​Sometimes an opposing party makes your argument for you.

In Suncor Energy v. Boulder County, the City and County of Boulder are seeking damages from Suncor and ExxonMobil for the alleged local effects of global climate change. At the certiorari stage, Boulder presented the lawsuit principally as a conventional application of state tort law, invoking nuisance, unjust enrichment, trespass, and civil conspiracy.

Protect The 1st’s amicus brief urged the U.S. Supreme Court to look past those labels. We explained that Boulder’s theory of liability turns substantially on speech – specifically, claims that the companies misled the public about fossil fuels, emissions, and climate change – despite the complexities of this issue.

Boulder has now filed its merits brief. Right at the outset, it confirms what we said all along.

The brief characterizes the lawsuit as one seeking damages “for deceptive marketing and sales (rather than emissions).” It later alleges that the companies, “through their advertising,” misled the public about climate change and the role of fossil fuels. Its table of contents even devotes a section to arguing that “the deception claims are not preempted.”

To be precise, Boulder’s statutory consumer-protection claims were dismissed without prejudice and are not before the Supreme Court. But its surviving tort theories still rely heavily on the same allegation: The companies caused harm by communicating a deceptive message. That is inescapably about speech.

A similar lawsuit brought by Honolulu, which failed before the Court, shows how far such theories can reach. Plaintiffs there sought to depose hundreds of third-party witnesses, including alleged “climate-denial leaders and authors of climate disinformation,” public-relations strategists, scientists and academics, media organizations, think tanks, and interest groups. Such sweeping discovery targets not just commercial advertising, but public commentary and expressive associations engaged in scientific and political debate.

Misleading commercial speech can, of course, be regulated. But government plaintiffs cannot evade First Amendment scrutiny merely by declaring contested speech about a controversial issue as indisputably false and then packaging that speech as nuisance, trespass, and unjust enrichment. Courts must distinguish provably deceptive commercial claims from protected participation in public debates.
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Agree or disagree with what the companies said, Boulder has now made it clear that the case turns substantially on just that.

The U.S. Supreme Court’s next term could bring major rulings on compelled speech, donor privacy, religious expression, commercial speech, and the right to speak on private property.

The Court has not yet agreed to hear any of these cases, some of which also implicate the Takings Clause. But the petitions before it pose questions that could significantly reshape First Amendment law if the Court accepts them.

Can Donor Privacy Be Breached?

In Rio Grande Foundation v. Oliver, New Mexico applied its campaign-finance disclosure law to this nonprofit that publishes legislative “Freedom Index” scorecards but does not expressly advocate the election or defeat of candidates. The Foundation argues that forcing disclosure of its supporters exposes people engaged in issue advocacy to harassment and chills their freedom of association.

We are hopeful that the Court will take this case. Ever since it protected the anonymity of donors to the NAACP in the 1950s, the Supreme Court has recognized that donor privacy is essential to free association. A government demand for names cannot become the price of offering opinions based on public information about legislators’ voting records.

Can Officials Be Sued for Restricting Religious Speech on Public Sidewalks?

Hershey v. City of Bossier City presents a particularly stark free-speech claim. Richard Hershey says officers threatened to arrest him and forced him to stop distributing religious leaflets on “Christian vegetarianism” on a public sidewalk outside a Christian rock concert. At the same time, they allegedly allowed a nearby radio station to distribute commercial material.

While the specific content may seem idiosyncratic, long-standing First Amendment law forbids content discrimination.

The Fifth Circuit granted the officers qualified immunity because Hershey could not identify a prior case with sufficiently similar facts. But no officer should need a remedial tutorial to understand that suppressing religious leaflets while allowing commercial leaflets on a public sidewalk is unconstitutional content discrimination.

Can Shopping Malls Be Compelled to Admit Speakers and Petition Gatherers on Their Property?

Majestic Realty Co. v. Salazar approaches free speech and association from the opposite direction. California courts held that an activist had a right to distribute leaflets at privately owned shopping centers. The owners argue that forcing these properties to host unwanted speakers violates both their First Amendment rights and their right to exclude others from their property.

The case could force the Court to reconsider its controversial decision in PruneYard Shopping Center v. Robins (1980), which upheld an interpretation of a provision in California’s constitution that would allow uninvited speakers to circulate petitions on private property, so long as the speakers are peaceful and do not disrupt business. If the Court takes up this case, it may signal a potential modification or even an overruling of PruneYard. The Court would need to resolve the tension between those who advocate for a right to speak in privately owned venues open to the public and those who oppose a government-created entitlement to use someone else’s property as a platform.

Shalt Thou Post the Ten Commandments in Louisiana?

Louisiana’s Ten Commandments case, Brumley v. Roake, adds the Establishment Clause to this crowded list of potential First Amendment cases. The petition asks the Court to address whether Louisiana’s requirement that the Ten Commandments be displayed in public-school classrooms is unconstitutional. The petition also raises a threshold question: Must parents wait until the displays appear in their children’s classrooms before bringing a constitutional challenge?

Evolving views on the Establishment Clause make this one to watch but hard to predict.
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How Should Courts Balance the Protection of Jewish Students Against the First Amendment?

The most emotionally charged petition may be StandWithUs Center for Legal Justice v. MIT. Jewish students allege that MIT was deliberately indifferent to antisemitic harassment during campus protests. Their petition asks whether the First Amendment prevents protected speech from contributing to a hostile-environment claim under federal civil rights law.

