Religion Clause

Wednesday, August 06, 2025

9th Circuit: Ministerial Exception Requires Dismissal of Customer Service Representative's Title VII Suit

In McMahon v. World Vision, Inc., (9th Cir., Aug. 5, 2025), the U.S. 9th Circuit Court of Appeals held that the ministerial exception doctrine requires dismissal of a Title VII employment discrimination suit brought by a World Vision customer service representative ("CSR") whose job offer was revoked when the organization learned that she was in a same-sex marriage. World Vision is a Christian ministry which shares the gospel through outreach to poor and underserved children and families. The court said in part:

We hold that the ministerial exception applies to a CSR not merely because they interface with the public, pray with their colleagues, or abide by World Vision’s requirements to embody Christian values. Rather, CSRs qualify for the exception because (1) they are World Vision’s “voice,” responsible for “effectively communicat[ing] World Vision’s involvement in ministries and projects around the world”; (2) their engagement with donors is a form of ministry itself; and (3) they “give people an opportunity to join [World Vision] in the mission of God.” Each of these religious responsibilities is “vital” to World Vision’s particular religious mission.

[Corrected]

Prosecution of Religious Leader for Psilocybin Use Is Enjoined

In Jensen v. Utah County, (D UT, Aug. 4, 2025), a Utah federal district court enjoined Utah County from continuing its prosecution of plaintiff Bridger Lee Jensen for violating the Utah Controlled Substances Act's prohibition on psilocybin. Jensen is the founder of Singularism, an entheogenic religion. The court said in part:

... [A]t this procedural juncture ... it would be wisest to assume—without deciding—that the Utah constitution’s free exercise clause provides protections equal to those of the Federal Constitution’s Free Exercise Clause. Doing so adheres to “the general rule that courts should avoid reaching constitutional issues if the case can be decided on other grounds.”...

... [T]he Utah Controlled Substances Act’s restrictions on psilocybin possession and use, though neutral, are not generally applicable due to the secular exemption for behavioral-health treatment by certain healthcare systems and accordingly trigger strict scrutiny if a plaintiff can show that the restrictions burden its religious exercise. And Plaintiffs’ complaint alleges facts sufficient for the court to conclude that Plaintiffs have alleged a burden on their free exercise....

Only after this court determined that Plaintiffs were likely to prevail on the merits of their state RFRA claim did Defendants institute criminal proceedings against Mr. Jensen and invoke Younger abstention. From this sequence of events, the court finds that Defendants commenced the state criminal action (the basis for their abstention argument now) in order to relitigate the RFRA issue on which they appear to be poised to lose in this court—in other words, to get a second bite at the apple. The court will not allow the shield of the Younger doctrine to be used as a gamesmanship sword.

Even if Defendants had not waived their Younger abstention defense by voluntarily invoking federal jurisdiction, the court finds that the bad-faith and irreparable-injury exceptions apply....

Based on the record in this case, the court notes once again its finding that the prosecution was brought in bad faith as part of a larger effort to harass Plaintiffs for their entheogenic religious practices and in hopes of giving the government a second opportunity to litigate the free-exercise issues presented squarely in this case. The prosecution has already caused Singularism to lose many of its practitioners and affiliates, and forcing Plaintiffs to wait until the conclusion of the criminal proceedings to secure their free-exercise rights would be the equivalent of issuing a death warrant for their nascent religion....

Court Enjoins Compliance with Arkansas Law Requiring Posting of 10 Commandments in All Classrooms

Earlier this year, Arkansas enacted Act 573 requiring display of the Ten Commandments in public school and college classrooms. In Stinson v. Fayetteville School District No. 1, (WD AR, Aug. 4, 2025), an Arkansas federal district court issued a preliminary injunction barring four school districts that are defendants in the case from complying with the new law. The court said in part:

Forty-five years ago, the Supreme Court struck down a Ten Commandments law nearly identical to the one the Arkansas General Assembly passed earlier this year. That precedent remains binding on this Court and renders Arkansas Act 573 plainly unconstitutional. Why would Arkansas pass an obviously unconstitutional law? Most likely because the State is part of a coordinated strategy among several states to inject Christian religious doctrine into public-school classrooms. These states view the past decade of rulings by the Supreme Court on religious displays in public spaces as a signal that the Court would be open to revisiting its precedent on religious displays in the public school context. ...

