​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.

​Gabriel Olivier is an evangelical Christian who regularly preaches to passersby in a public park outside a public amphitheater in the city of Brandon, Mississippi. The city recognized Olivier’s right to speak, but told him he had to stay in a “protest area” far from people heading to the event center.
 
When Olivier approached pedestrians, he was confronted by police. When he explained to the local chief of police that he had a constitutional right to speak, he was arrested for his trouble and charged under a city ordinance. The U.S. Supreme Court will soon hear arguments on Olivier’s claim that the city ordinance violated his First and Fourteenth Amendment rights.
 
At its heart, this is classic forum law: Sidewalks, parks, and other public spaces have long been recognized as traditional fora for speech. But a procedural hurdle is at play as well: the question of whether Olivier should even get his day in court.
 
In Heck v. Humphrey, the Supreme Court held that when a plaintiff seeks restitution from state and local governments for violations of her constitutional rights, she must show that any related conviction or sentence related to that violation has been reversed, expunged, or declared invalid before suing. The Fifth Circuit held that Heck prevented Olivier from proceeding because he was convicted, pled nolo contendere, paid a fine, and chose to file a civil rights lawsuit rather than appeal his conviction.
 
Now the Supreme Court is set to determine if Olivier can bypass Heck and proceed to challenge the ordinance, or whether the procedural bar will remain, denying the merits question and leaving the city free to regulate speech.
 
If Olivier can get past this hurdle, he will have a strong case. The D.C. Circuit Court of Appeals, for example, has repeatedly upheld the rights of citizens to speak freely on the grounds of the U.S. Capitol, rejecting arguments that this is a “special type of enclave” immune from the guarantees of the First Amendment. Surely the prime section of a public park near an event center in Brandon, Mississippi, is subject to the same principle. Local governments often manage sidewalks, parks, plazas, and other public spaces that communities expect to remain open as fora for free speech. Consigning speakers away from intended listeners is not a reasonable restriction.
 
This case gives the High Court a chance to clarify the rules that allow citizens to challenge local restrictions on their constitutional rights. And, for a Court that has not been shy about protecting speech, it is a chance to recognize that in public parks, the roots of the First Amendment run deep.

​When the U.S. Supreme Court recently heard Chiles v. Salazar, the justices were confronted with a deceptively simple question: Can a state dictate what licensed therapists may or may not say to their adolescent clients about sexuality and gender? At stake is the speech of every professional – including therapists who affirm same-sex attraction, as well as those who are willing to question it.

Also at stake is nothing less than the First Amendment’s bedrock promise that the government cannot punish expression based on viewpoint.
​
A Law That Bans One Side of a Conversation

Colorado’s law forbids therapists from engaging in any counseling with minors that aims to “change sexual orientation or gender identity,” including talk that seeks to reduce unwanted same-sex attraction or align gender identity with biological sex. Importantly, this law applies even to purely voluntary, conversational therapy – no drugs, no “aversion” techniques, just words between a willing patient and a counselor.

For therapist Kaley Chiles, that law means she is forced to remain quiet with minors who come to her seeking help to live in accordance with their religious or personal convictions about sexuality. She argues that this is unconstitutional censorship on voluntary speech about deeply contested moral, religious, and scientific questions.

Her lawyer, James Campbell, told the justices that if Colorado’s position stands, the state could “transform counselors into mouthpieces for the government.”

Campbell invoked the Court’s 2018 decision in NIFLA v. Becerra, which struck down a California law forcing pro-life pregnancy centers to advertise abortion services. There, the Court held that professional speech still receives First Amendment protection and warned against “censoring private conversations between professionals and their clients.”

The First Amendment in the Therapy Room

The Tenth Circuit had rejected Chiles’s claim, applying the lowest standard of review – rational basis – to Colorado’s speech restriction. That ruling, Campbell told the Court, “gutted” NIFLA. Under such lenient scrutiny, a state could silence any disfavored viewpoint in a counseling session, from advice about divorce to moral discussions about abortion or family life.

Several justices appeared troubled by that possibility. Justice Elena Kagan noted that if one therapist can tell a client “I’ll help you accept that you’re gay,” while another cannot say “I’ll help you change that” – “that seems like viewpoint discrimination.”

Justice Neil Gorsuch pressed Colorado’s lawyer further. He asked that if the state can ban therapy that seeks to align a person’s identity with their biological sex, could a different state ban therapy that affirms a patient’s gay orientation – and justify it under the same rational basis standard?

