​Religious liberty had already taken root in America long before the drafting of the U.S. Constitution. In 1649, the Maryland Toleration Act – passed in St. Mary’s City – became a landmark law protecting the free exercise of religion, a harbinger of the guarantees of the First Amendment.

On Saturday, April 18, 2026, that legacy comes alive at Historic St. Mary’s City with a “Free Exercise Walk” and roundtable discussion on why religious freedom still matters today.

At 10 a.m., Protect The 1st General Counsel Gene Schaerr and other experts will lead a discussion at the very site where the Toleration Act was created. They will explore how religious liberty continues to shape American life – from education to public participation – and why it remains essential at a time when religious expression is increasingly contested.

A tour and lunch will follow, offering a chance to reflect on the roots of a freedom too often taken for granted.

The message is simple: religious liberty did not begin with the First Amendment, and it will not endure without vigilance. The principles behind the Maryland Toleration Act still matter – and it is up to each generation to carry them forward.
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Register here.

​The act of collecting the names of certain faculty members at a university in order to protect them from discrimination sounds like a good idea. But from a constitutional perspective, it can very quickly start to sound like a registration program, and nothing good can come from that.

Yet that’s exactly what’s happening at the University of Pennsylvania, where this month a federal judge ordered the school to turn over the names of Jewish faculty members. The U.S. Equal Employment Opportunity Commission (EEOC) is investigating the possibility of antisemitism and had issued a subpoena requesting the names.

Penn objected on privacy grounds and its decision was supported by the American Academy of Jewish Research and the school’s own Jewish Law Students Association. The Anti-Defamation League is skeptical too, on the basis of unintended consequences: “History has taught us to be vigilant when governments compile lists of people based on religious identity, and we hope that the EEOC’s important work can continue without such a list.”

From a First Amendment perspective, the privacy dangers inherent in the government’s subpoena and the judge’s order trace out a larger trajectory: publishing lists of names is a kind of outing, and that represents a direct threat to associational privacy. Anonymity – the right not to be known – is a particular kind of privacy, one that carves out space for a particular kind of free expression, namely the right to anonymous association.

Disclosure can quickly become exposure in today’s digital world, especially when the environment is as politically and culturally charged and prone to doxing as it is today. 

The order also sounds a discordant historical note.

The government’s request, no matter how well intentioned, is inadvertently contaminated by the most notorious crime in human history, the first stage of which began when the new Nazi government in April 1933 listed and purged Jewish professors from Germany’s universities. 

In this country, recall the Nixon “Jew count” episode of 1971. And lest we forget our Dickens, in A Tale of Two Cities lists were not just administrative tools but instruments of fate, symbols of cold-blooded revenge, and the literal difference between life and death.

At the very least, there is something coarse about such counts. Consider the vintage Saturday Night Live skit in which Tom Hanks played a game show host asking contestants to look at photos of celebrities and to press the buzzer to answer, “Jew or not Jew?” Answers: actor Michael Landon, Jew; then-Defense secretary Caspar Weinberger, not Jew.
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We applaud the desire of the government to come to the protection of Jews on campus, many targeted by a fierce and vicious upwelling of hate. But a list of Jews on campus is too intrusive, too problematic. We urge the EEOC to find another way to protect Jews and people of all beliefs on campus.

​Freedom of expression withers when governments are always watching. Our First Amendment freedoms to think, speak, publish, and worship as we choose are strengthened by the privacy protections of the Fourth Amendment.

For this reason, defenders of the First Amendment have much at stake in the looming reauthorization debate over Section 702 of the Foreign Intelligence Surveillance Act (FISA). This surveillance authority, which Congress enacted to allow the surveillance of foreign threats on foreign soil, has been used extensively by the FBI to conduct warrantless surveillance of Americans millions of times in the last five years.

Section 702 was last reauthorized with a two-year extension in April 2024 under the Reforming Intelligence and Securing America Act (RISAA). It is now up for a reauthorization by April 20. Will the U.S. House reauthorize Section 702 the right way – by installing robust constitutional guardrails? Or will the House choose a “clean” reauthorization – rejecting all reform amendments – and continue to allow Americans’ personal communications to be swept up in a web of warrantless, at-will surveillance?

Protect The 1st General Counsel Gene Schaerr described how disregard of the Fourth Amendment has directly undermined the pillars of the First Amendment in testimony before Congress:
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• Freedom of Religion: Under Section 702, the FBI illegally searched the communications of religious leaders who applied to the FBI's “Citizens Academy.” The FBI has shown an appetite to spy on the religious, from surveillance of “traditional radical Catholics” to Americans who attend their local mosque. If federal agencies can use collected data to generate comprehensive “religious dossiers” on every American, what’s next?

• Freedom of the Press: The expansion of what is called the “make-everyone-a-spy provision” under RISAA allows the government to force providers of office space, including landlords for media organizations, to facilitate warrantless surveillance. The FBI’s searches of journalists’ and political commentators’ communications have become a recurring practice.

• Freedom of Speech and Political Expression: “Backdoor searches” are another favorite FBI tactic – and when used to illegally surveil presidential campaigns and transitions, they amount to interference in political expression. Not to mention the warrantless search of the communications of 19,000 donors to a congressional campaign. “Political dossiers,” anyone? Better watch what you post on social media.

• Freedom of Assembly and Association: By purchasing sensitive digital data from brokers, the government acquires information that reveals Americans’ political activities and associations. Case in point: The FBI searched (without a judge-approved warrant) the communications of individuals participating in mass gatherings, specifically Black Lives Matter and January 6 protesters.

• The Right to Petition the Government: In a direct affront to citizens interacting with the justice system, the FBI conducted warrantless searches of victims who approached the Bureau to report crimes. The FBI also spied on a state judge who reported suspected civil rights violations committed by a local police chief.

As these examples illustrate, attempted reforms like RISAA in 2024 offered little in the way of meaningful guardrails on Section 702 operations. Congress has one more chance to get this right. The House must legally require government agents to obtain a warrant to search through Americans’ communications, with reasonable exceptions for emergencies.

Given that 80 percent of Congress’s constituents want these changes to become law, it seems like it should be easy. This is the time to reinforce that the “consent of the governed” still matters.

​On Thursday, the Finnish Supreme Court found parliamentarian Päivi Maria Räsänen and Lutheran bishop Juhana Markus Pohjola guilty of “hate speech” for “making and keeping available to the public a text that insults a group.”
 
What was this insidious document? It was a church pamphlet from 2004 in which they upheld traditional views on marriage and criticized homosexuality. Räsänen had later shared this pamphlet on social media.
 
Whether you are an atheist, agnostic, or believer – whether you are straight or gay – there is no place in a free society for what is essentially a secular blasphemy law.
 
Conservative views on sexual relations are held by all the traditional forms of Christianity, Jewish Orthodoxy, Islam, and many traditions within Hinduism and Buddhism. Agree or disagree with those views – criminalizing them, which Finland’s Supreme Court did, means criminalizing the traditional forms of the great world religions.
 
While Räsänen was acquitted of another charge regarding a past tweet, this conviction is no less serious a criminalization of speech and religious liberty – for a church pamphlet!
 
“You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal,” the Finnish state prosecutor told the court. In other words, it is up to the state to determine what is – and what is not – an acceptable interpretation of the Bible.
 
Räsänen, a former Finnish interior minister, physician, and mother of 12, said: “I am shocked and profoundly disappointed that the court has failed to recognize my basic human right to freedom of expression.” So should we all. Räsänen is considering an appeal to Europe’s top human rights court.
 
Such an appeal would only highlight an absurd situation. If Europe declines to hear her case, will it signal that even the speech of Pope Leo XIV is “hateful” and therefore outside the law? The idea that speech should be criminalized because people within a church or some other group hold one view that others find insulting is a never-ending quest for busybody persecution of speakers.
 
Europe, once again, reminds us why we are so fortunate to have the First Amendment, which not only guarantees freedom of speech but also the free exercise of religion – to believe in this doctrine or that, or not to believe at all, regardless of what other people think.
 
Thank you, once again, James Madison.

