Religion Clause

President Trump announced yesterday on Truth Social that he is nominating Yehuda Kaploun as the United States Special Envoy to Monitor and Combat Antisemitism, Ambassador-at-Large. According to The Forward:

Trump’s announcement elicited a wave of sharply antisemitic comments on the social network....

Kaploun is affiliated with Chabad, the Orthodox movement, and was a fundraiser and surrogate for Trump during last year’s campaign.....

Kaploun is replacing Deborah Lipstadt.

Trump also announced on X (formerly Twitter) that he is nominating former Congressman Mark Walker as Ambassador-at-Large for International Religious Freedom. In his own post on X, Walker expressed his thanks to Trump, saying in part:

As a former minister, along with serving in Congressional leadership, I'm open-eyed to the bad actors and regions committing these atrocities against people of faith.

Both Kaploun's and Walker's nominations are required to be confirmed by the Senate. The White House has not indicated on its website that the nominations have yet been formally submitted to the Senate.

In Bushra v. Main Line Health, Inc., (3d Cir., April 10, 2025), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a Title VII suit brought by an emergency room physician who was denied a religious exemption from his hospital's Covid vaccine mandate. The court said in part:

Dr. Bushra’s arguments on appeal largely challenge the District Court’s determination that MLH established the undue hardship defense to his religious discrimination claims. ...

MLH provided unrebutted expert testimony that unvaccinated healthcare workers, like Dr. Bushra, presented an increased risk of transmitting COVID-19 to others, particularly when they interacted with vulnerable groups.... [P]atients and employees at MLH died from COVID-19, and the on-site spread of this serious infectious disease compromised MLH’s mission and ability to care for sick patients, and it jeopardized the health and efficacy of its employees and staff.  MLH’s expert additionally testified, contrary to Dr. Bushra’s assertion, that alternative infection control strategies, such as frequent testing and masking, were not sufficient to prevent transmission....

As MLH has presented substantial evidence of undue hardship, and Dr. Bushra has not provided any “actual evidence in the record on which a jury could decide an issue of fact [his] way,” we will affirm the District Court’s grant of summary judgment.

Yesterday, the Kansas legislature overrode Governor Laura Kelly's veto of House Bill 2311, the Adoption Conscience Act (full text). The new law provides in part:

(a) The secretary for children and families shall not adopt, implement or enforce a policy for selection as an out-of-home or adoptive placement or ... licensure...that:

 (1) Requires a person to affirm, accept or support any governmental policy regarding sexual orientation or gender identity that may conflict with the person's sincerely held religious or moral beliefs; or

 (2) prohibits selection, appointment or licensure, if otherwise eligible, of a person because of such person's sincerely held religious or moral beliefs regarding sexual orientation or gender identity or intent to guide or instruct a child consistent with such beliefs.

 (b) This section shall not be construed to:

 (1) Prohibit the secretary from considering the religious or moral beliefs of a child or the child's biological family or community, including, but not limited to, beliefs regarding sexual orientation and gender identity, in relation to the religious or moral beliefs of a person selected or being considered for placement....

The Federalist and an ADF issued a press release discuss the Bill.

Yesterday, former EEOC Commissioner Jocelyn Samuels filed suit alleging that her removal from the Commission by President Trump was illegal. The removal of Samuels and a second Commissioner (both Democrats) left the EEOC without a quorum so that it cannot undertake any action that requires a Commission vote. Samuels, along with two other Democratic commissioners, had issued statements critical of President Trump's Executive Orders on DEI programs, transgender individuals and employment discrimination by federal contractors. The complaint (full text) in Samuels v. Trump, (D DC, filed 4/9/2025), alleges in part:

Congress did not grant the president authority to remove EEOC Commissioners at will.  Rather, the EEOC’s structure, mission, and functions, along with the terms set for Commissioners, demonstrate Congress’s intent to provide the Commission continuity, stability, and insulation from political pressure exerted by the president.  Because the Commissioners perform predominantly quasi-judicial and quasi-legislative functions, these restrictions on the president’s removal authority are constitutional....

Defendant Trump lacked cause to remove Commissioner Samuels.  The issues he identified in his January 27, 2025, email constitute policy disagreements between him and Commissioner Samuels.  By mandating bi-partisan membership on the Commission, Congress deliberately structured the agency to accommodate likely policy differences between the president and some Commissioners....

The EEOC is responsible for enforcing federal laws barring employment discrimination, including religious discrimination in employment. The Hill reports on the lawsuit.

