Ohio Legislators Lack Standing to Claim Reproductive Rights Amendment to State Constitution Is Invalid

In Dean v. Yost, (OH Com. Pl., Sept. 22, 2026), two members of the Ohio state legislature and a city council member sued contending that the Reproductive Rights Amendment to the Ohio Constitution adopted by voters in 2023 is invalid because it amounts to a "revision" of the state constitution, not a mere "amendment" of it.  In the case, an Ohio trial court dismissed the lawsuit, finding that plaintiffs lacked standing to bring it. Plaintiffs had contended that the amendment deprived them as legislators of legislative authority to enact laws barring late-term abortions from being performed near churches or schools, and of authority to protect informed consent. The court said in part:

Defendant points out that Plaintiffs" complaint makes it clear that they are suing in their personal capacity. Legislatures may not claim rights tied only to their official capacities when they are suing in their private capacity. Additionally, even if suing in their capacity as Legislatures they do not have standing since this is not a mandamus action and they have not identified any votes they cast for laws that are allegedly not being enforced.

The court also rejected claims by one of the plaintiffs that she has standing as a parent under parental consent laws. The court said: "any contention that Section 22 invalidates or limits Ohio's parental-consent law is incorrect and speculative...."

Cleveland.com reports on the decision.

[Thanks to Thomas Rutledge for the lead.]

North Dakota Supreme Court Upholds State's Ban on Gender-Affirming Care for Minors

In T.D. v. Wrigley, (ND Sup. Ct., Sept. 17, 2026), the North Dakota Supreme Court rejected a facial attack on North Dakota's ban of both hormonal and surgical gender-affirming treatment for minors suffering from gender dysphoria. The court held unanimously that the statute does not violate North Dakota's state constitution. The court said in part:

Dr. Casas contends the Act “infringes on fundamental and inalienable rights enshrined in Article I, § 1 of the North Dakota Constitution.....

... [T]he issue is whether a minor has a fundamental right to a particular course of medical treatment. 

Having identified the right at issue, we address whether the right is one the people intended when they adopted Article I, § 1...

Dr. Casas performs no meaningful historical inquiry tied to the alleged right at issue. He does not argue the records of the constitutional convention discuss a right for a minor to receive a particular course of medical treatment. He points to no newspaper coverage of the convention reporting public discussion of the right he asserts on behalf of his minor patients. Dr. Casas also does not cite a single case before or around 1889 interpreting another state’s natural rights provision to include the right of a minor to receive a particular course of medical treatment.... To the contrary, since statehood, the State has regulated the practice of medicine and prohibited certain medical practices. It has also protected minors’ health and welfare by limiting their rights to make certain decisions or participate in certain activities....

... The State has regulated the practice of medicine since statehood, including prohibiting particular medical procedures notwithstanding physician approval....

Dr. Casas argues the Act classifies based on sex and discriminates against transgender individuals, a class he asserts should be recognized as a suspect class. He argues the district court erred by reviewing the Act under the rational basis standard instead of the strict scrutiny standard. The State responds the Act classifies based on age and medical purpose, not sex or transgender status, and therefore is subject to rational basis review....

Because the Act neither burdens a fundamental right nor classifies based on a suspect class, it is subject to rational basis review....

Contrary to Dr. Casas’s argument, the legislature’s response to the medical uncertainty about the risks and benefits of gender-affirming treatment is not arbitrary. Gender-affirming treatment of minors is relatively novel..... In light of the debate among medical experts about the potential serious and irreversible risks associated with providing gender-affirming treatment to minors, the legislature could rationally decide the procedures are too dangerous for minors, particularly because they may not fully appreciate the long-term consequences of the treatment. ...

Justice Tufte, joined by Justice Jensen, filed a concurring opinion, saying in part:

I write separately because the briefs rest on a premise our modern cases have repeated but never examined: that §§ 21 and 22 [of the North Dakota Constitution] are “equal protection” clauses administered through three tiers of scrutiny determined by suspect classes and a judicial ranking of rights. That construction was assembled between 1974 and 1988 from borrowed federal materials, without examining the text of the state constitution or the history that produced it. The sections themselves are much older. They were copied from an identifiable source and had a settled public meaning when North Dakota’s voters approved them on October 1, 1889. The majority applies our traditional analysis in its discussion of N.D. Const. art. I, § 1. It asks what the words of § 1 meant to the people who adopted them in 1889.... No party asked us to do the same for §§ 21 and 22. Because it appears to me our modern doctrine has strayed from its proper sources, I set forth some of these sources below so that the meaning of these provisions may be more carefully examined in a future case...

Liberty Counsel issued a press release reporting on the decision.

Ohio Pastor's Conviction for Fire Code Violations Reversed and Remanded

In State of Ohio v. Avell, (OH App., Sept. 25, 2026), an Ohio state appellate court reversed the criminal conviction of Christopher Avell, the founder of Dad's Place, a Christian church in Bryan, Ohio, which offers an "overnight ministry" to provide shelter to anyone who needs it.  Avell and the city have been in litigation (both civil and criminal) over whether the "overnight ministry" triggers fire code requirements for residential use, including an expensive sprinkler system.  A Municipal Court convicted Avell of knowingly violating the city's fire code and sentenced him to a suspended jail sentence and a $200 fine. On appeal, in a 2-1 decision, the Ohio appellate court remanded the case to the trial court because the trial court had failed to rule on Avell's constitutional arguments.