We don’t usually associate camels with Scotland. Yet the old proverb about the camel’s nose under the tent applies to what nearly happened in the Scottish Parliament in Edinburgh. A legislative proposal before that body threatened to force medical professionals who object to assisted suicide to help end their patients’ lives – or face fines and firings.

The sponsor of the bill allowing terminally ill people to choose suicide added an amendment that removed the “no duty, no detriment” protections for caregivers who have religious or ethical objections to helping a patient commit suicide. It would have forced healers of conscience to either violate their religious or ethical convictions or to potentially lose their ability to practice medicine altogether.

The medical community fought back. The Royal College of Psychiatrists in Scotland protested that its members “could face pressure from colleagues and employers, or be placed in contentious situations without adequate legal backing.” Faced with this backlash, the bill’s sponsor backed down, stripping the provision from the bill.

The issue, however, remains a live one not only in the United Kingdom, but also in the United States.

Four years ago, it took the intervention of a federal court to protect the right of physicians in California to opt out of participating in assisted suicide when they have religious or ethical objections. This was made necessary by a clause in California law providing that, while doctors were not required to assist, they were required to “document” a patient’s request to die and to “educate” that patient about the procedure and its prescribed pharmaceuticals.

In other words, even physicians who refused to take part in the act itself were still compelled to facilitate it.

A federal judge sided with the Christian Medical and Dental Association, issuing an injunction preventing California from forcing physicians to participate in these aspects of assisted suicide. The court based its ruling on the provision’s likely violation of the physicians’ First Amendment right to the free exercise of religion.

Such laws – whether compelling assistance in assisted suicide or abortion – force healers to choose between their deepest convictions about life and their ability to practice medicine. Wherever one stands on these contentious moral questions, the idea of forcing physicians or other healthcare workers to participate against their conscience is a grave violation of their constitutional rights. It is no less offensive to liberty than trying to compel an atheist to take part in a religious ceremony.

Like many bad ideas, this one has a way of returning in new guises – through legislation, regulatory mandates, or quiet amendments buried in complex bills. It is also entirely unnecessary. In jurisdictions where assisted suicide or abortion are legal, there is no shortage of providers willing to provide these services.

The Scottish law, once passed, will be reviewed by the Labour government in Westminster, which may or may not clarify, modify, or perhaps restore the deleted provision. That review will determine whether this camel keeps its nose outside the tent – or pushes further in.

In the United States, at least, we can be grateful that federal courts rely on the ultimate backstop: the First Amendment.
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But constitutional rights survive not only in letter, but in practice, when people insist on them. And the continuing push to compel participation in procedures that violate conscience suggests this fight is far from over.

​Does eating pork rinds make a Buddhist, who is also a convicted murderer, ineligible to be served Muslim Halal meat on death row? 

The meandering fact pattern of this case and its underlying principles were carefully parsed by the Ninth Circuit Court of Appeals, which came to a firm “no” on that question. The Ninth Circuit’s majority opinion, penned by Judge Ryan D. Nelson, is a magisterial declaration on the limits of governmental adjudication of Americans’ religious beliefs. It offers a masterclass in the religious rights of convicts who have had most of their other rights lawfully stripped from them – and a reminder of how integral the free exercise of religion is to all Americans.

The Case – Why a Buddhist Selects Muslim Food

It would be hard to find a less sympathetic plaintiff than Maurice Lydell Harris. He was convicted in 1994 for murdering his girlfriend, Alicia Allen, and her unborn child. In the more than 32 years that have passed since his conviction, Harris has become a practitioner of Nichiren Buddhism, which originated in medieval Japan but is now popular throughout the world. Perhaps you’ve heard practitioners in a park chanting Nam-myoho-renge-kyo in an effort to cultivate their “Buddha nature.”

The founder of this school of Buddhism, a priest named Nichiren, was a vegetarian who left his followers free to eat meat. His only requirement was that practitioners “eat wisely” and with “mindfulness.” Harris, a meat-eater, interpreted this instruction to mean he should eat “clean” – avoiding foods that are highly processed, non-organic, or artificial.

California prisons offer four religious meal-plan alternatives, one of which is halal-certified meat slaughtered in accordance with Islamic religious requirements. Though he is not a Muslim, Harris decided that halal-certified food came the closest to his requirements as a Nichiren Buddhist.

Enter the Pork Rinds

Inmates who enroll in the prison system’s “Religious Meat Alternative Program” must agree to allow officials to monitor their discretionary food purchases to ensure compliance to their diet. The California Department of Corrections and Rehabilitation screens out inmates who sign up for one diet or another out of preference instead of religious belief.

Harris was kicked out of the program when he made purchases at the prison canteen for very un-Islamic pork rinds and salami, as well as meat-flavored ramen and beef steaks. Harris made these purchases after the prison temporarily switched his diet to a vegetarian option which, he said, left him feeling lightheaded.

The Religious Land Use and Institutionalized Persons Act (RLUIPA)

This law requires government to use the “least restrictive means” of meeting a compelling government interest. It has been invoked to allow Sikhs to wear long beards in prison and to permit a Christian inmate facing execution to have his pastor touch him as he was to be injected with lethal drugs.

Harris’s claim for preliminary relief was denied by a federal district judge, who ruled that the diet the inmate chose “does not fulfill the dictates of the Plaintiff’s religion.” Judge Nelson, however, stood firmly in favor of allowing Harris to decide what his religious obligations were.

Judge Nelson wrote:

“Judges ought not to be Pharisees, decreeing from on high what practices are relevant to a prisoner’s understanding of his own faith … It is for Harris to determine whether being on [a halal diet] satisfies Harris’s Nichiren Buddhist beliefs. And if external forces cause Harris to fall short of the exact dictates of his religion, it is for him and his conscience, not us as courts, to decide what compromises are appropriate.”

Such “dictates” include pork rinds to cure lightheadedness. Judge Nelson continued:

“Harris’s departures from the Islamic diet – or even a Buddhist diet – do not demonstrate that his beliefs do not require him to adhere to that diet if possible … Each man’s faith is his own, and judges must avoid questioning whether a prisoner has strictly abided by the letter of his own sincere belief.”
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In other words, RLUIPA does not require prisoners to be flawless theologians – only that government refrain from acting as one.

Colorado calls its Universal Preschool program just that – universal. But as Protect The 1st demonstrates in our amicus brief before the U.S. Supreme Court, that promise comes with a catch.

Catholic preschools in Colorado want to participate in the state’s publicly funded preschool program on the same terms as secular private schools. The state excludes them – not because they fail to meet academic, health, or safety standards, but because they insist on maintaining a religious mission consistent with Catholic teaching. In response, the schools, parents, and the Archdiocese of Denver are asking the U.S. Supreme Court to step in.

Protect The 1st is supporting them with a brief urging the Court to take this case and correct a dangerous error by the Tenth Circuit. At issue is Colorado’s attempt to condition access to a public benefit on these Catholics’ surrender of their First Amendment right to the free exercise of religion.

Colorado objects that Catholic preschools require families to support the faith-based mission of the school, including traditional teachings on sexuality and marriage. Faced with that reality, the state offered a blunt ultimatum – abandon your religious identity or stay out of the program.

That is not neutrality. It is coercion – and it violates the First Amendment’s Free Exercise Clause. Supreme Court precedent is clear – when the government creates exceptions to its rules for secular reasons, it may not refuse to accommodate religion. In Carson v. Makin (2021), the Court made the rule unmistakable: “A State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

Colorado’s regulations permit flexibility for many schools in many contexts while denying any accommodation to religious schools. That disparity between secular and religious schools should trigger strict scrutiny – a test the state cannot and should not pass.

The state’s demand also infringes on the schools’ right to expressive association.

Religious schools teach and transmit values as well as education. Forcing them to accept students whose families openly reject those values alters the message the school conveys to its community. The Supreme Court has long held that the government may not force private organizations to accept members in ways that undermine their expressive mission – nor may it achieve the same result indirectly by attaching improper conditions on funding.

The Tenth Circuit brushed aside these concerns, treating participation in the preschool program as a privilege the state may ration on its own terms. That reasoning is deeply flawed. The Constitution does not allow the government to do indirectly – through benefit programs – what it may not do directly through regulation.

