​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:
​

• 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.
​

• 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?”
​
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.”

We reported in 2023 on Minnesota’s exclusion of Christian colleges and universities from participating in a publicly funded program that allows high school students to earn college credit at the postsecondary institution of their choice.
 
The law explicitly excluded students from post-secondary programs in which the admission process considered “religious beliefs or affiliations.”
 
This law would have barred from the program the University of Northwestern-St. Paul and Crown College, the latter the largest provider in this 40-year-program. Both schools asked students to sign a statement of faith to ensure that they are a good fit for their institutions that – while they teach secular subjects at a high level – have a religious orientation.
 
At the time, Minnesota legislator Harry Niska said this amounted to the “targeting of people of faith.”
 
Now, thanks to a federal court in Minnesota, that targeting is over. The court scrapped the law as unconstitutional, finding that the outlawing of faith statements as admissions requirements was unconstitutional. The court held that under the law, the “free exercise in maintaining a campus-community of like-minded believers is burdened.”
 
Credit for this victory goes to the Becket law firm that backed parent-plaintiffs who brought suit.
 
“Minnesota tried to cut off educational opportunities to thousands of high schoolers simply for their faith,” said Diana Thomson, senior counsel at Becket. “That’s not just unlawful – that’s shameful. This ruling is a win for families who won’t be strong-armed into abandoning their beliefs, and a sharp warning to politicians who target them.”

​Does a Christian prayer on a stadium loudspeaker at the start of a football game amount to a government endorsement of religion, or does it fulfill the First Amendment’s guarantees of free speech and the free exercise of religion?

That’s the question that arose when two Christian schools made it to the state championships in Florida in 2015. The state’s high school athletic association, a government entity, barred the teams from conducting a joint prayer over the stadium loudspeaker.

Many would reflexively side with the athletic association. The government sets the venue for the event. The government controls the loudspeaker. Allowing any religion to pray over government-controlled equipment might, at first glance, appear to violate the clause of the First Amendment that forbids the official establishment of religion.

That was essentially the conclusion the Eleventh Circuit Court of Appeals supported last year. To mix sports metaphors, it may have seemed like a slam dunk. But the Eleventh’s decision was, in fact, a bad call.

In a petition asking the Supreme Court to hear the case, Protect The 1st wrote that the “Eleventh Circuit held that the First Amendment was not even implicated – on the dubious theory that the proposed prayer, and by extension anything else that had ever been said by private parties on the loudspeakers, was government speech.”

Worse, that “dangerous expansion of the already questionable government-speech doctrine flips the First Amendment on its head.”

Protect The 1st is now telling the Supreme Court that this case presents “a clean vehicle to resolve the conflict and confusion” about the difference between the government’s speech and the speech of private actors using public forums.

Consider what happened when the city of Boston allowed 284 diverse groups at various times to hoist their flags on a city-owned flagpole, except for one group seeking to fly a standard that included the Latin Cross. In that case, Shurtleff v. City of Boston (2022), Protect The 1st told the Court that when the government provides a public forum for all comers, it is not “government speech.” It is merely a government forum. To single out religious expression for exclusion in a public venue is to abridge freedom of religious expression. Period.

Justice Samuel Alito wrote then that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” The same principle applies, whether with flagpoles or loudspeakers.

Protect The 1st told the Court that the state athletic association “would not itself have been speaking had it allowed a student to use the limited public forum it created to pray at the championship football game.” We added that expanding the government-speech doctrine to convert government-sponsored forums into tools for censoring some views – but not others – weakens the First Amendment.

Protect The 1st concluded by telling the Court that “a prayer to solemnize the forthcoming competition, thank God, and seek His help in ensuring a good game for players and fans alike offers a religious viewpoint. That viewpoint must be respected and permitted every bit as much as a speech thanking parents, teachers, and the school, or merely cheering, ‘Go team!’”
​
Many long-time Court observers believe the Justices will recognize the threat to free speech and expression in the Eleventh Circuit’s ruling and will, this fall, place this case on their docket.

President Trump’s recent executive actions on workplace religious freedom and “debanking” are bold initiatives that reinforce our most important First Amendment freedoms.
 
Religion in the Federal Workspace

The U.S. Office of Personnel Management recently issued a detailed memorandum that builds on Trump’s earlier executive orders such as “Eradicating Anti‑Christian Bias” and establishing the Religious Liberty Commission.
 
The OPM memo affirms that federal employees are entitled to private expressions of faith equal to secular forms of expression, such as wearing religious jewelry or displaying items of faith on their desks. Expression, whether secular or religious, is still subject to reasonable, viewpoint-neutral restrictions of time, place, and manner. This seems to us in keeping with the Supreme Court’s logic in the 2022 case of the “praying coach,” Kennedy v. Bremerton School District.
 
More than anything, the OPM memo reflects the essence of the First Amendment, an essentially American commitment to protect people of all faiths and creeds.
 
