​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.

​The U.S. Department of Justice has launched a civil rights investigation into Washington State Senate Bill 5375, a new law that forces Catholic priests to break the seal of confession or face criminal consequences. Signed into law on May 2 by Gov. Bob Ferguson (D-WA), the bill mandates that clergy report suspected child abuse, even if the information is obtained during a sacramental confession. The investigation focuses on whether the law violates the First Amendment’s guarantee of religious freedom by criminalizing a practice that has been protected under both religious doctrine and U.S. legal tradition for more than two centuries.
 
SB 5375 adds clergy to the list of mandatory reporters of child abuse but does so with one key difference: it refuses to honor the long-standing legal and religious protection for confessional secrecy. Unlike doctors or lawyers, clergy are denied any exemption.
 
“This law demands that Catholic priests violate their deeply held faith in order to obey the law,” said Assistant Attorney General Harmeet Dhillon, calling the law a violation of the First Amendment. The Catholic Church, for its part, has warned that any priest who complies will be automatically excommunicated, reinforcing the absolute nature of the confessional seal in Catholic doctrine.
 
While the law is presented as a measure to protect children, its specific targeting of clergy reveals a more troubling agenda. Other professions maintain their confidentiality rights. Only clergy are denied theirs. That double standard invites constitutional scrutiny and raises the question of whether the law was crafted not just for protection, but for punishment. And it destroys any semblance of either religious neutrality or general applicability in the process.
 
Proponents argue that the law is necessary. But even if the goal is admirable, the means are unlawful. No predator will confess if he knows it will lead to arrest. The practical result is a law that does nothing to prevent abuse and everything to trample religious rights.
 
Gov. Ferguson dismissed the federal investigation as political. Yet it is the state’s law that politicizes religion, forcing clergy to choose between faith and compliance. That’s not accountability – it’s coercion.
 
The law is set to take effect on July 27. Unless blocked in court, priests in Washington State will soon face an impossible choice: obey the law and betray their faith, or uphold their faith and face legal punishment. That’s a choice no free society should ever demand of its citizens.

​Quick, fill in the blanks below.
 
There is no God but _______ and _________ is his messenger.
 
At a loss? Here is some Q&A guidance:
 
“Who Is Allah?” Answer: “Allah is the one God who created the heavens and the earth, who has no equal and is all powerful.”
 
And this:
 
“Who is Muhammad?” Answer: “Muhammad (Peace be upon him) is the last & final Messenger of God. God gave him the Noble Quran.”
 
The above comes from a lesson plan from a class in Chatham Middle School in New Jersey. This and other material prompted a lawsuit by Libby Hilsenrath on behalf of her minor son when he was exposed to these questions and prompts in a seventh-grade World Cultures and Geography class.
 
In addition, Hilsenrath’s son was exposed to videos alternating between quotations from the Quran and a series of questions and answers about Islam. The course included an animated cartoon explaining the “Five Pillars of Islam.”
 
Hilsenrath sued, claiming that her son’s right to free expression of religion under the First Amendment were violated by this outright proselytizing of Islam. The teachings amounted to a government establishment of religion. A federal district court disagreed. Now the U.S. Court of Appeals for the Third Circuit has just upheld the ruling of the lower court.
 
Protect The 1st agrees with the Third Circuit’s opinion. The reasons why are critical to making the distinction between government establishment of a religion and teaching about a religion.
 
The Chatham Middle School’s World Cultures and Geography class included units focused on six different regions of the world. Students not only studied the history of these regions, but also their religion(s).
 
As we’ve long noted, schools cannot properly teach American history without examining the motivations and beliefs of Christians, from the Puritans to the Great Awakening, the abolitionists and the civil rights movement. Similarly, in class Chatham students were taught about the basic tenets of Christianity and its missionary impulse when studying Latin America, about Hinduism and Buddhism in Asia, and about Islam when studying the Middle East.
 
The curriculum referred to “what Muslims believe” instead of what students should believe. It was a respectful deep dive into Islam that will help any of the non-Muslim students in the class who might later travel to a Muslim country to understand the beliefs and sensibilities of their hosts.
 
In recent decisions, the U.S. Supreme Court has looked back to history as a guide to what an actual establishment of religion – forbidden by the First Amendment – would look like. It would include government control over the doctrine and personnel of a religion. It might mandate attendance at worship and sanction those who did not. It might punish dissenters and restrict their political participation. It might provide support for the favored religion and give it a monopoly over certain civic functions.
 
The lesson plan of Chatham Middle School did not include any of these hallmarks of a religious establishment.
 
Just as it is wrong to use the Establishment Clause of the First Amendment to shut down the teaching of the role of churches in American history, it also should not be used to keep children ignorant about the role of world religions. There is literally no way to understand modern Saudi Arabia, Egypt, Turkey, or Indonesia without reference to their Islamic heritage. 
 
In many secular contexts, there is a growing impulse – one could call it theophobia – regarding any reference to religion, or inclusion of religious schools or organizations in public programs or venues, as an automatic constitutional violation. But this is not the law.
 
The Establishment Clause means what it says, but it does not require religion to be handled as if it were radioactive.
 
Parents do have a role in imparting religious beliefs. “The United States of America is not Sparta,” the Third Circuit declared, “where children were considered wards of the state. Parents are the first and foremost teachers of their children.” When a school board elected by parents decides to teach children about the world and its many beliefs, however, that is also the First Amendment in action.

​Elite universities have undeniably become academies of progressive ideology, in dire need of diversity of thought and opinion. They have also become bastions of racial discrimination, as the Supreme Court found in its 2023 opinion, Students for Fair Admissions v. Harvard, ruling that Harvard’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. With President Trump announcing on Friday that he will revoke Harvard’s tax-exempt status, a court might well decide that Harvard’s admissions and hiring policies, and its tolerance of antisemitism on campus, make it a legitimate target for tough action.
 
But the order to revoke Harvard’s tax-exempt status and the administration’s April 11th letter to Harvard setting conditions for continued federal funding raise other concerns that should trouble defenders of academic freedom, especially those who are conservatives.
 
The administration tied further federal funding to reforms to the school’s curriculum and culture. Whether or not Harvard needs reform, this plainly infringes on Harvard’s First Amendment rights, endeavoring to trade Harvard’s progressive “ideological capture” for a different kind of capture – outright government control. And if successful, subsequent efforts to revoke the school’s tax-exempt status will open the floodgates to future abuses of power that conservatives will live to regret.
 
This is the inherent danger of the administration’s desire to create a superhighway for federal control of academic freedom. In Harvard’s complaint filed in federal court in Massachusetts, the university quoted the Supreme Court’s Moody v. Netchoice (2024) decision that “The First Amendment does not permit the government to ‘interfere with private actors’ speech to advance its own vision of ideological balance.’”
 
Harvard didn’t have to look far for that precedent. The U.S. Supreme Court proclaimed it in 2024, when it found that government cannot suppress disfavored speech by threat of sanctions. Based on the plain text of the government’s letter, that seems exactly the administration’s aim here. 
 
New questions will arise now that President Trump is ordering the IRS to revoke Harvard’s tax-exempt status. As The Wall Street Journal pointed out in a recent editorial, some precedent exists that could support such an action. It is true that in 1983 the Supreme Court upheld the IRS’ revocation of Bob Jones University’s tax-exempt status based on its overtly racially discriminatory practices. The Court at that time reasoned that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.” But many critics of Bob Jones were still concerned about such policies being made by the IRS on the basis of no law.
 
