Suit Challenges School District's Speech Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religious Broadcasters Win Challenge to FCC Disclosure Requirements

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

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

Supreme Court Splits 4-4 In Oklahoma Charter School Case

In Oklahoma Statewide Charter School Board v. Drummond and the companion case of St. Isidore of Seville Catholic Virtual School v. Drummond, (Sup. Ct. May 22, 2025), the U.S. Supreme court today in a brief order affirmed by an equally divided court the judgment of the Oklahoma Supreme Court. At issue in the cases was whether Oklahoma can authorize and fund a religiously-sponsored charter school. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The U.S. Supreme Court's Order indicates that today's tie vote, which comes only three weeks after oral arguments in the case, resulted from Justice Barrett's recusing herself from the case. While Justice Barrett gave no reason for recusing herself, earlier media reports suggest it was because of her close friendship with Notre Dame law professor Nicole Stelle Garnett who was an early legal adviser to the school and is a faculty fellow with Notre Dame's Religious Liberty Clinic which represents St. Isidore. Bloomberg reports on today's Supreme Court decision.

California Agrees to Consent Decree Allowing Sectarian Schools to Participate In IDEA

 As previously reported, last October the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of special needs children and by two Orthodox Jewish schools. The suit challenges as a violation of the Free Exercise and Equal Protection Clauses California's rules that preclude sectarian schools from receiving payments for special needs children under the federal Individuals With Disabilities Education Act (IDEA). This week, in the district court the parties filed a Joint Motion for Entry of Consent Judgment and Permanent Injunction in Loffman v, California Department of Education, (CD CA, May 19, 2025). The injunction bars California from enforcing requirements that schools be nonsectarian in order to participate in the IDEA program. Fox News reports on these developments.

Jewish Teacher Claims Anti-Israel Position of Teachers' Union Violates His 1st Amendment Rights

Suit was filed this week in an Oregon federal district court against the Portland school system and the Portland teacher's union by a Jewish teacher who was born in Israel who contends that his First Amendment rights are violated by forcing him to be part of a bargaining unit represented by a union that promotes anti-Israel, pro-Palestinian positions and by the school becoming a one-sided forum for anti-Israel rhetoric. He also claims a hostile working environment has been created. Even though plaintiff chose not to become a dues-paying member of the teacher's union, under Oregon law the union remained his collective bargaining representative.  The complaint (full text) in Doe v. Portland Association of Teachers, (D OR, filed 5/19/2025) alleges in part:

63. [Palestinian] flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person.

64. These symbols ... cause severe emotional distress to Plaintiff because of his experiences growing up in Israel, including personal exposure to acts of terrorism committed to destroy the State of Israel, and because of his deeply held religious beliefs....

97. When Plaintiff reached out to PAT for support, PAT assigned him a union representative who publicly shared anti-Zionist views on social media, thus the Plaintiff did not receive fair or unbiased representation from PAT....

121. Oregon’s statutory requirement of exclusive representation, placing the Plaintiff in a bargaining unit exclusively represented by PAT, violates the Plaintiff’s free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs....

127. Oregon’s exclusive representation laws compel Plaintiff ... to tacitly affirm beliefs that violate his deeply held religious beliefs and personal convictions as a condition of employment....

140. ... [C]urricula put forward in the District’s classrooms purports to define aspects of Plaintiff’s faith, which includes the belief in a Jewish homeland, in ways that are inconsistent with his beliefs, but that are consistent with the religious teachings of other faiths, including the beliefs of some Muslims.

141. The District allows displays of overtly anti-Israel messaging, including maps that fail to display the nation of Israel....

144. By these actions, the District prefers and promotes religious views and practices in violation of the Establishment Clause of the First Amendment,,,,

The Oregonian reports on the lawsuit.

Exclusion of Religious Organization from Non-Profit Discount Challenged Under California's Unruh Act

Suit was filed yesterday in a California federal district court by a Christian non-profit claiming that OpenAI's non-profit discount policy that excludes academic, medical, religious, and governmental institutions violates plaintiff's rights under California's Unruh Civil Rights Act. The complaint (full text) in Holy Sexuality v. OpenAI, Inc., (SD CA, filed 5/21/2025), alleges in part:

1. Plaintiff Holy Sexuality is a Christian nonprofit based in Texas that uses video courses to teach young people and their families about biblical principles on human sexuality.  