Debanking

As we’ve reported, debanking was an informal use of regulatory and commercial power to silence politically disfavored groups defined as posing a “reputational risk” that justifies the closure of their accounts.
 
A blatant example of government using regulatory action to silence disfavored speech was in full view in the Supreme Court’s 2024 unanimous rebuke of New York state regulator Maria T. Vullo. She had twisted the arms of insurance companies and banks to blacklist the nation’s most prominent Second Amendment advocacy group.
 
We also covered the plight of the National Committee for Religious Freedom after it was summarily debanked by Chase Bank. Somehow, this faith-based institution dedicated to freedom, and founded by Sam Brownback, former governor, senator, and U.S. ambassador, was defined under the Orwellian category as being run by a reputationally dangerous “politically exposed” person.
 
President Trump’s executive order now stakes a firm position – no American should be denied banking services for constitutionally protected speech. His order directs regulators to stop using “reputational risk” as a justification for account closures, to investigate possible cases of unlawful debanking, and to reinstate previously affected customers. 
 
Removing reputational risk from financial oversight is a concrete step toward clarity and fairness. The Cato Institute further commends the executive order for its focus on investigation over interventions, which Nicholas Anthony judges reflect the prudence of a sound policy, allowing policy to be shaped by evidence.
 
These executive actions are strong and necessary pushbacks against cancel culture overreach through regulation. But both have ambiguities that need to be clarified, and potential pitfalls that must be addressed.
 
Supporting Faith Freedom, Not Proselytizing

The Free Speech Center at Middle Tennessee University reports it is unclear the extent to which OPM’s standards override Clinton‑era guidelines. Douglas Laycock, a legal scholar at the University of Texas Law School, told Bloomberg News that the “Clinton document was much more sensitive” to power dynamics between supervisors and employees. “The failure to caution supervisors about how their comments,” he said, “can easily be misunderstood (or correctly understood) as demanding compliance.”
 
Banks in a Bind
​
The debanking order, as welcome as it is, adds yet another regulatory wrinkle to the heavy-handed requirements of the Bank Secrecy Act. Financial institutions are required by current law to send secret “suspicious activity reports” to U.S. Treasury’s Financial Crimes Enforcement Network whenever a customer’s activities fall outside of narrow behavioral parameters. Although most of these reports turn out to have nothing to do with money laundering or terrorism, banks can still be required to debank a customer who inadvertently trips a low threshold of suspicion.
 
Thus, the cross purposes of the Bank Secrecy Act and the new executive order are likely to put financial institutions in an impossible “damned if you do, damned if you don’t” position.
 
We also have to ask if we want to deny banks any ability to legitimately exercise their right of freedom of association in rejecting accounts for groups that offer genuine reputational (and other) risks. Think of the North American Man-Boy Love Association, or the National Socialist White People’s Party. More prosaically, should a bank be liable for cancelling the account of a political group that has a history of overdrafts and financial irresponsibility?
 
Congress needs to follow up to fill in these gaps. Far from weakening the administration’s actions, legislation would bolster these protections in the face of inevitable legal challenges.
 
Credit goes to President Trump for getting the ball rolling on these two areas of discrimination. Lawmakers now have a duty to translate these executive priorities into clear, balanced laws that both avoid unintended consequences while cementing enduring, equitable protections for all Americans.

We’ve chronicled many attempts by state authorities to try to force religiously oriented private schools to knock the religion out of their curricula. Maine, for example, persists in defying the U.S. Supreme Court, which ruled that the state cannot exclude religious schools from a state-funded tuition program for simply being religious.

The expanding school choice movement is predicated on the belief that giving parents the choice of their school – whether a school with a religious character, or purely secular school dedicated to STEM or the arts – respects the pluralism of our society.

But parent-plaintiffs in North Carolina are flipping that script. They are suing a private school because their children were expelled after the parents led a protest over its supposedly “woke” curriculum.

Now the Roman Catholic Church, which has long gone to court to defend its right to maintain its traditional teachings, is going to court to support the right of this private school to maintain its non-traditional curriculum.

Here's a brief review of the case, which will be heard by the North Carolina Supreme Court in October:

• Unhappy with a leftward ideological shift after a new headmaster was installed at Charlotte Latin School, a private college preparatory academy, two parents started a protest movement at the school, engaging administrators and the board.

 

• Citing its “Partnership with Parents” agreement and determining that it had become impossible to have a productive working relationship with the parents in light of perceived attacks on the school’s mission, Charlotte Latin nullified the education contracts of the couple’s two children and severed ties.

 

• The parents sued the school, garnering support from 14 state and federal lawmakers, all North Carolina Republicans.

 

• The state’s Appeals Court ruled against the plaintiffs twice, first unanimously and then in a 2-1 split, affirming the trial judge’s original ruling. The parents had previously tried to bypass the Appeals Court but that move was rejected by the state Supreme Court because the petition deadline was missed.