Beyond the legal and constitutional questions, there are more practical reasons why the administration’s actions are dangerous. Remember when the IRS targeted conservative groups for enhanced scrutiny, seemingly based on ideology? IRS official Lois Lerner catalyzed a furor among the right when emails revealed her antipathy towards conservative groups she targeted for investigation. Conservatives should also remember the many times the government has attempted to overrule traditional religious beliefs, from the FBI’s targeting of “radical, traditional Catholics,” to management of the conscience rights of religiously oriented healthcare clinics.
 
Should this administration prevail in its effort to subjugate Harvard’s academic freedoms in accordance with its own ideological preferences, a precedent will be set for future administrations to control speech in other directions. Expanded powers of the presidency don’t just go away when a president leaves. They stay with the office, accumulating over time.
 
There are any number of less constitutionally dubious means of working with colleges and universities to introduce more heterodoxy into academic circles. And Harvard, for your part, you ought to respond to this moment by hiring at least a few conservatives – intellectuals who represent a large plurality of this country and, recently, a majority of its voters.

​The Oak Flat sacred site in the Tonto National Forest in Arizona has undergone a Perils of Pauline ordeal in federal courts, rescued from ruin only to be tied to the tracks again before an oncoming train.
 
This land for centuries has been the centerpiece of Apache religion and the Western Apache people’s relationship with the Creator. It is now slated to be transferred to a partially Chinese-owned mining company that plans to dig a copper mine there, mutilating a site as holy to the Apache as the Vatican is to Catholics or the Wailing Wall is to Jews. If the project proceeds, all that will be left of the Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
The Apache’s appeal has been repeatedly relisted for possible certiorari, or an oral argument, before the Supreme Court. Not content to wait, the U.S. government has announced its intention to jump ahead of the Court and transfer Oak Flat to the mining company, circumventing the judicial process.
 
At 9:30 a.m. on Wednesday, Luke Goodrich of the Becket Fund for Religious Liberty will present an emergency motion before Judge Steven P. Logan in federal district court in Phoenix asking him to block the transfer while the Supreme Court hears the case.
 
In a dissent from the Ninth Circuit opinion now being appealed, Judge Marsha B. Berzon declared that the Religious Freedom Restoration Act (RFRA) should be sufficient to protect Oak Flat. She wrote that “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources.” She called the current status of the case “an illogical interpretation of RFRA” and “incoherent.”
 
This case is too important to be short-circuited or ignored. Respect for RFRA is vital to people of all faiths, which is one reason why Christian, Jewish, and other groups have joined in petitioning the courts to save Oak Flat.
 
On Sunday, Apache tribal members began an 80-mile run from Oak Flat that will end in Phoenix just before the hearing. We may not be able to join them on the run, but surely we can join them in prayer.

​Protect The 1st has long advocated school choice, from secular schools that concentrate on STEM and the arts, to religiously based schools, as an important way for parents to express their First Amendment rights across generations.

Michael J. Broyde, Emory University law professor, writes in The Wall Street Journal that the Supreme Court has held in precedents ranging from Espinoza v. Montana Department of Education (2020) to Carson v. Makin (2022) that if a state funds private education, it cannot exclude religious schools.

Broyde wrote:

“Critics will worry that directly funding religious schools compromises the separation of church and state. But as the Supreme Court has clarified, public money can follow the student – even into religious settings – as long as the funding program is neutral with respect to religion, and the choice of school is made independently by parents.”
​
The inclusion of religious schools, like Oklahoma’s St. Isidore Virtual Catholic School, is an important way to promote a thriving, pluralistic, First Amendment society.

The U.S. Supreme Court heard two hours of oral argument Wednesday in a case that laid bare ideological fault lines in the Court concerning the tension between the First Amendment’s two clauses on religion, one guaranteeing its free exercise, the other forbidding any establishment of religion. While the Court has recently leaned in the direction of religious freedom, the recusal of Justice Amy Coney Barrett added a note of drama, raising the real possibility of a 4-4 split that would leave intact the Oklahoma Supreme Court’s decision blocking the school.

The case began when the Archdiocese of Oklahoma City and the Diocese of Tulsa created St. Isidore of Seville, a virtual Catholic school intended to serve all families, including those in rural and underserved areas. The Oklahoma Statewide Charter School Board approved St. Isidore’s application. But state Attorney General Gentner Drummond took the board to court, claiming it had violated both state and federal law by approving a religious school as part of the charter system. The Oklahoma Supreme Court agreed with the attorney general, ruling that charter schools are public entities and thus must be secular.

We’ve made the case that this ruling is “eminently overturnable,” resting on a legal framework polluted by Blaine Amendments – a relic of 19th-century anti-Catholic bigotry. As we explained when the Court first agreed to hear this case, the Oklahoma law’s exclusion of religious institutions from an otherwise open charter school system violates the Free Exercise Clause of the First Amendment.

Justice Brett Kavanaugh seemed to see it the same way.
 
“Those are some of the most important cases we've had,” he said, referencing two precedents, Espinoza and Carson, “saying you can't treat religious people and religious institutions and religious speech as second class in the United States.” He called Oklahoma’s policy “rank discrimination against religion,” noting that religious schools were not asking for special treatment, just the right to compete on equal footing.

Justice Samuel Alito took that concern a step further. He accused the Oklahoma attorney general’s argument of reflecting “hostility toward particular religions,” particularly Islam. Referring to Drummond’s statements warning that approval of St. Isidore would compel approval of schools run by “reprehensible” sects, Alito said those arguments “reek of hostility” and reflect an “unsavory discriminatory history” in the state’s constitutional framework.

One question that continued to arise in the oral argument centered on whether St. Isidore, as a charter school, is a state actor. If so, then its religious character would trigger establishment clause concerns. But if St. Isidore is a private actor merely contracting with the state, then exclusion based on religion becomes unconstitutional discrimination. “Casting the cloak of state action too broadly risks intruding on individual liberty,” Michael McGinley, attorney for St. Isidore, told the Court.
 
Justice Neil Gorsuch seemed to agree, warning that a ruling against the school could incentivize states to exert more control over charter schools, curbing the innovation those schools were meant to foster. Gorsuch also asked a series of questions to probe whether an educational institution such as St. Isidore could be considered a private organization for the purposes of federal law, but a public institution for the purposes of state law. This probing gives a sense of how Justice Gorsuch, and perhaps the Court, might parse the principles of this case.

The more liberal justices pushed back forcefully. Justice Elena Kagan warned of a “floodgate” effect that could compel states to fund every kind of religious school, including those with doctrines “super different” from mainstream religious or secular values. Justice Sonia Sotomayor bluntly declared: “What you’re saying is the Free Exercise Clause trumps the Establishment Clause.” Justice Ketanji Brown Jackson argued that St. Isidore was asking for a benefit not granted to anyone else – the right to operate a religious public school – although Oklahoma had every right to set up a secular charter system.
 
Chief Justice John Roberts’ few comments suggested that he is weighing the issue with caution. He noted that unlike Trinity Lutheran, Espinoza, or Carson, this case involves “much more comprehensive involvement” by the state in the charter school program. Chief Justice Robert’s terse demeanor may be a clear signal he will be the deciding vote.

Meanwhile, Gregory Garre, representing the state, warned of “uncertainty, confusion, and disruption” if the Court rules in favor of St. Isidore, arguing it would upend the laws of 47 states and the federal charter school program, all of which bar religious charter schools. But that argument overlooks what the First Amendment demands – neutrality, not hostility, toward religion.