Despite the Kennedy [v. Bremerton School District] Court’s rather sweeping announcement that the Lemon test had been “abandoned,” ..., there is no cause to believe that all Supreme Court precedent that relied on the Lemon test has been—or will be—overruled. The Kennedy opinion itself makes that crystal clear....

... Act 573’s mandate is incompatible with the Founding Fathers’ conception of religious liberty. The Founders were deeply committed to the principle that government must not compel religious observance or endorse religious doctrine, and that commitment is reflected in multiple foundational texts....

The State has not established that burdening Plaintiffs’ Free Exercise rights “serve[s] a compelling interest and [is] narrowly tailored to that end.”... Even if the State were to meet its burden of showing a compelling interest, it would fail the “narrowly tailored” prong. There are many ways in which students could be taught the relevant history of the Ten Commandments without the State approving an official version of scripture and then displaying it to students in every classroom on a permanent, daily basis....

ACLU issued a press release announcing the decision. [Thanks to Thomas Rutledge for the lead.]

UPDATE: On Aug. 28., a Supplemental Complaint was filed adding an additional school district as a defendant. The court issued a temporary restraining order barring that district from complying with the statute, and giving it an opportunity to submit briefing on why the preliminary injunction should not be expanded to include it.

Tuesday, August 05, 2025

European Court Says Russia Violated Religious Rights in Its War with Ukraine

In Ukraine and Netherlands v. Russia, (ECHR, July 9, 2025), the European Court of Human Rights in a 1652 paragraph Grand Chamber opinion held Russia has violated a large number of provisions of the European Convention on Human Rights in its conflict with Ukraine. The opinion covers the period from 2014 until 2022 when Russia withdrew as a party to the Convention. Among the violations were intimidation, harassment and persecution of religious groups other than the Ukrainian Orthodox Church of the Moscow Patriarchate (UOC-MP), in violation of Article 9 of the Convention which protects freedom of religion. The Court said in part:

1269. The evidence shows that since May 2014 freedom of religion has been significantly curtailed in occupied Ukrainian territory. The separatists in the “DPR” [Donetsk] and the “LPR” [Lugansk] quickly declared the UOC-MP to be the main religious group in occupied territory. They harassed and persecuted religious figures of other religions or Christian churches as well as civilians engaging in worship ... in breach of the requirements of international humanitarian law.... There are numerous reports of religious leaders being ill-treated, abducted during religious activities and, in some cases, killed by separatists in eastern Ukraine. It is clear from the context of many of these instances that these individuals had been targeted on account of their positions as leaders of religious communities and in the context of a generalised practice of disrupting and preventing the right of those not adhering to the UOC-MP to practise their religions.... There is also evidence of the banning of religious material, which was deemed to be “extremist” by separatist administrations and institutions.... Members of the Jehovah’s Witnesses appear to have been particularly targeted.

1270. From 2016 the evidence shows that the “DPR” and the “LPR” began to put in place formal requirements for the registration and operation of religious groups..... Some religious organisations were identified as “extremist” organisations and banned on this ground with their religious material and publications seized, destroyed and banned... Religious leaders and parishioners were pursued on charges of organising or attending illegal gatherings....

1271. ... In 2022 the Russian occupation administration “nationalised” property from religious communities and repurposed it for their own ends....

The Court also issued a press release summarizing the full decision.

Challenge to Church's Switch in Denominations Fails

In Wimber v. Scott, (CA App., July 30, 2025), a California state appellate court held that plaintiffs who were tithing congregants of a Protestant church formerly known as Vinyard Christian Fellowship and now known as Dwelling Place lack standing to sue the church's pastors and board of directors on behalf of the church for fraud, misrepresentation, breach of contract and breach of fiduciary duty. It also held that the First Amendment precludes granting the relief sought. Following the wishes of the church's senior pastor, the pastor and the board of directors disaffiliated the church from the Vinyard Movement and used the church's $62 million in assets to start and fund a new movement. Plaintiffs included the widow of the founder of the Vinyard Movement and a congregant who had contributed over $500,000 to the church. The court said in part:

The NRC [California Nonprofit Religious Corporations Code] limits who may bring a representative lawsuit to, as relevant here, a “member” alleging a director violated their authority (§ 9141, subd. (a)) and a “member” or “former member” alleging breach of a trust. (§ 9142, subd. (a)(1).)