 

• Meanwhile, the N.C. Association of Independent Schools and the Southern Association of Independent Schools filed an amicus brief with the Appeals Court on behalf of the school, writing:

 
“Private and independent schools should be permitted to shape their values and culture as they see fit. If some parents do not like the direction that they perceive a school to take, they should vote with their feet and seek a new school.”
 

• Last week, in anticipation of the state Supreme Court’s upcoming hearing, both associations filed an additional amicus brief. The Catholic Diocese of Charlotte did as well.

The diocesan brief is particularly noteworthy, going straight to heart of the matter in holding that private schools also have association rights under the First Amendment. The Diocese told the court:

“These contractual provisions are essential tools that allow religious schools to carry out their faith-based educational missions,” and enforcing them, “avoids entangling courts in religious questions and protects the constitutional autonomy of private religious schools under the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution.”

We couldn’t agree more. If parents are unhappy with the ideology of their children’s private school, then it’s time to find a new school (there are 96 others in the N.C. Association of Independent Schools beyond Charlotte Latin). But if we allow litigation to shape the curricula of private schools, there will be no end to the control of curricula.
​
The genius of the First Amendment is that it guarantees choice in a free market of ideas. Matching families to schools, not legal coercion, is what the school choice movement is about.

​Sometimes it is good news that breaks late on a Friday. A federal court in Colorado just ruled in favor of Bella Health and Wellness, an independent, faith-based Catholic medical center that offers “life-affirming, dignified health care.”
 
Judge Daniel D. Domenico’s tight and well-reasoned opinion permanently enjoined Colorado authorities from taking any enforcement action against Bella Health for offering an abortion-reversing pill to women who are having second thoughts about a chemically induced abortion. Judge Domenico’s ruling upholds this clinic’s right be free from the unequal application of laws that substantially burden its religious exercise.
 
Whatever your take on the controversial issue of abortion, this is a First Amendment win for the free exercise of religion.
 
This case began when Colorado adopted a first-of-its-kind law restricting progesterone treatment, a popular method to reverse a chemical abortion.
 
According to Becket, the law firm that represents Bella Health, the Colorado law allows public-interest clinics to offer the hormone to women in any circumstance, except if the purpose is to reverse the effects of an abortion pill. Colorado held that if Bella continued to offer progesterone for women who seek to reverse an abortion, the healthcare provider would have faced up to $20,000 per violation and the loss of the medical licenses of its providers.
 
Judge Domenico found: “Overall, it is impossible to avoid the conclusion that Plaintiff’s use of progesterone is not being regulated neutrally – it is being singled out.”
 
He found that various other off-label uses of progesterone were allowed, even if they caused similar uncertainty regarding risk and efficiency. He further noted that singling out this one use for further restriction substantially burdened Bella Health’s free exercise of its religious beliefs, triggering strict scrutiny under the First Amendment.
 
Whatever one’s views on the controversial issues surrounding abortion, we should all be in favor of the neutral application of laws and medical standards, and against unnecessary or biased burdens on the free exercise of religion.
 
Judge Domenico reminds us that when government asserts that some unequal burden is “necessary,” the government must meet a high standard of proof of why that is so.

​The U.S. Supreme Court has once again stepped in to remind the State of New York – and any state tempted to do likewise – that religious liberty is not a favor dispensed by bureaucrats but a constitutional guarantee. On June 17, the Court ordered New York courts to take another look at Diocese of Albany v. Harris, a case in which religious organizations are challenging a state mandate requiring employers to provide abortion coverage in their health insurance plans.
 
The plaintiffs include Catholic dioceses, Anglican and Baptist ministries, and faith-based social service providers like the Carmelite Sisters, who run nursing homes, and the Sisterhood of St. Mary, a contemplative Anglican order. Their objection is simple: They believe life begins at conception, and they refuse to be complicit in taking it. New York has bizarrely decided that this belief – shared by millions – is not worthy of respect if such a religious group is also willing to serve the public without religious discrimination.
 
When New York first proposed the abortion coverage rule, it included a broad exemption for religious objectors. But under pressure from abortion-rights activists, the exemption was narrowed to cover only those that teach religion and serve only those who share their faith. This would leave out virtually every real-world religious charitable ministry. As Lori Windham, vice president and senior counsel at Becket, noted, not even Jesus or Mother Teresa would qualify under New York's miserly exception for religious freedom.
 
The case is part of a broader legal conflict that traces back to the contraceptive mandate imposed under the Affordable Care Act. Religious groups like the Little Sisters of the Poor, who serve the elderly poor, spent a decade in court fighting the federal government over being forced to cover contraceptives and abortifacients. The Supreme Court repeatedly sided with them. But New York has pushed even further, mandating coverage for surgical abortions and setting up a restrictive exception for religious associations, denying the religious legitimacy of ministries that serve people of other faiths.
 
The Supreme Court already told New York to reconsider this case once – instructing state courts to account for its ruling in Fulton v. City of Philadelphia, which held that governments cannot condition public benefits on abandoning religious beliefs. But the New York Court of Appeals upheld the mandate again this May. That refusal led to another trip to the Supreme Court and another remand back down to try again.
 