Presiding Judge Osowik dissented in part, saying that the court should have reversed the conviction, instead of remanding it for further proceedings. He based his decision in part on the city's loss last April in an action for an injunction against Dad's Place (See prior posting). Judge Osowik said in part:

To begin, this court recently determined that the City's enforcement of the fire code was not generally applicable and therefore, strict scrutiny applied to Dad's Place's Free Exercise claim under the U.S. Constitution....  

In [the prior civil decision] ... there was no dispute that appellant sincerely believed that he was called to operate a 24/7 ministry. Accordingly, we looked to whether Dad's Place's religious exercise was burdened by the enforcement of the fire code and determined that it was, noting that Dad's Place did not have the financial means to install a sprinkler system, that the installation of said sprinkler system would require Dad's Place to cease its religious exercise for a significant period of time, that Dad's Place could not open a second location for sleeping accommodations, nor would that satisfy its religious beliefs, because they required Dad's Place to welcome all people into the church, not an offsite homeless shelter....

Next, we found that the enforcement of the fire code was not generally applicable because "it allows the government to exercise significant discretion in the enforcement of the code."...

In sum, in [the civil case] ..., this court held that strict scrutiny review applied to Dad's Place's Free Exercise claim under the U.S. Constitution....

[The Ohio Constitution's Conscience Clause] provides broader protections of religious rights than that of the federal Constitution.... Therefore, laws that even "tangentially affect religion" and even simply interfere with the rights of the conscience are unconstitutional unless they pass strict scrutiny...

The City believes that its prosecution of appellant boils down to the enforcement of uniform fire safety codes on a building designated as mercantile and assembly, but is being used as a congregate residential facility. The City contends that appellant's "use places visitors to Dad's Place in danger as well as the residents of the second-floor apartments, neighboring businesses, and first responders. The safety of these people clearly demonstrates a compelling state interest." I disagree—the fact that many exceptions to the fire code exist and are applied to similarly situated facilities for non-safety reasons, destroys the State's argument that its enforcement of the fire code is for safety purposes.

The City attempts to rebut the comparisons between Dad's Place and the residential buildings exempted from the fire code by looking to differences such as communal space in the church versus separate apartments or hotel rooms.... Notably, however, the City continuously goes back to what it deems as the "most important" distinction between Dad's Place and the exempted residential facilities—that they received their occupancy based on the fire code in place at the time of issuance, or in other words, that these other buildings were grandfathered into the current fire code. I believe that this is fatal to the City's argument.

... The reality ... is that these buildings are not compliant with the City's fire code ...  because of a cost-based exemption that they are grandfathered into.

First Liberty Institute issued a press release announcing the decision.

Planned Parenthood Challenges Wisconsin's Abortion Access Restrictions

Suit was filed last week in a Wisconsin state trial court challenging Wisconsin laws which require abortions to be performed only by physicians, and not by qualified advance practice clinicians. The suit also challenges Wisconsin's 24-hour waiting period after examination and consultation with a physician before an abortion can be performed. The complaint (full text) in Planned Parenthood of Wisconsin v. Ozanne, (WI Cir. Ct., filed 9/10/2026), alleges in part:

10. Each of these Access Restrictions substantially curtails the availability of abortion care within the State of Wisconsin ... with no adequate justification for doing so. Each provision, therefore, violates the rights of Wisconsin women to liberty and bodily autonomy under Article I, Section 1 of the Wisconsin Constitution, which encompasses the right to decide when and whether to carry a pregnancy to term.   

11. The Access Restrictions also infringe on providers’ right to liberty under Article I, Section 1 of the Wisconsin Constitution, which encompasses the fundamental right to practice their chosen profession to the fullest extent of their education, training, and skill.  

12. In addition, the Access Restrictions infringe on patients’ equal protection rights under Article I, Section 1 of the Wisconsin Constitution. The Access Restrictions treat women differently from men and treat people seeking abortion differently from people seeking other pregnancy-related health care.  

13. Similarly, the Access Restrictions infringe on providers’ equal protection rights under Article I, Section 1 of the Wisconsin Constitution by preventing providers from caring for their patients to the fullest extent of their education, training, and skill for the sole reason that their patients are overwhelmingly women and choosing to terminate a pregnancy.

Planned Parenthood issued a press release announcing the filing of the lawsuit.

Massachusetts Supreme Court Says Religious Statues Proposed for Public Building Violate State Constitution

In Fitzmaurice v. City of Quincy, (MA Sup. Jud. Ct., Aug. 20, 2026), the Massachusetts Supreme Judicial Court upheld a trial court's preliminary injunction barring the city of Quincy from installing two 10-foot-tall statues on the facade of a new public safety building. One statue depicts Saint Michael stepping on the head and neck of a demon. The other depicts Saint Florian towering above a burning building and extinguishing the fire. The Court concluded that there is a substantial likelihood that this violates Art. III of the Massachusetts Constitution as amended by Article XI, that provides: 

all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.