Colorado’s attorney, Shannon Stevenson, said yes.

That answer underscores the double danger of viewpoint discrimination. What Colorado does today in the name of progress, another state could do tomorrow in the name of tradition.

The federal government, appearing as a friend of the Court on Chiles’s side, made that exact point. Hashim Mooppan reminded the Court that in the 1970s, “it was the standard of care that being gay was a mental illness.” Under Colorado’s theory, a state back then could have outlawed counseling that affirmed a gay identity.

That hypothetical isn’t ancient history; it’s the mirror image of the current case. What one era’s experts deem dangerous, another calls affirming. The Constitution doesn’t trust the government to referee such debates.

Professional Speech Is Still Speech

Colorado’s defense, echoed by Justice Ketanji Brown Jackson, was that Chiles is acting as a medical professional, not a private speaker. Justice Jackson asked why a therapist’s conversation about sexuality should be treated differently from a doctor prescribing medication. Campbell answered: “Because this involves a conversation.”

That distinction matters. The First Amendment protects the exchange of ideas, even those occurring in professional settings. In NIFLA, the Court rejected the notion of a “professional speech doctrine” that would allow the state to regulate speech more freely simply because the speaker is licensed. As Justice Thomas wrote for the majority, “The First Amendment does not permit the government to impose content-based restrictions on speech without satisfying strict scrutiny.”

If Chiles were decided otherwise, it would signal that professional speech – including a therapist’s, a professor’s, or even a lawyer’s – enjoys only conditional protection, subject to the prevailing political winds.

The Slippery Slope of State-Approved Speech

Colorado insists its law protects minors from harm but it has not cited a single study showing harm from voluntary talk therapy of the kind Chiles offers. Nor did the state explore less restrictive alternatives, such as informed-consent requirements or professional guidelines. Instead, it chose to ban speech outright – a blunt instrument aimed not at harm, but at a disfavored idea.

And that is the essence of viewpoint discrimination – when the government’s concern is not the method of communication, but the message. The genius of the First Amendment is its neutrality. It protects speech we find uncomfortable precisely because we cannot predict which ideas will one day fall out of favor.

A Warning from the Court
​
When Justice Kagan and Justice Gorsuch – often ideological opposites – both voiced concern about viewpoint discrimination, it suggests that Chiles’s case may transcend culture-war lines. The Court’s challenge is not to decide who is right about gender or sexuality, but to reaffirm that the government cannot dictate the answer.

- Samuel Johnson

​Alex Jones, founder of InfoWars, is asking the U.S. Supreme Court to review a defamation judgment ordering him to pay nearly $1.5 billion to an FBI agent and parents of children murdered in the Sandy Hook school massacre that took 26 lives.

Jones notoriously claimed the 2012 tragedy in Connecticut was a deep-state “hoax” and that the grieving parents of 20 slain children were “crisis actors” hired to promote gun control. Once on the stand, he admitted that the massacre was “100 percent” real, but now argues that his appeal should succeed on First Amendment grounds, with references to a landmark First Amendment case.

Does Jones Have a Leg to Stand On?

In New York Times v. Sullivan (1964), the Court raised the bar for public figures to win libel suits, requiring proof of “actual malice” – reckless disregard for the truth or knowingly making false statements. The decision gave critics of the powerful “breathing space” to report without undue fear of crushing lawsuits.

Jones’ lawyers invoke Sullivan, but their argument rests on the claim that a Connecticut court’s default judgment makes the precedent irrelevant. That claim is undercut by Jones’ refusal to participate in his trial, including ignoring discovery orders. Worse for Jones, the odds against him are steep. The Supreme Court hears fewer than 100 cases of 6,000 to 7,000 petitions it receives each year.

Viewed through the lens of Sullivan, Jones’ defamation was about as serious as it gets. As a result of Jones’ attacks, Sandy Hook survivors testified that they suffered from threats of death and rape, along with the added trauma of being branded impostors before an audience of millions.

How Might the Court Consider this Petition?
​
A Supreme Court clerk weighing this petition would likely check every Sullivan box:
​

• Reckless disregard for truth? Check.
• Knowingly making false statements? Check.
• The Sullivan standard for “actual malice”? Check and check.

The First Amendment, bolstered by Sullivan, likely still leaves Jones without sufficient “breathing space” to protect his outrageous claims. “Speech is free,” a plaintiff’s lawyer in the case once told a jury, “but lies you have to pay for.”