2. To operate more effectively, Holy Sexuality contacted Defendant OpenAI, Inc., a San Francisco-based tech company, to receive OpenAI’s 20% nonprofit discount for a ChatGPT subscription....  

4. But OpenAI and Goodstack denied Holy Sexuality the discount because “religious … institutions are not eligible.” 

5. This categorical denial, OpenAI’s published policy, and Goodstack’s enforcement of that policy are invidious religious discrimination. And they are illegal under California’s Unruh Civil Rights Act....

6. People of faith aren’t second-class citizens in California, and tech companies cannot provide lesser services to customers simply because they are religious....

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

Colorado Law Banning Deadnaming and Misgendering Challenged as Free Speech Violation

Suit was filed this week in a Colorado federal district court challenging on free speech and vagueness grounds provisions in recently enacted Colorado HB25-1312. The lawsuit focuses on provisions that define deadnaming and misgendering as discriminatory acts under Colorado's Anti-Discrimination Act. The complaint (full text) in Defending Education v. Sulivan, (D CO, filed 5/19/2025), alleges in part:

5. ... H.B. 25-1312 amends the definition of “gender expression,” a protected category under the Colorado Anti-Discrimination Act, to include the use of a “chosen name” and other words by which an individual “chooses to be addressed.”...

30. Under H.B. 25-1312, then, someone who operates in a public accommodation commits a discriminatory act when they refer to a transgender-identifying individual using the individual’s birth name or biological pronouns instead of their chosen name or preferred pronouns ... because that speech supposedly denies the transgender individual the “full and equal enjoyment” of the place of public accommodation based on their “gender expression.” ...

86. ... Colorado’s public accommodation laws as amended by H.B. 25-1312 make it impossible for [plaintiffs} ... to effectively exercise their constitutionally protected right to speak in a manner that reflects their sincere belief that sex is immutable and fixed at birth....

122. That H.B. 25-1312 does not literally require Coloradans to speak is of no consequence. Even if Plaintiffs and their members could avoid the law’s penalties by holding their tongues, compelled silence is compelled speech..... In any event, using pronouns and names is a “‘virtual necessity’” for engaging in any conversation....

136. The Unwelcome Provision clearly prohibits speech based on content and viewpoint. It prohibits all speech that makes someone feel “unwelcome, objectionable, unacceptable, or undesirable.” But “[g]iving offense is a viewpoint.”... It also compels speech by, for example, requiring published speech to be “[w]elcom[ing]” and “[un]objectionable.” Even assuming this provision only regulated speech based on content, Defendants have no compelling interest for prohibiting this type of speech....

The Lion reports on the lawsuit.

DOJ Sues Idaho City for Denying Zoning Approval for Evangelical Church

The Justice Department announced yesterday that it has filed suit against the City of Troy, Idaho alleging that it violated the Religious Land Use and Institutionalize Persons Act when it denied a conditional use permit that would have allowed an evangelical Christian church to hold worship services and church meetings in a building zoned for businesses. The complaint (full text) in United States v. City of Troy, Idaho, (D ID, filed 5/20/2025), alleges in part:

49. At the public hearing, 19 citizens personally appeared to express their views, with one speaking in favor of, one neutral to, and 17 against granting the CUP. 

50. Many of views expressed at the hearing reflected animus against Christ Church’s beliefs or its members, including that the Church was proposing an “evangelical community” that was not “open to everyone.”...

56. The City also received and considered 32 written comments regarding the CUP application that were submitted by residents. Of the written submissions, 26 commenters opposed the CUP and six supported it. 

57. Many of the written comments spoke negatively about Christ Church and its members’ beliefs, practices, and conduct....

The complaint alleges that the City has violated the Equal Terms, the Substantial Burden and the Nondiscrimination provisions of RLUIPA. KMVT News reports on the lawsuit.

Suit Challenges Minnesota Policies Allowing Transgender Girls to Compete on Girl's High School Teams

A Title IX suit was filed this week in a Minnesota federal district court by an advocacy organization challenging Minnesota's high school policies on participation in sports by transgender women. The complaint (full text) in Female Athletes United v. Ellison, (D MN, filed 5/19/2025), alleges in part:

120.  Minnesota allows athletes to participate in sports solely based on gender identity. There are no limitations based on testosterone level, whether male puberty has been started or completed, or other metrics know to magnify the physiological advantage males have over women, advantages raising safety concerns for female athletes....