The Court said in part:

The contested practice here raises concerns at the core of the text, purposes, and history of the amendment of art. 3:  whether the city is singling out a particular religion for special treatment....

The two statues are both of Catholic saints....: the depictions of Saint Michael and Saint Florian in these statues "are consistent with iconography of each religious figure within Catholic tradition"; and the symbols and objects depicted "are all central to the iconographies of each saint, which are not intelligible without reference to Catholic tradition."  ...

The likelihood that these statues of religious figures closely associated with the Catholic faith could be viewed by the public as endorsement of a particular religion, and thus subordination of others, is enhanced by the fact that the statues are not part of a larger collection of statues and monuments that includes nonreligious ones, or statues of figures of particular importance to other religions.  ...

These statues are also not long-standing historic monuments important to our common history, unlike many of the examples highlighted by the city.....

In sum, the preliminary injunction record reflects that the statues are large and will stand alone, they are brand new rather than long standing, they are closely affiliated with a particular religion, and they thus may convey to observing members of the public implicit government support for that religion and, as a result, subordination of other religions....

Americans United issued a press release announcing the decision.

Massachusetts Supreme Court Invalidates Initiative Petition That Excludes Religious Housing from Rent Controls

The Massachusetts Constitution Art. 48 which sets out the procedures for initiative petitions provides in part that no measure relating to religion, religious practices or religious institutions may be proposed by an initiative petition.  In Cella v. Attorney General, (MA Sup. Judicial Ct., June 23, 2026), the Massachusetts Supreme Judicial Court held that this provision is violated by a petition proposing an end to the statewide ban on rent control and instituting a limit on rent increases. The new rent control limits, however, would not apply to several categories of dwellings, including dwelling units in facilities operated solely for religious purposes. The court said in part:

The Attorney General argues that the petition does not discriminate in favor of religious institutions because it also provides exemptions for secular dwelling units, including facilities operated for educational and nonprofit purposes.  The presence of secular exemptions does not negate that the petition, on its face, uses religion as "a factor in its application" .... Nor do these secular exemptions change the fact that the petition, by including a carveout for religious facilities, brings "religious questions into the politics of this State"...

The court rejected the Attorney General's argument that the petition should be allowed because its "main purpose" is unrelated to religion. The Court said in part:

Applying a less exacting standard -- permitting at least some measures that by their own terms govern religion, religious practices, or religious institutions -- would contravene not only the plain language of art. 48, but also the intent of its framers.  The convention delegates intended to strictly maintain "the entire separation of church and State" by "mak[ing] it as difficult as possible to bring religious questions into the politics of this State." 

The Court however pointed out:

 ... [A]lthough religious beliefs may encompass a wide array of human conduct, an initiative petition does not "relate[]" to religion within the meaning of art. 48 just because a person's personal religious beliefs might inform his or her views on an otherwise secular subject matter; rather, the measure itself must relate to religion....

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.

Pennsylvania Medicaid Coverage Exclusion for Most Abortions Held Unconstitutional

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Commonwealth Ct., April 20, 2026), the Pennsylvania Commonwealth Court, in a 4-3 decision in a case on remand from the state's Supreme Court,, held that the Pennsylvania law which denies Medicaid coverage for most abortions violates the equal protection provisions and the Equal Rights Amendment to the Pennsylvania state Constitution. Pennsylvania permits Medicaid coverage for abortions only in cases involving the life of the mother, rape or incest. The majority opinion said in part:

Initially, we are not persuaded that the state interests the Attorney General has identified are compelling within the Equal Rights Amendment analysis.  First, regarding fetal life, the Attorney General has narrowly defined this as an interest in preserving already-existing fetuses.  He has disclaimed any interest in promoting human reproduction in general, or in preventing unplanned pregnancy.  In this way, the Attorney General appears to have embraced the necessary implication of this view: the interest “can be understood only as an interest that is advanced at the cost of forcing women to bear children against their will....   

Second, regarding women’s psychological well-being, the Attorney General has not identified any other context in which we have found a compelling state interest in protecting a competent adult from feeling regret for her free choices....

... [W]e conclude that the Coverage Exclusion violates the Equal Rights Amendment in Article I, Section 28 of the Pennsylvania Constitution.  Further, we conclude that Article I of the Pennsylvania Constitution guarantees a fundamental right to reproductive autonomy, that the Coverage Exclusion does not operate neutrally with respect to that right and is not properly justified in doing so, and accordingly the Coverage Exclusion violates the equal protection guarantee in Article I, Section 26 of the Pennsylvania Constitution.

Judge Wojcik filed a concurring opinion, saying in part:

... I write separately to emphasize the clear and unbroken line of the foundational legal documents establishing a fundamental right to personal freedom, equality, and tolerance in this great Commonwealth of ours that compel this result as well....