Universities have a duty to protect students from threats, violence, discriminatory conduct, and the denial of equal access to education. Here’s the rub – offensive and hateful ideas do not automatically lose First Amendment protection. Any ruling must preserve the line between punishing unlawful conduct and suppressing protected (if ugly) expression.

Can Regulators Divulge Trade Secrets?

In PhRMA v. O’Day, an Oregon law requires drug manufacturers to submit reports with narrative justifications for their prices. State officials must then publish those reports, including confidential information and trade secrets, whenever they decide publication is in the “public interest.”

A divided Ninth Circuit panel upheld the law under intermediate scrutiny, reasoning that Oregon may compel “product-specific” disclosures to correct “information asymmetries.” The Supreme Court has asked for the views of the U.S. Solicitor General – often a sign that the justices are taking a petition seriously.

This case raises a basic question: Can the government force a private party to explain and defend its pricing decisions? The First Amendment protects not only the right to speak, but also the right not to deliver the government’s preferred message.

First Amendment Jurisprudence Is Sure to Get a Workout

These cases differ dramatically, but clear principles run through all of them: The government must not compel speech, expose associations, discriminate against religious viewpoints, or blur constitutional lines. First Amendment rights matter most when officials believe they have excellent reasons to disregard them.

Author Stephen King once wrote in an op-ed in his local Bangor, Maine, newspaper:

“If there’s one American belief I hold above all others, it’s that those who would set themselves up in judgment on matters of what is ‘right’ and what is ‘best’ should be given no rest; that they should have to defend their behavior most stringently. As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn't approve of them.”

The Supreme Court exists to correct the errors of such officials.

​The U.S. Supreme Court held last year in Mahmoud v. Taylor that public schools cannot burden parents’ free-exercise rights by denying them the opportunity to opt their children out of instruction that conflicts with their religious beliefs.

Now Justin and Rose Taylor, members of the Church of Jesus Christ of Latter-day Saints, charge that California’s Sunnyvale School District is refusing to honor that constitutional right. Their federal lawsuit says the district will not excuse their two elementary-school children from lessons and storybooks addressing gender identity, sexual orientation, and nontraditional families.

To be clear, the Taylors are not arguing against the inclusion of such lessons. They merely want to be able to withdraw their children from those particular lessons as a matter of their faith.

The arrogance – or is it ignorance? – of this school district is breathtaking. As The Wall Street Journal editorial board explains, the Supreme Court’s decision did not establish a rule applicable only to the Maryland school district involved in Mahmoud. When the High Court interprets the First Amendment, it does so for the entire nation. Memo to Sunnyvale – this includes California’s treatment of the Taylors. If you don’t believe this, please consult one of your district’s high school civics teachers.

The Journal writes:

“In their telling, Sunnyvale at first suggested it could accommodate them, before refusing. According to the complaint, officials wrote that the Mahmoud ruling ‘addressed a specific set of facts in another state’ and ‘does not override California’s statutory requirements governing instructional content.’ Well, state law doesn’t override the Constitution.”
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In actuality, the facts in both the Maryland and California cases are nearly identical – including many of the same reading and course materials. The First Amendment does not stop at the border of any U.S. state – to believe otherwise is to adopt the jurisprudence of the Confederacy. Federal courts must make clear that public school districts cannot evade Mahmoud by treating a constitutional ruling as if it were a suggestion.

An amicus brief from forty-three members of the U.S. Senate and House warns the U.S. Supreme Court of an ironic danger – that states could use “nondiscrimination” rules to discriminate against religious schools seeking to participate in a new federal school-choice scholarship program.

Colorado is the pioneer in this effort, defining a new path to exclude religious schools from public education programs: Don’t ban these schools for being religious – just impose conditions that require them to abandon their religious beliefs.

That is the danger these legislators, led by Sen. James Lankford (R-OK) and Rep. Tim Walberg (R-MI), warn of in their brief concerning St. Mary Catholic Parish v. Roy.

That case concerns Colorado’s Universal Preschool Program, which allows families to choose among public and private providers. Catholic parishes and preschools were excluded because their religious-based teachings on marriage and gender conflict with the state’s nondiscrimination requirements. Colorado thus bars these schools from participating in this state program, even though they meet all the relevant state standards for the care and education of children.

The Tenth Circuit in Denver upheld Colorado’s policy. The congressional brief now warns that if this ruling stands, it will provide a roadmap for excluding religious schools from federal educational programs as well.

One implication of the Tenth Circuit’s ruling concerns the eligibility of religious schools to participate in the new federal Educational Choice for Children Act (ECCA) scholarship program. The ECCA directs tax-exempt private donations to states to pay for tuition and educational materials for a host of educational options, ranging from science- and arts-based schools to parochial and other religious schools, as well as support for homeschooling.

Congress created ECCA to encourage private donations to the program’s scholarship-granting organizations. States, however, play an important role in implementing the program.

The determination of some states to exclude religious schools is far from theoretical. Vermont is already leading the way, opting into ECCA while imposing nondiscrimination requirements that could effectively exclude many traditional religious schools.

The Supreme Court has seen similar maneuvers before. In Espinoza v. Montana Department of Revenue, the Court held that a state cannot create an educational benefit and then disqualify schools merely because they are religious. In Carson v. Makin, the Court struck down Maine’s attempt to exclude religious schools from a generally available tuition-assistance program.