A new pivot point is the Court’s unanimous June 5 decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. In that case, Wisconsin denied Catholic Charities a religious exemption from unemployment insurance rules, arguing that serving the poor wasn't inherently religious. The Court rejected this reasoning emphatically. Justice Sonia Sotomayor wrote that such theological judgment by the government is “a textbook violation” of both the Free Exercise and Establishment Clauses.
 
With that decision in hand, the Supreme Court sent the Diocese of Albany case back to New York, making clear that religious groups don’t need to prove that their service is “religious enough” to be protected. If a ministry’s charitable work is rooted in its religious beliefs, it cannot be penalized for refusing to uncharitably limit its charity to its co-religionists. New York, for its part, has already conceded that its abortion coverage scheme cannot stand under the new precedent.
 
This is a victory not just for the nuns and ministries involved, but for anyone who believes that religious liberty does not vanish when faith communities choose to serve the public. The First Amendment does not allow states to punish religious conviction by substituting their own standards for religiosity or demand a cramped notion of religious charity.
 
Meanwhile, another case on the Supreme Court’s docket – Mahmoud v. Taylor – could further define the constitutional boundaries of religious liberty in public education. A decision is expected as early as this Thursday.
 
All eyes on Mahmoud.

The great German theologian and martyr Dietrich Bonhoeffer said that if you board the wrong train, it is no use running down the corridor in the opposite direction. More than a few influencers, international organizations, and commentators need to change trains on the subject of religious freedom in Ukraine.
 
It all began with criticism of Ukraine President Zelenskyy’s restrictions imposed on the Russian Orthodox Church (ROC) and on some clergy and activities of the Ukrainian Orthodox Church (UOC). In August 2024, Zelenskyy formalized these restrictive policies by signing amendments to a law that allows his government to ban religious organizations in Ukraine. In December, the UN Office of the High Commissioner for Human Rights criticized Ukraine for establishing “disproportionate restrictions on the freedom to manifest one’s religion or belief.” In April, the U.S. Commission on International Freedom chimed in, calling on Ukraine to “ensure that enforcement of the amendments comply with international human rights standards.”
 
Earlier this year, President Trump – perhaps misled by commentary in the blogosphere – called Zelenskyy a “dictator.” This leaves many Americans to wonder: Have the United States and NATO been supporting a dictator and what one podcaster calls a “very dark force” that delights in persecuting Christians?
 
This is a good time to take a deep breath and reassess what is really going on in Ukraine. It is time to recognize where the real dark forces are located in this war zone.

• The Ukrainian law is partially a response to the ROC, led by Patriarch Kirill of Moscow, a former Soviet-era KGB operative who propagandizes for his close ally and patron, Russian President Vladimir Putin. Kirill echoes Putin’s imperialistic Russky mir ideology, which blends nationalism with religion, asserting a civilizational right to control neighboring countries. Kirill has even dispatched priests to sprinkle holy water on Russia’s nuclear-tipped ICBMs.

Russians refer to the fusion of this state and the church as symphonia, in which the two play a supporting and complementary tune. If ever there was a good argument for the U.S. Constitution’s prohibition on the establishment of an official religion, it is Patriarch Kirill and his cheek-by-jowl connection to the Kremlin.
 
The Ukrainian law affects the UOC, which the ROC considers to be a branch of its church. When Putin invaded Ukraine in 2022, many clergy and laity of the Ukrainian Orthodox Church–Moscow Patriarchate severed relations with Moscow, but some ambiguity remains. The Ukrainian law asserts authority to regulate religious organizations with ties to foreign powers with which the country is at war. Unlike the Russian-occupied eastern portion of the country, no churches have been closed, and no worship ceremonies invaded by soldiers wielding truncheons.
​

• In contrast, the ROC’s fellow travelers in Ukraine are wedded to a Russian regime that crushes churches in the occupied parts of Ukraine, murdering, torturing, and imprisoning Evangelical Christian Baptists, Roman Catholics, Pentecostals, and Muslims. According to Ukraine’s Foreign Ministry, 67 clergy members of several faiths have been murdered in Ukraine’s occupied eastern provinces, along with the destruction of 640 places of worship.

 

• This is the “Christian” faith that operated as a fifth column of spies and propagandists within Ukraine. We are rightly proud as Americans of our commitment to religious freedom. But a country being bombed and torn apart cannot be expected to tolerate those who use religion as a shield for espionage and enemy propaganda.

President Trump took a commendable risk for peace in the early days of his second term by reaching out to Putin. Rather than seize this opportunity to solidify his position, however, Putin met the president’s open hand with a slap in the face. The Russian president violated his own Easter ceasefire, firing rockets into city centers in Ukraine, targeting civilians.
 