Judge McCullough joined by Judges Covey and Wallace filed a dissenting opinion, saying in part:

Today the four-member Majority declares that the corporate petitioners, four of which operate for profit (Abortion Providers), have a constitutionally-mandated ability to bill Pennsylvania taxpayers to pay for abortions-on-demand sought by Medical Assistance recipients.  What is more, however, is that the Majority got where it wanted without a hearing, without factfinding, without even an answer to Abortion Providers’ Petition for Review.  The Majority’s decision is based entirely on unvetted “stipulations” submitted jointly by Abortion Providers and Respondents after Respondents abandoned any defense of the constitutionality of the abortion funding restrictions challenged in this litigation....

To impose this funding burden onto taxpayers, the Majority summarily re-writes longstanding Pennsylvania public policy favoring the protection of the life of an unborn child....  The Majority also creates a fundamental but nebulous constitutional right to “reproductive autonomy,” inserts it into the 152-year-old article I, section 1 of the Pennsylvania Constitution....

... The only interest asserted by the Commonwealth and identified by the General Assembly to support the Coverage Exclusion is the interest in unborn child life already conceived, which, I believe, is compelling on its face....

I am not convinced that a right to reproductive autonomy or anything like it exists in the Pennsylvania Constitution to afford anyone a constitutional right to obtain an abortion....

Judge Wallace, joined by Judge McCullogh, filed a dissenting opinion, saying in part:

The Attorney General identifies three state interests he asserts are compelling on behalf of the Commonwealth: protecting fetal human life, preserving the health of the mother, and safeguarding the conscience rights of Pennsylvania citizens....

Without providing the Attorney General the opportunity to present evidence to this Court regarding these asserted interests, the Majority simply dismisses them,...

... [I]t does not escape me that in a post-Dobbs era, ... our legislative branch has not restricted or ended abortion access in our Commonwealth.  Nonetheless, the judicial branch in a power grab is effectuating policy by determining that a state constitutional right to abortion exists....

Church Wins Its Fight Over Fire Code Requirements

Last November, an Ohio state appellate court remanded to the trial court a church's appeal of an injunction that had been issued against it enforcing Ohio's fire code requirements for residential buildings. (See prior posting.) At issue was whether the church's "overnight ministry" triggered fire code requirements for residential use. The appellate court remanded the case because the trial court had not applied strict scrutiny as required by the Conscience Clause of the Ohio Constitution. Now in Pool v. Dad's Place, (OH Com. Pl., April 1, 2026), the Ohio trial court on remand held in favor of the Church and dismissed the fire department's request for injunctive relief. The court said in part:

Having applied strict scrutiny as set forth in the Sixth District's instructions, the Court concedes that the Fire Chief's enforcement of the fire code fails because it lacks a compelling interest and isn't the least restrictive means of enforcing fire safety. The City has given waivers to other businesses like hotels, but has refused to give the church a similar accommodation. this is fatal under strict scrutiny. Therefore, a judgment in favor of Dad's Place must be entered.

First Liberty Institute issued a press release announcing the decision. 

Detroit Abortion Clinic Buffer Zone Ordinance Challenged

Suit was filed last week in a Michigan federal district court challenging a Detroit ordinance that bans picketing within 15-feet of abortion clinics and bans sidewalk counselors from approaching closer than 8 feet from persons entering clinics. The complaint (full text) in Sidewalk Advocates for Life v. City of Detroit, (ED MI, filed 3/18/2026) alleges in part:

The Ordinance, which is enforceable through criminal penalties, violates the Free Speech, Free Exercise, and Freedom of Assembly Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as well as the Michigan Constitution....

... The legislative record contains no evidence that the City attempted to address its asserted interests through less restrictive means before enacting the Ordinance. The City did not pursue targeted injunctions against specific individuals. It did not increase enforcement of existing harassment, assault, obstruction, or trespass statutes. It did not seek dispersal orders. It moved directly to a blanket ordinance outlawing an entire category of expressive activity on public sidewalks....

...The Free Exercise Clause of the First Amendment ... prohibits the government from imposing substantial burdens on the exercise of sincerely held religious beliefs unless the burden is imposed by a neutral law of general applicability....

The Ordinance is not generally applicable because § 31-14 4(b)(2) exempts “[a]uthorized security, personnel, employees, or agents” of healthcare facilities who are “engaged in assisting patients and other persons to enter or exit” the facility. This exemption permits clinic employees and escorts to engage in the precise conduct the Ordinance forbids for everyone else: standing within 15 feet of the entrance, approaching patients, speaking to them, and walking alongside them within the buffer zone. Under the framework of Tandon v. Newsom ... and Fulton v. City of Philadelphia ... whenever the government treats comparable secular activity more favorably than religious exercise, the law is not generally applicable and strict scrutiny applies automatically. One exemption suffices to create constitutional infirmity.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Muslim Woman Forced to Remove Hijab During Booking Can Proceed on Some of Her Claims

In Khan v. City of Richardson, (ND TX, March 4, 2026), a Muslim woman sued after she was required to remove her hijab during the intake, photo and fingerprinting process at the Richardson police department and the Dallas County Jail. The court allowed Plaintiff to proceed on her claims under RLUIPA, and under the Texas Constitution, saying in part:

While “appropriate relief “does not include monetary damages against states, “municipalities and counties may be held liable for money damages under RLUIPA....