“The Court’s recent Free Exercise Clause precedents have confirmed that a state may not condition access to a generally available public benefit on the surrender of religious identity or the abandonment of religious exercise,” the brief states.

And yet, states keep trying to do just that.

Colorado’s approach represents this new and disingenuous attempt to circumvent the Court’s precedents. Instead of hanging a “No Religious Schools Allowed” sign, the state demands that religious schools set aside religious doctrines as the price of admission. That is, however, just another way to stand at the schoolhouse door and bar admission to disfavored groups.

These forty-three Members of Congress, with the help of the WilmerHale law firm, make it clear that the Supreme Court must not allow Colorado or Vermont to evade its First Amendment Free Exercise Clause precedents with clever drafting. Government cannot force religious schools to choose between their faith and participation in a public program open to everyone else. That is why St. Mary has the potential to be a pivotal case for religious liberty.
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Protect The 1st commends these lawmakers for alerting the Court that if Colorado’s playbook is upheld, other states can be expected to follow.

​Can a state decide that religious schools are welcome to participate in a public program, but only if they set aside their core religious beliefs?

That is the question before the U.S. Supreme Court in St. Mary Catholic Parish v. Roy. Protect The 1st provides answers to that question in our amicus brief on the merits of this case. We urge the Court to reject Colorado’s attempt to exclude religious preschools from that state’s universal preschool program because they adhere to traditional religious teachings.

At first glance, this may appear to be another dispute over government funding and religious schools. It is much more than that.

Protect The 1st demonstrates that the First Amendment’s guarantee of the free exercise of religion means little if government officials are free to decide which religious beliefs are acceptable and which are not. A state may not condition participation in a public benefit on abandoning sincerely held religious convictions. Nor may it redefine “religion” so narrowly that only a faith stripped of its actual doctrines qualifies for constitutional protection.

The danger of such government overreach extends far beyond Colorado.

If government can require a Catholic preschool to disregard Catholic teaching in order to participate in a generally available public program, the same principle could be applied to Orthodox Jewish schools, Muslim schools, Protestant ministries, or any religious institution whose beliefs fall out of political favor. Today’s disagreement may concern sexual ethics. Tomorrow it could involve environmental stewardship, immigration, medical ethics, or any number of contested public issues.

Protect The 1st’s brief reminds the Court that religious liberty protects the freedom to live one’s faith, not merely to profess it. The Constitution does not permit government to reward religious organizations only after they surrender the religious practices that define them. The First Amendment was adopted precisely to prevent government from becoming the nation’s theological referee.

That principle should unite Americans of every faith and those of no faith at all. Once government acquires the authority to decide which religious beliefs are acceptable, every religious community becomes vulnerable to the political fashions of the day.

The Supreme Court now has an opportunity to reaffirm a foundational constitutional principle – government may regulate conduct within constitutional limits, but it cannot manipulate religious belief by attaching ideological conditions to public benefits.

The Free Exercise Clause protects religious diversity precisely because it denies government the power to choose which faiths – or which doctrines within those faiths – deserve equal treatment.
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We look forward to hearing robust oral arguments on these points in the Court’s upcoming October Term.

​When Rights Have No Remedy

A right without a remedy is no right at all. That is why Protect The 1st is disappointed that the U.S. Supreme Court last week did not uphold the right of a Rastafarian prison inmate to seek damages after Louisiana prison officials forcibly shaved off his dreadlocks.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), shorn of such a remedy, will now offer less than full protection for profound violations of the free exercise of religion for people of all faiths – Jews, Muslims, Christians, Sikhs, and others.

“Looking at the broader defense of religious freedom, however, PT1st remains optimistic,” said Gene Schaerr, PT1st general counsel. “Today’s opinion is unfortunate, but this Supreme Court has been the strongest ever in supporting the free exercise of religion. Protect The 1st looks forward to advancing the cause of religious freedom in future cases.”

Prison officials threw the law into a trash bin

The case arose from the experience of Damon Landor, a devout Rastafarian who had grown his dreadlocks for nearly two decades as an expression of his faith. After being transferred to a different Louisiana prison only weeks before his release, Landor explained that his religion prohibited him from cutting his hair. He even presented prison officials with documentation showing that courts had already recognized his right to maintain his dreadlocks under RLUIPA.

Instead, officers threw the court decision into the trash, restrained Landor in a chair, and forcibly shaved his head. 

Turning the law into an unenforceable “parchment promise”

When the Supreme Court agreed to hear the case, Protect The 1st noted that RLUIPA was enacted to ensure that incarcerated Americans do not surrender their religious liberty at the prison gate. Congress recognized that prisoners are uniquely vulnerable to arbitrary government action and therefore provided robust protection for their sincerely held religious beliefs.

The issue before the Court was whether those protections include the ability to recover damages from officials who knowingly violate the law. Without that remedy, many violations will never receive meaningful judicial review. Sometimes, prisoners’ rights are violated before courts can issue injunctions, leaving no practical consequence for officials who disregard religious rights. That, of course, is what happened to Landor. And, as we warned when the Court accepted this case, legal protections risk becoming little more than a “parchment promise” if they cannot be enforced retroactively through monetary relief. 