180. Under Title IX, Defendants are required to provide competitive opportunities for females that accommodate them by “equally reflect[ing] their abilities” and offer “equal opportunity in . . . levels of competition” as compared to the competitive opportunities enjoyed by boys. 

181. Because of the measurable physical advantages that male athletes enjoy both before and after puberty, regardless of whether puberty blockers or testosterone suppression was administered, the athletic opportunities of girls are unequal when males are allowed to compete against them or compete with them for spots or playing time on their team....

187. Providing equivalent treatment and opportunities entails ensuring that both sexes have equal opportunities to participate and compete in competitive athletics, both in-season and post-season. Further, it precludes policies that are “discriminatory in language or effect” or have the effect of denying “equality of athletic opportunity.”  

188. Minnesota’s Policy has a detrimental effect on girls’ opportunities to compete safely and on a level playing field....

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

New Montana Law Requires Schools to Offer Released-Time Programs

On May 12, Montana Governor Greg Gianforte signed HB 343 (full text) which requires public schools to create released time programs under which a student, on request of their parent or guardian, is released for at least one hour per week to receive off-site religious instruction. The new law makes mandatory released-time programs that previously were optional. Public funds may not be used for the programs. The new law adds an option for schools to award academic credit for released-time religious instruction. Schools must use neutral secular criteria similar to the criteria used for other courses in order to determine the amount of credit to be awarded. ADF issued a press release discussing the new law.

Court Invalidates EEOC Guidance on Gender Identity and Sexual Orientation Discrimination

In State of Texas v. EEOC, (ND TX, May 15, 2025), a Texas federal district judge held that portions of the EEOC's 2024 Enforcement Guidance on Harassment in the Workplace are contrary to law.  The court held that Guidance requiring bathroom, dress and pronoun accommodations for transgender employees are inconsistent with the text, history and tradition of Title VII. The court said in part:

First, the Enforcement Guidance contravenes Title VII's plain text by expanding the scope of "sex" beyond the biological binary: male and female....

The court invalidated the portions of the Enforcement Guidance which define "sex" in Title VII to include "sexual orientation" and "gender identity" and which define sexual orientation and gender identity as protected classes. The court also specifically invalidated an Example of a Hostile Work Environment that focused on regular and intentional misgendering (using pronoun that does not match gender identity) of a transgender employee by supervisors, coworkers, and customers. AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Ioanna Tourkochoriti, LGBTQ Wedding Party: Conscientious Objections to the Enforcement of Anti-Discrimination Law, (60 Tulsa Law Review 421-485 (2025)).
• Victoria Litman, Psychedelic Policy, Religious Freedom, and Public Safety: An Overview, (August 07, 2023).
• Barak D. Richman, On Rabbis and Mentors, (GWU Law School Public Law Research Paper Forthcoming).
• Reva B. Siegel, Foreword: Democratizing Constitutional Memory,  (Forthcoming 123 Mich. L. Rev. (2025)).
• Catherine E. Smith, et. al., Brief of Amici Curiae in Support of Respondents: Mahmoud v. Taylor, (April 17, 2025).
• Amy J. Sepinwall, The Conduct-Status Connection and Expressive Wedding Vendor Cases, (Wayne Law Review, forthcoming).
• Ainslee Johnson-Brown, On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, (15 ConLawNOW 195 (2024)).

From SSRN (Non-U.S. Law):

• Michael P. Foran, It's Not What You Said, It's The Way That You Said It: Manifesting Protected Beliefs in the Workplace Following Higgs v Farmor's School, (Industrial Law Journal (2025) (forthcoming)).
• Jeffrey A. Brauch, Freedom of Religion under the African Charter on Human and Peoples' Rights, (Forthcoming in Volume 28 Issue 2 of the Gonzaga Journal of International Law).
• Chagai Schlesinger, Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918-1921, (October 24, 2024).
• Chagai Schlesinger, Religious Legal Pluralism in the Shadow of the Centralistic State, (Oxford Journal of Legal Studies, 2025).
• Xing Wang, Jennifer Griffiths, Adam Gibson & Pakhee Kumar, Disaster Management Practices in Churches in London, UK, (2025).
• Godfrey Lukindo J, Critical Examination Of The Execution Of Death Penalty In The East Africa: A Case Study Of The Law And Practice In Tanzania And Uganda, (June 20, 2022).
• Inebu C. Agbo-Ejeh, Regulating 'God's Business': A Legal Analysis of Part F of The Companies and Allied Matters Act, 2020, (June 14, 2023).