If this decision stands, the implications extend far beyond Colorado. States could routinely exclude religious schools, charities, and social-service providers from public programs unless they conform their beliefs to official orthodoxy. That is not pluralism. It is pressure for ideological conformity.

The Supreme Court should grant review and reaffirm a simple principle – religious families do not forfeit their First Amendment rights when they seek equal access to public benefits.

​We didn’t hear church bells pealing on Jan. 16 after New York State sounded the retreat. Chalk it up to modesty.
 
After almost a decade of trying to force Catholic and Anglican nuns, and faith-based social ministries, to pay for abortion coverage, state officials finally surrendered to the reality that their demand violates the First Amendment’s guarantee of free religious expression. They dropped their case.
 
This victory only required these religious organizations to endure years of litigation that included two trips to the U.S. Supreme Court.
 
“For nearly a decade, New York bureaucrats tried to strong-arm nuns into paying for abortions because they serve all those in need,” said Lori Windham, senior counsel at Becket and an attorney for the religious groups. “At long last, the state has given up its disgraceful campaign. This victory confirms that the government cannot punish religious ministries for living out their faith by serving everyone.”
 
This case arose out of a New York law that included an abortion mandate for health care plans. Despite early promises that religious groups were exempt, New York reneged on its promised protections and extended the mandate to apply to religious groups that hire or serve people of other faiths.
 
In 2021, the Supreme Court remanded the case to lower courts, ordering them to reconsider it. After New York courts refused to follow Supreme Court guidance, these religious organizations had to return to the Supreme Court to ask it intervene.
 
In a similar case, the Court in 2025 ruled unanimously against Wisconsin bureaucrats, Catholic Charities Bureau v. Wisconsin. The Court held that the state had violated the First Amendment by denying a Catholic social ministry an exemption from state unemployment taxes. Wisconsin sought to force Catholic Charities to violate its beliefs by funding contraceptives and abortifacients.
 
“It is fundamental to our constitutional order that the government maintain ‘neutrality between religion and religion,’” Justice Sonia Sotomayor wrote for the majority. “There may be hard calls to make in policing that rule, but this is not one.”
 
This is relevant because Wisconsin’s theory resembled New York’s, declaring that if a charity serves people of other faiths, it must comply with the mandate. Taken literally, these states would have religious charities either abandon their beliefs about the sanctity of life or ask the needy about their religious beliefs and discriminate against those who are of other faiths or non-believers.
 
In remanding the Catholic Charities case, the Court included language that the “government cannot use schemes like New York’s to discriminate among religious people.” The Court thus held out New York as an example of what not to do. That undoubtedly convinced New York State to stop rowing toward yet another legal waterfall.
 
Will New Jersey and Pennsylvania get the message as well?
 
After also losing before the U.S. Supreme Court – twice! – these states are pressing a new theory to try to force the Catholic nuns of the Little Sisters of the Poor to comply with a federal contraception mandate. New Jersey and Pennsylvania offer a convoluted argument under which they are trying to compel the federal government to uphold an administrative requirement for groups to “self-certify” – even though the feds themselves hold that requirement to be “optional.”
 
Attempting to force expressive organizations – whether atheists or evangelicals – to violate their core beliefs is offensive to the Constitution. Yet some states remain Inspector Javert-like in their obsession with enforcing ideological conformity, even when the Supreme Court has told them to stand down.
 
It is time to cut it out.

​The conventional wisdom has long held that religion in America is steadily retreating from public life. Faith, we’re told, is becoming ever more private – something to be practiced quietly at home or in church, but kept out of schools, workplaces, and civic debates.

Becket’s newly released 2025 Religious Freedom Index tells a very different story.

According to the latest national polling, Americans’ support for religious liberty has reached an all-time high. The Index’s composite score climbed to 71 percent in 2025 – up from 2024 and five points higher than in 2020 – marking the strongest public backing for religious freedom since Becket began tracking attitudes. 

Even more striking is where that support is growing.

Faith Is Re-Entering the Public Square

One of the clearest trends in the 2025 data is a renewed confidence in public expressions of faith. Fifty-seven percent of Americans now agree that religious freedom is “inherently public,” meaning people should be free to share their beliefs at school, at work, and online – a five-point jump since 2020. 

That shift matters. It suggests Americans are pushing back against the idea that religious conviction must be hidden to be acceptable. Instead, they increasingly see faith as part of ordinary civic life – no more out of place than political views, cultural identity, or personal values.

At a moment when public discourse feels deeply fractured, this trend is unexpectedly unifying. Becket’s polling finds that support for religious liberty cuts across political, demographic, and generational lines, making it one of the few issues that still brings Americans together.

Parents’ Rights Are a Rallying Point

Nowhere is that unity clearer than on the question of parental rights in education.

Seventy-three percent of Americans support allowing parents to opt their children out of public-school curriculum they find objectionable – an increase of ten points since 2021.

That growing consensus mirrors recent U.S. Supreme Court decisions affirming that parents’ authority over their children’s moral and religious upbringing does not stop at the classroom door. In Mahmoud v. Taylor, the Court required Montgomery County, Maryland to offer curriculum opt-outs, recognizing that parental rights extend into public education. Becket’s data shows that 62 percent of Americans agree with that ruling – a rare moment when public opinion, constitutional principle, and judicial decision align. 

The message is clear – parents expect the law to respect their role as the primary guardians of their children’s values.

Protecting the Sacred Still Matters

Another revealing result concerns one of the oldest religious practices in the Western world – the Catholic sacrament of confession.

Washington State enacted a law that would have forced priests to report anything they heard in confession related to abuse or neglect, effectively breaking the age-old seal of the confessional. This law made no sense as a law enforcement measure. In the confessional, a priest can urge a wrongdoer to turn himself in. Under this statute, the process of turning someone toward repentance and the law would be discouraged.

Becket challenged the law, and a federal court struck it down.

The poll shows that Americans overwhelmingly side with that outcome. The Index found strong support for protecting priests under the First Amendment in this context, affirming that even serious policy goals cannot justify trampling core religious practices.

This isn’t merely a Catholic issue. It reflects a broader public instinct that the government should not insert itself into sacred spaces – whether that’s a confessional, a synagogue, a mosque, or a prayer meeting.

School Choice Gains Ground

Colorado barred families from receiving state funding – available to most private schools – if they choose to send their children to Catholic schools. Americans also approve of the idea that when tax credits and funding are available for private schools, religious schools should be treated equitably. Three in four Americans now favor allowing public education funding to follow families who choose religious schools for their children.

Americans increasingly see educational funding as belonging to families, not systems. If parents decide that a religious school best serves their child, many Americans believe the government should respect that decision rather than penalize it.

A Cultural Rebalancing

Taken together, these results point to something larger than any single Supreme Court case or policy debate. They suggest that after years of cultural turbulence – from pandemic shutdowns to ideological battles in schools, to rising mistrust of institutions – Americans are once again coming to value the stabilizing role of religious freedom.
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Becket’s 2025 Index shows that this vision resonates far beyond church pews. It resonates with parents who want a say in their children’s education, with workers who don’t want to check their beliefs at the office door, and with citizens who still believe that pluralism, not enforced secularism, is the hallmark of a healthy democracy.

​Imagine you’re a Roman Catholic and you go to confession. After spilling your guts about things you’ve done that weigh on your conscience, the priest says, “Actually, don’t sweat it, I don’t believe there is such a thing as sin. Do whatever feels right to you.” You would understandably feel confused as you stumbled out of the confession booth.

This never actually happens because the Roman Catholic Church, like all religions, insists that its clergy believe in its precepts. And in Roman Catholicism, the need for confession and the forgiveness of sins is definitely one of them.

This makes religious organizations different from a business. If a corporation were to tell a job applicant, “sorry, you’re well qualified for this position, but we don’t hire Jews (or Christians, or Muslims, or atheists),” that would be a gross violation of federal civil rights laws. And it should be.