The Court has now concluded that RLUIPA does not authorize damages against individual state officials. As a practical matter, that means many future victims of similar violations will have little recourse once the immediate injury has passed. 

Yet this decision should not obscure the larger trajectory of religious liberty at the Supreme Court. Over the last decade, the Court has repeatedly reaffirmed that government must respect the free exercise of religion, whether the claimant is a church, a religious school, a family-owned business, or an individual seeking to live according to conscience.
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Protect The 1st will continue advocating for Americans of every faith and no faith to ensure that the First Amendment’s promise of religious liberty remains meaningful. Even after this setback, we remain hopeful that the cause of religious freedom is moving forward, one case at a time.

The current U.S. Supreme Court has been one of the strongest in history in protecting First Amendment rights. That is one reason for concern about calls for packing the Court growing among Democratic politicians. They seek to add another four Justices for a total of 13, overwhelming the conservative-leaning Supreme Court led by Chief Justice John Roberts.

There is more at stake here than political score-settling. In a frenzy to reverse the precedents of the Roberts Court, an expanded majority could unnecessarily reverse the Court’s protection of First Amendment rights. We’ll look at those issues in a moment. But first, we should take stock of the true character of this Court.

The Roberts Court Is Not a Rubberstamp for Trump or the Right

Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, recently charged that the Roberts Court is “robotically loyal” to President Trump and is radically revising law to fit a right-wing agenda.

It is true that this Court struck down Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022), sending the issue of abortion back to the voters in every state. But a majority during Roberts’ tenure also voted to make the legality of same-sex marriage the law throughout the land. Roberts himself voted against the majority in that case, but sided with the majority in extending Title VII’s protections against discrimination to gay, lesbian, and transgender people.

The Roberts Court – often joined by some of President Trump’s own nominees – has also ruled against Republican or conservative interests in several hotly contested cases.

One such recent example was the Court’s decision striking down most of the tariffs imposed by President Trump. And don’t forget the Court’s earlier decision in NFIB v. Sebelius (2012) upholding the “individual mandate” that was the heart of Obamacare.

But the true hallmark of the Roberts Court has been a scrupulous defense of speech, as well as the religious rights of individuals and groups that hold viewpoints at odds with the accepted orthodoxy of many officials.

Upholding Speech Rights

The Citizens United V. FEC (2010) decision struck down limits on independent political expenditures, finding that restrictions on independent campaigns are restrictions on speech. The Roberts Court struck down laws that criminalized the creation, sale, and possession of depictions of animal cruelty in United States v. Stevens (2010). The Court also outlawed viewpoint discrimination in government-issued trademarks in Matal v. Tam (2017).

Most recently, the Court 8-1 in favor of the speech rights of a therapist in Colorado who discussed conversion therapy with minors in Chiles v. Salazar (2026). In a concurrence joined by Justice Sonia Sotomayor, Justice Elena Kagan wrote that when a state suppresses “one side of a debate while aiding the other, the constitutional issue is straightforward.”

Striking Down Compelled Speech

On the issue of compelled speech, the Court in Americans for Prosperity v. Bonta (2021) struck down a California requirement that non-profits disclose their major donors, harking back to a principle from NAACP v. Alabama (1958): that anonymity protects donors from persecution – and today, from doxing.

In 303 Creative LLC v. Elenis (2023), the Court held that Colorado could not compel creators in expressive activity – in this case, a website designer – to craft messages that violate their religious or artistic convictions.

Upholding the Free Exercise of Religion

The Court also stoutly defends religious liberty – a key component of the First Amendment – ruling in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) that states must give religious schools equal access to otherwise universally available public funds and programs.

In the workplace, the Roberts Court protected the personal, midfield prayers of a high school football coach in Kennedy v. Bremerton School District (2022). Within faith organizations, the Court also prevented government from interfering with the employment decisions of religious institutions regarding their clergy.

In Little Sisters of the Poor v. Pennsylvania (2020) and similar cases, the Court recognized the right of Catholic nuns not to be forced by federal mandates to provide abortifacients and contraceptive coverage to employees in violation of their faith tradition.

There are many more such cases. Most of them involved government mandates that targeted people who hold minority views, or beliefs that are rejected by political elites in many states. In one case, the Court defended the speech rights of the Westboro Baptist Church, a hate group that strives to be as shocking, provocative, and reprehensible as possible. The Court has stood up for outsiders to mainstream culture, ranging from animal rights activists to nuns.

You may agree with, disagree with, or detest some of the viewpoints in these cases. But we are lucky to have a Court that understands that viewpoint discrimination by government is always the greater danger. Respect for the speech rights of the few is the best way to protect the speech rights of all.

Packing the Supreme Court could well bring in a majority that feels it has a mandate to reverse any and all of these cases.
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To learn more about the politics, policy, and law behind court-packing, watch  (starting at the 55-minute mark) or read the testimony of PT1st’s general counsel, Gene Schaerr, before the House Judiciary Committee.​

​When the COVID-19 pandemic swept across the nation, employers and governments faced difficult decisions. But difficult circumstances do not erase constitutional principles. That is why Protect The 1st has filed an amicus brief urging the U.S. Supreme Court to hear Petersen v. Snohomish Regional Fire & Rescue, a case involving firefighters who sought religious accommodations from a COVID-19 vaccine mandate. 

At stake is a fundamental First Amendment freedom – the free exercise of religion.