Because churches are these unique species of corporation, the NRC recognizes the church may refer to persons who are part of its congregation as “‘members.”’ (§ 9332, subd. (a).) But the NRC does not allow these individuals to assert representative lawsuits. Only those persons explicitly authorized to do so by the corporation’s articles or bylaws have the power to bring a representative lawsuit. (Ibid.) Otherwise, any one of a church’s potentially hundreds or thousands of congregants could at any time bring a representative lawsuit....

Appellants’ allegations demonstrate they are members of the congregation, not the corporation....

Although the statements may constitute misrepresentations, the Scotts made the statements to the “Search Committee and the Board,” of which only Director Appellants were a part. As such, [those plaintiffs who were not directors] ... have not alleged a cause of action for fraud based on misrepresentation....

Even assuming the complaint stated sufficient facts to allege causes of action, the First Amendment would bar this case from going forward....

Appellants ask the court to impose a trust over Dwelling Place’s assets in favor of Vineyard USA and to require the Scotts to keep Dwelling Place a part of the Vineyard Movement and Vineyard USA. Even if the facts alleged in the complaint entitled Appellants to such relief, they are essentially asking the court to manage and run Dwelling Place in a manner consistent with their religious beliefs. We would have to administer Dwelling Place’s assets to further a religious doctrine to which Appellants ascribe.

Worse, we would then potentially violate the Scotts’ religious beliefs by forcing them to minister Dwelling Place in a mode Appellants see appropriate. We will not do any of this....

We note the ministerial exception also bars Appellants’ claims.... We cannot litigate Appellants’ claims or grant the relief they seek without in some way punishing the church for its hiring of the Scotts, retention of the Scotts, or ratification of the Scotts’ decisions and actions.

Monday, August 04, 2025

Crisis Pregnancy Center Gets Injunction Against Abortion Reversal Ban

In Bella Health and Wellness v. Weiser, (D CO, Aug. 1, 2025), the Colorado federal district court that had previously granted a preliminary injunction in the case now granted a permanent injunction barring enforcement against plaintiffs of Colorado's law that defines providing medication abortion reversal as unprofessional conduct by doctors, nurses and pharmacists. Bella Health operates two faith-based Catholic crisis pregnancy centers. The court said in part:

The parties do not dispute that Plaintiffs’ religious beliefs are sincerely held or that they are substantially burdened by application of Section Three and the Boards’ rules.... And it is not within the province of this Court to second-guess the truth of Bella Health’s religious callings or suggest alternative means of satisfying them.... The only question, therefore, is whether this section’s prohibition against medication abortion reversal is generally applicable to other non-religious uses of progesterone. It is not....

Overall, it is impossible to avoid the conclusion that Plaintiffs’ use of progesterone is not being regulated neutrally—it is being singled out....

ADF issued a press release announcing the decision.

Friday, August 01, 2025

Fact Questions Remain as to Whether Sex Abuser's Confession Was Privileged

In Doe v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (AZ App., July 29, 2025), an Arizona state appellate court, reversing a trial court's dismissal of a case, held that issues of fact remain in order to decide whether two bishops in the Church had a duty to report to authorities Paul Adams' confession that he had sexually abused his minor daughter. While clergy are mandatory reporters, Arizona law excludes clergy reporting of a communication or confession if the member of the clergy determines that it is "reasonable and necessary within the concepts of the religion" to do so. The court held that a fact finder could conclude that Paul waived the clergy-penitent privilege when he repeated his confession in the presence of his wife who was invited by the bishop to hear it, or when Paul repeated it at a church council meeting convened to excommunicate him. The court also held that it was unclear whether under church doctrine it was "reasonable and necessary" to withhold the information. The court said in part:

[Paul's wife] Leizza did not meet the bishop with her husband for confession but met with Paul and [Bishop] Herrod after Paul had already confessed to Herrod. Paul then confessed directly to Leizza in Herrod’s presence.... Herrod had invited Leizza “so [she] would know what Paul had done and so she could protect her children.” A reasonable fact finder could conclude that in such circumstances, Herrod did not receive Paul’s confession to Leizza; he merely observed it. As noted, § 13-3620(A)(2) does not exempt a clergy member’s personal observations....

... [T]he Does argued the Church Defendants’ failure to report Paul’s confession was not “reasonable and necessary” according to Church doctrine because the Church’s General Handbook nullifies the confidentiality of confessions in instances where “serious injury,” such as child sex abuse, occurs....

This ... raises the question of whether the Church Defendants violated Church doctrine by not reporting Paul to the authorities.

Axios reports on the decision.