Richardson and Dallas assert that Plaintiff’s claims arising under Article I, § 6 of the Texas Constitution should be dismissed to the extent that they seek money damages. Plaintiff does not dispute that the Texas Constitution does not provide a private cause of action to recover monetary damages for a violation of rights under the Texas Constitution. Instead, Plaintiff avers that she is only seeking equitable relief, which is permitted.

The court dismissed without prejudice plaintiff's claim under the Texas Religious Freedom Restoration Act because she did not satisfy TRFRA’s pre-suit notice requirements.

The court dismissed with prejudice plaintiff's Section 1983 claim because Plaintiff did not sufficiently plead a policy or custom that was promulgated or ratified by a policymaker and did not adequately plead a failure to train.

The court also dismissed plaintiff's claim under the Texas Tort Claims Act because Plaintiff has alleged an intentional tort which is barred by sovereign immunity.

State Attorney General May Enforce Subpoena Seeking from Archdiocese Evidence of Clergy Sexual Abuse

In State of Washington v. Corporation of the Catholic Archbishop of Seattle, (WA App, March 2, 2026), a Washington state appellate court allowed enforcement of a subpoena issued by the state Attorney General's Office (AGO) seeking from the Catholic Archdiocese evidence relating to clergy sexual abuse. In issuing the subpoena the Attorney General's Office relied on investigative authority given to it by a provision of the state's Charitable Trust Act. The trial court had quashed the subpoena because the Charitable Trust Act exempts "religious corporations ... operated in good faith as religious organizations" from its provisions. The appeals court, however, held that giving that exemption to religious organizations violates the state constitution's provision barring the granting to any person or corporation privileges or immunities not equally belonging to all citizens or corporations. The court went on to say in part:

Antifavoritism analysis under article I, section 12 subjects legislation to a two-part test.....  First, the court asks whether a challenged law grants a “privilege” or “immunity” for purposes of our state constitution....  If the answer is yes, then the court asks whether there is a “reasonable ground” for granting that privilege or immunity....

The Archdiocese says this case does not involve a ... direct impact on the fundamental right to be free from unwanted bodily interference, because exempting it from the AGO’s statutory subpoena power does not directly condone the invasion of any person’s bodily autonomy,,,,

As the Archdiocese correctly observes, a civil authority in the United States cannot sit in judgment of whether the Archdiocese has conformed to its faith and doctrine.  To the extent, by its subpoena or otherwise, the AGO were to purport to second-guess whether a given action by the Archdiocese was truly “for the use, purpose, benefit and behoof” of the church, the AGO and its use of the subpoena would violate the federal and state constitutional religious protections. ...

At the same time, the subpoena to this point does not implicate a civil authority second-guessing the Archdiocese’s decision-making or good faith, but requires only the production of documents..... The Archdiocese has not pointed to any authority that constitutional religious protections are offended by inquiry into whether criminal or tortious conduct has occurred, including sexual abuse by clergy.  

We perceive in the AGO’s subpoena a scope that, if pursued, would clearly unconstitutionally infringe the Archdiocese’s religious protections, to the extent the AGO seeks to determine whether any given act or expenditure by the Archdiocese was “for the use, purpose, benefit and behoof” of the church.  But we also perceive a scope that clearly does not infringe the Archdiocese’s religious protections, to the extent the AGO seeks evidence relevant to determining that an act occurred that is criminal, tortious, or both, including sexual abuse by clergy.

Suit Challenges Colorado's Blaine Amendment

Suit was filed last week in a Colorado federal district court challenging the Colorado Constitution's ban on use of state funds to support any religious school as violative of the Free Exercise, Equal Protection and Establishment Clauses of the U.S. Constitution. The challenge was brought by a Board of Cooperative Education Services (BOCES), a private entity which contracts with schools to provide them innovative educational services. BOCES can receive and administer state and federal education grants. The complaint (full text) in Education Re-Envisioned BOCES v. Cordova, (D CO, filed 2/13/2026), focuses on the inability of BOCES to contract with religious schools, alleging in part:

24. The Colorado Department of Education (CDE) provides funding to ERBOCES for these contract schools....

33. In August 2025 ... ERBOCES entered a contract with Riverstone Academy to provide tuition-free education to the parents and children of Pueblo County, Colorado.  

34. After ERBOCES contracted with Riverstone, it submitted its annual request for state funding to CDE. ERBOCES included Riverstone Academy’s students in its request.  

35. In response to its funding request, ERBOCES received a letter from CDE stating that Colorado law requires ERBOCES to refuse to contract with any religious school....  

36. Specifically, the letter informed ERBOCES that providing funding to Riverstone Academy would violate the Colorado Constitution and Colorado statutory law because Riverstone is a Christian school....

73. The Supreme Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Carson, 596 U.S. at 778....

76. State provisions prohibiting aid to “sectarian” institutions date back to the 1870s and were enacted out of hostility to certain religious groups. Such provisions were “born of bigotry” against religion, especially the Catholic church.....  

77. Colorado’s Blaine amendment shares this “shameful pedigree.”...

93. To the extent the Colorado Constitution and any implementing statutes require school districts and BOCES to scrutinize contract school applicants’ curricula to determine if they are religious, they violate the Establishment Clause. ...