From SSRN (Islamic Law):

• Masood Ahmed, Zakah in Non-Islamic Countries: Addressing Economic Struggles and Religious Commitments of Muslims (September 09, 2024).
• Tanzeela Shafique, International Best Practices in Policy Formation for Sharīʿah Governance, (May 13, 2025).
• Ghazal Hisham Daadoush, The Intersection Of The Cisg (Convention On Contracts For The International Sale Of Goods) And Islamic Law (Saudi Arabia), (January 22, 2025).
• Badreddine, The UNIDROIT Principles and the SSs: Any Room For Cooperation?, (May 15, 2024).

From SmartCILP:

• Neil H. Buchanan, Feminism, Theocracy, and Righteous Anger: Sherry Colb Unbound, 109 Cornell Law Review 1765-1778 (2025).
• Catherine L. Fisk, Jewish Lawyers and the Labor Movement, 93 Fordham Law Review 1159-1176 (2025).
• Ria Ivandic, Tom Richmaier & Stephen Machin, International Terror Attacks and Local Out-Group Hate Crimes, 67 Journal of Law & Economics 589-610 (2024).
• Wejdan Hleihel, Ido Shahar & Karin Carmit Yefet, Transforming "Transformative Accommodation": Palestinian–Muslim Women's Maintenance Suits as a Case Study, 49 Law & Social Inquiry 2102-2127 (2024).

Members of Religious Liberty Commission Advisory Boards Named

As previously reported, earlier this month President Trump issued an Executive Order creating a Religious Liberty Commission.  Members of the Commission were also named at that time. Now (May 16), the White House has announced names of members of three Advisory Boards to the Commission: an Advisory Board of Religious Leaders, an Advisory Board of Legal Experts, and an Advisory Board of Lay Leaders. The Board of Religious Leaders and the Board of Legal Experts each includes Catholic, Protestant and Jewish representation. The Board of Lay Leaders includes Protestant and Muslim representation.

Trump Issues Proclamation on Jewish American Heritage Month

Jewish American Heritage Month began May 1. On May 16, President Trump issued a Proclamation (full text) formally declaring May as Jewish American Heritage Month. The Proclamation reads in part:

Since the day I resumed my duties as President — and following President Washington’s example — my Administration has been determined to confront anti-Semitism in all its manifestations.  I say that at home and abroad, on college campuses and in city streets, this dangerous return of anti-Semitism — at times disguised as anti-Zionism, Holocaust denialism, and false equivalencies of every kind — must find no quarter.

We proudly celebrate the history and culture of the Jewish people in America, and we hold that President Washington’s words, though nearly 250 years old, still carry the revolutionary promise of our Republic:  that every citizen who demeans himself as a good citizen shall sit in safety under his own vine and fig tree — a covenant added to a blessing.

I believe there has never been a greater friend to the Jewish people than my Administration.  We will never deviate from our conviction that anti-Semitism has no place in the greatest country in the world.  As the 47th President of the United States, I will use every appropriate legal tool at my disposal to stop anti-Semitic assaults gripping our universities.  We will proudly stand with our friend and ally, the State of Israel.  I will never waver in my commitment.

South Carolina Supreme Court Interprets State's Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., May14, 2025), the South Carolina Supreme Court interpreted the state's ban on abortion after a fetal heartbeat has been detected to mean the time at which:

electrical impulses are first detectable as a "sound" with diagnostic medical technology such as a transvaginal ultrasound device and the medical professional observes those electrical impulses as a "steady and repetitive rhythmic contraction of the fetal heart" during any stage of the heart's development "within the gestational sac."

This point is generally at the end of six weeks of pregnancy. Planned Parenthood had argued for a different definition of "fetal heartbeat" that would have placed it approximately after nine weeks of pregnancy.

Justice Hill filed a concurring opinion focusing on the language of the 2023 Fetal Heartbeat Act and the Woman's Right to Know Act, rather than on legislative history of the law.

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