The firefighters in this case did not refuse to work. They sought accommodations that would allow them to continue serving the public while remaining faithful to their sincerely held religious beliefs. For roughly 20 months, the department allowed safety measures such as testing, masking, distancing, and other precautions. Then, despite those accommodations, the firefighters were placed on leave. 
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Protect The 1st’s brief argues that lower courts have drifted away from the Supreme Court’s recent decision in Groff v. DeJoy (2023), which strengthened protections for religious employees under federal law. Under Groff, employers must show that a requested accommodation would impose a substantial burden on their operations. Mere speculation or generalized concerns are not enough. 

That standard matters because the facts surrounding COVID-19 changed rapidly. By the time many vaccine mandates were being enforced, enough Americans had received vaccinations or acquired immunity from prior infection to bend the herd-immunity curve and significantly reduce the risk of catastrophic spread. The nation was no longer in the desperate early days of the pandemic.

Protect The 1st’s brief points to expert testimony showing that vaccinated and unvaccinated individuals could both transmit the virus, that natural immunity provided substantial protection, and that alternative mitigation measures remained available. 

None of this means vaccines lacked value. Millions of Americans chose vaccination, and those decisions helped protect vulnerable populations and reduce severe illness. But the existence of broad public compliance is precisely why reasonable religious accommodations were often possible. When most of a workforce is vaccinated and additional safeguards are available, granting a limited exemption to a small number of religious objectors is far less likely to impose a substantial burden on an employer.

The First Amendment has always protected minority beliefs. Religious liberty would mean little if it applied only when a person’s beliefs aligned with popular opinion or government policy.

The Supreme Court has repeatedly affirmed that government may not treat religious exercise as a second-class right. Whether the issue involves houses of worship, religious schools, or employees seeking accommodations in the workplace, the principle remains the same: Americans should not be forced to choose between their faith and their livelihoods unless the government or employer can demonstrate a truly compelling need.
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Protect The 1st’s brief asks the Court to ensure that religious Americans receive the protections Congress intended and that the Supreme Court recognized in Groff. Emergencies may require extraordinary measures. They do not suspend legal protections for religious liberty.

​Al Gore wrote in 1992 about predictions that within the next few decades “up to 60 percent of the present population of Florida may have to be relocated” due to rising seas caused by global warming.

Kyle Smith, a columnist for The Wall Street Journal, noted that far from shrinking, Florida’s population has grown from 13 million in 1992 to 23 million today. Should Al Gore be liable for a multibillion-dollar judgment in a lawsuit for getting the science wrong?

If the answer is no, then the same principle should apply when states and localities sue fossil fuel companies not merely for what they produce, but for the scientific claims they’ve made about this highly contested issue of global warming.

Others have focused on the issue of whether the city and county of Boulder, Colorado, should be able to launch a lawsuit that effectively drives policy for other states and the nation. Protect The 1st is weighing in with an amicus brief before the U.S. Supreme Court that details the First Amendment principles at stake in Suncor v. Boulder County.

One problem with punishing scientific claims is that the history of science is replete with loudly dismissed claims later proved to be right.

Our brief tells the story of the 19th-century Hungarian physician Ignaz Semmelweis, whose advocacy of handwashing dramatically reduced maternal deaths. But Dr. Semmelweis’s theory was harshly rejected by much of the medical establishment because of its “inclination to adhere to established norms and resist new ideas that challenge them,” a tendency in science now known as the “Semmelweis reflex.” The brief asks readers to imagine a world in which Semmelweis or Joseph Lister, who advanced the understanding of the importance of sterile conditions for surgery, had been sued for questioning the scientific orthodoxy of their times.

Our brief tells the Court that “if history teaches anything, it is that today’s consensus may be tomorrow’s cautionary tale.”

While the Suncor case is often framed as a dispute over environmental policy, we are telling the Court that such lawsuits pose a much broader threat to free speech and open scientific inquiry.

After all, the First Amendment does not permit government officials or private litigants to use lawsuits to penalize speakers for expressing views on matters of public concern. Nor does it allow government officials to favor one side of a debate while burdening the other.

The danger in such climate lawsuits is that they target particular speakers because of who they are. “These theories are dripping with textbook speaker-based discrimination,” we wrote. “Respondents have singled out Petitioners – fossil-fuel producers and sellers – and seek to impose on them special burdens that no other industry, environmental group, or renewable-energy advocate faces.”

Would a climate-change NGO be held liable for prompting a community to build a seawall it doesn’t need? The brief warns that such selective targeting undermines a core constitutional principle. As Justice Neil Gorsuch has observed, “the First Amendment does its real work in giving voice to those a majority would silence.”

Likewise, the brief notes that our scientific understanding of climate issues is still evolving. Although the plaintiffs contend that catastrophic climate consequences of greenhouse gases (GHGs) were known decades ago, our brief points out that in 2001 the Environmental Protection Agency still stated that “a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established.”
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Just a few days ago, the United Nations removed the worst-case scenario from its global warming predictions. Who knows which directions the science will go in the future? The lesson is that scientific inquiry should remain free and unpunished.

The closest thing the United States has to a monarchy is the American courtroom.

The berobed judge enters with great solemnity while the bailiff says, “All rise.” The judge sits elevated above all others and is addressed as “Your Honor.” The courtroom is separated from the observing hoi polloi by a thick, wooden bar. The whole setup smacks of a medieval court.
But it isn’t. The procedure, the statements of law put forward by counsel, the jury, and traditions and procedural restraints render it a very democratic institution. The judge has the last word in the courtroom, but he or she is subject to reversal on appeal.