Ukraine is a country that protects religious diversity. The free expression of religion is enjoyed by Eastern Orthodox worshippers, Ukrainian Greek Catholics and Protestants, Muslims, and Jews, one of whom is now the nation’s president. In other words, it shouldn’t be confused with Russia.

You might support or loathe the views of the Family Research Council, which advocates traditional marriage and gender roles. But does its advocacy of traditional values make it a “hate group” worthy of being lumped in with the Klu Klux Klan and the American Nazi Party? And if it is, could the same be said for the Roman Catholic Church? How about two Catholic men from the American heartland, one of them now the Vice President of the United States and the other Pope Leo XIV? Are they terrorist adjacent?
 
These far-out assertions are natural conclusions of the Southern Poverty Law Center (SPLC), which produces a “hate map” that was helpful to an outraged man who took a gun in 2012 to the headquarters of the Family Research Council with the intention, he told prosecutors, of killing as many staffers as he could. Thanks to the heroic intervention of one security guard, the gunman only managed to wound that one person. The SPLC has since designated a number of conservative, but by no means radical, organizations and people as “hate groups.” Now Sen. Chuck Grassley (R-IA) and Sen. James Lankford (R-OK) are appealing to the FBI to direct field offices to not rely on the characterizations of the SPLC.
 
Thanks to the efforts of Sen. Grassley and the forthcoming response from FBI Director Kash Patel, we now know the role that SPLC played in inspiring the infamous memo from the Richmond, Virginia, field office that targeted “radical traditional Catholics.” The FBI’s assessment of traditional Catholics was rooted in smears from the SPLC, which Sen. Grassley correctly calls “thoroughly discredited and biased.”
 
A public release of internal FBI documents by Sen. Grassley undercuts dismissive statements from former FBI Director Christopher Wray that the Richmond memo was the product of one field office. Documents unearthed by Sen. Grassley reveal that the Richmond field office consulted with Bureau offices in Louisville, Portland, and Milwaukee to paint Catholics who adhere to “conservative family values/roles” as being as dangerous as Islamist jihadists. There were similar efforts in recent years in Los Angeles and Indianapolis.
 
The original memo from the Richmond field office found SPLC as a trustworthy enough source to assert that there will be a “likely increase” in threats from “radical traditional Catholics” in combination with “racially and ethnically-motivated violent extremism.”
 
Another memo produced by Sen. Grassley reveals the conclusion of the FBI’s Directorate of Intelligence after the memo was revealed and the Bureau found itself mired in a scandal. The FBI concluded: “The SPLC has a history of having to issue apologies and retract groups and individuals they have identified as being extremist or hate groups.” But this should have been clear to the FBI for years.
 
It is helpful, at least, that an FBI assistant director wrote that since the Richmond memo implicated First Amendment rights by targeting “a branch of a religious group,” that “there should have been more care to caveat this information.” Another memo from a leader of the FBI’s Counter Terrorism Division added that the FBI does not now use the phrase “radical traditionalist Catholic” and that “the FBI does not open investigations based upon First Amendment-protected activities … Political or religious affiliations (such as ‘far-right’) are not used to describe or identify violent extremists.”
 
Those critiques are welcome, although they might be seen as institutional posterior coverage in light of the firestorm ignited by the Richmond memo.
 
Let us hope that this searing moment for the FBI serves as a permanent reminder to take great care in surveilling Americans for the free exercise of religion and political expression, whether of the left or the right. Partisans may throw around loose accusations about their ideological opposites (and certainly some on the right do that), but the loose standards of the blogosphere make for poor criteria in terrorist threat assessments.
 
And above all, it is time for the FBI to end its reliance on the characterizations of the scandal-ridden Southern Poverty Law Center as a source of reliable information.

Jesus told his followers that whatever “you do for one of the least of these brothers and sisters of mine, you do for me.” He didn’t specify anyone who might be outside of the orbit of care, be they Samaritans or Greeks. Nor did he say that one must proselytize while providing food, clothing, or shelter to the needy.

It is on that basis that the Catholic Charities Bureau, the social ministry of the Catholic Diocese in Wisconsin, provides services for the disabled, the elderly, and the impoverished regardless of their faith. This generous, ecumenical care may square with Jesus, but it fell short of the high standards of Wisconsin regulators and the Wisconsin Supreme Court. The state court ruled that because the charity’s care was given to people of all faiths, it is not inherently religious. For that reason, the charity was forced into the state unemployment compensation system instead of being allowed, as other religions are, to pay into its own more efficient network.

The Justices of the U.S. Supreme Court – from one end of the ideological spectrum to the other – did not hold back in forcefully overturning this Wisconsin ruling on Thursday. “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.”

Justice Sotomayor found that the Wisconsin Supreme Court had engaged in “denominational discrimination” for holding that Catholic Charities was not religious in character because it serves people of all faiths. The state, she wrote, had wrongly imposed “a denominational preference by differentiating between religions based on theological choices.”

Justice Clarence Thomas wrote a concurring opinion criticizing the state court for ruling that the Catholic charity is a “distinct organization” from the Diocese.