General Drummond’s likening of the inclusion of a Catholic school in the state’s charter program to a private takeover of the operations of the Oklahoma Highway Patrol, to create a Catholic Highway Patrol, is as unserious as it is inapt. No student would be forced to attend St. Isidore. Families would choose the school, and the state’s funds would follow the child. That’s no different in substance than school voucher programs the Court has repeatedly upheld. The state didn’t design St. Isidore, doesn’t run it, and shouldn’t be allowed to exclude it for being religious.

Protect The 1st hopes the Court recognizes that this case is not about religious favoritism. It is about ending religious exclusion. Once Oklahoma opens the door to private educational providers, it cannot slam that door shut on faith-based institutions. St. Isidore deserves the same opportunity to serve Oklahoma families as any other charter school.

​It was reading time at the U.S. Supreme Court today, though the oral argument in Mahmoud v. Taylor did not end with milk, cookies, and a nap. It did indicate, however, a likely victory for the plaintiffs.

Much of today’s oral argument centered around the storybooks included in the pre-K to 6th grade curriculum in Montgomery County schools. One such storybook, Prince & Knight, factored into the discussion.

Here’s a summary of that book written for children ages 4 to 8: Once upon a time, there was a prince who was urged by his royal parents to visit neighboring kingdoms to find a suitable bride. But the prince did not find the woman he loved. While on his journey, the prince was informed that a dragon was attacking his kingdom. He joined forces with a dashing knight, who used his shield to blind the monster. This allowed the prince to successfully ensnare the dragon. When the prince tripped, the knight came to his rescue and caught him in his arms. That’s when the prince realized that he was, in fact, in love. And soon prince and knight were warmly received into the kingdom, which joyfully celebrated their royal wedding.

Another such book, Love Violet, tells the story of a girl who harbors a secret crush for another girl in her class.

In the eyes of many, Prince & Knight and Love Violet spin tales that help children to grow up with respect and acceptance. In the eyes of families that are adherents of great world religions – from Roman Catholicism to Christian evangelicalism, to Islam and Orthodox Judaism – these stories indoctrinate children into celebrating relationships that their religions reject as sinful. Forcing this instruction, therefore, is a violation of the First Amendment rights of the parents’ free exercise of religion.

No one in this case is seeking suppression of these books and teachings. Religious parents of Montgomery County school children are merely seeking the right to opt out their children from the books and its related curriculum. The Montgomery County school board at first allowed such opt-outs, then denied them, claiming that allowing them would be impractical to manage. The Fourth Circuit Court of Appeals upheld the school board’s decision, finding that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”

In today’s oral argument, Justice Samuel Alito pushed back on that notion. Given that these books are read to children as young as age four, he said many will lack the faculties to dispute or disagree with what they are being told.

“I don’t think anybody can read that and say, ‘Well, this is just telling children that there are occasions when men marry other men,” said Justice Alito. “It has a clear moral message, and it may be a good message. It’s just a message that a lot of religious people disagree with.”

Justice Elena Kagan acknowledged that what some Montgomery County principals had flagged – regardless of gender, the storybooks’ focus on romantic relationships was a questionable choice for children as young as four. “I too, was struck by these young kids picture books and, on matters concerning sexuality, I suspect there are a lot of non-religious parents who weren’t all that thrilled about this.”

But Justice Kagan stuck to the notion that if opt-outs are allowed in this instance, they will have to be allowed for a host of other objections, perhaps even to the teaching of evolution in biology class. Justice Kagan said: “Once we articulate a rule like that, it would be like opt-outs for everyone.”

Justice Ketanji Brown Jackson’s questions centered around the point that an opt-out rule would “constitutionalize” local decisions on curricula best left to the communities. “Maybe in one community, one set of values, these books are fine, but in another community with a different set of values, they’re not,” she said.

Justice Alito returned to the point that the plaintiffs were not asking that the books be removed. “What’s the big deal about allowing them to opt out?” he asked. “I am not understanding why it’s not feasible,” said Justice Brett Kavanaugh.

Overall, the tone and tenor of today’s oral argument indicates a solid majority will come down on the side of observing the right of religious parents to opt-out their children.

Two minutes into this two-and-a-half hour-long hearing, Eric Baxter of the Becket Fund for Religious Liberty, which represents the parents, drew on Protect The 1st’s own amicus brief for his presentation. In that brief, Protect The 1st declared: “Properly understood, the First Amendment forbids the government from imposing such coercive choices on parents as a precondition to participating in a public benefit, including public education.”
​
Though we rarely make predictions about how the Court will decide, we believe that will be the likely stance the Court majority will take.

​Many of the great warriors of history had beards. In the modern era, however, clean-shaven faces became the hallmark of the modern military. This is a problem for American men of the Sikh faith, who are forbidden to shave. Many Jewish and Muslim men are similarly required to maintain beards as an outward sign of their faithfulness.
 
In 2021, Edmund Di Liscia, a Hasidic Jew assigned to the aircraft carrier Theodore Roosevelt, testified before a federal judge that his beard is “a religious requirement and an expression of obedience and fidelity to God.” For years, many Americans adherents of several faiths were forced to choose between expulsion from military service or to violate their most closely held religious beliefs.
 
Thanks to the good work of the Becket Fund for Religious Liberty, federal courts have stayed military orders to force religiously observant men to shave off their beards. The military has also shown flexibility, allowing religious accommodation for servicemen who demonstrate the sincerity of their faith and are willing to accept limitations on their assignments.
 
This tolerance is now at risk. Defense Secretary Pete Hegseth recently ordered the Pentagon to conduct a review of military standards related to health and appearance across the services. His memo pointedly noted that this review “includes but is not limited to beards.”
 
It is understandable – even commendable – that Secretary Hegseth wants to level up the fitness and appearance requirements of the services. But we hope that in this review, a line is drawn to protect beards as expressions of faith.
 
The Trump administration has shown great sensitivity to protecting religious liberty, including the establishment of a White House Faith Office to work with the Justice Department to protect the freedom of religious expression. As the Pentagon drafts new rules, the religious expression of Americans in uniform should also be respected.

​Kansas lawmakers have overridden Gov. Laura Kelly’s veto to enact a new law defending the rights of religious foster and adoptive parents. Effective immediately, the state can no longer deny licenses to families simply because they won’t affirm gender ideology or same-sex relationships. The law stops bureaucrats from turning personal belief into a disqualifier, and it sends a clear signal: faith-based convictions don’t bar you from opening your home to a child in need.

This victory for religious liberty won’t make headlines in major media, but it should. It directly answers a troubling trend where belief in traditional marriage or gender roles becomes an automatic disqualifier for otherwise qualified parents.

Kansas is an encouraging story, for similar religious discrimination against adoptive parents is happening around the country. In Massachusetts, Mike and Kitty Burke – a Catholic couple with years of experience caring for children – were denied the chance to foster because they wouldn’t recite the state’s preferred catechism on sex and identity. “Their faith is not supportive and neither are they,” wrote a social worker, as if belief in Christian doctrine was evidence of neglect.

That mindset is spreading. Oregon, Vermont, and other states are testing policies that require prospective foster parents to parrot gender orthodoxy before they can bring a child into their home. These policies don’t protect kids – they punish adults with unapproved beliefs. More to the point, these policies violate the free exercise of religion clause of the First Amendment. The state cannot make religious adherence a liability for civic participation. It cannot force a person to say what they do not believe. And it cannot close the door on loving homes simply because a couple affirms, as generations have, traditional religious beliefs.

