Religion Clause

As reported by Christian Daily:

The Supreme Court of Finland on Thursday (March 26) found a former government minister guilty of “hate speech” for her biblical views on marriage following two prior acquittals by lower courts.

In a 3-2 decision, the court ruled against Päivi Räsänen for expressing her beliefs on marriage and sexual ethics in a 20-year-old church pamphlet. The court also criminally convicted Lutheran Bishop Juhana Pohjola for publishing the 2004 pamphlet, according to legal rights group Alliance Defending Freedom (ADF) International.

The court levied fines of several thousand euros on both Räsänen and Pohjola and ordered the removal and destruction of the impugned statements.

The Supreme Court's opinion (full text) says in part:

1. A, who is a doctor by training, has written an article at the request of the X Foundation ...: "Male and female he created them. Homosexual relationships challenge the Christian concept of humanity." The length of the article is approximately 20 pages.... A's article was published in 2004 in the Foundation's Z publication series as a printed booklet....

2. With A's permission, the article was subsequently published in 2007 on the Foundation's website and in 2014 on the Foundation's renewed website and on the website of the Diocese of Y. After the pre-trial investigation in the case had been launched in 2019, A has further disseminated the article on her own internet and social media pages in 2019 and 2020.

3. B, in turn, as the Foundation's agent and member of the Board, as the Diocesan Dean of the Diocese of Y, and as the person responsible for the Z publication series and the Diocese's website, has decided to publish the article on the websites of the Foundation and the Diocese....

18. On the basis of the case-law of the European Court of Human Rights, it may be concluded that, notwithstanding the protection of freedom of expression, a criminal sanction may be imposed mainly where fundamental and human rights can be considered to have been violated in the form of incitement to hatred or violence....

51. The Supreme Court states that the article has a religious framework, but ... the writing is clearly divided into two different parts. The passages of the article alleged to be insulting in the indictment have not been so much a question of confession of religion or faith, as of presenting views based on texts considered sacred by religion or otherwise based on religious beliefs, but rather argumentation based on the author's social and medical views. The Supreme Court considers that freedom of religion does not protect the fact that opinions that are not related to religion are expressed in the framework of religious writing. In the assessment of the statements referred to in the indictment, freedom of speech is therefore of central importance, and freedom of religion has considerably less weight.

52. A was a Member of Parliament in writing her essay and making it available to the public. ... [T]he topics discussed in the article have been related to A's political activities and the issues raised in it. In addition, the article was related to topics of general interest, and A's article can be considered to have participated in a topical social debate that aroused public interest. In accordance with the case-law of the European Court of Human Rights, restrictions on political and social debate must, as a rule, be approached with particular restraint.

56. ... [P]oliticians and persons expressing religious opinions also have a duty to avoid expressions that promote intolerance and other unjustifiably offensive expressions in their public speeches. At the heart of freedom of speech and freedom of religion is the expression of opinions and beliefs, but the exercise of these freedoms is subject to restrictions based on the protection of other people and groups. The Supreme Court states that it is also possible to defend the concept of marriage and family in accordance with religious beliefs in a way that avoids insulting sexual minorities. In other words, it is possible to participate in the discussion without using expressions that insult homosexuals as a group on the basis of their sexual orientation....

58. On the basis of the above, the Supreme Court finds that the statements described in paragraph 45 have insulted homosexuals as a group on the basis of their sexual orientation, that the classification of the conduct as punishable is not in conflict with freedom of speech or religion, and that A's conduct thus fulfils the criteria of incitement against an ethnic group in Chapter 11, Section 10 of the Criminal Code.

The battle over the constitutionality of Oklahoma authorizing and funding a religious charter school took another step forward on Monday. As previously reported, in May 2025, the U.S. Supreme Court split evenly, 4-4, on the constitutionality of such a school. The even split was caused by Justice Barrett recusing herself. Subsequently, a new test case was created as the National Ben Gamla Jewish Charter School Foundation. applied to create for a statewide virtual high school. The Oklahoma Statewide Charter School Board voted to reject the application and gave as its formal reason only that under Oklahoma law, a charter school is a public school and must be nonsectarian. 