“Both the basic principles of church autonomy and the history of religious corporations establish that religious institutions are more than the corporate entities that they form,” Justice Thomas wrote. “It follows that the government may not use such entities as a means of regulating the internal governance of religious institutions.” He added: “The First Amendment’s guarantee of church autonomy gives religious institutions the right to define their internal governance structures without state interference.”

Justice Sotomayor made a key distinction sure to resonate:
​
“When the government distinguishes among religions based on theological differences in their provision of services, it imposes a denominational preference that must satisfy the highest level of judicial scrutiny. Because Wisconsin has transgressed that principle without the tailoring necessary to survive such scrutiny, the judgment of the Wisconsin Supreme Court is reversed.”

​Last week, the Ninth Circuit Court of Appeals ruled that a Christian-owned, women-only spa in Washington State must serve biological males if they identify as transgender. That means, dissenting judge Kenneth Lee wrote, that “under edict from the state, women – and even girls as young as 13 years old – must be nude alongside patrons with exposed male [parts] as they receive treatment.”
 
The Ninth Circuit’s ruling is as constitutionally suspect as it is nonsensical. Olympus Spa is a Korean business drawing from a centuries-old cultural heritage. Such spas “require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.” As such, they separate patrons by sex in accordance with their religious beliefs – which merits protection under the U.S. Constitution.
 
The facts of the case are fairly straightforward. When a pre-op transgender woman was apparently denied entry into Olympus Spa, she filed a discrimination complaint with the state’s Human Rights Commission. Eventually, Olympus brought suit on First Amendment grounds, arguing that the state’s enforcement action violated its free speech, free exercise of religion, and free association rights.
 
The Ninth Circuit dismissed the case, finding that the Washington Law Against Discrimination (WLAD) “did not impermissibly burden” those rights. The court majority asserted that the law is both neutral and generally applicable, and that the burden imposed was “no greater than was essential to eliminate discriminatory conduct.” The court further found that the spa’s activities did not constitute expressive activity.
 
Judge Lee, a Korean American, took issue with the majority’s findings – and particularly with its statutory interpretation of WLAD. The plain text, as Lee points out, bars discrimination based on “sexual orientation” and not gender identity. Moreover, he writes, the majority’s broad reading of the statute has the effect of discriminating against other protected classes – in this case, a discrete racial group of practicing Christians.
 
Lee writes:
 
“The Washington Human Rights Commission threatened prosecution against a protected class – racial minority members who want to share their cultural traditions – to favor a group that is not even a protected class under the statute. To be clear, transgender persons, like all people, deserve to be treated with respect and dignity. But showing respect does not mean the government can distort the law and impose its will on the people the law was intended to protect.”
 
Legitimate questions of statutory interpretation aside, we agree with Olympus Spa that it has strong First Amendment claims in need of recognition. Businesses, like individuals, have First Amendment rights (see Masterpiece Cakeshop). If this case goes to the U.S. Supreme Court, it is likely these principles will be applied.
 
Protect The 1st will report on any further developments in this case.

​The U.S. Supreme Court today denied the Western Apache’s last appeal to protect their sacred lands from being transformed into a copper mine. The way is now clear to transfer this parcel of the Tonto National Forest, Oak Flat, from the federal government to a multinational mining company, Resolution Copper.

Justice Neil Gorsuch was joined in an impassioned dissent by Justice Clarence Thomas. It is masterfully reasoned, leaving one to wonder not just about the blatant injustice of this land deal for the Apache, but the implications for the religious freedom of other Americans in the future.

The Background

Gorsuch goes into great detail explaining the history of the Apaches’ connection to Oak Flat and its central place in their religion. He quotes the cert petition explaining the importance of Oak Flat:

“Western Apaches believe that the site is the dwelling place of the Ga’an – ‘saints’ or ‘holy spirits’ that lie at ‘the very foundation of [their] religion … ‘They come from the ground,’ and they serve as ‘messengers between Usen, the Creator, and [Apaches] in the physical world.’

“Faithful to these beliefs, tribal members have worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies that cannot take place anywhere else.”

Justice Gorsuch goes into detail about Apache ceremonies, including three-day coming-of-age-rituals for Apache girls, in which they gather plants while covered in white clay. This mirrors the Apache creation story in which a white-painted woman came out of the earth. Gorsuch quotes the plaintiff, the Apache Stronghold, which wrote that the white clay is meant to “imprint” the spirit of Oak Flat in the young women.

Now, Justice Gorsuch writes, tribal members believe the destruction of Oak Flat “will close off the portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”

The Law

Gorsuch details obligations in an 1852 treaty between the Apaches and the government to recognize the sacred status of Oak Flat. Those obligations were overturned when legislators attached an 11th hour rider to the 2014 National Defense Authorization Act, hiding it in a bill that was 698 pages long.

