The Hugh and Hazel Darling Foundation Religious Liberty Clinic

Mendham Methodist Church v. Morris County, New Jersey. District of New Jersey Federal District Court. In April 2023, the Clinic filed its first direct-representation lawsuit in a case against Morris County, New Jersey, on behalf of a Methodist church and a Lutheran church that both formerly received historic preservation funds to support their centuries-old architecturally and historically significant church buildings but were in recent years denied access to the grant program solely based on the fact that they are houses of worship. A parallel case reached the United States Supreme Court in 2019 and several Justices indicated interest in the issue at that time. We have filed for summary judgment, arguing that the New Jersey rule against providing equal treatment to houses of worship violates the Free Exercise Clause of the First Amendment. Both the Freedom From Religion Foundation and New Jersey Attorney General Matthew Platkin have sought to intervene in the case to defend New Jersey’s discriminatory rule. The motion for summary judgment and the motions to intervene remain pending.

Cedar Park Assembly of God of Kirkland v. Kreidler. Ninth Circuit Court of Appeals. A Washington state law forces churches to cover elective abortions in their health insurance plans. As a result of Washington’s abortion mandate, the Cedar Park Assembly of God’s insurance carrier included abortion coverage directly in the church’s health plan. The church brought suit, but lost on the merits in the district court. On appeal at the Ninth Circuit, the Clinic filed an amicus brief on behalf of the Christian Legal Society and the Becket Fund for Religious Liberty in support of Cedar Park, arguing that Washington State’s abortion mandate violates the Free Exercise Clause under recent United States Supreme Court decisions and the Ninth Circuit’s en banc opinion in Fellowship of Christian Athletes v. San Jose Unified School District. This amicus brief continues the Clinic’s support for churches and religious institutions that refuse to be complicit in facilitating abortion because it directly contradicts their sincerely held religious beliefs about the sanctity of human life. Foothill Church v. Bonta, the other case where the Clinic supported a church challenging California’s abortion mandate, ended with a victory in California district court. The Clinic filed its amicus brief in November 2023. Oral argument will likely be held sometime in 2024, with a decision following later.

Barnett v. Short. Eighth Circuit Court of Appeals. In this case, a Christian prisoner held in a Missouri county jail requested a Bible for his personal devotion, but a jail official responded, “Feel free to quote the constitution all you want to . . . [but] you will not receive anything more.” The prisoner was denied access to a Bible for an entire month. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The Clinic will file an amicus brief on behalf of Prof. Johnson in November 2023.

Landor v. Louisiana. Fifth Circuit Court of Appeals (panel and en banc). In this case, a Rastafarian prisoner had his religiously-mandated hair forcibly cut off, causing the Court to say that it “emphatically condemn[ed] the treatment that Landor endured.” Nevertheless, the Court held that Landor could not seek damages for the behavior the Court condemned. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The Clinic filed one amicus brief at the panel stage in the Fifth Circuit, and then another at the en banc stage in October 2023. A decision on whether the Fifth Circuit will grant en banc review in Landor is expected in the coming months. 

Spencer v. Chiumento. Second Circuit Court of Appeals. After the United States Supreme Court struck down New York’s severe restrictions on gun ownership last June, the New York Legislature enacted a series of new gun restrictions, which were immediately challenged in court. One of those challenges involves a Christian church and pastor that would like to have permitted firearms in church for purposes of defending against a violent attack on their house of worship. However, New York’s new gun laws designate houses of worship as “sensitive” locations where guns may not be borne, even (in some cases) by security guards. The Clinic filed an amicus brief supporting the church’s claim, on behalf of a Jewish synagogue in Monsey, New York. The brief argues that it is illegal to discriminate against houses of worship when New York allows guns to be borne in many secular locations where many people gather, such as department stores and restaurants. The brief will also point out that it is especially problematic to deprive Jewish worshippers of the right to defend themselves given the rising tide of antisemitic violence and attacks on synagogues. The brief was filed in March 2023, and the case was argued later that month. In December 2023, the Second Circuit issued its opinion, holding that New York’s laws wrongfully discriminated against houses of worship.