The Oklahoma Attorney General, apparently in an attempt to create a record that would allow the Supreme Court to avoid the constitutional issue, filed suit against the Charter School Board in a state trial court seeking a writ of mandamus to require the Board to identify and incorporate into the record other valid, non-constitutional grounds for the rejection that exist. (See prior posting). With that case apparently still pending, on Monday the Ben Gamla school filed suit in an Oklahoma federal district court against the Charter School Board and the Attorney General, seeking to overturn the Charter School Board's rejection of its application 

The complaint (full text) in National Ben Gamla Jewish Charter School Foundation, Inc. v. Drummond, (WD OK, filed 3/24/2026), alleges in part:

... Under the Free Exercise Clause ...  a system that precludes religious entities from obtaining generally available state benefits solely because of an organization’s religious character or conduct is unconstitutional unless the government can satisfy strict scrutiny. Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 484 (2020)...

... The exclusion of Plaintiffs serves no compelling, substantial, or legitimate government interest....

The Equal Protection Clause prohibits discrimination on the basis of religion. 

... Okla. Stat. Ann. tit. 70, § 3-136(A)(2) discriminates against religion on its face because it excludes applicants seeking to run religious charter schools from the charter school program. 

... Defendants must therefore satisfy strict scrutiny. 

Becket Fund issued a press release announcing the filing of the lawsuit.

Israel's Knesset yesterday, by a vote of 65-41, gave final passage to a bill that expands the jurisdiction of the government's Rabbinic and Sharia court systems. According to Times of Israel:

The law, sponsored by the ultra-Orthodox United Torah Judaism and Shas parties, gives the religious tribunals the power to arbitrate civil disputes which are currently the purview of the secular court system. Rabbinical courts were allowed to act as arbitrators in financial disputes until 2006, when a court decision determined that they had no standing to do so....

The law, which initially was set to allow the courts to rule on child custody issues, was amended during the legislative process so that it does not apply to married or formerly married couples. It also does not apply to labor law cases unless the matter was freely initiated by an employee rather than an employer.

The legislation stipulates that religious courts are only allowed to rule on such issues with the consent of both parties and that the rulings reached through rabbinic arbitration cannot violate the Women’s Equal Rights Law or other civil rights statues.

However, critics have asserted that such protections are not enough, given the pressures litigants in religiously conservative communities are likely to face, and that the law will create a power imbalance that’s harmful to weaker segments of society, with women’s rights likely to be affected.

According to the Jerusalem Post, criminal or administrative matters, as well as proceedings in which the state or a local authority was a party are also excluded.

In Cordero v. Kelley, (3rd Cir., March 19, 2026), the U.S. 3rd Circuit Court of Appeals held that prison officials who refused to allow an inmate to receive a bulk mailing of religious pamphlets had qualified immunity in a damage action against them alleging violation of the 1st Amendment. The court said in part:

Cordero asserts that his Christian religion requires him to spread the Word of God by sending religious pamphlets, or tracts, to friends and family.  Prior to 2015, Cordero was able to receive hundreds of pamphlets at a time via mail at NJSP without incident.  However, from 2015 to 2017, Gregory Kelley, a correctional officer working in the NJSP mailroom, rejected multiple bulk mailings containing 100 or more religious pamphlets....

We agree with the District Court that the defendants were entitled to qualified immunity on Cordero’s First Amendment claim for damages.  We have found no caselaw clearly establishing a right to either receive through the mail bulk quantities of religious materials, or the right to receive a yearly bulk order of Christian tracts....

Cordero also argues that the New Jersey Administrative Code mandates that he “be permitted to receive, retain and send out religious literature without quantity limitations.”... However, “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”  Davis v. Scherer, 468 U.S. 183, 194 (1984).  Rather, the “clearly established right must be the federal right on which the claim for relief is based.”  Doe v. Delie, 257 F.3d 309, 319 (3d Cir. 2001).  And a “state statute cannot ‘clearly establish’ the federal right for qualified immunity purposes.”  Id.  

 In Hellman v. Massachusetts Department of Elementary and Secondary Education, (1st Cir., March 20, 2026), parents contended that their children who are enrolled in private schools should be entitled to identical special education services as public school students. Under Massachusetts law, private school students only received such services at off-site locations, while public school students received them in their normal school buildings. Rejecting the parents' due process, equal protection and privileges or immunities claims, the court said in part:

The crux of the Parents' argument is that once the state establishes an otherwise generally available benefit, it may not deny that benefit to a student simply because their parents exercise their fundamental right to enroll their child in private school.  But every case they cite arises under the Free Exercise Clause, not the parental rights doctrine involved here.  (The Parents did not bring a Free Exercise claim; the Place Regulation applies to all private schools, secular and religious alike.)  And those holdings have no bearing on their parental rights claim.  They rest on a distinct, First Amendment principle that prohibits the state from imposing even indirect coercion or penalties on religious exercise... 