We have sometimes criticized how courts have subsequently gone beyond Sullivan to the point of making it almost impossible for public figures to win a defamation case. The Jones case, however, may mark the bottom line. His snarling visage could then become the enduring image of what “actual malice” truly means.
​
For a deeper dive on Sullivan’s history and legacy, check out this piece by Columbia’s Knight First Amendment Institute.

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?

​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.”

​When the U.S. Supreme Court declined to hear the case of Kari MacRae, a Massachusetts teacher fired over social media posts made before she was hired, Justice Clarence Thomas took to his pen. He issued a scorching rebuke of lower courts, particularly the First Circuit, calling them out for botching the application the First Amendment in public employee speech cases.
 
“This case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech,” Thomas wrote, warning that if left unchecked, government employers will increasingly restrict “disfavored or unpopular speech in the name of preventing disruption.”
 
Thomas didn’t dissent from the Court’s decision to deny certiorari, recognizing that this case may not have been the best vehicle to revisit the legal test known as the Pickering-Garcetti framework. Under that standard, public employees have First Amendment protection when speaking as private citizens on matters of public concern, unless their speech unduly disrupts the government’s ability to function as an employer. But as Thomas emphasized, that balance cannot be twisted to give the government a free pass to punish speech it merely dislikes, especially when expressed outside the workplace and before employment even begins.
 
“It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption,” Thomas wrote. He found the First Circuit’s reasoning “deeply flawed” for dismissing MacRae’s speech because of its supposedly “mocking, derogatory, and disparaging manner.”
 
Quoting Snyder v. Phelps, Thomas reminded his colleagues that “speech on matters of public concern is at the heart of the First Amendment’s protection.” If the Supreme Court could protect vile funeral protests by the Westboro Baptist Church, “I do not see how the First Circuit could discount the First Amendment value of MacRae’s comparatively mild posts.”
 
MacRae’s memes, which included critiques of gender ideology and calls for colorblind policies, may have been controversial to some. They also reflected positions shared by a substantial portion of the public. For the First Circuit to reduce the weight of her First Amendment interest based on tone, or to treat pre-employment political speech as grounds for termination, sets a dangerous precedent.
 
The Court may have passed on this case, but Thomas’s warning is clear: Without a course correction, the First Amendment rights of millions of government employees and future applicants will hang by a thread.

​They knew it when they saw it. In a 6-3 opinion, the U.S. Supreme Court ruled in Free Speech Coalition v. Paxton that a Texas “age-gate” law restricting porn sites to adults is constitutional. Civil libertarians are sure to hotly debate whether there are principles here that will be applicable to any other First Amendment cases outside of the regulation of pornography.
 
The Court held that the Texas law, which requires adults to upload documentary proof of their age online before visiting a porn site, has only an “incidental effect on protected speech.” The Court found:
 
“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age.”
 
Justice Elena Kagan, dissenting, wrote:
 
“Speech that is obscene for minors is often not so for adults. For them, the category of obscene – and therefore unprotected speech – is narrower … So adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life – and also of law – that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too – even though, for adults, it is constitutionally protected expression.”
 
State legislators in future debates are sure to analyze and discuss the Court’s decision. Many will see a precedent that could require similar ID checks to visit websites that are not pornographic, but also inappropriate for children – such as downloading Lady Chatterley’s Lover. Are such adults-only age-gates truly “incidental,” or are they so cumbersome as to amount to a serious restriction on speech?
 
Others will say that Court’s ruling is actually a modest recognition of the right of the states to reasonably protect children from the internet’s torrent of full-motion, high resolution pornography.
 
Sex. Porn. Age. Free Speech. This one has all the vibrant and racy elements for a debate that itself promises to exercise the First Amendment to the fullest.

​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.

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 U.S. Supreme Court denied certiorari in Apache Stronghold v. United States, about which we’ve written at length. But the Court also denied review in another important First Amendment case on the same day: L.M. v. Town of Middleborough, which concerns the limits of student self-expression in schools.
 
The case involves a student at Nichols Middle School in Middleborough, Massachusetts, who was prevented by faculty from attending class when he wore a T-shirt that read, “There Are Only Two Genders.” According to the facts of the case, Nichols Middle School actively encouraged student expression when it came to endorsing the view that there are many genders, but would not tolerate the opposing view. 
 