That’s what makes Kansas so important. It stops the government from forcing people to either lie or lose out for holding traditional religious beliefs. Opponents say the bill opens the door to discrimination. It merely allows people to hold different beliefs without punishment. That’s not discrimination – that’s pluralism. You might disagree with traditional views on sexuality. But we all have a stake in this debate: A society that can’t handle differing views on sexuality has already lost its way.

There’s an old joke about a couple that was so progressive that they adopted a gay baby. Today, we’re watching the inverse: systems so rigidly ideological they’ll leave kids in hospitals and public homes rather than place them with a conservative family.
​
Kansas said no.

Imagine you run a tax-exempt charity that houses, feeds, and cares for the poor and the homeless, or perhaps educates children from low-income families. You have the resources to operate your charity through the kindness of your donors. You also are grateful that your tax-exempt status helps you stretch those donor dollars for your social mission.

Then one day you begin to receive demands from the government to certify compliance with myriad federal regulations. The cost of painstakingly documenting compliance would make a huge dent in your budget. Worse, if you are found to be out of compliance with the bureaucracy’s elaborate standards, your tax-exempt status will be revoked.

This is the implied threat of the 2022 rulings by two federal district courts that held that the tax-exempt status of charities means that they should be considered recipients of federal financial assistance. One of these cases, Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School, went to the Fourth Circuit Court of Appeals. Last year, the Fourth reversed the lower court’s ruling:

“Tax exemption is not ‘Federal financial assistance.’ This is not a novel concept. Indeed, since Title IX’s inception over fifty years ago, it has never been applied to organizations based solely on their tax-exempt status. And for good reason … Tax exemption, however, is the withholding of a tax burden, rather than the affirmative grant of funds. Thus, tax-exemption is not ‘Federal financial assistance.’”

You might brush your hands and say, ‘all well and good and that is that!’ But in American law these days, that is never that. The appetite for government control is as strong as ever. All it takes is the right case and the right judge to set this precedent on its ear and bind charities across the land to burdensome regulation.

We have certainly seen at the state level, from Wisconsin to Maine to California – a desire by regulators to treat charities, especially religious-based charities, in discriminatory ways. This impulse was occasionally on display during the previous administration in regulatory lurches toward increasing government control of charities.

To forestall this movement once and for all, Sen. James Lankford (R-OK) and Rep. Greg Steube (R-FL) have introduced the Safeguarding Charity Act to clarify that tax-exempt organizations should not be treated as recipients of federal financial assistance.

“Tax-exempt status is not the same as receiving federal funding, and it should be not used as political leverage against the nonprofits that feed, clothe, house, and counsel those in need in Oklahoma and across the nation,” Sen. Lankford said. “We should be focused on enabling the work of these organizations – not burdening them with unnecessary and costly federal requirements.”

“Radical judges should not have the authority to twist federal law and force religious institutions to choose between their convictions and their compliance,” Rep. Steube said. “This bill is about protecting churches, religious schools, and charities from federal overreach.”
​
Though prior versions of this bill failed to pass, the stars may be lining up for the 119th Congress to pass this bill and to put this question to rest for all time.

​The U.S. Supreme Court will soon weigh in on Mahmoud v. Taylor, a case that could reshape the boundaries of parental rights in public education. At stake is a basic but powerful question: Can the state force parents to expose their children to teachings that contradict their deepest moral and religious beliefs? A win for the parents wouldn’t just vindicate religious freedom – it could also throw a lifeline to secular and non-Christian families in red states, where public school curricula are starting to blur the line between education and religious endorsement.

In Montgomery County, Maryland, parents were initially allowed to opt out of new “LGBTQ+-inclusive” texts introduced in 2022. These included books such as Pride Puppy, with some curricula introducing drag queens and leather fetish gear to pre-K students. Born Ready presents gender transition as a personal decision that doesn’t need to “make sense.” Then the school board reversed course, eliminating the opt-out and mandating full participation, even for families whose religious teachings directly conflict with these lessons.

Protect The 1st filed an amicus brief urging the Court to recognize this as a violation of the Free Exercise Clause. This case echoes the foundational rulings in Pierce v. Society of Sisters and Wisconsin v. Yoder, in which the Court affirmed that the right to direct a child’s moral and religious upbringing rests with the family – not the state.

What is often missed in media commentary is how a win in Mahmoud would also defend secular families and minority faiths in red states from forced exposure to Christian-centric teachings. Consider Texas. The state’s new Bluebonnet Learning curriculum is approved for adoption in 2025 and incentivized with $60 per student. While it claims to be academically neutral, watchdog groups have documented how some lessons treat the Bible as literal history and ask students to repeat phrases from Genesis​.

Texas Education Agency officials insist these materials are educational, not devotional, and that schools may use or omit parts as they see fit. But once a district accepts this curriculum, parents will be allowed no opt-out for their children. That’s cold comfort to Jewish, Muslim, Hindu, or secular families in districts that decide to lean hard into biblical framing. What’s being described as “contextual” exposure often amounts to uncritical celebration of one religious tradition. At minimum, there is no need to push this curriculum without parental opt-outs for their children.

We ardently agree that you cannot teach American history without appreciating the role of religion, from the Pilgrims to the civil rights era. But you can – and must – do it without crossing the line into indoctrination. The same principle that protects a Muslim family in Maryland from state-imposed gender ideology also protects a secular family in Texas from state-imposed Christianity.
​
A ruling in favor of the Mahmoud plaintiffs won’t just be a win for religious liberty. It’ll be a win for pluralism – ensuring that no matter where you live or what you believe, the public school system doesn’t get to decide what your child’s faith tradition will be.

​It is considered bad form and bad luck to anticipate how the U.S. Supreme Court will decide a given case. But Adam Liptak of The New York Times just went ahead and called it: “The Supreme Court on Monday seemed ready to rule that a Catholic charity in Wisconsin was entitled to a tax exemption that had been denied by a state court on the grounds that its activities were not primarily religious.”

To say that Colin T. Roth, lawyer for the state, had a rough morning would be an understatement. It was Roth’s task to defend the Wisconsin Labor & Industry Review Commission, which found that Catholic charities that serve the poor are not exempted from state unemployment taxes as a religious organization.
 
The Wisconsin Supreme Court upheld the flawed reasoning that Catholic Charities – which has provided aid to the disabled, the elderly, and the poor for over a century – is not operated primarily for religious purposes because it provides services to people of all faiths.
 
When asked what it would take for Catholic Charities to be considered religious, Roth replied they might say the Lord’s Prayer when spooning soup. We’ll be sure to pass that advice along to the Catholic lay volunteers, nuns, priests, bishops, cardinals, and the Pope. Thanks, Wisconsin!
 
“Isn’t it a fundamental premise of the First Amendment that the state shouldn’t be picking and choosing between religions?” Justice Neil Gorsuch asked. “Doesn’t it entangle the state tremendously when it has to go into a soup kitchen, send an inspector in, to see how much prayer is going on?”
 
“Some religions proselytize, other religions don’t,” said Justice Elena Kagan. “Why are we treating some religions better than others based on that element of religious doctrine?”
 
Justice Amy Comey Barrett followed up by asking if a Jewish charity would be disqualified given her understanding that Judaism is largely a non-proselytizing religion. Roth replied that such a Jewish charity would have to engage in worship or religious education.
 
What the Wisconsin Supreme Court overlooked is that in Judaism and Christianity, as well as in Islam and Eastern religions, charity is a religious obligation. Jesus said we should feed the hungry, shelter the homeless, and clothe the naked. He did not add, “unless, of course, they’re not members of your congregation. Then they’re on their own.”
 