But the law cannot force the Catholic Church to employ a priest who is a stone-cold atheist, or a synagogue to employ a rabbi who wishes to share the Christian gospel. In order for religious groups to have integrity – in the sense of being a coherent whole – they must be able to use their right of free association, as implied by the First Amendment, to only hire their co-religionists.

That is, in essence, what the law means by a “ministerial exception.” Without that exception, religions would have no coherence, rendering the First Amendment’s promise of the free exercise of religion meaningless.

So far, so good. But does the ministerial exception extend to staff? What about the IT guy who keeps the organization’s computer system running? Does he have to adhere to the faith?

That was the question at stake for the Union Gospel Mission of Yakima, Washington. This Christian mission group offers services to the homeless, the hungry, the sick, and the addicted. It operates shelters, health clinics, soup kitchens, and faith-based recovery services. That organization insists that its support staff uphold its beliefs and practices, which includes “abstaining from any sexual conduct outside of biblical marriage between one man and one woman.” Again, in any ordinary context, such a standard by an employer would be – and should be – illegal. But what about a church?

A case against this mission group has bounced several times between a lower court and the Ninth Circuit Court of Appeals over a violation of the state’s Washington Law Against Discrimination – perhaps the most robust anti-discrimination law in the United States. On Jan. 6, the Ninth Circuit ruled – and it came down in favor of the Union Gospel Mission on the basis of a broader “church autonomy doctrine.”

Judge Patrick Bumatay wrote: “The church autonomy doctrine encompasses more than just the ministerial exception. It forbids interference with ‘an internal church decision that affects the faith and mission of the church itself.’”

Judge Bumatay noted that Union Gospel requires “employees attend daily prayers and weekly chapel services, and are encouraged and expected to pray for one another and share devotionals … Union Gospel’s religious beliefs guide everything it does … It expects its employees to participate in the group’s evangelism and be an example to others of what Union Gospel believes it means to be a Christian.”

The court found that the hiring of non-ministerial positions isn’t necessarily a religious matter. The religious institution must be able to show – as Union Gospel did – that it has a sincere religious belief in the religious mission of these staff positions.

Judge Bumatay, noting in his opinion that “personnel is policy,” wrote that “this applies perhaps even more so for religious organizations.”
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In the end, the Ninth Circuit did not say that churches get a blank check to discriminate – but it did say that when a religious organization can show that every role is bound up in its spiritual mission, the Constitution gives that judgment real weight. The IT guy may not preach from the pulpit, but if his job is part of advancing the faith, the law will not force a church to separate belief from practice. That balance – between civil rights and religious autonomy – is exactly the line the First Amendment was meant to draw.

​Nearly half of the residents of Westminster, California, are Asian American. So when an ancient Chinese religious symbol – a “bagua mirror” – appeared on the exterior entrance of the mayor’s office, it did not strike locals as exotic, unfamiliar, or out of place.

This particular bagua mirror, however, came to reflect a recurring but often misunderstood issue in First Amendment law: When does the government’s tolerance of religious expression cross the line into an establishment of religion?

For the uninitiated, a bagua mirror is an octagonal mirror with special design features that serve as a protective amulet to deflect harmful spirits and attract good fortune, in keeping with Taoist beliefs and feng shui principles.

In September 2024, Joseph Ngo, a candidate for city council, held a press conference in front of the mayor’s office, complaining that the bagua mirror offended him as a devout Catholic. When the candidate removed the mirror, he was promptly arrested by the Westminster police. (Hat tip: Eugene Volokh.)

Was this a justifiable act of civil disobedience by a citizen against a symbol in violation of the First Amendment’s prohibition against the establishment of religion? Ngo sued, claiming his arrest was a violation of his free exercise of religion and speech.

U.S. Magistrate Judge Autumn Spaeth came down with a decisive ruling – one that demonstrates that the Constitution does not require the eradication of all religious imagery. Nor does it allow an individual to use physical action – possibly vandalism – to curate what a community can post or see. Judge Spaeth quoted the U.S. Supreme Court, which held that the Establishment Clause does not “compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious.”

It is for that reason that, in Lynch v. Donnelly (1983), the Supreme Court held that a city-owned and displayed Christmas nativity scene including the infant Jesus, Mary, and Joseph did not violate the Establishment Clause. The Justices noted that the very Supreme Court chamber in which oral arguments on that case were heard “is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments.”

The case of the bagua mirror may seem like an outlier. But it is a timely reminder to many communities that while the Establishment Clause limits the state’s power to promote religion, it does not authorize citizens or the government to treat religious expression as presumptively suspect, much less as a contaminant to be scrubbed from public life.

The First Amendment was designed to restrain government coercion, not to mandate government hostility. A Constitution that required officials to sterilize the public square of every cultural or religious reference would not be neutral – it would be aggressively secular, and deeply illiberal.

Under such a regime, much would be lost.

“We must judge the tree by its fruits,” the philosopher William James wrote. “The best fruits of the religious experience are the best things history has to offer. The highest flights of charity, devotion, trust, patience, and bravery to which the wings of human nature have spread themselves, have all been flown for religious ideals.”
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The Constitution, properly understood, leaves room for those flights – even when they appear by the door of a mayor’s office.

The Little Sisters of the Poor is a Catholic charity operated by nuns who care for the elderly poor. For 14 years now, they’ve had to undergo the legal version of the Stations of the Cross, dragged from courtroom to courtroom for refusing to violate their religious conscience. The latest attack on their mission by the states of Pennsylvania and New Jersey is utterly gratuitous – and flies in the face of two clear victories by the Little Sisters before the U.S. Supreme Court upholding their right to the free expression of religion.

Now these states are tripling down with a fresh attack to force the Little Sisters to violate their religious conscience.

“At bottom, the case asks whether religious claimants can decide for themselves that complying with a government program to avoid ruinous fines would violate their religious beliefs, thereby imposing a substantial burden under the Religious Freedom Restoration Act (RFRA),” Protect The 1st told the Third Circuit Court of Appeals in Philadelphia.

The ordeal of the Little Sisters began when the federal Department of Health and Human Services issued a mandate under the Affordable Care Act requiring employers to provide contraceptives – including some that can cause abortions – in their insurance programs. In 2016, the U.S. Supreme Court upheld the right of the Little Sisters to receive a religious exemption from this mandate.

Not content to leave them alone, the states sued to force the Little Sisters to force these nuns to provide contraceptives and abortifacients, or face tens of millions of dollars in fines. Once again, in a 7-2 decision, the Supreme Court shielded the Little Sisters of the Poor.

Now the Javerts of Pennsylvania and New Jersey are back with a new theory. They want this charity to be subject to a provision in federal guidelines to “self-certify” so that the government can provide payments to beneficiaries for contraceptive services separate from their health plan.
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The federal government, however, issued a rule designating the self-certification procedure as optional, while allowing religious employers with complicity-based objections to opt out of this requirement. This did not stop a federal court from finding in favor of the states.

These states insist on making the Little Sisters complicit in providing contraceptives. They are doing so by insisting on the enforcement of a federal provision that the federal government itself only enforces as “optional.”

The majority of Americans – including many Roman Catholics – have no issue of conscience with contraceptives. But the belief of the Little Sisters of the Poor is in keeping with Catholic doctrine and is a closely held tenet of their faith.

In our amicus brief, we tell the Third Circuit:

“The lower court’s rejection of the Little Sisters’ religious belief is particularly troubling … compliance with the government program at issue here would make them complicit in an activity their religion forbids.”

We see this as potentially harming religious minorities with religious views and practices outside of the mainstream.

“Those minorities face unique challenges to the right to practice their religions. Those challenges run the gamut from overt hostility from the prevailing religious majority to claims that minority beliefs are just ‘strange, even silly.’ If courts can reject claims that religious beliefs are violated by a particular government action, then that protection is lost.”

With Hanukkah ending on Monday, and a celebration of the birth of Jesus of Nazareth coming on Thursday, Protect The 1st would like to take a moment to ask you to exercise your First Amendment rights by speaking out against antisemitism whenever you encounter it.

We know that this is not your typical holiday message, but then the same can be said for the slaughter of Jewish families celebrating the Festival of Lights on Bondi Beach in Australia.