Justice Gorsuch proceeds to dissect and expose the illogical Ninth Circuit Court of Appeals decision that will now allow the multinational mining company to destroy Oak Flat. Today’s motion puts at risk the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993 to protect the free exercise of religion from “substantial burdens” by the federal government.

The Ninth Circuit got around RFRA by turning to a precedent, Lyng v. Northwest Indian Cemetery Protective Assn. (1988) that involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. Gorsuch writes:

“On the Ninth Circuit’s telling, Lyng set forth a special test for analyzing whether the government’s ‘disposition’ of its real property runs afoul of the Free Exercise Clause … That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no ‘tendency to coerce individuals into acting contrary to their religious beliefs’ and does not ‘discriminate against or among religious adherents.’”

The Result

Justice Gorsuch notes that courts have had no qualms upholding other laws restricting the government’s power to dispose of its real property. The Endangered Species Act, for example, required the halting of a federal dam to protect the “snail darter.” But no such protections can be afforded to the religion of the Apaches.

The way is now clear for Resolution Copper to blast tunnels that will result in a crater 1,000 feet deep and nearly two miles wide. While courts have acknowledged that this will permanently destroy the Apaches’ historical place of worship, preventing them from ever worshipping there, it does not – according the Ninth Circuit opinion now upheld –amount to a “substantial burden” of the First Amendment religious freedom rights of the Apache. Justice Gorsuch writes:

“Just imagine if the government sought to demolish a historic cathedral on so questionable a claim of legal reasoning. I have no doubt we would find the case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”

He ended his dissent with a quote from the Court’s 2018 opinion in Masterpiece Cakeshop:

“Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.”

In his conclusion, Justice Gorsuch writes:
​
“While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake – one with consequences that threaten to reverberate for generations."

​Protect The 1st is disappointed by the U.S. Supreme Court’s 4-4 deadlock that blocks public funding of a religious charter school in Oklahoma.
 
The ruling, composed of only two sentences, leaves in place an Oklahoma Supreme Court decision to deny St. Isidore of Seville Catholic Virtual School its prospective status as the nation’s first publicly funded religious charter school.
 
This dispute started in 2023, when Oklahoma’s charter school board okayed an application by the archdiocese of Oklahoma City and the diocese of Tulsa to create St. Isidore. The school’s plan centered around online learning to address the demand for quality instruction across the Sooner State’s charter school network.
 
Soon after, Oklahoma attorney general Gentner Drummond went to the Oklahoma Supreme Court, asking it to invalidate the charter board’s contract with the school. In a 7-1 opinion, the court ruled against allowing public charter funds to support St. Isidore, holding the funding of online religious schools by the state to be unconstitutional.

In her lone dissent, Justice Dana Kuehn made the compelling point that taking the state’s money would make St. Isidore a publicly funded school, but not a “public school.” Judge Kuehn wrote:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”
 
Indeed, as long as a religious school meets the state’s teaching requirements for math, science, English and other core subjects, it should be eligible for any public benefits made available to any other private school. Oklahoma’s rejection of this common sense, guiding principle is based on the antiquated Blaine Amendments – anti-Catholic laws passed largely in the 19th century to prevent Catholic schools from receiving public funding. These laws, which exist in 37 states, remain in force as living relics of anti-Catholic bigotry from a bygone era.
 
Moreover, the Supreme Court of the United States has effectively ruled in three recent cases that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
 
In Trinity Lutheran Church v. Comer, the Court ruled that a Missouri policy denying religious organizations access to playground resurfacing grants violated the Free Exercise Clause. In Espinoza v. Montana Dept. of Revenue, the Court held that a Montana state constitutional provision barring aid to any school “controlled in whole or in part by any church, sect, or denomination” was similarly unconstitutional. And in Carson v. Makin, the Court found that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments also failed to pass constitutional muster.
 
Attorney General Drummond, the de facto victor in this case, seems to believe that contracting with the state makes a charter school a public school, a position with far-reaching implications for future state contractors of any religious affiliation. We heartily agree with Justice Kuehn – and so apparently does at least half of the Supreme Court (Justice Amy Coney Barrett recused herself due to a likely conflict emanating from her former position at Notre Dame).
 
As the Alliance Defending Freedom – representing the Oklahoma Statewide Charter School Board – said in its certiorari petition:
 
“The Oklahoma Supreme Court’s conclusion that Trinity Lutheran, Espinoza, and Carson ‘do not apply to the governmental action in this case’ fails along with the state-action premise on which it rests … St. Isidore is not a state actor, so the lower court’s talismanic invocation of the phrase ‘governmental action’ does not distinguish this Court’s cases.”
 
But there is good news amid the bad news – the recusal of Justice Amy Coney Barrett almost certainly tilted the balance against St. Isidore. This augurs well for future cases on the equal treatment of religious based schools, as the Court has already done in Carson v. Makin.
 
States should take this opportunity to repeal prejudiced Blaine Amendments, and maybe find another, future opportunity for action that doesn’t trigger a recusal. 