The World Zionist Congress elections continue until May 4. The Congress, with representatives from Jewish communities around the world, allocates funds to various programs and organizations in Israel and elsewhere.  JFeed reports that the Area Election Committee overseeing the election in the United States has launched a fraud investigation into voting irregularities that benefit two of the 21 slates of candidates seeking representation. JFeed explains:

Voting in the World Zionist Congress requires a name, address, email, and a modest fee, safeguards meant to ensure authenticity. Yet the AEC uncovered patterns that defy innocence: half the flagged registrations looped back to 50 email variants, often appended with numbers, while 430 traced to a single K-8 yeshiva in Brooklyn. Six addresses, spanning New York, Pennsylvania, and Maryland, overlapped suspiciously, and the prepaid cards, all from TransPecos Bank and Pathward, suggested a coordinated financial effort.

“This isn’t mischief by overzealous supporters,” the AEC chairs asserted. “It’s a carefully orchestrated, costly scheme to manufacture votes and defraud the process.”

In Schroeder v. Treto, (ND IL, April 4, 2025), an Illinois federal district court held that one amendment to the state's Health Care right of Conscience Act violates free speech protections but upheld another provision.  The provision struck down requires pregnancy care centers and doctors who have religious objections to abortions to inform pregnant patients of the risks and benefits of childbirth and abortion in order to claim a shield from liability. The court held that the provision compels speech in violation of the First Amendment. The court said in part:

Section 6.1(1) demands a wide ranging, hypothetical conversation unrelated to any procedure or other medical conduct.  Indeed, Section 6.1(1) requires a wide-ranging conversation that might be completely divorced from the reality of the situation; for example, the thrilled patient who is not reasonably likely to encounter medical difficulties because of the pregnancy.  What’s more, that compelled speech isn’t necessary to further future conduct....

... Under strict scrutiny, the State carries the burden of establishing the provision is narrowly tailored; it falls far short in this case.  So, Section 6.1(3) unconstitutionally compels speech, and therefore the State can’t demand such speech in exchange for a liability shield.

The court, however, upheld another provision that requires as a condition of claiming a shield from liability, that physicians and clinics, if requested by the patient, transfer or refer them or furnish a list of other providers to them who offer abortion services, saying in part:

This provision narrowly applies when a patient expressly asks a medical provider for information regarding potential abortion providers.  Stated differently, Section 6.1(3) contains an explicit and mandatory trigger that is directly linked to the action.  And even then, the provider need only comply if he intends to use the HCRCA as an affirmative defense.

From this narrow and purposeful drafting, the Court deduces that Section 6.1(3) doesn’t target speech...

The court found that this provision also does not violate providers' free exercise rights, saying in part: 

Two providers—one a conscientious objector and the other secular—both fail to provide a woman with requested information about abortion providers.  The conscientious objector refuses because of his sincerely held beliefs.  The secular provider doesn’t provide the requested information because he’s too busy.  Both patients sue.  Before the HCRCA, both suits could’ve gone forward, requiring the plaintiff in both cases to show that the health care providers fell below the standard of care. After the HCRCA’s enactment, the conscientious objector—but not the secular provider—is wholly protected, regardless of whether the provider’s actions fell below the standard of care.     

Along comes Public Act 99-690—partially restoring the pre-HCRCA universe. Now, as before, all health care providers are amenable to suit for failure to refer, transfer, or provide written information about potential abortion providers.  Relative to each other, the secular provider isn’t in any better position than before the HCRCA and the conscientious objector isn’t any worse for the wear.  

As this hypothetical shows, the latest Amendments to the HCRCA don’t impose additional burdens on conscientious objectors because of their beliefs....

Christian Post reports on the decision.

In Anchor Stone Christian Church v. City of Santa Ana, (CD CA, April 7, 2025), a California federal district court issued a preliminary injunction allowing a church to operate and make renovations to an office building it had acquired. The city had denied a conditional use permit to the church. The court concluded that the denial violated RLUIPA's equal terms and substantial burden provisions, as well as the Free Exercise clause of the First Amendment. The court said in part:

... [T]he City must do more than identify some similarly situated nonreligious assemblies that are treated as badly as religious assemblies—the City must show that it treats “every” similarly situated nonreligious assembly equally to religious assemblies....

In short, it appears unlikely that the City will meet its burden to establish that the Zoning Ordinance treats religious assembly on equal terms with similarly situated nonreligious assembly uses.... 

The Court concludes that, based upon the totality of the circumstances, Anchor Stone has met its burden to show that the City’s denial of its CUP application substantially burdened Anchor Stone’s religious exercise....

The City’s reasons for denying a CUP to Anchor Stone also appear particularly arbitrary in view of the City’s reasons for granting a CUP to Compass Bible Church....

The Planning Commission and the City Council refused to consider or apply RLUIPA in connection with Anchor Stone’s CUP application.  Multiple commissioners and councilmembers expressed “offense” at the mention of RLUIPA, while the City’s staff affirmed that it was the City’s “position” that RLUIPA was “outside the scope” of the CUP application process.  One councilmember regarded the mention of RLUIPA as a “smack in [his] face” and an attempt to “circumvent [Santa Ana’s] local laws.” Such comments from a government official fall far short of fulfilling the “First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,”....