Words have consequences. Words that demonize people, whatever their race, religion, or partisan leanings, paves the way for violence. Sensible words are in short supply in some quarters of late.  

Some of the top-listed podcasters and online influencers have hosted antisemites, politely asking question about question: Did Hitler really start World War Two, or was it Winston Churchill, who habitually overspent and was indebted to Jewish bankers? One of the top podcasters on Spotify, with millions of listeners, has said the Jewish religion is pedophilic and centered around child sacrifice. She also claims, with no proof, that Israel’s Mossad was behind the assassination of Charlie Kirk.

Others, from another ideological direction, criticize Israel’s military response to the October 7, 2023, massacre without bothering to take even a moment to recognize what a horrendous, inhumane and utterly disgusting attack Hamas launched on Israel that day. Worse, some have demonized Jewish students and faculty on campuses, harassing them and cutting off their access to common facilities like the campus library.

One influencer, Ben Shapiro, is speaking out by speaking truth. “Conspiracy is not courage,” Shapiro says. “It is laziness with a microphone.” He is calling for “courage and clarity,” to “refuse to indulge the lie, even when it is popular.”

Some hide behind the pretense that failing to host these views would amount to censorship and cancel culture. The First Amendment does not obligate anyone to air views that are unhinged and aimed at harming our fellow Americans.

Spotify, are you listening?
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In this holy season, we want to celebrate the First Amendment and use it to embrace our fellow Americans of all faiths. Christian, Muslim, Jew and all others should hold fast to President Washington’s message in 1790 to the Hebrew Congregation in Newport, Rhode Island – a vision of American in which “every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.”

​States from Maine to Colorado keep defying court rulings by crafting new and disingenuous ways to exclude religious charities and schools from enjoying the same access to state benefits as secular organizations. And they keep getting slammed by the courts. And they keep asking to get slammed again.
 
To paraphrase the old John Mellencamp song – sometimes the law doesn’t feel like it should, so judges are there to “make it hurt so good.” This year’s award for top legal masochist has to go to Wisconsin Attorney General Josh Kaul.
 
Kaul had gone all the way to the U.S. Supreme Court to argue that the Catholic Charities Bureau of Wisconsin didn’t deserve a religious exemption from the state’s unemployment tax law. The reason? Because Catholic Charities serves the poor and the elderly of all faiths, without discriminating by religion or trying to proselytize its beneficiaries. Kaul thus deemed the Catholic Charities Bureau as being insufficiently religious. In June, Kaul was squashed by a 9-0 Supreme Court opinion.
 
“It is fundamental to our constitutional order that the government maintain ‘neutrality’ between religion and religion,” Justice Sonia Sotomayor wrote for the Court. “There may be hard calls to make in policing that rule, but this is not one.”
 
So credit Kaul for at least forging a moment of unity between the liberals and conservatives on the Court.
 
Then Kaul came back with a new theory. He argued that these exemptions should be taken away from all religious charities. In other words, he wanted Wisconsin to go from discriminating against one religion to discriminating against all religions. Protect The 1st joined many groups in filing briefs in support of Catholic Charities.
 
On Monday, the Wisconsin Supreme Court hit Kaul with a terse order to obey the Supreme Court decision. Perhaps they had taken in the advice we gave the court in our brief, writing:
 
“By repealing a valuable statutory exemption for an entire class of religious organizations while keeping the exemptions in place for secular organizations, the State’s proffered remedy invites the Court to violate the Constitution in new ways and to flout U.S. Supreme Court precedent in this and related contexts. This Court should decline that perilous invitation.”
 
Don’t be surprised, however, if Kaul or Wisconsin legislators come back with yet another legal scheme or legislation that continues to push the campaign to punish Catholic Charities. Why these persistent efforts? We don’t pretend to know. Anti-religious bias? Because Roman Catholics hold traditional views on abortion and sexuality? Or do politicians like Kaul have such a blinkered view of the First Amendment that blatant discrimination goes unseen?
 
“It turns out that penalizing charities is not a winning legal strategy,” said Eric Rassbach, vice president and senior counsel at Becket, which represented Catholic Charities.
 
But we must admit that there is a kind of logic behind these persistent efforts by the states, whether Kaul’s or Pennsylvania’s continued bullying of the Little Sisters of the Poor. These would-be pruners of the First Amendment only need to get lucky once – to win in an appellate court, with the precedent holding after an exhausted Supreme Court finally finds no room in its docket.
 
For that reason, the defenders of freedom of belief must be just as persistent. Whether you are religious or not, when it comes to the First Amendment we must all keep the faith.

​The late Justice Ruth Bader Ginsberg once said, “It is hard not to have a big year at the Supreme Court.” Is that still true? What if the Supreme Court dropped an opinion and it made no sound?
 
The High Court has repeatedly come down on the side of assuring equal treatment for religious people – from protecting the right of religious schools to participate in “universal” state scholarship programs, to the right to personal religious expression, to the right of religious charities to participate in publicly funded programs.
 
And yet many states – from Maine to Colorado – keep coming back with regulations and state rulings contrary to those of the Supreme Court. Novel legal theories are being advanced, such as the ongoing attempt by Pennsylvania to switch from discriminating against Catholic participation in a charitable exemption – a policy previously knocked down by the Supreme Court – to discriminating against all religions in favor of secular charities.
 
Maine’s attempt to use clever legal tweaks after Carson v. Makin (2024) – in which the Court held that a state antidiscrimination law meant that religious schools could not be excluded from a state tuition program for private schools – threatens to revive the nullification-style legal approach of the Confederacy.
 
What, then, is behind this determination by some states to defy the clear principles set down by the Supreme Court by continuing to try to exclude religious charities and organizations from equal participation in public programs?
 
It’s easy to just say “politics.” But to fully understand this political dynamic, we must look first at the widening gulf between voters of blue and red states on questions of belief.
 
According to the Pew Research Religious Landscape Study, 78 percent of Americans identified as Christian in 2007, with another 5 percent adhering to Judaism, Islam, or another religion. In 2024, 62 percent of Americans identified as Christian, with a slight bump up to 7 percent for other religions.
 
The decline in Christian observance has not been geographically uniform. It is concentrating in the blue polarity of the color spectrum.
 
For example, 77 percent of adults in South Carolina and Mississippi identify as Christian. Bright red South Dakota is 79 percent Christian. But in blue Colorado, the percent of state residents identifying as Christian dropped from 67 percent in 2007 to 52 percent last year. Maine saw a precipitous drop from 72 percent to 51 percent.
 
Pennsylvania’s Christian identification fell from 82 percent to 62 percent. Similar declines can be seen in blue states, from Massachusetts and New York to California. Many of these states are close to minority status for the nation’s largest religion. Oregon is already there, only 43 percent Christian.
 
The First Amendment, of course, protects any and all religion, including conversion to other religions and to no religion at all. But this widening gap between the states is concerning because it coincides with a growing politicization of a principle that, up until now, has been considered sacred by Americans of all beliefs – the free exercise of religion (including the right not to be religious).
 
The Freedom from Religion Foundation (FFRF) poses as a neutral force to keep church and state separate. But in many domains, from charity to education, strict secularism is not neutral, as seen in Pennsylvania’s attempt to elevate secular charities over religions ones. (The mirror image of such thinking would be efforts by red state politicians who want to place explicitly religious, usually Protestant, content in public classrooms.) Cracking down on the speech of either secularism or religion violates the spirit and the letter of the First Amendment.
 
Yet, with growing non-religious populations in blue states, FFRF is having success in channeling political and legal action against the equitable treatment of religious speech and activities. We hope more lawmakers will come to see that this goes against the philosophy of the signers of the Constitution – many Protestants, two Catholics, and several deists who doubted Biblical miracles and the divinity of Jesus.
 
What the founders understood, we need to understand today: Government can – and must – respect the role of religious people and organizations without being religious itself.

​For more than a decade, the Little Sisters of the Poor – a community of Catholic nuns who devote their lives to caring for the elderly poor – have been trapped in a never-ending nightmare of litigation. Their “crime”? After Congress enacted the Affordable Care Act (ACA), the Little Sisters declined to provide coverage for drugs like the week-after pill in their health plan because doing so would violate their core religious beliefs.
 