The student, known as L.M., brought suit, alleging First Amendment violations based in part on viewpoint discrimination. The critical precedent for student expression in schools is Tinker v. Des Moines, a Vietnam-era case that firmly established the principle that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
 
Tinker involved students wearing black armbands as a form of silent protest against the Vietnam war. Whatever your beliefs about the gender identity debate, it is similarly an issue of intense discussion throughout the media and larger public. As such, similar legal reasoning – that prohibited student expression must “materially and substantially interfere” with the functioning of the school to warrant censorship – should apply.
 
Using the Tinker test, however, both the federal district court and the First Circuit Court of Appeals denied relief. The lower courts followed the judgment of school administrators that this passive speech could trigger and cause harm to other, vulnerable students, demonstrating the inherent subjectivity of this area of law. Justice Samuel Alito called this standard “vague” and sure to be “permissive” of censorship.
 
Indeed, in an impassioned dissent from the Supreme Court’s certiorari denial, Justice Alito (joined by Justice Clarence Thomas) took heated issue with the lower courts’ findings, particularly as they relate to the First Circuit’s dismissal of LM’s viewpoint discrimination claims. He wrote:
 
“The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle ... To the contrary, viewpoint neutrality has long been seen as going to ‘the very heart of the First Amendment.’ The First Circuit was wrong to expel this bedrock constitutional safeguard from our schools.
 
“The First Circuit also watered down the test adopted in Tinker for determining whether a school’s restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a ‘demanding standard.’ We held that a school can restrict speech when it has ‘evidence’ that such restrictions are ‘necessary’ to ‘avoid material and substantial interference with schoolwork or discipline.’ Thus, absent a ‘specific showing’ of such a disruption – like ‘threats or acts of violence on school premises’ – this justification for suppressing student speech does not apply. Under this standard, NMS (Nichols Middle School) had no right to censor L.M.” [Citations omitted.]
 
We agree with Justice Alito that the Court should have granted review in this case – if for no other reason than to clarify the Tinker ruling, which has been subject to wildly divergent interpretations over the years.
 
The First Circuit’s rewriting of the Tinker test leaves a lot up to speculative faculty opinions. As Justice Alito writes, it “demands that a federal court abdicate its responsibility to safeguard students’ First Amendment rights and instead defer to school officials’ assessment of the meaning and effect of speech.”
 
In an increasingly censorious world, that seems an insufficient safeguard.

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.

​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.

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.

​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.

​The mindfulness movement encourages people to focus on the now, to be in the moment as they work, but also as they walk, trim the shrubs, drive the kids to school, and boil the spaghetti.
 
How about mindfulness at the moment of one’s execution?
 
In Buddhism, the practice of Maranasati is to use mindful breathing to reach the deepest level of contemplation. Many Buddhists engage in meditation and other spiritual practices as they actually are dying.
 
One person who sought to do this was the recently departed Jessie Hoffman, 46, a convert to Buddhism who wished to engage in meditative breathing as he died. He was prevented from doing so, however, because of the manner of his death, which happened Tuesday night. Hoffman had been sentenced to be lawfully executed for first-degree murder and became the first person in Louisiana to have a mask strapped on his face to be asphyxiated by breathing nitrogen gas.
 
Hoffman faced the death penalty because he had, at age 18, kidnapped 28-year-old Molly Elliott, raped her, shot her in the head, and left her naked body by a river.
 
After 27 years of appeals, the U.S. Fifth Circuit Court of Appeals rejected a stay of Hoffman’s execution, dismissing the claim that death by nitrogen amounted to a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”
 
Four Supreme Court Justices, including Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have granted Hoffman’s application for a stay. Justice Neil Gorsuch wrote a short dissent explaining his reasoning.
 
Justice Gorsuch noted that no one “has questioned the sincerity of Mr. Hoffman’s religious beliefs.” This is relevant to the application of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which forbids the government from violating a prisoner’s sincerely held religious beliefs. Justice Gorsuch took a lower court to task for issuing its own “find[ing] about the kind of breathing that Mr. Hoffman’s faith requires.”
 
Given the failure of the lower court to fully vet Hoffman’s claim – and the “Fifth Circuit’s unexplained omission” in doing so – Justice Gorsuch announced that he would have granted the stay and vacated the judgment. He would also have remanded the case for the Fifth Circuit to address Hoffman’s RLUIPA claim.
 