First Liberty issued a press release announcing the decision.

The Department of Justice announced yesterday:

After an 11-day trial, a federal jury returned a guilty verdict yesterday against Zimnako Salah, 45, of Phoenix, Arizona, convicting him of strapping a backpack around the toilet of a Christian church in Roseville, California, with the intent to convey a hoax bomb threat and to obstruct the free exercise of religion of the congregants who worshipped there.  The jury’s verdict included a special finding Salah targeted the church because of the religion of the people who worshipped there, making the offense a hate crime....

... [F]rom September to November of 2023, Salah traveled to four Christian churches in Arizona, California, and Colorado, wearing black backpacks. At two of those churches, Salah planted those backpacks, placing congregants in fear that they contained bombs. At the other two churches, Salah was confronted by security before he got the chance to plant those backpacks.

While Salah had been making bomb threats by planting backpacks in Christian churches, he had been building a bomb capable of fitting in a backpack....

Salah will be sentenced on July 18. He faces a maximum penalty of 6 years in prison and a fine of $250,000.

In a press release yesterday, the U.S. Conference of Catholic Bishops announced that it will not renew its cooperative agreements with the federal government on support of refugees and services for children. According to the press release:

Over the years, partnerships with the federal government helped expand lifesaving programs, benefiting our sisters and brothers from many parts of the world.... Our efforts were acts of pastoral care and charity, generously supported by the people of God when funds received from the government did not cover the full cost.

Today, the USCCB makes the heartbreaking announcement that we will not be renewing existing cooperative agreements with the federal government related to children’s services and refugee support. This difficult decision follows the suspension by the government of our cooperative agreements to resettle refugees. The decision to reduce these programs drastically forces us to reconsider the best way to serve the needs of our brothers and sisters seeking safe harbor from violence and persecution. 

As a national effort, we simply cannot sustain the work on our own at current levels or in current form. As USCCB cooperative agreements for refugee resettlement and children’s programs end, we will work to identify alternative means of support for the people the federal government has already admitted to these programs. We ask your prayers for the many staff and refugees impacted....

For half a century, we have been willing partners in implementing the government’s refugee resettlement program. The Gospel’s call to do what we can for the least among us remains our guide. We ask you to join us in praying for God’s grace in finding new ways to bring hope where it is most needed.

In Yellowhammer Fund v. Attorney General of Alabama, (MD AL, March 31, 2025), an Alabama federal district court in a 131-page opinion issued a declaratory judgment holding unconstitutional the Alabama Attorney General's threat to prosecute those who assist women seeking to travel out-of-state to obtain a legal abortion.  The court found that the threat violated both the right to interstate travel and free expression rights.  The court said in part:

The right to travel includes both the right to move physically between two States and to do what is legal in the destination State.  The Supreme Court has held that States cannot punish their residents for traveling to another State and engaging in conduct that is lawful there....

This principle extends to people who enter a State to procure medical services, including abortions....

If a State cannot outright prohibit the plaintiffs’ clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them. ...

The Attorney General’s threatened enforcement of Alabama’s criminal laws imposes a content- and viewpoint-based restriction on speech.  It restricts information and discussion about a specific subject--abortion-- to forbid encouraging a specific viewpoint-- access to a legal out-of-state abortion....

... Yellowhammer Fund’s act of pledging and providing funds on behalf of pregnant Alabamians who seek a legal abortion outside Alabama is expressive conduct, and, therefore, subject to First Amendment protection....

It is one thing for Alabama to outlaw by statute what happens in its own backyard.  It is another thing for the State to enforce its values and laws, as chosen by the Attorney General, outside its boundaries by punishing its citizens and others who help individuals travel to another State to engage in conduct that is lawful there.... For example, the Alabama Attorney General would have within his reach the authority to prosecute Alabamians planning a Las Vegas bachelor party, complete with casinos and gambling, since casino-style gambling is outlawed in Alabama....  As the adage goes, be careful what you pray for. 