How absurd, then, would it be for a judge to don a different set of robes, the papal vestments of of the Roman Catholic Church, to sit figuratively on the Throne of St. Peter – making tedious distinctions in theology and setting church policy.

Yet that will happen if the U.S. Supreme Court does not grant a review in United States Conference of Catholic Bishops v. O’Connell. This case borders on the satirical but carries serious constitutional weight: Can a federal court sit in judgment over what a priest says from the pulpit – and how the Roman Catholic Church spends and invests its religious offerings?

The case began when a Rhode Island parishioner claimed he was misled about the use of “Peter’s Pence,” a collection made since the 7th century to support charitable activities and evangelism overseen by the Holy See. The plaintiff seeks damages – and more strikingly, an order requiring courts to oversee how the Church describes and administers this offering. 

The U.S. District Court of Appeals in Washington, D.C., should have immediately recognized this as a First Amendment claim concerning the free exercise of religion. Instead, that court allowed the case to proceed without first examining its impact on vital First Amendment rights.

Asking Judges to Wield the Staff of St. Peter

The lawsuit alleges fraud and unjust enrichment, arguing that some of the donations were placed in investment funds that, in turn, were invested in luxury properties and even a Hollywood movie. For those with a passing familiarity with charitable operations, the investment of funds is a standard practice – one that enables compounding returns, to the benefit of the poor. (If you have any doubt that making good investments is a sound practice for a Christian, we refer you to the ultimate authority on that question.)

The fraud claim is that the plaintiff’s priest did not enumerate the investment allocation from the pulpit when appealing for donations.

If courts are allowed to proceed on this case without giving primary consideration to its First Amendment implications, they will put judges in the position of parsing sermons, evaluating religious communications, and second-guessing how a global church allocates charitable funds. 

That is precisely the kind of entanglement the First Amendment was designed to prevent. The “church autonomy” doctrine – rooted in centuries of precedent – bars government from interfering in a religious institution’s internal governance, doctrine, and teaching. 

A Slippery Slope for All Faiths

The stakes extend well beyond the Catholic Church. If courts can adjudicate claims based on what was said during worship services, every synagogue, mosque, and church could face discovery demands over sermons, internal communications, and religious decision-making.

Allowing courts to referee disputes over how a church explains or uses offerings would mark a dramatic expansion of government power into religious life. Today it is Peter’s Pence. Tomorrow it could be tithes, zakat, or any faith-based giving. Indeed, the plaintiff seeks to represent a nationwide class of donors – potentially drawing courts into reviewing religious speech across thousands of congregations. 

That prospect is not just burdensome; it is constitutionally suspect. The Supreme Court has long warned that “the very process of inquiry” into religious matters can violate the First Amendment. If religious groups must endure years of litigation before asserting their constitutional rights, the protection itself becomes hollow. 
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The Supreme Court should take this opportunity to declare: Churches govern their own spiritual affairs, and the state must stay out. When it comes to robes, judges should stick to basic black.

​The U.S. Supreme Court unanimously ruled Wednesday that New Jersey cannot dodge federal court review while demanding confidential donor information from a network of pro-life pregnancy centers. In a forceful Court opinion written by Justice Neil Gorsuch, the Court reaffirmed a foundational First Amendment principle – government demands for donor lists can chill speech and associational rights long before penalties are imposed. 

The case, First Choice Women’s Resource Centers v. Platkin, arose after former New Jersey Attorney General Matthew Platkin subpoenaed donor records and internal documents from First Choice, a faith-based network of crisis pregnancy centers. The organization argued that forcing disclosure of its supporters would intimidate donors and suppress its First Amendment advocacy.

Lower courts dismissed the lawsuit as “premature,” reasoning that New Jersey had not yet formally enforced the subpoena in court. The Court rejected that argument outright.

Justice Gorsuch wrote: “An official demand for private donor information is enough to discourage reasonable individuals from associating with a group.” He added that it is likewise “enough to discourage groups from expressing dissident views.” 

That language cuts to the heart of the First Amendment. The constitutional injury does not suddenly appear the moment the government raids an office to seize files or imposes fines. The chill begins when citizens realize the state may expose their names, affiliations, and beliefs to hostile officials or public retaliation.

Justice Gorsuch also warned about the broader danger of compelled disclosure, leading to even more heavy-handed sanctions: “A government that chooses to make private donor information public may make the damage worse.” 

In this age of doxing, that concern is hardly theoretical. Americans across the political spectrum have seen donors, activists, religious believers, and advocacy groups targeted, threatened, and fired, otherwise harassed after their identities became public. The Court has long recognized this danger, dating back to NAACP v. Alabama (1958), the landmark civil rights-era case protecting membership lists from state officials seeking to intimidate civil rights supporters.

What makes this ruling especially notable is its unanimity. All nine justices agreed that organizations do not have to wait helplessly for the government to complete enforcement proceedings before seeking protection for their First Amendment rights. 

The implications extend far beyond abortion politics. Civil liberties groups that sharply disagree with the mission of crisis pregnancy centers nevertheless supported First Choice’s ability to challenge the subpoena because the precedent threatened advocacy organizations of every ideological stripe.

