Recent Articles of Interest

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).

From SmartCILP and elsewhere:

• Faress Arafat, My Nurse Brother's Diaries—Echoes of Despair: A Chronicle from the Ashes of War, 71 UCLA Law Review 1218-1247 (2024).
• David B. Cruz, Reestablishment of Religion and LGBTQ Rights, 72 UCLA Law Review In Discourse 394 (2024).

Georgia Legislature Passes Religious Freedom Bill

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.

Parents Lack Standing to Challenge School District's Transgender Policy

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....

Antisemitism Claims Against UC Berkeley Move Ahead in Part

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.

Oklahoma Sues FFRF For Sending Demand Letters Objecting to Religious Activities in Schools

In a rather unusual lawsuit, the state of Oklahoma has filed suit in federal district court against the Freedom from Religion Foundation seeking an injunction to prevent it from continuing to send demand letters objecting to religious activities in Oklahoma's public schools. The complaint (full text) in State of Oklahoma ex rel Oklahoma State Department of Education v. Freedom From Religion Foundation, (ED OK, filed 3/31/2025), alleges in part:

... [W]hen Achille Public Schools (“APS”) administrators exercised their statutorily required duties to allow students to participate in voluntary prayer, the Foundation for Freedom from Religion (“FFRF”) threatened the district with demands that APS administration must forbid its students from exercising their statutory and constitutional rights or face legal consequences. Furthermore, despite the incontrovertible fact that no student was forced to participate in prayer or any other religious activities, the FFRF insisted that “[t]he district must cease permitting teachers to give students bible lessons and it must ensure its schools refrain from coercing student to observe and participate in school-sponsored prayer.”...

Title 70 of the Oklahoma Statutes delegates “the responsibility of determining the policies and directing the administration and supervision of the public school system of the state” to the OSDE and the State Superintendent of Public Instructions.... FFRF has interfered with and will continue to interfere with OSDE and Superintendent Walters’s statutory authority to govern Oklahoma’s public schools. Declaratory and injunctive relief is both necessary and proper to ensure that OSDE and Superintendent can faithfully execute their duties, as well as protect the constitutional rights of Oklahoma’s public school students....

Despite having no standing whatsoever to do so, FFRF continuously threatens Oklahoma Public Schools with demand letters under the guise speaking on behalf of anonymous “concerned parents” who have contacted them. Notably, FFRF’s concern for how Oklahoma chooses to govern its own state is not limited to how its elected officials manage its schools. FFRF has “warned” the Oklahoma Water Resources Board to “discontinue prayers” that opened its regular monthly meetings; has demanded that state police and fire departments not be permitted to fundraise for the Salvation Army; and has generally interfered any time any duly elected state official suggests any proposition that is even remotely “religious.”

FFRF issued a press release responding to the lawsuit.

Trial Court's Refusal to Delay Civil Trial Because of Yom Kippur Is Upheld

In Dimeo v. Gross, (PA Super. Ct., April 2, 2025), a Pennsylvania state appellate court upheld a trial court's refusal to delay the start of a trial by one day. Defendant sought the delay so he could observe Yom Kippur without missing a day of his trial.  The court said in part:

Preliminarily, we note that the parties’ briefs direct our attention to the various tests employed by the United States Supreme Court upon claims of violations of the Free Exercise Clause of the First Amendment.  Nevertheless, we believe that the issue presented here, i.e., the propriety of the denial of a request for the continuance of a civil trial, can be resolved without reaching the constitutional question. ...

... [O]ur decision should not be interpreted as foreclosing continuance requests based upon religious observances.  Rather, we simply mean to amplify the notion that courts may demand a showing of diligence on the part of the movant before granting such requests.  Here, Appellants knew about their trial date over a year in advance.  A quick calendar search would have revealed the trial’s conflict with Yom Kippur, and Appellants could have moved for a continuance weeks or months in advance.  Appellants, however, waited until the eleventh hour, after the scheduling of expert witnesses, to request a continuance.  Under these circumstances, Appellants failed to act with diligence, and we cannot say that the court abused its discretion in denying the request....  

Defamation Suit by Russian Orthodox Church Pries Dismissed Under Church Autonomy Doctrine

 In Belya v. Kapral, (SD NY, March 31, 2025), a New York federal district court dismissed a defamation suit brought by a former priest in the Russian Orthodox Church Outside of Russia. According to the court:

Plaintiff Alexander Belya was once a priest in the Russian Orthodox Church Outside of Russia (ROCOR for short). During his time with ROCOR, Belya led one of the order’s churches in Miami. In 2019, word came down from Moscow that Belya had been elevated to Bishop of Miami, an announcement that came as a surprise to ROCOR’s senior clergy. They hadn’t elected Belya, a necessary step in the elevation of any American bishop. Sensing foul play, they investigated and sent a letter to the Synod—the executive committee of ROCOR’s highest leadership council— about the situation. The letter informed the Synod that Belya’s election never happened and that two prior letters to Moscow, which purported to confirm Belya’s election, were “irregular” and lacked the usual markers of sacred church communications.  