Pennsylvania Already Slapped Down by the Supreme Court

In 2017, the U.S. Department of Health and Human Services (HHS) issued a new rule with a broad religious exemption to the ACA’s contraceptive mandate. The government admitted it had broken the law when it previously tried to force faith-based nonprofits into compliance. That acknowledgment should have closed the book on this case.
 
Not satisfied to leave these nuns alone, Pennsylvania immediately sued the federal government to remove the Little Sisters’ exemption. Pennsylvania asked a federal judge to force the Little Sisters to comply with a federal mandate or face tens of millions of dollars in fines.
 
In 2019, after years of litigation, the Little Sisters asked the U.S. Supreme Court to protect them. In a 7-2 decision, the Little Sisters won. Justice Clarence Thomas, writing for the Court, captured the heart of the matter:
 
“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling… But [since the enactment of the contraceptive mandate], they … have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”
 
The Supreme Court upheld the federal government’s authority to issue a religious exemption to the contraceptive mandate under the text of the ACA. It has yet to clarify how the Religious Freedom Restoration Act (RFRA), which prohibits government from substantially burdening religious exercise, would protect religious groups like the Little Sisters.
 
Pennsylvania Refuses to Throw in the Towel

Despite the Supreme Court’s rebuke, Pennsylvania – joined by more than a dozen states – kept pushing in lower courts to undo the Little Sisters’ protections. On Aug. 13, in a ruling against a Trump-era conscience rule, a federal district court in Philadelphia once again sided with Pennsylvania.
 
The Little Sisters are now again having to appeal to the Third Circuit. A case that should have ended years ago, central to protecting the free exercise rights of all Americans, thus continues on.
 
In the hands of state regulators, a narrow exemption for nuns caring for the elderly poor is apparently worthy of a multistate lawsuit. That alone speaks volumes.
 
The Stakes for Minority Faiths

Courts have long recognized a recurring problem – when judges and regulators do not understand a particular faith, they often undervalue the importance of its practices. That risk is highest for minority religions, which often lack resources, political power, and popular support. These communities depend heavily on statutory protections like RFRA, which is designed to operate:
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• As a shield – allowing religious believers to defend themselves in court

 

• But also as a sword – empowering the government to proactively avoid violating conscience

If agencies are forbidden from issuing exemptions, religious minorities will be forced to wait until their beliefs are already compromised before seeking relief. By then, the harm is already done.
 
That is what makes the continuing campaign against the Little Sisters so troubling. Even after a decisive 7–2 Supreme Court victory, state governments continue trying to force a group of nuns to violate their vows or face crushing fines.
 
We expect that the Little Sisters will once again prevail. But this case serves as a warning about the fragility of religious liberty in the face of persistent official hostility from many states.

What does the U.S. Supreme Court have to do to make its opinions stick?

In June, the State of Wisconsin was rebuked by a unanimous Court for expelling the local Catholic Charities Bureau from a statewide exemption available to all other religions. Now Wisconsin is trying to get around the Court’s ruling by expelling all religious charities from this program, while continuing to make it available to secular charities.

Here's the background: In June, Justices from Sonia Sotomayor to Clarence Thomas unanimously reversed the Wisconsin Supreme Court ruling that would have forced the Catholic Charities Bureau into the state unemployment system instead of being allowed, as other charities are, to pay into its own more efficient network.

Why were the Catholics singled out? The state court reasoned that because Catholic Charities serves people of all faiths and no faith, it is therefore not inherently a religious charity.
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• At the time, PT1st noted that an expert witness, one Jesus of Galilee, said that whatever “you do for one of the least of these brothers and sisters of mine, you do for me.” Jesus did not say the needy might be outside the orbit of care, whether Samaritans or Greeks. Nor did he say that one must proselytize while providing food, clothing, or shelter.

 

• The Court found that Wisconsin’s discrimination violated Catholic Charities’ First Amendment rights. Justice Sotomayor, who wrote the Court’s unanimous opinion, called Wisconsin’s exclusion “denominational discrimination.” She wrote: “It is fundamental to our constitutional order that the government maintain ‘neutrality’ between religion and religion. There may be hard calls to make in policing that rule, but this is not one.”

Ouch.

You would think that after this humiliation, Wisconsin would get it right. But like many other states, from Maine to New York, when it comes to equitable treatment of religious organizations, Wisconsin came back with a novel way to get around the First Amendment of the U.S. Constitution. Wisconsin’s new theory is that it should now ban all religiously based charities from accessing the exemption.

There is just one problem with the state’s workaround. It would leave the exemption in effect for secular organizations, creating fresh violations of the First Amendment. So the state has gone from denominational discrimination to discrimination against all religions.

In our brief supporting Catholic Charities’ petition before the Supreme Court, we note:

“The miserly remedy requested by the State on remand calls to mind a poem by American poet and illustrator, Shel Silverstein. It reads: ‘Now I lay me down to sleep. I pray the Lord my soul to keep. And if I die before I wake, I pray the Lord my toys to break. So none of the other kids can use ‘em … Amen.”

​The rise of virulent, occasionally violent, antisemitism at the extremes of the political spectrum is testing the meaning and durability of the First Amendment.
 
High-Profile Antisemitism on the Right
Let’s start with Tucker Carlson’s recent softball promotion of antisemite and Hitler fan Nick Fuentes, as well as Carlson’s equally promotional interview with Darryl Cooper – who identified Winston Churchill, not Adolf Hitler, as the villain who started World War Two.
 
Victor Davis Hanson has incisively critiqued Carlson for conducting these interviews of two extremists “without cross-examination.” Carlson introduced Cooper as “the best and most honest popular historian in the United States,” though Cooper has no history books or academic articles to his name. When Cooper described the Holocaust as a botched humanitarian response rather than a deliberate act of mass murder, Carlson let that comment slide by without challenge.
Antisemitism on the Left
It was only months ago that left-wing antisemitism was testing the limits of a tolerant society. At UCLA, anti-Israel protesters enforced what they called “Jew-Free Zones.” At Columbia, Jewish students and faculty were physically and verbally harassed. It wasn’t until the Trump Administration dropped the hammer on these institutions of higher learning that administrators began to adequately protect students and faculty from attack.
 
So where does the law actually come down? Under the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969) speech that incites “imminent lawless action” is prohibited. “True threats” were later proscribed. Ideological thugs who spout true threats at Jews on college campuses are acting outside the law. Their harassment and threats could hardly be excused as mere “speech.”
 
Even speech that is protected by the First Amendment can be limited by reasonable time, place, and manner restrictions. Protesters can shout on the quad at 3 p.m., but at 3 a.m. they cannot bang on dorm room doors or awaken the campus with megaphones. Title VI of the Civil Rights Act prohibits speakers from denying members of one religion equal access to a college campus, as happened at UCLA.
 
So What About Carlson, Cooper, and Fuentes?
They are clearly spreading hate speech. As scholar Richard Weaver famously wrote, “ideas have consequences.” Nazi propagandist Julius Streicher – though he never personally killed anyone – was justly sentenced to death at the Nuremberg tribunal and hanged in 1946 for directly inciting the Holocaust. He espoused true threats and, indeed, violence that had a huge consequence – the deaths of millions.
 
As galling as it may be, however, Fuentes and Cooper so far cannot and should not be punished for their speech. Yes, Fuentes says he’s on “Team Hitler” and that “Hitler was right.” Yes, Cooper has managed to be something worse than a Holocaust denier – he’s a Holocaust rationalizer. Unlike Streicher, neither man is on record calling for violence. Also legal in many circumstances is the widespread chant of campus demonstrators, “from the river to the sea,” which could be taken to mean the replacement, if not the eradication, of Israel. Hate speech might flirt with violence, but the Supreme Court chose – wisely in our estimation – to reject the path of many European governments today that attempt to police speech.
 
