting and applying Va. Code Ann. §§20-23 and 20-26 to categorically deny ULC Monastery ministers the authority to solemnized marriages as religious officiants, solely because they were ordained by and are in regular communion with the ULC Monastery and not another approved religious society. This conduct impermissibly prefers certain denominations over others.....

77. Many of plaintiff ULC ministers ... choose to exercise their religion by officiating marriage ceremonies.... The Clerk Defendants' interpretation an application of Va. Code Ann. §§20-23 and 20-26 ... accordingly places an impermissible burden on Plaintiffs' religious practice in violation of the Free Exercise Clause....

84. ... The Equal Protection Clause prohibits intentional discrimination against similarly situated individuals and prohibits state action that burdens fundamental rights, including religious freedom.  Discrimination based on religious affiliation must survive strict scrutiny....

91. Defendants' actual and threatened enforcement of Va. Code Ann. §§20-23, 20-26 and 20-28 against ULC Monastery and its ministers burdens speech based on its content and viewpoint, and is accordingly subject to strict scrutiny....

Augusta Free Press reports on the lawsuit. 

[Thanks to Dusty Hoesly for the lead.] 

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Sports Apparel Company Challenges Colorado's Public Accommodation Law Protection of Transgender Athletes

Suit was filed this week in a Colorado federal district court by an online athletic apparel company, "XX-YY Athletics," that promotes banning of transgender women from women's sports through logos on its apparel and through advertisements.  The company claims that Colorado's Anti-Discrimination Act violates the 1st and 14th Amendments when its public accommodation provisions declare that Coloradans have a right to access advertising that is free from discrimination on the basis of gender expression and chosen name. The complaint (full text) in Committee of Five, Inc. v. Sullivan, (D CO, filed 5/27/2025), alleges in part:

191. The most common way that XX-XY Athletics demonstrates why male competition in women’s sports is unfair or unsafe is by reference to specific transgender-identifying male athletes....

206. Although CADA prohibits XX-XY Athletics from speaking consistently with its view that sex is immutable, the law allows other businesses that also qualify as public accommodations to speak according to their view that sex can be changed.  

207. This distinction in treatment is based on a particular view that the business holds about human sexuality and gender identity....

222. The First Amendment’s Free Speech, Press, and Assembly Clauses protect XX-XY Athletics’ ability to speak, create, publish, sell, and distribute speech; to associate with others and with their messages for expressive purposes; to adopt and act on certain speech-related policies; to decline to associate with others and their message for expressive purposes; to decline to create, publish, sell, and distribute speech; to be free from content-based and viewpoint-based discrimination; and to be free from overbroad and vague restrictions on speech that give enforcement officials unbridled discretion....

225. As applied to XX-XY Athletics, CADA impermissibly discriminates against the company’s speech based on content and viewpoint by prohibiting it from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex.  

226.  As applied to XX-XY Athletics, CADA impermissibly inhibits the company’s ability to form expressive associations it desires to form and to avoid expressive associations it desires to avoid by requiring the company to refer to individuals by their preferred name, pronouns, and other terminology and prohibiting the company from referring to individuals by their given name and with pronouns and terminology consistent with their biological sex....

The complaint also alleges that the Colorado law is void for vagueness and violates the Equal Protection clause. ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In School's Ban on Anti-Transgender T-Shirt

The U.S. Supreme Court yesterday denied review in L.M. v. Town of Middleborough, Massachusetts, (Sup. Ct., certiorari denied May 27, 2025).  In the case, the U.S. 1st Circuit Court of Appeals upheld middle school officials' decision that a student was in violation of school rules by wearing a T-shirt that proclaims: "There Are Only Two Genders." Justice Alito, joined by Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). 

The First Circuit’s decision calls out for our review....

I would grant the petition for two reasons. First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear.... Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.  By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption.

Justice Thomas also filed a separate brief dissenting opinion.  NBC News reports on the Court's action.