Christian Post reports on the lawsuit.

Wyoming Supreme Court Strikes Down State's Abortion Bans

In State of Wyoming v. Johnson, (WY Sup. Ct., Jan 6, 2026), the Wyoming Supreme Court by a vote of 4-1 held that Wyoming's nearly total abortion ban and its medication abortion ban violate Art. I, §38, of the Wyoming Constitution which provides that every competent adult has the right to make his or her health care decision, subject to reasonable and necessary restrictions imposed by the legislature. The majority opinion for 3 justices held that the decision whether to terminate or continue a pregnancy is a woman's own health care decision, and the right to make health care decisions protected by Art. I, §38 is a fundamental right. The majority rejected the state's argument that abortion is not health care and is not the woman's own health care decision since a fetus is involved.

The majority went on to hold that restricting a fundamental right is subject to strict scrutiny and the state had not shown that the state's abortion laws are narrowly tailored to serve a compelling government interest. The majority rejected the state's argument that the statutory exceptions to the abortion ban make the law narrowly tailored to protect unborn life without unduly infringing on a woman’s fundamental right to make the health care decision to have an abortion.

Justice Fenn filed a concurring opinion, saying in part:

I agree with the majority the decision to terminate or continue a pregnancy is a woman’s own health care decision....  However, I cannot agree with the majority’s conclusion that strict scrutiny applies to the right recognized in Article 1, § 38 of the Wyoming Constitution.  I would find Article 1, § 38 allows the legislature to enact reasonable and necessary restrictions that do not unduly infringe on the right to make one’s own health care decisions.  Because the State failed to meet its burden of proving the Abortion Statutes meet this standard, I would find the statutes are unconstitutional and affirm the district court’s decision.

Justice Gray filed a dissenting opinion, saying in part:

I ... do not dispute that article 1, section 38 creates a fundamental right to make one’s own health care decisions.  I disagree, however, that strict scrutiny applies.  Under the plain terms of article 1, section 38(c), a restriction on a competent adult’s right to make his or her own health care decisions will pass constitutional muster if the legislature could “determine” such restriction was “reasonable and necessary . . . to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”  When properly construed, the abortion statutes constitute a “reasonable and necessary” restriction by the legislature on the right of a pregnant woman to make her own health care decisions for the purpose of preserving prenatal life at all stages of development.  The abortion statutes do not violate article 1, section 38. 

Wyoming Public Media reports on the decision.

North Dakota Supreme Court Upholds State's Abortion Ban

In Access Independent Health Services, Inc. v. Wrigley, (ND Sup. Ct., Nov. 21, 2025), the North Dakota Supreme Court reversed a trial court's decision that had invalidated North Dakota's statute that bans most abortions. While 3 of the Supreme Court's 5 justices held that the abortion law is unconstitutionally vague, North Dakota's constitution provides that it takes 4 of the Court's 5 justices to invalidate a law passed by the legislature. The Court's vote thus upholds the constitutionality of the ban. Justice Crothers' opinion for 3 justices said in part:

To the extent an abortion implicates a legal defense justifying or excusing the use of force, N.D.C.C. ch. 12.1-19.1 introduces an apparent conflict of law in North Dakota. A physician who acts with an honest but mistaken belief that an abortion was necessary to protect the life or health of a pregnant patient would be guilty of a crime under the objective reasonableness standard set out by N.D.C.C. ch. 12.1-19.1. Simultaneously, under the subjective reasonableness standard that applies to defenses under N.D.C.C. ch. 12.1-05, the same physician would be innocent because his belief that the abortion was necessary, although mistaken, was honest. On their face, these conflicting standards make it unclear whether a physician who performs an abortion in good faith will nonetheless suffer criminal penalties....

We agree with the district court that, in the context of medical care the Plaintiff physicians perform with the intent of protecting the lives and health of their patients, N.D.C.C. ch. 12.1-19.1, does not give fair warning and allows for discriminatory and arbitrary enforcement....

Justice Tufte writing for two justices, said in part:

I depart from the majority opinion in two significant respects. First, the majority opinion extends to the natural rights guaranteed by Article I, Section 1, the more stringent vagueness standard we have previously reserved for First Amendment rights that receive the additional protection of the chilling effect doctrine. Second, the majority opinion extends our precedent to allow a pre-enforcement facial challenge in which the challengers present only hypothetical future conduct as the basis for the testifying experts’ disagreement about the legal application of the statute. The parties’ presentation of witnesses having expertise in medicine or history who disagree about lawyer-crafted hypotheticals is not a sufficient basis for a court to declare a statute unconstitutionally vague....

The rights guaranteed by Article I, Section 1, are those natural rights as they were known to the people of North Dakota at the time the constitution was adopted. These natural rights were fixed at that time, and our judicial duty is to ensure that they “shall not be infringed.” These rights are protected from legislative overreach because they are excluded from the state’s broad legislative power.

 ... [T]he natural rights that every North Dakota citizen has “by nature” include an individual right to seek medical care without risk of criminal prosecution, including but not limited to abortion, when reasonably necessary to preserve the individual’s life.... Section 1 does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one—only a constitutional amendment can do that.... Section 1 limits state power to regulate abortion where it is a necessary means to the constitutionally protected end of "defending life."