That principle does not apply to the parental right.....  [I]t does not require the state to extend public benefits on identical terms to private and public school students to protect the parents' choice of forum.

From SSRN:

• Tomas Griskevicius, Institutional Violence: The Case of an Alleged US CIA Prison Operating in Lithuania, (February 28, 2026).
• Caroline Mala Corbin, Law Office Science. (March 20, 2026).
• Abu Hayyan Saeed, Islamic History , Bride of Orientalism or Witch of Atheism?, (January 01, 2026).
• Allison Whelan, The Case for Professional Disobedience, (Georgia State University College of Law, Legal Studies Research Paper (2026)).
• Heric Martell Sanctis, The Limits of Agency: A Neurobiological and Praxeological Defense of Abortion Rights from Liberal Self-Ownership, (March 07, 2026).
• Ethan Perkins, After Dobbs: A Neuroscientific Standard for Constitutional Personhood, (February 28, 2026).
• Caitlin Millat, Parents As Regulators, (74 UCLA L. Rev. __ (2027) (forthcoming)).
• Paul Benjamin Linton, Therapeutic Abortions Before Roe: An Examination of the Language and Interpretation of Abortion Prohibitions (February 25, 2026).

• Ali Rod Khadem, Islamic Finance, Commercial Law, and Economic Justice: Apocalyptic Challenges to the Global Order, 39 Emory International Law Review 643-704 (2025).

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

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

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

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

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

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

In a press release on Friday, the Justice Department announced that it has filed suit in a Massachusetts federal district court against Harvard University for discrimination against Jewish and Israeli students in violation of Title VI of the 1964 Civil Rights Act.  The 44-page complaint (full text) in United States v. President and Fellows of Harvard College, (D MA, filed 3/20/2026) alleges in part:

In the wake of Hamas’ October 7, 2023, terrorist attack on the State of Israel, Jewish and Israeli students at Harvard University were harassed, physically assaulted, stalked, and spat upon. For several years, Jewish and Israeli students endured a hostile educational environment. They were repeatedly denied access to educational facilities by antisemitic demonstrators. Fearful for their safety, Jewish students wore baseball caps to conceal their yarmulkes or kept out of sight, effectively denying them access to Federally funded educational opportunities. 

Harvard’s response to this: do nothing. Its faculty and leadership turned a blind eye to antisemitism and discrimination against Jews and Israelis. Students and faculty violated Harvard’s time, place, and manner rules with impunity; rules that Harvard has and would enforce against anyone else.... Harvard fostered and continues to foster a campus climate where hostile antisemitism and anti-Israeli conduct thrives....  

...  Harvard has failed to enforce its rules or meaningfully discipline the mobs that occupy its buildings and terrorize its Jewish and Israeli students. Harvard instead rewarded students who assaulted, harassed, or intimidated their Jewish and Israeli peers. 

Whenever Harvard accepts a grant from the United States, or seeks to draw funds, it certifies compliance with Title VI of the Civil Rights Act of 1964.... Harvard is currently set to receive more than $2,615,000,000 of taxpayer money under active federal grants from the Department of Health and Human Services alone (to say nothing of other agencies).... Harvard remains in violation of its Title VI obligations....

... The United States cannot and will not tolerate these failures and brings this action to compel Harvard to comply with Title VI, and to recover billions of dollars of taxpayer subsidies awarded to a discriminatory institution.

In Oliver v. City of Brandon, Mississippi, (Sup. Ct., March 20, 2026), the U.S. Supreme Court held that a street preacher may move ahead with his challenge to a city ordinance that limits protests and demonstrations around the city's amphitheater to a designated area when events are scheduled at the amphitheater. The city argued that because the preacher had been convicted of violating the same ordinance several years earlier, the Supreme Court's decision in Heck v. Humphrey bars the suit. Heck prohibits the use of 42 USC §1983 to challenge a prior conviction or sentence in order to obtain release from custody or to obtain an award of damages. Today the Supreme Court held that this does not bar the street preacher's suit because he is only seeking an injunction to prevent future enforcement of the ordinance. The fact that a victory in his suit would mean that his prior conviction was unconstitutional does not mean that it is barred. Justice Kagan's opinion for a unanimous court said in part:

Olivier’s suit does not ... “collateral[ly] attack” the old conviction.....  It thus cannot give rise, as Heck feared, to “parallel litigation” respecting his prior conduct.... The suit, after all, is not about what Olivier did in the past...  Unlike in Heck, the suit merely attempts to prevent a future prosecution....