The Religious Freedom Restoration Act (RFRA), passed in 1993 with overwhelming bipartisan support, was crafted to provide a strong shield for religious liberty. It requires that any government action that substantially burdens religious exercise must be the least restrictive means of advancing a compelling government interest. This principle was not meant to expire or be casually overridden.
 
In a recent Supreme Court filing, the Biden Administration asserted that RFRA can be silently displaced by later statutes, even if Congress says nothing about overriding religious liberty. In a brief footnote, the government argued that if a later statute mandates action – even if it burdens religious exercise – it must override RFRA by default.
 
Perhaps that was to be expected from the Biden Administration, which did not make the freedom of religious exercise a priority. More troubling is that the current administration’s Solicitor General, Dean John Sauer, echoed this view in a letter to the Supreme Court in Apache Stronghold v. United States. Sauer reaffirmed the notion that the land-exchange statute at the heart of the case supersedes RFRA, simply because it came later and is “more specific.”
 
This theory invites the piecemeal erosion of civil liberties. If accepted, it would allow Congress – or perhaps even regulatory agencies – to nullify fundamental rights like religious freedom without ever saying so explicitly. All it takes is a newer law or rule that conflicts with RFRA, and the protections vanish.
 
That logic assumes Congress fully weighs the consequences for religious liberty every time it enacts a new law. It presumes that federal agencies act with constitutional clarity. In truth, lawmakers are not always so meticulous, and regulators have been known to ride roughshod over constitutional protections.
 
This framework has already emboldened efforts to undercut conscience protections in healthcare. Under this view, statutes that promote access to abortion or gender-transition procedures can override RFRA by mere implication – forcing doctors and hospitals to act against their beliefs, without any serious effort to reconcile those conflicts.
 
It is disappointing, to say the least, that a Trump Administration lawyer would continue this Biden-era legacy. Conservatives, especially those with commitments to religious liberty, should reject any legal doctrine that grants Congress or regulators an easy path to nullify core civil rights.
 
RFRA was designed to stand as a bulwark, not a speed bump. Allowing it to be bypassed by silence or implication is not just bad legal reasoning – it undermines a law that reinforces the First Amendment’s guarantee of the free exercise of religion. The Supreme Court declared in 2020 that “RFRA operates as a kind of super-statute, displacing the normal operations of other federal laws.”
 
The Supreme Court should now again affirm that RFRA remains fully in force.

​A federal court has blocked the government from transferring Oak Flat to a foreign-owned mining company, preserving the sacred Apache site while the U.S. Supreme Court considers whether to hear the case. The ruling is a powerful rebuke of the federal rush to transfer the land, which Western Apaches consider a portal to the Creator and the center of their religious life.
 
Judge Steven P. Logan concluded that “there is no close question in this matter,” finding it “abundantly clear that the balance of equities ‘tips sharply’ in Plaintiff’s favor.” He emphasized that the Apaches face “a likelihood of irreparable harm should the transfer proceed” and that the case presents “serious questions on the merits that warrant the Supreme Court’s careful scrutiny.”
 
Oak Flat, which sits within Arizona’s Tonto National Forest, has been central to Apache religion for centuries. For 70 years, it has been protected from mining, until a 2014 defense bill provision set the stage for its transfer to Resolution Copper, a subsidiary of a multinational firm partially owned by a Chinese corporation.
 
If the mine goes forward, the Apache will forever lose their ability to perform ceremonies tied to the land. Resolution Copper plans to turn Oak Flat into a two-mile-wide, 1,100-foot-deep crater. That devastation would be irreversible, a loss equal in scale to dynamiting the Vatican or using the stones of the Wailing Wall as a quarry.
 
Dr. Wendsler Nosie Sr. of Apache Stronghold responded bluntly: “The federal government and Resolution Copper have put Oak Flat on death row – they are racing to destroy our spiritual lifeblood and erase our religious traditions forever.”
 
The injunction prohibits the federal government from publishing its environmental report or finalizing the land transfer until the Supreme Court either denies review or issues a final ruling. That decision halts Resolution Copper’s plans to turn Oak Flat into a massive copper mine.
 
The court rejected the argument that Apache rituals could simply be relocated, stating it was “disinclined to minimize the importance of Oak Flat to the Apache’s belief system.” As previously noted by the court in 2021, the mine would “close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”
 
Judge Logan also dismissed the mining company’s claims about financial harm, noting they had invested in the land years before Congress authorized the transfer and did so “voluntarily.” In contrast, the Apaches risk losing access not just to land, but to their religious future: “They cannot choose to practice their religion at all once their sacred religious site is completely ‘obliterated,’” as one dissenting judge previously wrote.
 
Oak Flat is more than a legal fight. It’s a test of whether the U.S. government will honor its promise of religious liberty when it matters most – not just in speech, but in action. The Apache’s sacred ground deserves the same protection any church, synagogue, or mosque would be afforded. If the Apache lose, Americans of all faiths will lose as well.