Hilsenrath v. School District of the Chathams. Third Circuit Court of Appeals. In this case, a student was taught about Islam as part of her public school curriculum on world religions. The student and her mother brought suit, claiming that the lesson constituted an establishment of religion and was unconstitutional. The student is supported by Americans United for Separation of Church and State, an anti-religion group. The Clinic represents the Jewish Coalition for Religious Liberty and argued in support of the School District of the Chathams. The amicus brief pointed to recent Supreme Court precedent in Kennedy v. Bremerton School District to argue that teaching students about religion–instead of teaching them to believe in religion–does not violate the Establishment Clause. The amicus brief emphasized that adopting the plaintiff’s view would effectively ban teaching about religions of all sorts, and that learning about other religions is important in our pluralistic society, especially for religious minorities like Jews. The Third Circuit granted argument time to our client, and Chris Pagliarella from Jones Day argued the case on behalf of the Clinic. Oral argument was held in October 2024, and a decision will be forthcoming in the following months.

Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints. Tenth Circuit Court of Appeals. In this case, a former member of the Church of Jesus Christ of Latter-day Saints sued the Church, claiming that the Church made misrepresentations about the purpose and use of Church tithes. The Clinic represents the Becket Fund for Religious Liberty and filed an amicus brief in March 2024. The amicus brief argues that the First Amendment church autonomy doctrine prohibits courts from being arbiters of scriptural interpretation, and that includes the act of tithing. At bottom, tithing is a devotional practice, not a business transaction, and religious principles frequently guide the discussion and disbursement of tithes. Courts cannot constitutionally adjudicate how churches are to use their tithing funds without running afoul of the First Amendment. Oral argument was held in September 2024, and a decision will likely be forthcoming in the next year.

Oklahoma Statewide Charter School Board v. Drummond. United States Supreme Court. Oklahoma broadly authorizes private groups to set up state-funded charter schools. When the Oklahoma Statewide Charter School Board issued a charter to St. Isidore Virtual Catholic School, a private non-profit corporation, Oklahoma Attorney General Gentner Drummond sued to block the charter, stating that under Oklahoma law, only non-religious entities could set up charter schools. In an amicus brief filed on behalf of the Assemblies of God, the Coalition for Jewish Values, and the Religious Freedom Institute, the Clinic argued that St. Isidore does not become a governmental entity–an arm of the state–simply because it receives a license from the state, is heavily regulated by the state, or enters into a contract with the state. And as a private religious entity, St. Isidore should be treated no worse than a private nonreligious entity. The Supreme Court is likely to decide in early 2025 whether to take up the case.

DiMeo v. Gross. Superior Court of Pennsylvania. In this case, Dr. Gross was put to the choice between following Jewish law that requires him to observe Yom Kippur and being present for his own civil trial. The Pennsylvania trial court denied a trial continuance that would have accommodated Dr. Gross’s religious beliefs. The Clinic represents Agudath Israel of America, a national grassroots Orthodox Jewish organization. We filed an amicus brief arguing that a one-day continuance to accommodate Dr. Gross’s observance of Yom Kippur was required by the federal and Pennsylvania Constitutions. We are currently awaiting a ruling from the court.

Rojas v. City of Ocala. Eleventh Circuit Court of Appeals. Ten years ago, atheists from various municipalities traveled to the City of Ocala to voluntarily attend a prayer vigil that included religious content they knew they would find offensive. They then sued the City of Ocala for a violation of the Establishment Clause. The Clinic is preparing an amicus brief arguing that under bedrock principles of standing-to-sue, Plaintiffs have suffered no legally cognizable injury so their case must be dismissed. The Clinic argues that merely taking offense at others’ religious expression does not give atheist plaintiffs standing to sue. The Clinic’s amicus brief also builds on Kennedy v. Bremerton School District and asks the Eleventh Circuit to hold that there is no Establishment Clause violation. The Clinic anticipates filing the amicus brief in early 2025. Oral argument and a decision will follow at a later date.

Religious Rights Foundation v. State College Area School District. Middle District of Pennsylvania federal district court. The public schools in State College, Pennsylvania allow some privately-educated students to participate in certain public school extracurricular activities, but not students attending religious private schools. The Clinic is preparing an amicus brief in support of the plaintiff group who attend religious schools in the area and would like to participate in extracurriculars. The Clinic anticipates filing the amicus brief in January 2025.

Fuqua v. Raak. Ninth Circuit Court of Appeals. In this case, the Arizona prison system refused to allow a prisoner to observe his Sabbath. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The case is set to be argued in December 2023.