Again, hate speech crosses the line only with “true threats” and calls for “imminent lawless action.” This is admittedly an unsatisfactory solution. Perhaps the line between a Fuentes and a Streicher, or many campus protesters and Hamas, is a thin one. But observing that line provides maximum room for freedom of speech for all of us. It prevents travesties like the arrest of a comedian in the UK for tasteless jokes. A government that asserts a right to scrutinize every uttered or posted word for hate is a government that will inevitably become a threat itself.
 
Is Carlson Facing Cancel Culture?
Just because speech is legal, however, does not mean its speaker has a right to be platformed by private parties or to not be criticized by others. Heritage President Kevin Roberts, in his heavily panned defense of Carlson’s interview with Fuentes, said: “I don’t participate in cancel culture.” This is a profound misunderstanding of what free speech is all about.
 
Carlson, Fuentes, and Cooper – the Three Stooges of Antisemitism – have as much right to speak as any other American. But the First Amendment also expresses a right to free association. Think about it – how free would the speech of any organization be if it had to sponsor speakers with views inimical to its own? It is not cancel culture if the Roman Catholic Church chooses not to sponsor an atheist. And it would not be cancel culture if Heritage drops its association with Tucker Carlson.
 
Though not a matter of law, a culture of free speech imposes on us the moral obligation to call out truly bad speech – and to name names.
 
Sen. Ted Cruz made this point before a Federalist Society convention:
“My colleagues, almost to a person, think what is happening is horrible, but a great many of them are frightened, because he [Tucker Carlson] has one hell of a big megaphone,” Cruz said.
“It’s easy right now to denounce Fuentes,” Cruz later said at the convention. “Are you willing to say Tucker’s name?”
 
Sen. Cruz reminds us that timid criticism of bad speech that avoids mentioning the source is insufficient. We have a moral obligation to confront really bad speech – and to name the speakers.
 
Princeton University scholar Robert George, who on Monday announced that he had resigned from the Heritage Foundation board, set out foundational principles on X that liberals, as well as conservatives, should adopt.
 
“… I believe that the conservative movement, though it can and should be a broad tent, simply cannot include or accommodate white supremacists or racists of any type, antisemites, eugenicists, or others whose ideologies are incompatible with belief in the inherent and equal dignity of all. As a conservative, I say that there is no place for such people in our movement …
 
“Is this a call for ‘cancelation’? No. It’s a reminder that we conservatives stand for something – or should stand for something. We have core principles that are not negotiable … I am – notoriously, for some of my fellow conservatives – committed to the principle of free speech for everybody, including people with whom I profoundly disagree on even the most important issues, indeed, including racists and other bigots. But defending their rights does not mean allying with them, welcoming them into our movement, or treating them as representing legitimate forms of conservatism.”
 
Dr. George’s hygienic standard for conservatism is a good guide for people on all sides of the political spectrum and for universities as well.

​There’s actually nothing to read in tea leaves except, perhaps, whether they would make a good cup of tea. The same can often be said for oral arguments at the U.S. Supreme Court. Time and again, justices who pepper lawyers on one side with critical questions sometimes vote in their favor.
 
Still, Damon Landor, the petitioner in Landor v. Louisiana Dept. of Corrections, who sat through the oral argument of his case, has every reason to feel despondent over the hot bench questioning of his lawyer on Monday.
 
Landor is seeking damages for violations of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects the religious rights of prisoners. This is important because it is a long-standing principle that where there’s a right, there must be a remedy (ubi jus ibi remedium). Many legal scholars argue that courts have a responsibility to impose remedies – in this case, personal damages for state prison guards.
 
That Landor has a sympathetic case has been recognized by all. A devout Rastafarian, Landor was in prison for a drug-related conviction. For most of his incarceration, Landor maintained long dreadlocks under the Nazarite vow, an important outward sign of his faith.
 
With only three weeks left before his release, Landor was transferred to the Ramond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates.
 
The guard threw it in the trash. When Landor offered to contact his lawyer to affirm the legal principle protecting his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head.
 
Justice Amy Coney Barrett seemed to speak for everyone when she said, “the facts of this case are egregious.” She echoed the Fifth Circuit Court of Appeals, which “emphatically” condemned “the treatment Landor endured.” But, as Justice Neil Gorsuch told Landor’s attorney, the federal appeals courts “are unanimously against you and have been for many, many, many years.”
 
The many “manys” are justified. Despite the sympathy of the Fifth Circuit, Landor lost, as he had done before in lower courts. “We can’t decide a case just based on these facts,” Barrett said.
 
She joined Justice Gorsuch and Justice Brett Kavanaugh in pressing Landor’s lawyer and the Trump administration about insufficient notice to states that their employees could pay heavy fines for violating RLUIPA’s federal religious protections. Citing the string of losses by Landor and others, Justice Barrett said, “It’s hard to see how it could be clear to the states [when] all of the law went the other way.”
 
Justice Kavanaugh weighed in: “The hard part, as I see it, for your case, for me, is that you need a clear statement” to alert state employees that they are personally at risk for violations.
 
Conservative justices – including Chief Justice John Roberts – displayed skepticism that RLUIPA, an express application of Congress’s spending power, could authorize damages against individual state officers if they had not participated in contract negotiations accepting federal funds. Liberal justices – who often part ways with that conservative majority on expanding protections of religious freedom – were more sympathetic to Landor.
 
“Generally speaking, if you’re a prison official, you know you’re working in a prison and you are bound by law to pay damages if you violate the law,” said Justice Sonia Sotomayor.
 
It remains to be seen which side will prevail. But when warm weather returns to Washington, we will know if Landor’s tough day in court was an omen or not.

None of the 800 generals and admirals flown in from around the world could have missed Defense Secretary Pete Hegseth’s demand for greater readiness and fitness in America’s Armed Forces.
 
Clarity is a good thing. Fitness and a dedication to lethality in war are, in this broken world of ours, necessary.
 
But some questions remain on the table.
 
Some might wonder about the wisdom of banning “fat generals.” This would have excluded one of America’s greatest generals, Henry Knox, who dragged 60 tons of artillery on ox-drawn sleighs through heavy snow from Fort Ticonderoga to liberate Boston from the British. As many have pointed out, this standard would have excluded Lieutenant General Leslie Groves, who oversaw the development of the atomic bomb.
 
But we have a different question – will Secretary Hegseth’s ban on beards in the military include those for whom a hirsute appearance is a religious obligation?
 
The Council on American-Islamic Relations called on the Pentagon on Tuesday to clarify Hegseth’s order and affirm that the department would maintain the religious rights of all service members. CAIR said in a statement:
 
“The First Amendment guarantees military personnel the right to practice their faith – including the right of Muslim, Sikh and Jewish personnel to grow beards or cover their hair – as does established Pentagon policy.”
 
Over the last five years, Protect The 1st has joined the Becket Fund for Religious Liberty to protect Jewish, Muslim, and Sikh men in the U.S. military who want to keep their beards. One of them, Electrician’s Mate (Nuclear) 3rd Class Edmund Di Liscia, was a Hasidic Jew who said that his beard is “a religious commitment and an expression of obedience and fidelity to God.”
 
Similar views were heard from Mass Communications Specialist 3rd Class Leo Katsareas, a Muslim, and several Sikh men serving in the Marine Corps.
 
The Trump administration has compiled a strong and commendable record of defending religious liberty.  It established a Religious Liberty Commission in the Department of Justice to advise the White House on ways to protect religious freedom from government encroachment. Creating an exception to the grooming standards in the military for these men would be in keeping with the beliefs and actions of President Trump.

What does the U.S. Supreme Court have to do to make the law clear to the states?

Several states seem determined to get around the 6-3 ruling of the Court in 303 Creative LLC v. Elenis. In that 2023 opinion, the Court upheld the First Amendment right of a digital designer not to be compelled to write, design, and create websites that conflicted with her religious beliefs opposing same-sex marriage.

Even if you disagree with those conservative religious beliefs, you still have a stake in the right of people not to be forced to violate their religious beliefs in businesses that rely on expressive activities.

