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.”
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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. 
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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.

​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.