News of the ROCOR letter got out and went viral in the religious press. The reports accused Belya of old-fashioned forgery. With his reputation ruined, Belya is now suing everyone who drafted and signed the ROCOR letter, as well as ROCOR itself. Belya says the letter defamed him by implying that he forged the two earlier letters about his election to bishop, an allegation that the religious press picked up and ran with....

First, putting aside the constitutional issues that dominate the parties’ briefing, Belya’s claims fail on routine state-law grounds. Second, even if Belya’s claims could otherwise proceed, a trial in this case would drag the Court and jury into matters of faith, spiritual doctrine, and internal church governance—precisely what the church-autonomy doctrine is designed to prevent.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Supreme Court Will Hear Oral Arguments Today on Challenge to Planned Parenthood Funding Cutoff

The U.S. Supreme Court today will hear oral arguments in Medina v. Planned Parenthood South Atlantic. In the case, the U.S. 4th Circuit Court of Appeals held that Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their healthcare provider. It thus affirmed the district court's enjoining of South Carolina's attempted cutoff of Medicaid funds to Planned Parenthood. Links to pleadings and briefs in the case are available on the Supreme Court's docket for the case. Background on the case is discussed by SCOTUSblog. Today's oral arguments will be broadcast live at 10:00 AM at this link. A transcript and audio of the arguments will be posted here by the Supreme court later today.

Ecclesiastical Abstention Doctrine Requires Dismissal of Sex Discrimination Claim by Pastor Applicant

In Turman v. Abyssinian Baptist Church, (SD NY, March 31, 2025), a New York federal district court held that the ministerial exception doctrine requires dismissal of a state-law sex discrimination and breach of contract suit in which plaintiff contends that she was not advanced to the final round of the application process to become a senior pastor because she is a woman. The court rejected plaintiff's claim that the church had waived the ministerial exception defense when it included a non-discrimination statement in the notice and job description for the senior pastor position. The court said in part:

To be sure, one might question the propriety of an organization holding itself out as an equal opportunity employer and reaping the public relations benefits of that self-description, only to turn around and say that it is immune from liability under antidiscrimination statutes when someone alleges that the organization has unlawfully discriminated.  But in this case specifically, mindful of the presumption against waiver and having carefully evaluated the antidiscrimination statement on the job posting, the Court concludes that the statement on the job posting does not clearly demonstrate that Abyssinian waived its First Amendment rights....

... [E]mployment discrimination claims against churches require special solicitude.  By their very nature, these claims routinely pose a substantial entanglement concern.  Accordingly, courts routinely apply the ministerial exception to bar them at the motion to dismiss stage....

... There is no way for this Court to resolve Dr. Marshall Turman’s employment discrimination claim without becoming entangled with Abyssinian’s ecclesiastical innerworkings....

Dr. Marshall Turman “cannot evade the ministerial exception by asserting a contract claim based upon the same underlying facts as her statutory discrimination claims,”....  The ministerial exception, therefore, bars Dr. Marshall Turman’s contract claim, and it is dismissed....

Dr. Marshall Turman also seeks to hold Grant, as the chairperson of the Pulpit Search Committee, individually liable for employment discrimination....  But because the ministerial exception prevents this employment discrimination suit from proceeding against Abyssinian, it also requires this Court to dismiss the claims against Grant.  That is, because the First Amendment prohibits religious organizations from being sued under antidiscrimination laws regarding ministerial roles, it similarly prohibits those organizations’ agents from being sued under the same laws.....

Media Say Justices Seemed to Favor Catholic Charities Position in Yesterday's SCOTUS Arguments

News media reporting on yesterday's Supreme Court arguments in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission indicate that the Justices seemed to favor Catholic Charities position that it is unconstitutional to deny it the religious organization exemption in Wisconsin's unemployment compensation law. NPR reported in part:

The U.S. Supreme Court appeared openly doubtful on Monday about Wisconsin's refusal to exempt Catholic Charities from making payments into the state's mandatory unemployment system....

Monday morning's argument started out with some hard questions for Catholic Charities. Justice Elena Kagan asked, "Are you saying … that a group that comes in and says, 'We are a religious group doing religious activities for religious purposes,' qualifies no matter what? That there's no looking behind that at all?"...

If the justices seemed skeptical of the charity's opt-out position, both liberal and conservative justices seemed downright hostile to the state's assertion that Catholic Charities, which serves and employs people of all faiths, and doesn't allow proselytizing, is just like any other non-profit employer and is thus required to pay into the state's unemployment tax system.