An adverse ruling for Catholic Charities would enable government inspectors and bureaucrats to decide which religious practices are religious. Based on the tenor of today’s oral arguments, that does not seem likely. This was a good day for religious liberty.

​Imagine you’re a barber. Your professional mission is to cut hair and make people look good. In walks Chewbacca, the Wookiee from Star Wars, looking for a job. Chewbacca never has had his hair cut. Sure, he’s a good space pilot, but he’s unkempt and ungroomed. Heck, Chewbacca doesn’t even believe in grooming – it’s not part of the Wookiee lifestyle. Hiring Chewbacca as a barber would reflect poorly on your business. It might even undermine your whole mission, because Chewbacca actively advocates against haircuts. Yet, if you don’t hire this anti-grooming, 8-foot canine, the government’s going to come after you.
 
Sounds ridiculous, right? That’s not too far from what’s actually happening in Illinois.
 
Two weeks ago, the Alliance Defending Freedom filed a lawsuit challenging a state law that forces religious organizations to hire employees who disagree with – or act in conflict with – those organizations’ deeply held religious beliefs.
 
The Illinois Human Rights Act, as amended in 2024, prohibits employers from refusing to hire employees based on their reproductive decisions. Fair enough. That law includes a religious exemption, but the state attorney general has made the argument that such an exemption does not permit discrimination in hiring “even if such discrimination is consistent with (or mandated by) religious tenets.”
 
The plaintiff, the Pregnancy Care Center of Rockford, is a Christian organization that “affirms, proclaims, and strives to live out Christian beliefs about the dignity of human life and the nature of marriage by sharing the Gospel, promoting Christian beliefs on reproduction, opposing abortion, and providing free resources.” 
 
Similarly, the Diocese of Springfield, also a plaintiff, “affirms, proclaims, and strives to live out the teachings of the Catholic Church, including indispensable teachings about reproduction and marriage.” 
 
Together, these organizations seek to employ people who will advance their religious missions. Yet, the Human Rights Act is interpreted to make it an actionable offense to engage in speech that employees might deem “offensive” or “unwelcome.” It requires these organizations to proactively support employees’ reproductive decisions, even if they involve terminating a pregnancy. It further requires employers to relay these requirements in employee handbooks and workplace posters.
 
Obviously, such requirements are oppressive in their application to religious organizations. As ADF explains in their complaint, the act violates the plaintiffs “freedom of expressive association by forcing them to form associations and assemblies with employees whose reproductive decisions undermine their mission and message ...” It burdens their right to free exercise of religion by effectively “prohibiting faith-based speech and conduct related to reproduction.” And it violates their right to free speech “because it compels them to speak a message contrary to their beliefs not only to their current employees but also to prospective employees and the public in general.”
 
If this offends you, imagine if the law forced Planned Parenthood to hire people who told every person who walked in about the evils of abortion.
 
This Illinois law’s wide array of exemptions includes landlords, financial institutions, private clubs, and more. Yet, the government has made clear that it will not afford these plaintiffs a religious exemption based on their assessment of whether their hiring preferences reflect “bona fide occupational qualification[s].”
 
In Fulton v. City of Philadelphia, the U.S. Supreme Court held that a law burdening religion triggers strict scrutiny if it allows for discretionary exemptions. It’s hard to see how Illinois’ Human Rights Act, as applied, would survive such an analysis.
 
We’ll be keeping a close eye on this one.

​As Deseret News’ Kelsey Dallas reports, Utah’s year-old Religious Freedom Restoration Act is facing its first serious test. A new, purportedly faith-based group, Singularism, uses psilocybin-infused tea to guide practitioners on altered-state voyages. The records of those journeys are then enshrined as canon, effectively serving as scripture for the group.

Taking a rather dim view of this approach to enlightenment, Provo officials launched a raid and seized the group’s mushrooms – and, for some reason, their scriptures. Singularism, they argue, is in it for the money, and distributing illegal drugs is, well, illegal, under the state’s Controlled Substances Act. The regulation of food and drugs is, for better and for worse, a recognized governmental authority. Later, and in a move that they have perhaps already come to regret, officials moved the case to the federal bench. District Court Judge Jill Parrish granted the defendants a temporary injunction, ordering the return of their scriptures. Judge Parrish declared:

“[I]t is ironic then that not long after enacting its RFRA to provide special protections for religious exercise, that the State of Utah should so vigorously deploy its resources, particularly the coercive power of its criminal-justice system, to harass and shut down a new religion it finds offensive practically without any evidence that the religion’s practices have imposed any harms on its own practitioners or anyone else.”

It is important to remember, however, that is a temporary injunction. It remains to be seen how the competing interests of law enforcement and religious freedom will play out in this case.

At the federal level, the case evokes the landmark Religious Freedom Restoration Act (RFRA) of 1993, which in the years since has become the bedrock of modern religious liberty. To date, 29 states have agreed with the federal government by creating their own equivalent statutes. Utah is the latest.

Faith is faith, argues Singularism founder Bridger Jensen. Judge Parrish seems to agree, ruling that the law must protect “unfamiliar religions equally with familiar ones, both in design and in practice.” Entheogens, or drugs that are used to induce transformational – quite readily spiritual – experiences are nothing new, and now more than ever psilocybin is gaining traction as a serious vehicle for healing, especially for victims of PTSD.

Bridger Jensen for his part appears to be no fly-by-night guru, con artist, or drug dealer. A product of Provo, Jensen formerly worked as a mental health therapist. He also took the decidedly non-dodgy approach of locating Singularism in an office park adjacent to Utah Valley Hospital, then invited public officials to tour the facility (none did).

“A drug-distribution enterprise that’s cloaked in religion,” is how Harvard professor Josh McDaniel summarizes Provo’s perspective on the case. But McDaniel and others point out that the power of the federal RFRA since its passage has been the protection of exactly these kinds of obscure religious practices, especially seemingly exotic ones that cut against the grain of traditional mores.

Knowing this, the framers of the Constitution made the free exercise of religious practice central to our identity as Americans by enshrining it as “first among equals” of the five liberties guaranteed by the First Amendment. Nothing precedes it in the entire Bill of Rights.
​
Are some drugs illegal for a reason? Yes. Is Singularism strange? You bet. Is it for everybody? Most certainly not. Does it have a right to exist and even flourish in a free society? We shall see.

​On this rock, you may build your church – so long as it is zoned properly.
 
The U.S. Department of Justice recently weighed in on a controversy between the City of Santa Ana, California, and Anchor Stone Christian Church. The Justice Department alleges the city violated the church’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied the church’s zoning application to use space in the city’s professional district as a house of worship.
 
The Chinese-American church Anchor Stone purchased a property in 2022 in Santa Ana, intending to create a new, 99-seat house of worship. But because the district is zoned for professional uses, the church was required to obtain a conditional use permit (CUP). The city planning commission denied Anchor Stone’s request, despite the fact that, in the words of the Justice Department, “comparable secular assemblies like museums, science centers, and art galleries, are allowed to operate there by right without a discretionary permit.” There is even another church, operating under an approved CUP, right across the street in the same zoning district.
 
A subsequent appeal to the city council also failed.
 
Why the City of Santa Ana denied Anchor Stone’s application is less important here than the overall zoning scheme itself. That scheme places an enhanced burden on houses of worship relative to similar assemblies.
 
This flies in the face of RLUIPA, a federal law that prohibits local governments from "impos[ing] or implement[ing] a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Yet, that seems to be exactly what Santa Ana’s land use regime entails.
 