Hunter v. Department of Education. Ninth Circuit Court of Appeals. This case involves a lawsuit against the Biden Administration’s Department of Education. The plaintiffs–students who attended religious colleges and universities–argued that allowing religious colleges to utilize a longstanding, statutorily enacted religious exemption to Title IX violated the Establishment Clause because it permitted those colleges to discriminate on the basis of sex, sexual orientation, and transgender status. The Department of Education prevailed at the district court, and the plaintiffs appealed. At the Ninth Circuit, the Clinic filed an amicus brief in support of the Department of Education, arguing that Kennedy v. Bremerton School District, a recent Supreme Court case, revolutionized Establishment Clause doctrine and that under the Court’s new “historical practices” interpretation, Plaintiffs failed to state a viable Establishment Clause claim. As a result, religious colleges and universities should be able to continue claiming Title IX’s religious exemption. A contrary ruling would mean that religious colleges and universities cannot access federal funding for their programs without surrendering their religious beliefs. The Clinic filed its amicus brief in November 2023. Oral argument will be held sometime in 2024, with a decision following in the months afterwards.

Spencer v. Chiumento. Second Circuit Court of Appeals. After the United States Supreme Court struck down New York’s severe restrictions on gun ownership last June, the New York Legislature enacted a series of new gun restrictions, which were immediately challenged in court. One of those challenges involves a Christian church and pastor that would like to have permitted firearms in church for purposes of defending against a violent attack on their house of worship. However, New York’s new gun laws designate houses of worship as “sensitive” locations where guns may not be borne, even (in some cases) by security guards. The Clinic filed an amicus brief supporting the church’s claim, on behalf of a Jewish synagogue in Monsey, New York. The brief argues that it is illegal to discriminate against houses of worship when New York allows guns to be borne in many secular locations where many people gather, such as department stores and restaurants. The brief will also point out that it is especially problematic to deprive Jewish worshippers of the right to defend themselves given the rising tide of antisemitic violence and attacks on synagogues. The brief was filed in March 2023, and the case was argued later that month. In December 2023, the Second Circuit issued its opinion, holding that New York’s laws wrongfully discriminated against houses of worship.

Pleasant View Baptist Church v. Beshear. Sixth Circuit Court of Appeals (en banc). This case involved a lawsuit against Kentucky Governor Andy Beshear for COVID lockdown orders that prohibited in-person learning at elementary and secondary schools. The panel ruled against the Plaintiffs on multiple grounds, including on Plaintiffs’ freedom of assembly claim, by finding that any constitutional rights were not “clearly established” at the time Plaintiffs brought their lawsuit. As a result, the court held that government officials could not be held personally liable for any unconstitutional actions. The Clinic filed a brief on behalf of John Inazu, the nation’s foremost scholar on the Assembly Clause, who also has close ties to Pepperdine University, having participated in the Dean’s Speaker Series with Dean Caron. The Clinic’s amicus brief on behalf of Inazu argued that the panel erred in its freedom of assembly analysis and that rehearing en banc was warranted to correct that legal error. The brief was filed in September 2023. In October 2023, the Sixth Circuit denied rehearing en banc. 

Charter Day School v. Peltier. United States Supreme Court. This case involved an ACLU lawsuit against a North Carolina charter school that requires students to wear appropriate clothing corresponding to whether they are boys or girls. The ACLU challenge is based on the idea that this policy violates federal laws pertaining to gender equality. The defendant, Charter Day School, is defending in part based on the idea that it is a private entity, not a public entity, and therefore not subject to the federal laws in question. The ACLU says that because Charter Day School—a nonprofit corporation—contracts with the government to run a charter school, it is therefore a public entity and subject to these gender discrimination laws. Charter Day School lost at the Fourth Circuit Court of Appeals and sought review at the United States Supreme Court. The Clinic filed a brief on behalf of Catholic Charities of the Diocese of Arlington, Virginia, in support of Charter Day School. The amicus brief argued that although Charter Day School is not itself religious, the theory advanced by the ACLU would be devastating for nonprofit religious ministries like Catholic Charities that contract with governmental bodies to provide social services like homeless shelters, soup kitchens, and food banks; contracting should not be enough to turn a private entity into a public one. The amicus brief was filed in October 2022 and Petitioner Charter Day School cited to the Clinic’s brief twice, in its reply and supplemental briefs. In June 2023, the Supreme Court denied review.

Mast v. Fillmore County, Minnesota. Minnesota Court of Appeals. This was a challenge by Old Order Amish farmers in rural Minnesota to a county ordinance requiring them to treat “gray water” (sink water, not sewage) using an electric septic tank rather than the traditional mulching system. This case was reviewed once by the United States Supreme Court, which reversed an earlier ruling against the Amish. Our amicus brief, filed on behalf of the National Committee for Amish Religious Freedom, the leading national Amish religious liberty organization, argued that Fillmore County's ordinance is part of a broader history of attacks on the Amish by local governments. Our brief explains that a cooperative approach by the government, rather than bans on Amish religious practices, have resulted in better outcomes for both the Amish and local governmental bodies. The brief was filed in January 2023. In July 2023, the Minnesota Court of Appeals issued a unanimous 3-0 decision in favor of the Old Order Amish.