Wisconsin assistant solicitor general Colin Roth faced constant interruptions from the bench, but managed to say that the standard imposed by the Wisconsin Supreme Court is that charities may be exempt from paying taxes if their activities involve worship, or religious proselytizing, or religious education. Catholic Charities fulfills none of those functions, he said....

Supreme Court Will Hear Oral Arguments Today on Tax Exemption for Catholic Charities

The U.S. Supreme Court this morning will hear oral arguments in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission.  In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case. The oral arguments will be broadcast live by the Court at 10:00 AM at this page. An audio recording and a written transcript of the oral arguments will be posted later today by the Court on this page.

UPDATE: Here are links to the transcript and audio recording of arguments in the case.

11th Circuit: Jail's Requirement for Religious Verification to Get Kosher Diet Is Not Substantial Burden

In Logsdon v. Woods, (11th Cir., March 28, 2025), the U.S. 11th Circuit Court of Appeals refused to allow a pre-trial detainee to proceed with an appeal of a district court's denial of a preliminary injunction in a challenge to a jail's religious verification policy. The court said in part:

Here, Logsdon has no nonfrivolous arguments that the district court abused its discretion in denying his motion for a preliminary injunction. The policy with which Logsdon takes issue does not substantially burden his free exercise of religion.... While the verification policy may be considered inconvenient, as it requires that Logsdon undertake the additional step of having his religious affiliation confirmed before he is given a kosher diet, such a requirement is not enough to constitute a substantial burden on Logsdon's religious practices....

Recent Articles of Interest

From SSRN:

• Benjamin Fleshman, How Do You Solve a Problem Like Martinez?, (Forthcoming in Texas Review of Law and Politics, Volume 29, Issue 2, Spring 2025).
• Sherif Girgis, Unfinished Liberties, Inevitable Balancing, (Colum. L. Rev. (forthcoming 2025)).
• Melissa Moschella, Do Parental Rights Extend Beyond the Schoolhouse Door? Correcting Misinterpretations of Pierce in Light of History and Tradition, (March 01, 2025).
• Melissa Moschella, Carson v. Makin, Free Exercise, and the Selective Funding of State-Run Schools, (February 28, 2025).
• Steven J. Heyman, Teaching Dobbs: On The Role Of Ideology In Constitutional Interpretation, (March 07, 2025).
• Elizabeth Bartholet, The Mixed Blessing/Curse of the Meyer-Pierce Legacy, (Journal of Contemporary Legal Issues, Volume 26, No. 1. Pp. 99–106, 2025).
• Ira P. Robbins, Criminal Abortion and Citizen's Arrest, (Utah Law Review, Volume 2025, No. 2, Pp. 281-335).
• Nicole Huberfeld & Michael R. Ulrich, United States V Skrmetti—Testing the Transition to Politicized Regulation of Medicine, (JAMA. 2025;333(10):839–840).
• S. Ernie Walton & Eric A. DeGroff, Brief of Amici Curiae in Support of Petitioners in Mahmoud v. Taylor, (March 10, 2025).
• Gaurav Mukherjee, Private Disestablishment, (51 Brigham Young University Law Review __ (2026)).

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

• Abdurrachman Satrio, Between Two Worlds: Indonesia and the Spectre of the Dharmic-Infused Constitutional Structure, (Forthcoming in Ngoc Son Bui, Mara Malagodi, and Christopher Michael Roberts (Eds.), Asian Comparative Constitutional Law Vol. 3, Constitutional Structure (Hart Publishing, 2025)).
• Sahibpreet Singh, Sharandeep Kaur & Lalita Devi, Caste Based Marginalization, (January 04, 2024).

From SSRN (Religious Law):

• Tal Prottas, ShulCoin Token, (March 17, 2025).
• Francis Beckwith, God and the Natural Law, (God and Morality, eds. J. Hare and D. Baggett (Oxford University Press, forthcoming 2026)).
• Hershey H. Friedman, Rabbi Yehuda bar Ilai: The Preeminent Voice of Tannaitic Judaism, (March 20, 2025).

From SmartCILP:

• Mohamed 'Arafa, "Islamization" of Egyptian Law: 'Abd alRazzaq alSanhuri's Rule of Law's Doctrine, 17 Charleston Law Review 419-454 (2023).
• Adele Auxier Keim, The Religious Freedom Restoration Act and Indian Law: From Individual Advocacy to Collective Action, 23 Journal of Appellate Practice & Process 149-192 (2023).
• Victoria Sutton, Appellate Courts: Stop Accepting an "Absurd" First Amendment Analysis for Native Nations' Sacred Site Destruction, 23 Journal of Appellate Practice & Process 193-212 (2023).
• Keith Thompson, Chief Justice Dixon on Judicial Integrity: Lessons for Judges When Interpreting Constitutions, 25 Oregon Review of International Law 115-146 (2024).
• Eugene Volokh, Tribute: Justice O'Connor's Religion Clauses Legacy, 76 Stanford Law Review 1915-1928 (2024).