... [T]he City says, a judgment in Olivier’s favor would “necessarily imply the invalidity of [his] prior conviction[].”... To declare the city ordinance unconstitutional, as Olivier seeks, would be to imply that no one—including Olivier—should have been convicted under that law. 

The argument is a fair one, but hardly dispositive.  We have to agree that if Olivier succeeds in this suit, it would mean his prior conviction was unconstitutional.  So, strictly speaking, the Heck language fits. But that could just show that the phrasing was not quite as tailored as it should have been....

We think, with the benefit of hindsight, that ... the sentence relied on swept a bit too broad.  That language was used in Heck to identify claims that were really assaults on a prior conviction, even though involving some indirection.

 A petition for certiorari (full text) was filed yesterday seeking U.S. Supreme Court review in Missionaries of St. John the Baptist, Inc. v. Frederic. In the case, the Kentucky Supreme Court held that RLUIPA was not violated by denying a conditional use permit to a church that wished to build a grotto in Park Hills, Kentucky to honor the Virgin Mary’s appearance at a grotto in Lourdes, France. The Kentucky Supreme Court concluded that denial of a permit and variances did not impose a substantial burden on the church's religious exercise. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Yesterday, the Department of Health and Human Services, Office for Civil Rights, announced that it has launched investigations of 13 states for potential violations of the Weldon Amendment's protection of conscience rights. According to the Release, these states may be relying on a now-rescinded interpretation that allowed states to require health plan sponsors and employers to provide abortion coverage because they do not meet the definition of “health care entity” under the Weldon Amendment. According to the Release:

The Weldon Amendment ... protects Americans’ conscience rights by prohibiting federal, state, or local government discrimination against health care entities that choose not to pay for, or provide coverage of, abortion. OCR ... earlier this year ... repudiated a 2021 case-specific letter that excluded employers and plan sponsors from the scope of health care entities that the Weldon Amendment protects.  OCR informed states ... that they should no longer rely on the now-repudiated legal position.

“OCR launches these investigations to address certain states’ alleged disregard of, or confusion about, compliance with the Weldon Amendment,” said Paula M. Stannard, Director of the HHS Office for Civil Rights. “Under the Weldon Amendment, health care entities, such as health insurance issuers and health plans, are protected from state discrimination for not paying for, or providing coverage of, abortion contrary to conscience. Period.”

In Chaudhry v. Thorsen, (ND IL, March 18, 2026), an Illinois federal district court rejected Establishment Clause, substantive due process, and equal protection claims against Pierre Thorsen, a high school history teacher, brought by Muslim parents of one of Thorsen's students. According to the court:

Entering Jacobs High School, Aliya—the daughter of Chaudhry and Alvi—identified as Muslim but was actively questioning her faith. In two classes with Thorsen, she established a strong rapport with him. She trusted him enough to approach him and ask personal questions related to her faith, having conversations before and after school....  As Aliya gradually chose to convert from Islam to Christianity, Thorsen grew concerned for her well-being given the ongoing family dynamics that she professed to him. He connected her to resources in the community, some of which included his own personal connections: a neighbor, a pastor, and former students. He also, at her request, gave her a Bible from one of these connections.....

Parents suffer no legal injury when their child uses his or her own free will and independent judgment to embrace beliefs that differ from their own.... 

Thorsen’s actions weren’t coercive. He never forced Aliya to talk to him. Rather, she initiated their conversations. When they talked, he didn’t badger Aliya into changing her beliefs. Instead, he talked with her about his own beliefs while also encouraging her to speak to her parents and an imam when she expressed doubts about her religion. It may not have been appropriate for Thorsen to ... connect her with adults in the community, particularly without at least looping in Jacobs’ administration or social workers, if not Aliya’s parents. But this doesn’t violate the Constitution, because Aliya wasn’t coerced into religious activity. Inappropriateness doesn’t necessarily violate the Constitution....

Distinguishing between “historical” teachings consistent with what every high school history student should know and “theological” lessons better reserved for Sunday School is a difficult line to draw, but, wherever it is drawn, Thorsen didn’t cross it. 

As a matter of law, Thorsen’s actions didn’t impermissibly establish religion in violation of the Establishment Clause....

The leap required to get from his actions—assisting Aliya in a pre-existing religious journey—to a nefarious discriminatory intent against Muslims as a class, is far beyond the capabilities of a reasonable jury, and the Court can’t allow the claim to proceed as a matter of law.