Columbia and UCLA Settle Antisemitism Charges

Last week (July 23), Columbia University announced that it had reached a settlement with the federal government to restore its research funding and federal grants that had been frozen. The University entered a Resolution Agreement (full text) with the Justice Department, Department of Education and HHS. It also entered a separate EEOC Agreement settling Title VII discrimination claims charging antisemitism suffered by Columbia employees. According to the EEOC's press release:

Columbia University will pay $21 million for a class settlement fund to resolve alleged civil rights violations against Columbia employees occurring on its campus following the Oct. 7 Hamas terror attacks.... This settlement resolves EEOC charges, including a Commissioner’s Charge brought ... on behalf of a class of all Jewish employees, alleging that since at least Oct. 7, 2023, Columbia engaged in a pattern or practice of harassment based on national origin, religion, and/or race, in violation of Title VII....

The full text of the EEOC Agreement does not appear to have been publicly released even though it is incorporated by reference in the Resolution Agreement.

The broader Resolution Agreement provides in part that Columbia will appoint new faculty members with joint appointments in the Institute for Israel and Jewish Studies and economics, political science or public affairs. It also calls for the appointment of a new administrator who will act as a liaison on antisemitism issues.

A statement by Columbia's president says in part:

The agreement builds on Columbia’s broader commitment to combating antisemitism, reflected most recently in a set of additional institutional actions announced on July 15, 2025, including the incorporation of the IHRA definition of antisemitism into the work of the University’s Office of Institutional Equity (OIE), the appointment of Title VI and Title VII coordinators in OIE, and the expansion of university-wide education and training initiatives.

On July 29, the University of California announced that it had reached a settlement in Frankel v. Regents of the University of California. In the case, a California federal district court previously issued a preliminary injunction sought by Jewish students at UCLA who were blocked from accessing portions of the campus by pro-Palestinian encampments protesting Israel's retaliation in Gaza. (See prior posting.) The Settlement Agreement (full text) (fact sheet) provides for a permanent injunction barring defendants from allowing the exclusion of Jewish students, faculty or staff from programs, activities or campus areas. It also provides for payment of $320,000 to UCLA's Initiative to Combat Antisemitism, $50,000 to each of the four student plaintiffs, $2,300,000 in contributions to eight Jewish non-profit organizations, and $3,600,000 for plaintiffs' attorneys' fees and costs.

Thursday, July 31, 2025

Passport Denial Violated RFRA

In Jordan v. Rubio, (D DC, July 29, 2025), a D.C. federal district court held that the State Department violated the Religious Freedom Restoration Act by denying a passport to plaintiff because she refused for religious reasons to furnish a birth certificate or a letter confirming that she lacks one. The court said in part:

All her life, Abigail Carmichael Jordan has avoided the perceived stain of a Social Security Number (“SSN”).... Her devout Christian faith teaches her “that her God-given identity is sacred, and that the allegiance she owes to her government as a citizen of the United States must be subordinate to her allegiance to her Creator.”... She thus rejects the possibility of being “enumerated” or “marked” by the government, such as by obtaining an SSN, as to do so “would be treating the Government as if it were God.” ... (citing Revelation 13:16–18).... Indeed, her parents “did everything in their power to ensure that [she] did not receive a birth certificate when she was born ... for fear that applying for a birth certificate would result in the issuance of an SSN....

In short: The Department withheld a coveted public benefit unless Jordan abandoned the teachings of her faith. Such carrot-dangling is the classic example of a substantial burden on religious exercise....

It very well may be that Jordan never faced a substantial risk of receiving an unwanted SSN—at birth or during adulthood. But for Jordan’s RFRA claim, the actual risk is irrelevant. What matters is whether Jordan sincerely believes that applying for a Letter of No Record conflicted with her faith because it exposed her to the unacceptable possibility that she would be stained with an SSN. And here, there is no dispute that Jordan honestly believes this.... So the Court must credit her fears—it may not tell Jordan that she is mistaken about the dictates of her own faith.