This is reminiscent of another case, Ramirez v. Collier (2020), in which the Court ruled in favor of John Henry Ramirez, a man on death row in Texas who petitioned to have his minister lay a hand on him as he received a lethal injection. The Court sided with Ramirez, 8-1. The prisoner’s minister was permitted, in fact, to place his right hand on Ramirez as he died.
 
On its face, the idea of being able to engage in meditative breathing while ceasing to breathe altogether sounds a bit absurd. Prosecutors are always alert to prisoners who manufacture religious objections to extend their lives. Hoffman had requested that he be executed by firing squad, which would, to say the least, have also interfered with his meditative breathing.
 
But Justice Gorsuch reminds us that the free practice of religion, at the most solemn moment of a person’s life, should command sufficient respect to fully explore an RLUIPA claim. At the very least, Hoffman’s claim deserved more consideration, even if it was ultimately rejected.

Ramirez’s attorney, Seth Kretzer, said it best: “The First Amendment applies in the most glorified halls of power and also in the hell of the execution chamber.”

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.”

​Protect The 1st filed a brief urging the U.S. Supreme Court to hear a case in which a public school teacher was terminated over a search of her old retweets of social media memes. While a seemingly small case, it could have outsized influence over the speech rights of millions of Americans.
 
The case involves a public schoolteacher, Kari MacRae, who was hired by the Hanover High School in 2021. Months before, MacRae had been a candidate for the local school board in this Massachusetts town. At that time, she had shared and liked on her TikTok account several memes and videos poking fun at “woke” ideology. (You can decide for yourself what you think of MacRae’s reposted memes, highlighted in this Boston.com article.)
 
Hanover High learned of the unearthing of MacRae’s old TikTok reposts from local media. It then placed MacRae on administrative leave to conduct a 14-day investigation. The school then fired her.
 
MacRae sued for wrongful termination and the violation of her rights only to lose in federal district court and then on appeal before the U.S. First Circuit. In our view, the First Circuit misapplied a framework that if not reviewed and overturned by the Supreme Court, will leave the speech rights of government employees – 15 percent of the U.S. workforce – at risk.
 
The Supreme Court has already held in Garcetti v. Ceballos (2006) that when government “employees are speaking as citizens about matters of public concern,” they “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The First Circuit instead embraced a “balancing” standard between personal rights and public responsibilities.
 
Protect The 1st responds: “Framed in Garcetti’s terms, this case asks whether government employers, to ‘operate efficiently and effectively,’ must have carte blanche to punish their employees not for what they are now saying, but for anything they have ever said – even before they were hired. If the First Amendment means anything in this context, the answer to that question must be no. An alternative holding would silence prospective government employees lest their speech, whenever it was made, could later be cited as a reason to destroy their careers.”
 
We warn that if the First Circuit’s standard were adopted broadly, “fully protected speech could lose its protection with time – an untenable proposition.” Protect the 1st also told the Court:
 
“… that in a world where many people spend their lives online, a rule that anything they say there can later be the impetus for their termination from government employment would impose an unconscionable burden on the right to speak on issues of public concern: It would chill pre-employment speech at the front end and give a modified heckler’s veto to bad actors at the back end.”
 
We urge the Supreme Court, which has taken up few First Amendment cases so far in this term, to grant the petition and reverse the First Circuit’s erroneous ruling.

​This term, the Supreme Court declined to hear at least 16 cases that involved significant First Amendment issues, leaving a number of critical questions unresolved. Among those left on the table were cases touching on free speech, freedom of association, and the extent of religious freedom under the First Amendment. With these denials, the Court missed an opportunity to clarify or expand upon key First Amendment protections in an era where such rights are up against new and unprecedented challenges.
 
Among the First Amendment cases the Court declined, several stand out as especially significant in terms of the broader impact on free expression and association. If a suitable vehicle for the issues in these cases were to come up in future litigation, we highly encourage the Supreme Court to take them.
 
No on E v. Chiu - Donor Disclosure and Free Speech
 
No on E v. Chiu centered on a challenge to a San Francisco law that required groups running election-related advertisements to disclose their donors, raising significant concerns about the balance between transparency in elections and the right to anonymous political speech. The plaintiffs argued that mandatory disclosure infringes on both free speech and association rights, raising fears of retaliation or harassment for individuals supporting controversial political causes. This is especially relevant in today’s hyper-connected digital world, where donor information is easily accessible, making contributors vulnerable to backlash.
 