Justice Neil Gorsuch wrote that under the logic of a Colorado state board, which pressed the case against 303 Creative, the government could be allowed “to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”

He added that under the same logic, Colorado “could require an unwilling Muslim movie director to make a film with a Zionist message, or an atheist muralist to accept a commission celebrating Evangelical zeal … Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”

The Court followed the logic of its Masterpiece Cakeshop decision in 2018, which found that a baker who crafts wedding cakes with special messages was engaged in expressive activity. This made his profession one in which religious scruples must be protected by the First Amendment.

Now California is prosecuting another baker, Cathy Miller, owner of Tastries Bakery in Bakersfield for refusing to make a cake for a same-sex couple. In the Becket Fund video below, there is no doubt that Miller sees her work as artistry that supports her Christian beliefs.

Before starting a wedding cake, Miller meets with every bride and groom to get the message right. “What is the intent of the cake?” she asks. “How can I bless somebody with this?”
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When a same-sex couple asked her to make a cake, Miller said that she “prayed for the right words” on how to communicate with the prospective customers. She told them that she is the only baker in Bakersfield with this restriction and offered a referral. Legal action by the state soon followed, along with coarse threats and vandalism from anonymous attackers.

​The Court has made it clear that the principle protecting expressive services is narrow and limited. A restaurateur or hotel owner who tried to deny service to LGBTQ customers would be hit with a civil rights violation – and rightly so.

There is, perhaps, a larger culture takeaway in this case for people on all sides of the religious and cultural divide.
​
Given that almost every baker would jump at the chance to take the order that Miller took a pass on, could we just agree to live and let live? Does everything have to be litigated to the ultimate degree? Or the next time, might two customers actually follow up on Miller’s referral to a “really good decorator” who is more than happy to make their cake?

​President Trump announced on Monday that he is directing the Department of Education to formulate guidelines to protect prayer in public schools. Is this the first step in imposing religion on Americans through public institutions, or a necessary act to defend the First Amendment rights of the religious?
 
The president could not have picked a more colorful stage for this announcement – inside the Museum of the Bible in Washington, D.C. – or a more attentive audience, the Religious Liberty Commission that he himself created. “The Department of Education will soon issue new guidance protecting the right to prayer in our public schools, and it's total protection,” the president said. Cue the critics who echo Robert Reich, former Secretary of Labor and leading progressive voice, who wrote: “A society where one set of religious views is imposed on those who disagree with them is not a democracy. It’s a theocracy.”
 
Is this fair? Of course, no executive order or law would override the Constitution’s establishment clause to allow, say, a teacher to begin each class with the Lord’s Prayer. But what about a teacher saying grace before lunch, or wearing a crucifix or Star of David? Or students who choose to privately pray?
 
We note two aspects of Monday’s event. First, President Trump did not say he was “establishing” prayer in public school classrooms. He said he was going to “protect” prayer in schools. To illustrate what he meant, President Trump pointed to Hannah Allen, who in 2018 was an eighth-grader at Honey Grove Elementary School in Texas. Hannah had organized a group of students to hold hands around an empty table at lunchtime to pray for the healing of a fellow student who had been injured in an accident.
 
The school’s principal broke up the prayer session. The next day, he told Hannah that students who wanted to pray should go behind the curtain of the cafeteria’s stage, outside the school, or to the gym. A tart letter from First Liberty Institute lawyers to the school district said these statements constituted an official message that prayer “is illegitimate, disfavored and should not occur in public.” The letter asserted that the principal showed hostility by “quarantining” prayer as if it were “an infectious disease.”
 
The school district quickly backed down.
 
During the session of the Religious Liberty Commission, commissioners heard from several other former students with harrowing tales of what can only be described as religious persecution.
 
One of them was Maggie DeJong, who filed a lawsuit against Southern Illinois University Edwardsville, alleging violations of her First Amendment rights. She had been ordered by university administrators to refrain from having “any contact,” or even “indirect communication” with three fellow graduate students who complained about her posts about religion and her respectful critique of Critical Race Studies theory in class.
 
Maggie told the commissioners that the administration had sent out emails to faculty and students denouncing her for “oppressive” comments that created “a toxic learning environment.” She expressed her dismay to the commissioners that a university, “which should be a marketplace of ideas,” would so forcefully shut her up. “I wish we could have shared our views,” she told the commissioners.
 
The Commission also heard from a young woman who attempted to establish a Students for Life organization at Queens College, part of the City University of New York. That application was denied, forcing the members of this would-be student organization to fund, through the university’s mandatory student activity fees of $1,200 (per student over eight semesters) for groups that support abortion.
 
Whatever your views on this contentious issue, surely banning one viewpoint and subsidizing its opposite is unconstitutional. After being sued in federal court, Queens College agreed to recognize the organization and revise its policies to prevent discrimination on the basis of belief.
 
The Commission also heard from an evangelical student at Georgia Gwinnett College, one that went all the way to the U.S. Supreme Court. When Chike Uzuegbunam attempted to share his enthusiasm about his recent conversion experience with fellow students at an outdoor plaza, campus police showed up to crack down on this act of “disturbing the peace.”
 
He was later offered the chance to voice his views from a designated “speech zone” that constituted 0.0015 percent of the campus, open only 10 percent of the time – as if the whole school shouldn’t be a free speech zone. A lower court ruled that because Uzuegbunam had claimed no monetary losses (beyond $1), and that the college had changed the policy, his case was moot.
 
The U.S. Supreme Court begged to differ. It heard the case and overturned the lower-court’s ruling. In an 8-1 decision, the Court reversed the lower court, citing precedent from British common law: “Because ‘every violation of a right imports damage,’ nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”
 
Uzuegbunam told the Commission that without this recognition of his religious rights, the “Constitution is an empty promise.” He also noted that in his case before the Supreme Court, he was elated to be supported by statements not just from fellow Christians, but also from Jews, Muslims, and atheists.
 
What came to the fore in this hearing was that despite reversals in court, there is a lack of understanding among educators that expressions of faith on campus – as long as they don’t interfere with instruction – enjoy First Amendment protection. It shouldn’t take a presidential initiative to make this clear.

​There is much more to Rastafari than reggae music and the ritual inhalation of ganja. This belief system is, in fact, recognized as an Abrahamic religion, with roughly one million adherents around the world, dedicated to its interpretation of the Bible and devotion to Jah, the Rasta designation for God.
 
Damon Landor, a devout Rastafarian, had grown dreadlocks over nearly two decades in devotion to his faith. Sentenced to prison for a drug-related conviction, Damon was allowed to keep his dreadlocks in keeping with court interpretations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). With only three weeks left before his release, Damon was transferred to Raymond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates.
 
The guard threw it in the trash. When Damon offered to contact his lawyer to prove his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head bald. What began as an ugly dispute is now a landmark religious-liberty case. The U.S. Supreme Court has agreed to review Landor v. Louisiana Department of Corrections.
 
Though lower courts condemned the conduct, they denied Landor the ability to seek monetary damages under RLUIPA, finding that the statute bars such relief against individual officials.
 
In a powerful amicus brief, the Becket Fund for Religious Liberty argues that allowing damages under RLUIPA is essential – not merely appropriate – for holding prison officials accountable and safeguarding religious liberties. The brief warns that without such a remedy, courts effectively bless “mootness gamesmanship” – the practice of officials evading accountability by transferring or releasing inmates before injunctive relief can take effect.
 
“Without money damages, prison officials can engage in strategic gamesmanship to moot meritorious cases,” Becket told the Court. Becket warns that RLUIPA would otherwise be a "parchment promise." The brief also highlights that fears of burdening officials are overblown. Existing safeguards, including qualified immunity, the Prison Litigation Reform Act’s exhaustion and filing requirements, and screening for frivolous suits, ensure that only culpable officials face liability.
 
If the Supreme Court holds that RLUIPA doesn’t authorize damages, countless prisoners – particularly those who are transferred or released before adjudication – could never receive redress for profound religious violations. This is why dozens of Jewish, Christian, and Muslim organizations have filed amicus briefs in this case, understanding that respect for the religious rights of some involve the religious rights of all.
 
Protect The 1st will closely follow oral argument before the Court on November 10. In the meantime, keep in mind the words of the late, great Bob Marley: “You never know how strong you are until being strong is your only choice.”