AP reports on the decision. [Thanks to Scott Mange and Thomas Rutledge for the lead.]

Church's Challenge to Fire Code Applicability Triggers Strict Scrutiny

 In Pool v. Dad's Place of Bryan, Ohio, (OH App., Nov. 21, 2025), an Ohio state appellate court remanded to the trial court a church's appeal of an injunction subjecting it to Ohio's fire code requirements for residential buildings. The city contends that the church's overnight ministry constitutes use of the building for "residential" as well as "assembly" purposes because the building is used in part for "sleeping purposes."  Categorizing the building as "residential" would require the church to install a sprinkler system whose cost is beyond the church's financial ability. 

The court said in part:

... [N]ot only has appellant presented undisputed evidence that it cannot afford to open a second location to provide sleeping accommodations, appellant maintains that its religious beliefs require it to welcome the stranger to live among the church, not to operate an offsite homeless shelter.  Moreover, appellant cannot simply relocate to somewhere else in the surrounding area with the appropriate use occupancy.  Because appellant’s ministry involves gatherings for religious worship, during which individuals are permitted to fall asleep, appellee maintains that appellant’s use occupancy is mixed....  Outside of a fire official exercising discretion in favor of appellant, appellant is left with only one option to comply with the fire code: cease permitting individuals to sleep in its premises, which would violate appellant’s religious beliefs....

The lack of objective criteria in the fire code to categorize appellant’s use as residential combined with appellee’s shifting interpretations throughout the matter’s pendency demonstrates that the fire code provisions at issue are not generally applicable....  

... [A]ppellant maintains that it has no intention of creating a homeless shelter, but instead its intention is to provide an overnight ministry in which individuals can pray, engage in fellowship, and listen to scripture, and it would violate its sincerely held religious beliefs to wake individuals who fall asleep during its ministry....  [A]ppellee had to consider the reasons for appellant’s conduct—including its religious reasons—when exercising his discretion to determine that appellant impermissibly changed its use occupancy, and therefore the fire code provisions at issue are not generally applicable.... Accordingly, appellee’s attempted enforcement of the fire code is subject to strict scrutiny under federal constitutional law, and the trial court erred in applying a rational basis review....

Here, appellant opposed the preliminary injunction under both the federal Constitution’s Free Exercise Clause and the Ohio Constitution’s Conscience Clause.... The trial court did not apply a strict scrutiny test as required by Ohio constitutional law, and therefore the trial court neglected to address appellant’s rights under the Ohio Conscience Clause. 

[CORRECTED: An earlier version of this post incorrectly stated that the injunction being appealed was one granted to the church.]

Placing Patron Saint Statues on City Safety Building Is Enjoined

In Fitzmaurice v. City of Quincy, (MA Super. Ct., Oct. 14, 2025), a Massachusetts state trial court issued a preliminary injunction barring installation, while the case proceeds, on a newly built public safety building of two ten-foot bronze statues depicting the Catholic patron saints of police and firefighters. The suit, filed by taxpayers, was brought under Art. 3 of the state constitution which requires equal treatment of all religious sects. The court held that while the U.S. Supreme Court has rejected the Lemon test for federal Establishment Clause challenges, the Lemon test still applies to claims under Art. 2 and 3 of the Massachusetts Declaration of Rights. The court said in part:

The Complaint here plausibly alleges that the statues at issue convey a message of endorsing one religion over others.... The statues, particularly when considered together, patently endorse Catholic beliefs....

Defendants contend that the statues have a secular purpose of inspiring police officers and their display ... neither advance nor prohibit religion... [T]he mayor's professed secular purpose offers nothing more than semantics.... It is impossible to strip the statue of its religious meaning to contrive a secular purpose.... 

ACLU Massachusetts issued a press release announcing the court's decision. A WCVB News report carries photos of the statues in question.

Diocese Has Vested Right in Statute of Limitations That Has Run in Suit by Abuse Victim

In 2020, the New Hampshire legislature amended its statute of limitations by removing the limitation period for suits alleging sexual assault. In Ball v. Roman Catholic Bishop of Manchester, (NH Sup. Ct., Oct. 15, 2025), the New Hampshire Supreme Court held that a defendant has a vested right in a statute of limitations defense once the limitation period has run. Therefore, Art. I, Sec. 23 of the New Hampshire Constitution bars applying the 2020 amendment to claims where the prior limitation period had run before 2020.  In the case, plaintiff sued the Catholic diocese and Catholic camps alleging negligent hiring, retention, and supervision of an employee who sexually abused him when he attended camp in the 1970s.  AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Hawaii Supreme Court Interprets State Constitution's Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawai'i, (HI Sup. Ct., Sept. 12, 2025), the Hawaii Supreme Court held that the Hawaii state constitution's Establishment Clause invalidates a provision in a 1922 land grant from the Territory of Hawaii to the Church of Jesus Christ of Latter-Day Saints. The land grant provided in part:

The land covered by this Grant is to be used for Church purposes only. In the event of its being used for other than Church purposes, this Grant shall become void and the land mentioned herein shall immediately revert to and revest in the Territory of Hawaii.