According to the statement of interest filed by the Justice Department, a prima facie RLUIPA claim must show “that the challenged regulation makes an express distinction between religious and nonreligious assemblies, regardless of whether those assemblies are similarly situated.” The burden then shifts to the local government to show why such unequal treatment is justified.
 
The Santa Ana zoning plan specifically allows nonreligious assemblies like “art galleries" and "museums and science centers,” which are – along with churches – defined as “assembly uses” under the California Building Code.
 
Anyone who’s dealt with zoning laws – particularly in heavily populated areas like Orange County – will understand how difficult and onerous they can be. But there’s a difference between having to jump through hoops and facing seemingly arbitrary and capricious discrimination on the basis of religion (as opposed to art), which seems to be viewpoint discrimination. Such bureaucratic adjudications can be a slippery slope, and they’re the very reason laws like RLUIPA exist in the first place.
 
We’ll be keeping a close eye on this controversy and its implications for the First Amendment.

​We recently reported on the results of a Becket Fund for Religious Liberty survey, the Religious Freedom Index finding that 75 percent of Americans accept and support the freedom for people to choose (or not choose) a religion – up nearly 20 points since 2020. Now the Pew Research Center’s recently released Religious Landscape Study, raises a few red flags about the future of continued support for the free exercise of religion in America.  

While Pew’s findings are something of a mixed bag for the prospect of religious affiliation, Protect The 1st is concerned with the implications of declining religiosity for the protections of the First Amendment. When fewer people value faith, the less likely it becomes that our country will steadfastly honor expressions of religious beliefs in accordance with the Constitution. In fact, as religious adherents become a minority, the more vital it becomes that we protect them and their activities.

First, here are some top-line findings from Pew, many of which religious people may find somewhat reassuring:

• Following years of decline, the number of Americans identifying as Christian is around 62 percent. The figure constitutes a marked decrease from the first such study concerning the nation’s majority religion. In 2007, 78 percent of Americans viewed themselves as Christian.

 

• At the same time, over the last five years, “the Christian share of the adult population has been relatively stable,” oscillating between 60 percent and 64 percent. The latest figure falls squarely in the middle of that range.

 

• Spiritual beliefs are far more common, with 86 percent of respondents affirming belief in a soul and 83 percent of respondents attesting to a faith in God or in a “universal spirit.”

Now for the red flags – despite indicators suggesting a stabilization in patterns of religious affiliation, Pew’s findings suggest a real possibility of continued declines over the coming years because young people are significantly less likely to be religious than older generations. According to the survey, only 46 percent of respondents in the 18-24 demographic identify as Christian versus 80 percent of adults in the 74+ demographic.

“Generational replacement,” the study notes, could have the effect of upending recent stabilization patterns.  

Pew’s survey surprisingly found that more than one-half of Americans believe religion either does more harm than good, or only does good and harm in equal amounts. Only 44 percent believed it was a clear force for good – no doubt a deep decline in historical terms. A whopping 83 percent of religiously unaffiliated people say that religion does at least as much harm as good. Pew’s study further provides that “[c]ompared with 2014, Americans now express less positive views of churches and other religious organizations.”

These are trends that could inspire infringements on the free exercise of religion. As public perceptions of religious organizations worsen, these perceptions create an unfavorable environment for religious expression of all sorts – even if religious organizations ultimately prevail against legal challenges in court.

For those of us who defend the free exercise of religion – the right to practice any religion or hold no religion at all – it seems clear that we must navigate a complex landscape with growing cultural antipathy towards religious institutions. This makes it more important than ever that we continue to honor our foundational precepts by educating people about the Bill of Rights and opposing those who would use state power to scale those rights back.
​
The Supreme Court of the United States will soon hear Mahmoud v. Taylor, a case that concerns the rights of parents in Montgomery County, Maryland, to opt their children out of teachings about sexuality contrary to their religion. The Court is also still considering whether to take up the case of Apache Stronghold v. United States, which seeks protection for the long-recognized sacred site of the Apaches in Arizona, whose very existence is under threat by a mining project that would obliterate this site.
 
We hope these and other cases will be resolved in favor of the First Amendment. In the meantime, Protect The 1st will keep following the trend lines, while continuing to unwaveringly advocate for the future of free exercise.

​Houston’s Discovery Green Park is an urban jewel, a 12-acre site with playgrounds, skating rinks, a jogging trail, a music venue, yoga classes, and more. It has everything, except respect for the free exercise of religion.
 
This park has seen no lack of other kinds of protests, from pro-choice demonstrations to anti-NRA protests. But when Dr. Faraz Harsini and Daraius Dubash dared to hold an educational series about factory farming, they each acquired a pair of shiny new handcuffs. Their crime? They showed eye-catching but harmless images of industrial farming practices.
 
Dr. Harsini’s work on animal rights emerges from his work as a scientist. Dubash’s advocacy springs from the Hindu school of Advaita Vedanta. For him, ahimsa, or nonviolence against other living things, is a holy teaching. His invitation to tell passersby about animal cruelty was an expression of his deeply held religious beliefs.
 
Is such preaching allowed in a public park?
 
That question allowed Protect The 1st and the Harvard Free Exercise Clinic to embark on a historical quest in an amicus brief in support of Daraius Dubash in his appeal before the U.S. Fifth Circuit Court of Appeals. While the Foundation for Individual Rights and Expression and other groups represent Mr. Dubash and Dr. Harsini before the Fifth Circuit, we thought this was an excellent opportunity to do a deep dive into American history and the question of how religion is protected – or not – in public places.
 
This is an issue that hearkens back to the very beginnings of America.
 
We all know that Puritan settlers fled religious persecution to find freedom on the shores of New England. It wasn’t long, however, before the persecuted became the persecutors. Puritans publicly beat Quakers “like unto a jelly,” cutting off their ears, branding them, and putting them in outdoor stockades. Refugees from the theocracy in Massachusetts carried a heightened appreciation for the rights of others. In Quaker Rhode Island and New Jersey, guarantees of “free exercise” and “liberty of conscience” took root. In 1681, King Charles II famously granted William Penn a charter to found the Province of Pennsylvania as a “holy experiment” in tolerance.
 
Later, the itinerant preachers of the First and Second Great Awakenings – religious revivals that bracketed the Founding – spurred a transformation of American public spaces into places where religious expression flourished. One famous traveling proselytizer, George Whitefield, recognized that disaffected believers “who would not come to a church to hear his message would go to a park.” Whitefield drew a record-breaking crowd of 20,000 to Boston Commons, where he spoke within view of the site where Quaker preachers had earlier been hanged.
 
Then came the Methodists, preachers outside the mainstream who spoke on public land because houses of worship and school buildings were closed against them, leaving them only “the street corner, the public parks, or gardens, the fields, or woods.”
 
As public tolerance grew, so did legal protection for preaching in public. Thomas Jefferson provided the model of the natural right of the free exercise of religion in Virginia, later established for the nation in the First Amendment. The Supreme Court in the 20th century would uphold these rights for the Jehovah’s Witnesses in 14 out of 19 cases.
 
Now this right is being tested again, this time for an American preaching ahisma, aided by a portable television, in Houston. We find once again, that when religious expression is violated, the rights of all Americans are at stake. That is our message to the Fifth Circuit.
 
To learn more about the evolution of American law on the free exercise of religion in public places, from colonial times to today, check out our brief.

​When the government decides which religious practices qualify as truly “religious” and which do not, it is such a clear violation of the Establishment Clause of the First Amendment that it is practically parody. Yet, that’s exactly what happened in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, set to be heard by the U.S. Supreme Court in a few weeks.
 