Groff v. DeJoy. United States Supreme Court. This appeal concerned the United States Postal Service’s decision to require its employees to start working on Sundays in accordance with USPS’s agreement to deliver packages for Amazon. (U.S. Mail is not delivered on Sundays.) In this appeal, a Christian United States postal worker seeks redress for his firing due to his religious restriction on working on Sundays. The Clinic filed an amicus brief on behalf of Orthodox Union, one of the nation’s largest Orthodox Jewish denominational groups. The brief explained the many problems that the previous legal standard presented for Orthodox Jews and urged the Court to recognize a more faith-friendly legal standard. The brief was filed in February 2023. In June 2023, the Supreme Court issued a unanimous opinion in favor of the plaintiff, creating a new, more favorable standard for religious claimants. In reaching its decision, the Supreme Court quoted the Clinic’s amicus brief by name and cited to cases found in the Clinic’s amicus brief.

Walker v. Baldwin. Seventh Circuit Court of Appeals. A Rastafarian prisoner was denied the wearing of a religiously-mandated hairstyle. However, such hairstyles are commonly allowed in federal and state prison systems and have caused no security problems. The Clinic represents Prof. Byron Johnson, a leading Christian scholar on the role of religion in prison who is a professor at Baylor University in Texas and is currently a visiting professor at Pepperdine’s School of Public Policy. Citing to Prof. Johnson’s scholarship, the brief argues that accommodating prisoners’ religious exercise helps them rehabilitate in prison, decreases prison security problems, and lowers the recidivism rates for released prisoners. The amicus brief was filed in October 2022. The Seventh Circuit later decided the case on alternative grounds.

Palmer v. Liberty University. Fourth Circuit Court of Appeals. This case involved an age discrimination claim by a professor at Liberty University, a Christian university in Virginia, whose teaching contract was not renewed. Our brief, which was filed on behalf of a coalition of religious universities from a number of different faith traditions, including Pepperdine itself, argues that the professor's discrimination lawsuit cannot be allowed to proceed because it runs afoul of the First Amendment's ministerial exception and church autonomy doctrines. This brief was filed in May 2022 and the case was argued in January 2023. In June 2023, the Fourth Circuit affirmed the lower court’s dismissal on ADEA grounds and declined to reach the ministerial exception question. One judge concurred in the judgment and explained that the plaintiff was a minister and therefore her suit was barred.

Morris v. Centura Health. Colorado Court of Appeals. This case involved a test-case lawsuit brought by a doctor who was fired for seeking to provide assisted suicide in contravention of her religious hospital employer's commitment to abide by the Ethical and Religious Directives for Catholic Healthcare Services. The doctor seeks to force Catholic healthcare entities to allow their doctors to participate in assisted suicide/euthanasia. Our brief, filed on behalf of the Little Sisters of the Poor and the Catholic Benefits Association, argued that the First Amendment doctrine of church autonomy would not allow Colorado to force Catholic healthcare providers to participate in assisted suicide in defiance of Church teaching. This brief was filed in May 2022. The Court of Appeals later denied relief to Centura.

Foothill Church v. Bonta. Eastern District of California federal district court. This was a challenge by several Protestant churches to a California state abortion mandate that applies to employers. The churches have a religious objection to providing abortion within their employee healthcare plans. Our amicus brief, filed on behalf of the California Catholic Conference (which consists of the Catholic bishops of California) argued that California's abortion mandate cannot be reconciled with either the Supreme Court's 2021 decision in Fulton v. City of Philadelphia or the church autonomy doctrine. The brief was filed in April 2022. Although the district court had originally ruled against the churches, in August 2022 it reversed course based on the Fulton case, and in February 2023 it issued a permanent injunction against California’s abortion mandate.

Kennedy v. Bremerton School District. United States Supreme Court. This case concerned a public high school football coach in Washington State who was fired because he prayed on the 50-yard line after games concluded. Our brief, filed on behalf of the American Legion, argued that the history and traditions of the First Amendment mean that while truly coercive prayer practices (e.g. pray-to-play) would be impermissible, private prayer is firmly within constitutional bounds, even if undertaken in a public place and in a public way. The brief was filed in March 2022, and the Supreme Court decided the case in June 2022 in favor of Coach Kennedy.