The current owners of the land seek a declaratory judgment holding that the reversionary clause is invalid.  The majority said in part:

Ultimately, we hold that the State’s action to enforce the Deed Restriction, requiring that the Property be used “for Church purposes only” or else the Property would revert to the State, violates Hawai‘i’s Establishment Clause in article I, section 4 of the Hawai‘i Constitution.  We resolve this appeal based on the Hawai‘i Constitution.  In doing so, we need not consider the Federal Establishment Clause....

When the Hawai‘i Constitution was framed and subsequently went into effect, three U.S. Supreme Court cases delineated the law under Federal Establishment Clause jurisprudence: Everson v. Board of Educ. of Ewing. Township, 330 U.S. 1 (1947); McCollum v. Board of Educ., 333 U.S. 203 (1948); and Zorach v. Clauson, 343 U.S. 306 (1952).  We conclude that these decisions provide appropriate and ample guidance to decide this case....

... The State ... asserts that we should adopt the now-prevailing test for Federal Establishment Clause challenges in Kennedy, 597 U.S. 507.  We decline to adopt either the Lemon or the Kennedy tests. ...

We see no reason to adopt the Kennedy test to analyze the Hawai‘i Establishment Clause.  We recognize the well-founded concerns raised by Justice Sotomayor’s dissent in Kennedy, highlighting the challenges of unearthing and applying historical practices and understandings from the period around the U.S. Constitution’s adoption in 1787.  Further, Appellants make the salient point that applying the Kennedy test in the context of state actions in Hawai‘i is even more fraught with questions and peril.  It would be discordant to require that the Hawai‘i Establishment Clause be construed based on the historical practices and understandings of the Founding Fathers given that the Hawai‘i Constitution was adopted by its electorate in 1959, one-hundred and seventy-two years after the U.S. Constitution was adopted. ...

Justice Eddins, joined by Justices McKenna and Devis filed a concurring opinion, saying in part:

Because in my view article I section 4 of the Hawaiʻi Constitution has a pluralistic purpose and secular spirit grander than the majority suggests, and the Department of the Attorney General urges us to interpret our constitution to match recent Supreme Court case law, I write separately....

The delegates intended for Hawaiʻi’s Establishment Clause to reflect Everson’s separationist ideals.... Separation of church and state guided the adoption of Hawaiʻi’s religious clauses....

If the Supreme Court decides a case based on mission, text trickery, originalism, or imagination, then that case may have little value to a state that prefers a more principled way, or an interpretive approach that does not force “contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.”...

The Roberts Court’s off-the-wall jurisprudence reimagines the First Amendment.  The Constitution creates a barrier against state support for religion and state involvement in religion.  But the Court misshapes the Constitution to require government support of religion. 

Two years ago, I feared the Court self-inflicted harm, eroded faith in the courts, and exposed itself to real criticisms about its legitimacy....  

Back then in the big games, the Roberts Court called balls and strikes based on the pitcher and hitter.  Bad enough for the integrity of our judicial system – national and subnational.  But now pitches that bounce to the plate or sail over the catcher’s head are strikes.  Just because the ump says so.  Pretend law is not law.   State constitutionalism makes it easy to consider Roberts Court jurisprudence white noise.

Pharmacists Sue for Religious Accommodation to Avoid Dispensing Gender-Affirming Drugs

Two Walgreens pharmacists filed suit last week in a Minnesota federal district court challenging the drug chain's refusal to accommodate their religious objections to dispensing drugs that facilitate gender transitions. Walgreens took the position that plaintiffs' long-standing arrangement to refer such prescriptions to other pharmacists to fill was now illegal under Minnesota law as administered by the state Board of Pharmacy.

The complaint (full text) (exhibits to complaint) in Scott v. Minnesota Board of Pharmacy, (D MN, filed 8/22/2025), alleges in part:

3. Walgreens was wrong about the law. Minnesota administrative rules require pharmacists to dispense or compound only those drugs that “may reasonably be expected to be compounded or dispensed in pharmacies by pharmacists.” Reasonable people understand that not every pharmacist or pharmacy sells every drug, for various reasons including supply shortages, insurance reimbursement rates, lack of demand in the community—or a pharmacist’s conscientious objections. 

4. Plaintiffs asked the State Board of Pharmacy to clarify that this is the correct interpretation of the Board’s rules. The Board refused, leaving Plaintiffs and other pharmacists like them in legal limbo and subject to adverse actions from employers like Walgreens. 

5. To any extent that Minnesota law does purport to require Plaintiffs to violate their religious convictions by dispensing or compounding certain drugs, it violates the Free Exercise Clause of the U.S. Constitution and the free exercise protections of Minnesota’s Constitution. Forcing individual pharmacists to violate their religious beliefs by dispensing drugs that are readily available from many other pharmacists is not narrowly tailored to advance any compelling government interest. Moreover, Minnesota permits many non-religious exceptions to any “must dispense” requirement, including for economic reasons and based on a pharmacist’s professional judgment about the risks and efficacy of a prescription. Refusing to allow religious accommodations therefore is neither neutral nor generally applicable.

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