These charities have reason to be optimistic. The Supreme Court has in recent years cast a skeptical eye on restrictions on the free exercise of religion. And if the early briefs filed against these charities are any indication, the case against them is very weak.
 
The Case
Catholic Charities Bureau is the 100-year-old social ministry arm of the Diocese of Superior, Wisconsin. The organization wishes to be exempted from the state’s unemployment program – allowed for organizations that are “operated primarily for religious purposes” – in order to participate in the separate but similar Wisconsin Bishops’ Church Unemployment Pay Program. The Wisconsin Supreme Court ruled against the group, finding that Catholic Charities’ activities did not constitute “typical religious activities.” It further found that because Catholic Charities’ mission “can be provided by organizations of either religious or secular motivations,” its services are not inherently religious.
 
What’s at Stake
Taken literally, the Wisconsin standard could mean a religious service is not religious if someone else can light a candle or burn incense. This standard puts government in the position of telling religious organizations how to make fine theological distinctions. Unless reversed, the Wisconsin Supreme Court has opened a gaping legal vulnerability for the free exercise of religion.
 
Adjudicating an organization’s degree of religiosity places courts squarely within the realm of “excessive entanglement” prohibited by the First Amendment, while also subjecting religious groups to wrongheaded interpretations of their activities. Catholics, for example, are compelled by scripture to aid the needy.
 
Jumbled Arguments Against the Charities
The Supreme Court will hear arguments on March 31. Ahead of that hearing, several groups have filed amicus briefs in opposition to Catholic Charities’ position.
 
One of those, the Freedom From Religion Foundation, argues that fact-based inquiries into an organization’s activities are commonplace and do not constitute excessive entanglement of the state with religion. Yet, FFRF conveniently elides the reality of what such fact-based inquiries would entail. To quote dissenting justice Rebecca Grassl Bradley of the Wisconsin Supreme Court, such arguments would place courts in the “constitutionally tenuous position of second-guessing the religious significance and character of a nonprofit’s actions.”
 
Many courts, recognizing just how sticky these wickets are, accordingly focus on whether an organization’s activities are motivated by its sincerely held religious beliefs. It’s a holistic test that is far preferable to adjudicating what is “typical” for a religious behavior. “When you give a banquet,” Jesus said, “invite the poor, the crippled, the lame and the blind and you will be blessed.” Providing in-home health care, housing, and childcare services – no less than banquets – often does not include explicit proselytizing. But these acts are still religiously motivated activities.
 
We often align with the American Civil Liberties Union but find ourselves on opposite sides here. The ACLU is concerned about opening a floodgate of implications in applying the religious motive test. ACLU fears that a host of religion-adjacent organizations will also seek to opt out of unemployment taxes, prompting legislatures to crack down on exemptions. This is a reach. Any reasoned investigation of the present case would lead to the conclusion that charity is inherent to the Catholic faith. An analysis of whether a hardware store affiliated with a synagogue meets the exemption criteria would doubtless lead to a different conclusion.
 
A third amicus brief by American Atheists Inc., is a hodgepodge of mischaracterization and speculation. This brief seems more interested in adjudicating the very existence of religious exemptions rather than the test at the heart of this case. They argue that Catholic Charities’ position “violates the Establishment Clause by making a tax exemption contingent solely on a profession of religious belief,” mischaracterizing both Catholic Charities’ practices and the Supreme Court’s opinion in Walz v. Tax Commission of the City of New York, which plainly allowed tax exemptions for religious organizations when offered in the spirit of “benevolent neutrality.”
 
American Atheists goes on to ascribe nefarious and unfounded motives to Catholic Charities, suggesting the group wants states to “treat unemployed workers differently based on whether or not they chose to work for charities that espouse – even nominally – a religious motivation for their efforts.” This turns the law on its head, judging the religious character of an organization by its employees, not its associational doctrine.
 
Again, American Atheists seems focused on undermining the very premise of tax exemptions for religious organizations, which are already recognized as constitutional. The issue at hand is the appropriate test for determining religious character – not whether exemptions should exist in the first place.
 
American Atheists further makes the odd and speculative argument that Catholic Charities’ position would somehow prompt the state to use its taxation power to coerce professions of religious belief. We disagree. States are highly motivated by revenue, and it seems unlikely that they would seek to further expand tax exemptions in order to prop up one religion or another. In that extreme scenario, a governmental party would not survive one day in court. 
 
Most important is a widening lower court split on what constitutes “typical” religious practice. That is the wrong metric. It is clear that for a Catholic, charity is central to the free exercise of religion. If you have any doubts on that score, we refer you to the words of our expert witness quoted above.

In an amicus brief to the Supreme Court on Monday night, Protect The 1st represented 66 Members of Congress that showed the U.S. Supreme Court why it should reverse a Fourth Circuit ruling in Mahmoud v. Taylor that rejected the First Amendment objections of parents whose children, some as young as three, cannot be opted out of exposure to material on moral issues controversial with many parents. In its brief, the Protect The First Foundation showed that it is unconstitutional to deny parents this choice, and that “federal law has consistently protected parental rights in the educational arena.”
 
Background
In 2022, the Montgomery County school board embraced books that promoted pronoun preferences, pride parades, and gender transitioning for young students. One book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather,” and a celebrated activist/sex worker. 
 
When some Muslim and Christian parents sought to opt out their children from these teachings, one board member told them that claiming these books “offend your religious rights or your family values or your core beliefs is just telling your kid, ‘Here’s another reason to hate another person.’” On appeal, the Fourth Circuit held that because there was no evidence of either coercion or a direct penalty on these parents’ religious faith if their children were required to participate in these one-sided portrayals of questions about morality, this case involved no burden on their First Amendment rights.
 
An Absurd Outcome
The Protect The 1st brief demonstrates that there is nothing in federal law or the Court’s precedent that remotely supports the Fourth Circuit’s decision to deny parents the choice to keep their children out of such indoctrinating instruction.

• The Board argued that Title IX of the Educational Amendments of 1972 required it to deny notice or the right to opt out. Protect The 1st told the Supreme Court: “Yet the Board failed to quote or even cite a single provision of Title IX for its claim. Nor could it. The statute’s plain language makes clear that a school’s duty is to not itself discriminate.”

 

• The Fourth Circuit shared the Board’s view that the Supreme Court’s decision in Bostock v. Clayton controlled this expansive interpretation of Title IX. In fact, in Bostock, the majority – which ruled on whether an employer who fires someone for simply being homosexual or transgender – addressed employer discrimination, not educational policy. The majority did “not purport to address bathrooms, locker rooms, [dress codes,] or anything else of the kind.”

 

• In Bostock, the Court went out of its way to display concern that this opinion did not trample on religious liberty: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”

Neither the statute’s text nor Supreme Court precedent support the Board’s claims or the Fourth Circuit’s opinions.
​

• The current opinion stands directly opposed to carefully crafted laws passed by Congress over the past half-century to protect the religious freedom rights of parents. Courts have also regularly applied the Religious Freedom Restoration Act to protect parental rights.

“It seems clear to us that the excuses given by the board and the court, relying on federal law and Supreme Court precedent, border on the frivolous,” said Erik Jaffe, President of Protect The 1st. “Both Congress and the Supreme Court have routinely supported parental choice in matters involving the education of their children. And an opt-out for parents has long been recognized as a non-disruptive remedy that protects the rights of parents.

“We fully expect the Supreme Court to agree.”