From SSRN:

• Steven Douglas Smith, God and Caesar: Religious Freedom and the Two Jurisdictions, (San Diego Legal Studies Paper No. 25-014 (2025).
• Samiul Hasan, Deliberative Legislation for the Muslim Majority Countries: The Principles, (January 31, 2025).
• Katherine McKerall, Free Speech, Fighting Faiths, and Nones: Blasphemy and Offensive Speech in the United States, (Liberty & Law Center Research Paper (2025)).
• Russell Powell, Religious Originalism, (69 Wayne L. Rev. 311 (2024)).
• Melissa Moschella, Strict Scrutiny as the Appropriate Standard of Review for Parental Rights Cases: A Historical Argument, (March 31, 2024).
• Justin Robert Blount & Michael Conklin, Bostock and the Textualist Illusion: A Holistic Solution to the Court's Patchwork Approach, (forthcoming, Houston Business and Tax Law Review (2025)).
• Kyle Velte, Identity and Procedural Subordination in LGBTQ Religious Exemption Cases, (March 13, 2025).
• Badreddine Berrahlia, Islamic Finance Dispute Resolutions in the English Courts: Past Experience and an Outlook for the Future, (October 10, 2023).
• S. Ernie Walton, Parental Preclusion Policies: Do Parents Have Standing to Challenge Them Before Enforcement?, (January 24, 2025).
• E. Travis Ramey, Wrongful Birth After Dobbs and the Limits of Tort Law in Areas of Dissensus, (103 Neb. L. Rev. 101 (2025)).
• Conor Casey, The Sir Gerald Fitzmaurice Option: A Classical Natural Law Method for Interpreting the European Convention on Human Rights, (November 01, 2024).

On April 3, the Georgia legislature gave final passage to SB36, the Georgia Religious Freedom Restoration Act (full text). The Act requires the government to justify any substantial burden on the exercise of religion by a compelling interest implemented by the least restrictive means. The Act adds:

Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this Code section, the term "granting," used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

If signed by Governor Brian Kemp, Georgia will be the 30th state to enact a religious freedom law.  Baptist Press reports on the bill.

UPDATE: On April 4, Govenor Kemp signed the bill.

In Short v. New Jersey Department of Education, (D NJ, March 28, 2025), a New Jersey federal district court dismissed a suit by two parents and a third parent who intervened in the lawsuit who object to the transgender policy of their children's high schools. The policy, adopted by the board of education, calls for high schools to follow students' requests regarding their names and pronouns, without necessarily notifying parents. The court concluded that the policy applied to the schools, not to students or parents, so that plaintiffs lacked standing to obtain a declaratory judgment or injunction against the policy. The Intervenor parent particularly focused on free exercise issues, as set out by the court:

Count One of the intervenor complaint asserts equal-protection violations under the Fourteenth Amendments of the United States and New Jersey Constitutions.... Maldonado alleges that the Cherry Hill policy unnecessarily seeks to prevent discrimination against transgender students at the expense of students’ religious beliefs.... Cherry Hill Defendants cannot provide an exceedingly persuasive justification for unequal treatment of students and parents whose religious beliefs are contrary to the policy’s definition of gender.... 

Counts Two, Three, and Four claim violation of free speech and freedom of religion under the First Amendments of the United States and New Jersey Constitutions.... The policy favors speech based on views and ideas, according to Maldonado, and burdens parents’ and students’ free-speech rights by requiring affirmance of its definition of gender.... The intervenor complaint adds that the policy violates students’ and parents’ freedom to hold sincerely held Christian beliefs premised on a biblical worldview by forcing them to affirm that there are more than two genders or that gender may be based on one’s identity.... The policy seeks to compel affirmation of views repugnant to Christian beliefs and its stated goals may be achieved without forcing parents and students to alter or otherwise abandon their religious beliefs.... The policy does not provide for an excusal or opt-out, stressing one moral interpretation over others, favoring a secular view over a religious one, and discarding other views on gender identity as prohibited, worthy of ridicule, bigoted, or the like.... Count Four alleges failure to accommodate religious beliefs and practices....

The Cherry Hill policy implicates complex, sensitive issues that students will no doubt take from the classroom to the dinner table. Ensuing thoughts and conversations may touch upon family, faith, sexuality, and a host of other important topics. I accept Maldonado’s stated concerns as genuine expressions of her faith and related beliefs. However, without the allegedly offending provisions applying to her or her children, her mere perception of harm is insufficient to confer standing....

In Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, March 31, 2025), plaintiffs allege that UC Berkeley has discriminated against Jewish faculty and students. The California federal district court allowed plaintiffs' free exercise, equal protection and Title VI claims to move forward. However, it dismissed plaintiffs' Sec. 1981 claim for discriminatory refusal to enter contracts. The court said in part:

The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors....  The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish....  The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.... The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment.... Consequently, Brandeis’s claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.  

It bears mention that the FAC repeatedly alleges that “Zionism is a central tenet of the Jewish faith.”...  This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism.  If so, a serious constitutional problem would arise....

The 42 U.S.C. § 1981 claim is dismissed.  The gist of this claim is that members of the plaintiff organizations who are legal academics cannot contract with certain Berkeley student organizations that adopted a bylaw barring invitations to individuals espousing Zionist beliefs....  Brandeis does not dispute it must show standing.... The complaint does not allege that any academic member has sought to contract with the organizations since adoption of the bylaw, been turned away on account of the bylaw, or has otherwise been put at a contractual disadvantage by the bylaw.