North Carolina Legislature Overrides Governor's Veto of Bill on Transgender Issues, Pornography and Religious School Opt-Outs

On Tuesday, the North Carolina legislature overrode the governor's veto of House Bill 805 (full text). The new law deals with a lengthy list of issues, including: (1) requiring recognition only of biological sex in state rules and policies; (2) requiring consent and age verification for appearance in, and procedures for removal of, online pornographic images; (3) prohibiting use of state funds for gender transition procedures; (4) extending statute of limitations for malpractice, and removing damage cap, in gender transition procedures on non-minors; (5) allowing parents to bar their children from checking out specific books from school libraries. The new law also provides:

Local boards of education shall adopt policies to allow a student or the student's parent or guardian to request that the student be excused from specific classroom discussions, activities, or assigned readings that the student, parent, or guardian believes would (i) impose a substantial burden on the student's religious beliefs or (ii) invade the student's privacy by calling attention to the student's religion.

Earlier this month, Governor Josh Stein had vetoed the bill based on his opposition to the provisions on transgender issues. His Veto Message (full text) reads in part:

The initial version of House Bill 805 protected people from being exploited on pornographic websites against their will. I strongly support that policy.... Instead of preventing sexual exploitation, the General Assembly chooses to engage in divisive, job-killing culture wars. North Carolina has been down this road before, and it is a dead end. My faith teaches me that we are all children of God no matter our differences and that it is wrong to target vulnerable people, as this legislation does. I stand ready to work with the legislature when it gets serious about protecting people, instead of mean-spirited attempts to further divide us by marginalizing vulnerable North Carolinians.

Catholic Vote reports on these developments.

Wednesday, July 30, 2025

Missouri Sues Planned Parenthood for False Advertising

Missouri Attorney General Andrew Bailey announced last week that the state of Missouri has filed suit against the national Planned Parenthood Association under the Missouri Merchandising Practices Act, the state's consumer protection law. The complaint (full text) in State of Missouri ex rel Bailey v. Planned Parenthood Federation of America, (MO Cir. Ct., filed 7/23/2025), alleges that representations on Planned Parenthood's website about the safety of mifepristone, the pill used for chemical abortions, is "brazenly false". The complaint says in part:

25. Planned Parenthood’s statements are outright false, and at the very least unlawfully misleading, for a variety of reasons: i. The rate of emergency room visits is much higher for the abortion pill than the drugs Planned Parenthood cites as comparators; ii. Planned Parenthood is comparing a single dose of the abortion pill to overdoses (i.e. misuse) of other drugs, such as Tylenol; and iii. The abortion pill and other drugs have different uses, are administered differently, and are used by individuals who have different underlying comorbidities or risk factors.

The complaint seeks civil penalties of $1.8 million and restitution of $1000 for each woman in the state to whom Planned Parenthood has furnished mifepristone during the past five years. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Muslim Group Sues Over Denial of Zoning Permit for Mosque

Suit was filed last week in a Tennessee federal district court challenging the denial of a special use permit to a Muslim religious organization that wished to build a mosque on land that it owns. The complaint (full text) in Bartlett Muslim Society v. City of Bartlett, Tennessee, (W TN, filed 7/25/2025),

3. After the Plaintiff complied with these extensive, expensive procedural requirements—and despite City staff’s recommendation of approval—the City denied the Plaintiff’s Special Use Permit application based on arbitrary, predetermined reasons and religious animus.

4. The City has approved similarly situated churches ... for a Special Use Permit under comparable or less favorable circumstances.

5. In denying the Plaintiff’s Special Use Permit application, the City has imposed a substantial burden on the Plaintiff’s religious exercise, treated it unequally, and discriminated against it based on religion....

7. Accordingly, the Plaintiff files this civil-rights action under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., and Tennessee’s Preservation of Religious Freedom Act, Tenn. Code Ann. § 4-1-407.

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

Tuesday, July 29, 2025

Cutoff of Funding to All Planned Parenthood Clinics Enjoined

In Planned Parenthood Federation of America, Inc. v. Kennedy, (D MA, July 28, 2025), a Massachusetts federal district court in a 58-page opinion extended a preliminary injunction it had issued a week earlier barring Congress' defunding of Planned Parenthood clinics that do not offer abortions to preliminarily enjoin Congress's cutoff of funds for non-abortion services even to Planned Parenthood clinics that do offer abortions. the court said in part:

To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid reimbursements on these Members foregoing their right to associate with Planned Parenthood Federation and other Members...

... Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do.... [R]estricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion. ...

... [I]n light of the disconnect between the law and its purported ends on the one hand, and the severe burdens it imposes on Planned Parenthood Federation and its Members on the other, Plaintiffs are likely to establish that Congress singled them out with punitive intent. The legislative context bolsters that conclusion. Plaintiffs have thus demonstrated a substantial likelihood of success on their claim that Section 71113 is an unconstitutional bill of attainder. ...