​Rabbi Mier Soloveichik has a touching piece in The Wall Street Journal about an Israeli women, Agam Berger, 20, who during her long imprisonment by Hamas refrained from engaging in any activities on Saturday that would violate the Sabbath.
 
Journalists reported: “Thus when ‘Hamas terrorists ordered Agam to cook food … she steadfastly refused.’ Another hostage, Liri Albag, 20, reportedly described how Ms. Berger refrained from eating nonkosher meat throughout her time in captivity, which doubtless involved enormous sacrifice.”
 
Such religious persecution has happened throughout history to people of every faith. This story got us to thinking of the sacrifices of such faithful, from the abolitionists and underground railroad volunteers to the heroes and martyrs of the civil rights movement. These stories make us think of Dietrich Bonhoeffer and Dr. Martin Luther King Jr. writing to the world from their jail cells.
 
We applaud the courage of such people and are amazed by the steadfastness of their conviction. But governments, regimes, and terrorists should not be allowed to exact such costs on people of faith, even if brave ones like Agam rise to the challenge. We cannot tolerate power that forces such people into making these brave choices.
 
In a better world, Dietrich Bonhoffer would have continued to write theology. Rev. King should have enjoyed a long and happy life as a minister tending to his Atlanta congregation.
 
Such stories reinforce our appreciation for the First Amendment’s protection of the free exercise of religion. And they inspire us to work harder with our civil liberties colleagues to ensure that in America, at least, people won’t have to pay a severe price for living out their faith.

​The Supreme Court on Friday agreed to hear St. Isidore of Seville Catholic Virtual School v. Drummond to determine whether it violates the Free Exercise Clause to deny state funds to an online Catholic school solely because of their religious character. This is the latest in a string of cases in which the Court has had to push back on states’ unequal treatment of religious schools. It is also an opportunity to functionally invalidate the unconstitutional Blaine Amendments that litter many state constitutions. Above all, it is a chance for parents to reaffirm their right to choose schools that align with their values.
 
The Oklahoma Supreme Court ordered the state’s Charter School Board to rescind a contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa to establish St. Isidore of Seville Catholic Virtual School. According to the court, the Board’s approval of public funding for a sectarian school violated the Oklahoma Constitution, the Oklahoma Charter Schools Act, and the Establishment Clause. As we wrote at the time, the opinion is “buttoned down, logical, and eminently overturnable,” relying on “that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry.”
 
Blaine Amendments in 37 states prohibit public funding for schools run by religious organizations. They were passed in an era when Catholics faced wanton discrimination in a largely Protestant America. Doubts as to their unconstitutionality were raised by the Supreme Court’s ruling in Espinoza v. Montana (2020), which found that state-based scholarship programs providing public funds for students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. The Court, quite specifically, took the Blaine Amendments to the woodshed, writing that they were “born of bigotry.”  
 
Congress should end the revolving door of state defiance of clear judicial precedent by overriding the Blaine Amendments and reiterating that Espinoza and the similarly reasoned Carson v. Makin meant what they said and remain the law. The Court has plenty of reasons to overturn the Oklahoma ruling. Oklahoma Justice Dana Kuehn’s dissenting opinion spells them out:
 
“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.”
 
Further, Judge Kuehn wrote:
 
“Contracting with a private entity that has religious affiliations, by itself, does not establish a State religion, nor does it favor one religion over another. Allowing St. Isidore to operate a charter school does not give it any preference over any other qualified entity, sectarian or otherwise.”
 
The Constitution’s prohibition of an established religion does not diminish the free exercise of religion. Religious schools must be free to apply for state funding to the extent that they meet mandated standards in English, math, history, science, and other subjects. Such allowances, in turn, will give more parents the opportunity to choose schools that reflect their values, the ultimate expression of the First Amendment.
 
We agree with Gov. Kevin Stitt, who said:
 
“This stands to be one of the most significant religious and education freedom decisions in our lifetime. I believe our nation’s highest court will agree that denying St. Isidore’s charter based solely on its religious affiliation is flat-out unconstitutional.”
 
Stay tuned.

​The city of Bryan, Ohio, last week successfully prosecuted a local pastor for keeping the doors of his church open for the homeless overnight during minus-5-degree weather.
 
The guilty party is Pastor Chris Avell of Dad’s Place, a church that offers free haircuts and a “warming center” in cold weather for homeless people. The city conducted seven surprise fire-code inspections of the church, before leveling 18 criminal charges against the pastor in a local court.
 
With help from the First Liberty Institute, Pastor Avell is appealing to the federal Sixth Circuit, which has issued a stay. In a filing, Avell describes rough treatment by the city. He learned about the charges against him from a local newspaper. Bryan officials chose to serve the criminal complaints against the pastor in front of his congregation on a Sunday morning just before services began.
 
The city’s case is not without substantive claims. The city charges Dad’s Place with violating municipal fire and safety codes, including blocked exits, electrical outlets that need to be reinstalled, and a lack of a fire suppression system. Defenders of Dad’s Place say that the church in the town center has been targeted and harassed to enforce a widespread not-in-my-back-yard attitude toward the homeless.
 
“Only government officials could say with a straight face that people are safer in the sub-zero temperatures on the street than inside the warmth of a church,” said Ryan Gardner, counsel for First Liberty, which represents Pastor Avell.
 
On the surface, this case appears to be a dispute about enforcing zoning ordinances. But Dad’s Place raises serious issues with the guarantee of free religious exercise under the First Amendment as well as the Ohio Constitution. It also implicates the guarantees of the Religious Land Use and Institutional Persons Act, which among other things mandates strict scrutiny when houses of worship are targeted by zoning laws.
 
Pastor Avell can present a strong case that Dad’s Place is a victim of targeted enforcement of the zoning code and pretextual enforcement of the fire code. But at the core of his case is a lack of appreciation by local and state governments that the charitable function of a church is integral to its practice of religion. In a similar vein, the U.S. Supreme Court is set to decide Catholic Charities v. Wisconsin, in which state bureaucrats decided that charitable activities a diocese has provided for a century to the disabled, the elderly and the poor are not part of the church’s exercise of religion.
 
In Christianity – as in all other major world religions – caring for the outcast, the poor, and the helpless is not a hobby, or a side venture. It is the very practice of – the soul, if you will – of religion. The Sixth Circuit should recognize this. And if it doesn’t, perhaps the Supreme Court will.

​King Henry II, after having his royal prerogatives blocked time and again by the Archbishop of Canterbury Thomas à Becket, blurted out “will no one rid me of this troublesome priest?”
 
Some Republicans felt the same when President Trump and his family attended an Episcopal service the other day. The president was subjected to a sermon by Bishop Mariann Edgar Budde of Washington, D.C., who appealed to the new president to “have mercy on the people who are scared now,” including immigrants, refugees, and sexual minorities.
 
President Trump himself took it all in stride (and with a comeback tweet or two). This was all in keeping for a president who had just decisively defended free speech in his inaugural address and then bolstered it hours later with an executive order. But at least one prominent critic of Bishop Budde had a different response. He asked that the bishop be put on the “deportation list.”
 
It would be right and fair to come back at the bishop with some substantive riposte, as the president did. But the Right Rev. Budde, as an American citizen born in New Jersey, cannot – and must not – ever be considered for deportation because of how she chooses to exercise her First Amendment rights. For an American citizen, a threat of deportation is never a good joke.
 
Critics should keep in mind that overreaction tends to valorize rather than intimidate. After King Henry’s call, several followers overreacted to the king’s frustration by drawing their swords and killing Archbishop Becket at the altar.
 
This, of course, led to Becket becoming a saint.