As seen in Americans for Prosperity v. Bonta, the Supreme Court has already recognized that revealing donors’ identities can expose them to threats and harassment, deterring political participation. While transparency is often cited as a virtue in campaign finance, the risks to individuals' safety and privacy are real and growing. In response to these threats, 20 states have passed the Personal Privacy Protection Act (PPPA) to shield donors from exposure, acknowledging that the right to support causes anonymously is vital for a healthy democracy. The Court’s refusal to hear No on E allows these concerns to persist and leaves donor privacy vulnerable in states without such protections.
 
National Press Photographers Association v. Higgins - Drones and Press Freedom
 
In National Press Photographers Association v. Higgins, the Court declined to hear a case that highlights the growing tension between new technologies and First Amendment rights. The plaintiffs challenged a Texas law that bans drone surveillance without exceptions for journalists, arguing that the law restricts their ability to gather news. Drone technology is a new frontier for free press rights, where the tools used by journalists to report on important public issues — like protests or natural disasters — are being regulated or outright banned. Drone technology is rapidly becoming essential for covering stories from angles that are otherwise inaccessible, but without clear protections for its use, journalists are left vulnerable to restrictions that limit their news gathering capabilities. As technology continues to evolve, the Court's refusal to address this issue and others like it could have serious implications for how the press operates in the digital age.
 
Hile v. Michigan - Blaine Amendments and Religious Discrimination
 
Hile v. Michigan involved a challenge to Michigan’s Blaine Amendment, which prohibits public funding from supporting religious schools. The plaintiffs argued that this restriction discriminates against religious schools and families, violating both Equal Protection and Free Exercise rights under the First Amendment. This case mirrors other recent challenges to state-level Blaine Amendments, including South Carolina’s, which prohibit the use of public funds for religious schools.
 
Blaine Amendments, like Michigan’s, have their origins in 19th-century anti-Catholic bigotry and today block families from choosing educational options that align with their values. In South Carolina, for example, the state’s Supreme Court recently struck down a school voucher program, citing its Blaine Amendment, leaving thousands of students without financial support to attend religious schools. These rulings disproportionately harm low-income families who rely on school choice programs for access to quality education. As our amicus brief in that case argued, school choice promotes First Amendment-protected religious and speech rights by allowing families to select schools that reflect their beliefs and values. By refusing to hear Hile, the Court missed an opportunity to address the discriminatory legacy of Blaine Amendments and expand educational freedom for all families.
 
Saline Parents v. Garland - Chilling Speech in School Board Protests
 
Saline Parents v. Garland raised concerns about government overreach in monitoring political speech. The case challenged Attorney General Garland’s directive to the FBI to investigate threats at school board meetings, which parents argued unfairly targeted their free speech rights. The plaintiffs contended that the policy cast them as potential threats simply for speaking out against school policies, thereby chilling their ability to participate in public debates over education.
 
Garland’s memo suggests that parental dissent might be treated as a threat. While Garland assured Congress that the DOJ’s efforts were aimed at preventing violence, the mere initiation of an FBI investigation has a chilling effect on speech. Even the process of being investigated can suppress dissent, as individuals are subjected to the anxiety of scrutiny, potential legal costs, and damage to their reputations. Though it’s unlikely that parents would be prosecuted merely for voicing objections, the threat of federal surveillance is more than enough to stifle open debate on school policies. By refusing to hear Saline Parents, the Supreme Court left this chilling dynamic unaddressed.
 
Union and Free Speech Cases
 
The Court also passed on several cases involving unions and the First Amendment, where state employees challenged mandatory union dues deductions made after they had resigned their membership. These cases often focused on limited opt-out windows and union agreements with state agencies that enforced dues collection beyond an employee’s resignation. In previous cases, we have argued that this practice violates employees' First Amendment rights by forcing them to support union activities they may disagree with. By refusing to hear these cases, the Court left in place lower court rulings that continue to allow unions to infringe on individual speech rights through these financial extractions.
 
Why These Cases Matter
 
By denying these First Amendment cases, the Supreme Court missed key opportunities to clarify the scope of free speech and association rights in the modern age. Whether it's the rise of new technologies like drones, the balance between transparency and privacy in political advocacy, the exclusion of religious schools from public programs based on antiquated laws, or government surveillance of political speech at local levels, the Court’s passivity this term leaves many critical questions unanswered. We urge the Supreme Court to consider taking up these issues if, and when, they return in future litigation.