The ACLU itself warned that broad donor subpoenas “put all advocacy at risk.” 

That unusual coalition underscores an important truth – once government acquires unchecked power to expose supporters of disfavored causes, no political or religious activity will remain safe for long.

This case is also part of a larger national debate over the use of state power to pressure or punish disfavored viewpoints. Whether the target is a religious charity, a political advocacy group, a gun-rights organization, a pro-choice organization in a red state, or a civil liberties nonprofit, compelled disclosure can become a potent tool of intimidation.

The Court came down with a hard slam:

“Since the 1950s, this Court has confronted one official demand after another like the [New Jersey] Attorney General’s. Over and over again, we have held those demands burden the exercise of First Amendment rights. Disputing none of the precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeed.”
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The Court’s opinion sends a clear message that the First Amendment protects not only the right to speak, but also the right to privately support causes without fear that the government will force citizens onto a public enemies list.

The U.S. Supreme Court has now stepped into St. Mary Catholic Parish v. Roy, agreeing to decide whether Colorado can exclude Catholic preschools from its “universal” preschool program because of their traditional beliefs on sexuality. The parish refuses to accept the children of same-sex and/or transgender parents. Because families that enroll are participating in the parish community, the parish wants participant families to hold beliefs in line with Catholic teachings.

However you feel about that, this case is a telling example of Colorado’s disregard for the First Amendment’s protection of religious expression.

What the Court Just Did

Last week, the Court granted certiorari, setting the stage for arguments in its upcoming term. At issue is Colorado’s requirement that participating preschools comply with nondiscrimination mandates tied to sexual orientation and gender identity.

On paper, that may sound neutral. In practice, it forces religious schools into an untenable choice: abandon core teachings or be shut out of a public benefit open to others.

Catholic preschools argue that this is precisely what the Constitution forbids – conditioning participation in a public program on surrendering religious identity. Lower courts nevertheless sided with Colorado, accepting the state’s claim that the policy is “neutral and generally applicable.”

The Supreme Court will now decide whether that label reflects reality – or masks discrimination. The Court will need to make a keen evaluation. The Archdiocese of Denver does not wish to allow same-sex couples to join their congregation. Colorado does not like that. Many of us feel the same. But traditional marriage – whatever you think of that as a standard – is a central tenant of the Catholic faith.

Why It Matters

Protect The 1st stands firmly against discrimination in all its forms. We see no contradiction in upholding the Supreme Court’s Obergefell v. Hodges acceptance of same-sex marriage and supporting the Roman Catholic Church’s right to define its constitutionally protected beliefs. When this case was before the Tenth Circuit, PT1st told that court:

“ … Colorado has violated Plaintiffs’ expressive association rights … Whatever one may think about same-sex relationships or gender transitions – and PT1st does not oppose them – a religious institution has a constitutional right to decide whom to admit into its communities, and cannot be excluded from a publicly available benefit program for making those religion-based choices.”

In a pluralistic society, these Catholic preschools serve a vital need and deserve equal access to public support. Eighty-five percent of the congregation in one parish school in Denver qualifies for free and reduced-price school meals program. For the Catholic Church, this case goes to the heart of a vital First Amendment principle: the government cannot condition benefits on narrowing the freedom of religious exercise. Colorado’s program is billed as “universal.” But a program is not universal if it excludes participants the moment they act like the religious institutions they are. That is not neutrality. It is exclusion dressed up as policy.

That tension is not new. The Supreme Court has repeatedly held that religious institutions cannot be treated as second-class participants in public life. This case will test whether states can evade that rule by redefining exclusion as compliance.

The Road Ahead

The Court’s decision to hear the case signals that at least four justices see serious constitutional concerns. A ruling is expected by mid-2027.

The stakes are clear. If Colorado prevails, “universal” programs across the country could become vehicles for sidelining religious providers. If the Court holds the line, it will reaffirm a foundational rule: government benefits cannot be conditioned on the abandonment of faith.
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The First Amendment demands nothing less.

Can police arrest a journalist simply for asking questions? The U.S. Supreme Court on Monday declined to say “no.”

The plight of journalist Priscilla Villarreal began with her arrest in 2017, with Laredo, Texas, police clearly out to use the law to punish her. She was followed throughout the booking process by police officers, who humiliated her by jeering and snapping pictures of her during the booking process.

What was Villarreal’s crime? She had asked questions.

Under the moniker “La Gordiloca,” Villarreal has amassed a large following for her coverage of events in Laredo on her Facebook page. Her reporting has long irked local officials, from live-streaming Laredo Police Department officers choking an arrestee, to criticizing the Webb County District Attorney for not charging a relative with a crime, despite evidence that the relative had abused animals.

Following up on two stories – a Border Patrol agent who had committed suicide, and family involved in a fatal car crash – Villarreal confirmed the names of these victims with a Laredo Police Department officer before reporting them. Months later, she was charged under a Texas statute forbidding the “misuse of official information.” This law held that it was illegal to solicit information from a public official to obtain a “benefit.”

Under this rubric, any journalist could be charged for seeking to obtain the “benefit” of a scoop.

After a national outcry, these absurd and abusive charges were dropped. But what about the thuggish behavior of the Laredo Police Department? It is often said in law that a right without a remedy is no right at all. Villarreal filed a civil rights lawsuit against the police, seeking damages for her clearly unconstitutional mistreatment.