... Where Defendants have not shown the law is precisely tailored to serve a compelling governmental interest, Plaintiffs have demonstrated a substantial likelihood of success on their equal protection claim.

Moreover, Plaintiffs are likely to show that there is no rational relationship between the class burdened by Section 71113—comprised of 47 Planned Parenthood Members and two additional entities—and the goal of reducing abortion. As explained above, Section 71113 affects only a small number of abortion providers and leaves every other conceivable category unaffected.

ABC News reports on the decision.

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.]

Monday, July 28, 2025

Sunday, July 27, 2025

Cert. Petition Seeks Overturning of Obergefell Decision

A petition for certiorari (full text) was filed with the Supreme Court last week in Davis v. Ermold, (Sup. Ct., cert filed 7/24/2025). In the case, the U.S. 6th Circuit Court of Appeals upheld a $100,000 damage award to a same-sex couple who were refused a marriage license by Rowan County, Kentucky Clerk Kim Davis who had religious objections to same-sex marriage. (See prior posting.) The petition for review asks the Court to decide whether she, as a public official, has a First Amendment free exercise defense to a claim for damages for emotional distress stemming from her refusal. More broadly, it asks the Court to overrule Obergefell v. Hodges which gave constitutional protection to same-sex marriage. Liberty Counsel issued a press release announcing the filing of the petition.

Friday, July 25, 2025

RFRA and Free Exercise Clause Apply to Corporate Entities Exercising Religion

In United States v. Safehouse, (3d Cir., July 24, 2025), the U.S. 3rd Circuit Court of Appeals held that the Religious Freedom Restoration Act and the 1st Amendment's Free Exercise clause apply to corporate entities, and to non-religious entities exercising religion. The United States contended that defendant's offering of supervised illegal drug use violates federal law. Defendant argued that its overdose prevention services reflect its Board members' religious belief in the value of human life. The court said in part:

RFRA’s plain text and Free Exercise doctrine are clear that those statutory and constitutional protections extend to non-natural persons, including so-called non-religious entities. In so holding, we express no view about whether threatened prosecution of Safehouse substantially burdens its exercise of religion. We likewise decline Safehouse’s invitation to determine in the first instance whether it has plausibly stated RFRA and Free Exercise claims. We only address the proper object of RFRA’s and the First Amendment’s protections: that object includes a non-natural entity allegedly exercising religion, even if the entity itself is not religious.

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.

Thursday, July 24, 2025

Cutoff of Medicaid Funds to Planned Parenthood Clinics That Do Not Offer Abortions Is Unconstitutional

In Planned Parenthood Federation of America, Inc. v. Kennedy, (D MA, July 21, 2025), a Massachusetts federal district court granted a preliminary injunction barring the federal government from cutting off Medicaid funding to Planned Parenthood members that do not offer abortion services, but whose Medicaid funding was cut off by recent Congressional legislation. The court concluded that this cutoff likely violated the expressive association and equal protection rights of these Planned Parenthood clinics. The court said in part:

To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid funding on these Members foregoing their right to associate with Planned Parenthood Federation and other Members. Members who do not provide abortions cannot escape the law’s burden except by disassociating from Members that do. And because Section 71113 may be applied to Members who are affiliates of each other via the structure, governance, and membership requirements of Planned Parenthood Federation, disassociating with other Members requires disassociating from Planned Parenthood Federation itself.

While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members’ affiliation via their membership in Planned Parenthood Federation is expressive. Planned Parenthood Federation advocates before Congress, provides education and information about sexual and reproductive health, and through Planned Parenthood Action Fund, communicates with the public regarding lawmakers’ voting records, supports campaigns for ballot initiatives, and supports candidates for federal, state, and local officials who will support reproductive freedom in furtherance of its mission....

Congress may set conditions “that define the limits” of a spending program by “specify[ing] the activities Congress wants to subsidize,” but Congress may not set “conditions that seek to leverage funding to regulate speech outside the contours of the program itself.”...

... Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do.... Therefore, restricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion....

... Section 71113 ... declines Medicaid funding on the basis of affiliation, and thus draws a classification that burdens a fundamental First Amendment right. Where Defendants have not shown the law is precisely tailored to serve a compelling governmental interest, Plaintiffs have demonstrated a substantial likelihood of success on their equal protection claim....

Planned Parenthood League of Massachusetts posted an update explaining the court's holding. Fox News reports on the decision.