Suit Challenges School District's Speech Policy

Suit was filed this week in an Oregon federal district court by a clinical social worker employed by an Oregon school district challenging the application of the district's Speech Policy to his display on a shelf in his office of three books that reject notions of transgender identity. The complaint (full text) in Theis v.  InterMountain Education Service District Board of Directors, (D OR, filed 5/21/2025), alleges in part:

He is He and She is She ... explain how every child should embrace and love herself exactly as God made her to be....

... [A]n employee at one of Mr. Theis’ schools saw the covers of the Books and complained that they were “transphobic.” IMESD labeled the display as “a hostile expression of animus toward another person relating to their actual or perceived gender identity” and ordered Mr. Theis to remove them. IMESD then warned him that “further conduct of this nature” may result in discipline, including termination of his employment....

2. Plaintiff is ... a professing Christian who bases his beliefs on the Bible and strives to live out his Christian faith at work and in the community.

3. Plaintiff’s sincerely held religious beliefs govern his views about all aspects of life, including human nature, sex, and gender....

217. Defendants’ censorship of Plaintiff’s display of the Books while permitting books and other decorations with different messages on related topics is content and viewpoint discrimination, which is unconstitutional in any type of forum....

220. Defendants’ Speech Policy and practice also impose an unconstitutional heckler’s veto because they permit the restriction of protected employee expression merely because school officials deem an employee’s expression “offensive” to others....

249. Plaintiff’s sincerely held religious beliefs motivated him to display the Books in his office. 

250. Defendants substantially burdened Plaintiff’s religious exercise when they forced Plaintiff to choose between exercising his religious beliefs and being dismissed or violating his conscience.

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

Wedding Photographer Gets Temporary Injunction Excusing Her from Photographing Same-Sex Engagements and Weddings

In Carpenter v. James, (WD NY, May 22, 2025), a New York federal district court granted a preliminary injunction to a wedding photographer who objects to same-sex marriage, enjoining enforcement against her of provisions of New York's public accommodation law that would require her to offer her services for same-sex engagements and weddings and would prevent her from posting her policies on social media. The court said in part:

In light of the Supreme Court’s binding precedent in 303 Creative, and for the reasons discussed below, Plaintiff’s motion is GRANTED.  The Court will issue a narrow injunction barring Defendants from applying New York’s public accommodation laws “peculiarly to compel expressive activity” with which Plaintiff disagrees.... Beyond that “peculiar” circumstance, however, Plaintiff remains fully obligated to comply with New York’s public accommodation laws, and she remains subject to all remedies and penalties for their violation.  Conversely, except to the limited extent directed herein, New York’s public officials remain fully empowered to police the public marketplace to ensure that “gay couples [are not] treated as social outcasts . . . inferior in dignity and worth.”

The case was on remand from the Second Circuit. (See prior posting.)

Religious Broadcasters Win Challenge to FCC Disclosure Requirements

In National Religious Broadcasters v. FCC, (5th Cir., May 19, 2025), the U.S. 5th Circuit Court of Appeals held that the Federal Communications Commission exceeded the authority granted to it by Congress when in 2024 it reinstated the requirement that broadcasters annually file Form 395-B which calls for disclosure of race, ethnicity, and gender data for employees in specified job categories. Co-plaintiff in the case was the American Family Association, a conservative Christian pro-family organization.  Their suit was consolidated with a similar challenge brought by the secular Texas Association of Broadcasters. While the court's opinion does not discuss free exercise rights and avoids adjudicating plaintiffs' free speech arguments, a Press Release by National Religious Broadcasters after the 5th Circuit's decision was handed down focuses on 1st Amendment concerns, saying in part:

NRB has always fought to protect Christian communicators from baseless attempts to restrict their First Amendment liberties which hinder their work of proclaiming the Gospel. This ruling helps ensure that the government cannot create a backdoor to control broadcasters through public intimidation, misuse private data against them, or interfere with the sacred and constitutionally protected mission of religious broadcasters.