Villarreal won her case before the Fifth Circuit Court of Appeals, only to lose on appeal before the full bench. That court held that the doctrine of qualified immunity, a judge-created doctrine that shields officials from being held liable for constitutional violations, protected the Laredo police. This shield applies unless officials violate “clearly established law.”

Did that not happen?

When the U.S. Supreme Court refused to grant certiorari in Villarreal’s case, the Laredo Police Department got off scot-free. The First Amendment suddenly became not quite as clearly established as we thought it was.

“It should be obvious that this arrest violated the First Amendment,” Justice Sonia Sotomayor wrote in a dissent, calling the Court’s refusal to take up the case “a grave error.”

Judge James Ho, in Villarreal’s initial win, wrote for the court that “if the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.”
​
We have seen time and again, from the raid of a newspaper by police in Kansas, to arbitrary arrests of people peacefully filming ICE officers, a growing appetite to arrest reporters for doing their jobs. It is only a matter of time before an even more egregious abuse of the First Amendment brings a new test to the doctrine of qualified immunity.

The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
​
Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

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

​The U.S. Supreme Court spent two hours on Monday debating whether President Trump lawfully fired Rebecca Slaughter, a Democratic member of the Federal Trade Commission. At stake is whether the FTC remains an “independent” agency or becomes fully subject to a “unitary executive.”

Given that Section 5 of the FTC Act empowers commissioners to investigate companies for “unfair or deceptive acts or practices,” including commercial speech, this case holds significant but contradictory First Amendment implications. But first, some background.

Precedent Is “a Dried Husk”

Several Justices questioned a New Deal-era precedent called Humphrey’s Executor, which prevents a president from firing a commissioner except for cause.

• Chief Justice John Roberts told Slaughter’s lawyer that the precedent “is just a dried husk of whatever people used to think it was.”

 

• Justice Neil Gorsuch added it was “poorly reasoned” and asserted that there is “no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative.”

Remarks like these led many court watchers to predict that Slaughter is unlikely to reclaim her seat when the Court rules next year.

Who Makes the Laws?

Justice Elena Kagan offered perhaps the most consequential line of the day. Under the unitary executive theory, she said, the president has “control over everything, including over much of the lawmaking that happens in this country.”

Lawmaking?

That candid acknowledgement spotlights the central constitutional tension in this case: the FTC engages in “lawmaking,” despite not being part of the only body charged with writing laws – Congress. This plays into Justice’s Gorsuch’s critique that FTC is a hybrid that exists outside of the Constitution’s delegation of powers. That reality may well prompt the Court’s conservative majority to overturn Humphrey’s Executor and place FTC under presidential control.

Congress designed the FTC, with its five commissioners drawn from both parties – three from the majority party – to inspire constructive debate from opposing sides. With one Republican member resigned, a Democrat not contesting his firing, and Slaughter fired, the FTC currently has only two commissioners, both Republicans. The Justices must now consider whether this original congressional bipartisan design can be wholly discarded.

The separation of powers issues created by the growth of agencies and the modern executive branch require not only holding the president accountable for executive functions, but also rolling back the excessive delegation of legislative power to the executive. A unitary executive that amasses control of both executive and legislative functions is no solution. It is a lopsided response to half the problem – leaving the system even more unbalanced.

Regulating Speech: Risks Under Both Models

But how would overruling Humphrey’s Executive affect the First Amendment? Unfortunately, the risks to free expression run in both directions.

Earlier this year, FTC Chairman Andrew Ferguson launched an investigation into social media censorship. The FTC declared that “censorship by technology platforms is not just un-American, it is illegal.” We’ve often criticized major social media platforms for censoring conservative views. But the law is clear: the First Amendment only forbids government censorship, not private content moderation. Companies can filter, curate, or label content however they want – whether that means putting funny mustaches on every image of President Trump or adding Vulcan ears on Gov. Gavin Newsom.

The FTC does have the power to crack down on fraudulent claims that magic vitamins cure cancer. But it is a profound overreach for government to police a media company simply because regulators want more liberal or conservative content.

As for “un-American,” the Federal Communications Commission – which has some merger authority over media companies – threatened ABC if it did not fire talk show host Jimmy Kimmel. “We can do this the easy way or the hard way,” FCC Chairman Brendan Carr said, prompting Sen. Ted Cruz (R-TX) to compare his threat to that of a Mafioso.

At least under a unitary executive, an administration can be held publicly accountable, as Sen. Cruz demonstrated. Independent agencies, by contrast, can wield vast power with no democratic check. One of the early congressional architects of the FTC promised the agency would take “business matters out of politics.” President Biden’s Chair Lina Khan rejected that view, declaring that “all decisions are political.”

In truth, the FTC’s deliberations have always been influenced by politics. But the recent heightened politicization of the FTC points to a subtler risk created when Congress delegated its lawmaking powers to an independent agency within the executive branch.

A Constitutional Contradiction with No Easy Fix

The best solution might be to scrap the entire model and rebuild it from the ground up. But no one expects the Supreme Court or the Congress to do that.
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For now, the task falls to the rest of us to call out free speech violations whether they arise from a presidentially controlled FTC or one run by independent ideologues insulated from democratic accountability.

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

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

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

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

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

 

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

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

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

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

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

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

 

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

Ouch.

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

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

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

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

​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.