On May 23, 2023, parents and two religious educational institutions filed a lawsuit against the state of MN over their policy regarding post-secondary enrollment options allowing high school kids to enroll in college courses and get simultaneous high school and college credit.
One of the religious educational institutions that sued is the largest provider of PSEO in the state. In the previous year, Northwestern got $33 million and Crown $5 million.
The new budget signed by Governor Walz required that if educational institutions forced students to sign a “faith statement” e.g. agreeing that homosexuality is wrong, marriage is between one man and one woman, no extra marital sex etc. they could not receive the money because that is discrimination based on religion, which is unlawful. The amendment in the law came after repeated complaints about those two schools.
The religious institutions turned that idea on its head and argued that not allowing them to force students to sign such statements was discrimination based on their religion that required such a statement and thus violated the constitution. That it discriminates against other religions and the non-religious they cared not a hoot.
As expected, the plaintiff relied on prior Supreme Cult decisions Trinity Lutheran, Espinoza, and Carson for the principle that if you open tax dollars to private institutions, then they all get to eat at the trough. This is the drip drip drip strategy of chipping away at the constitutional norms until there is nothing left but the shell.
The institutions claimed the prohibition violated their particular understanding of the Christian faith. But what about others understanding that may be different? Herein lies the problem. They are not tolerant of other beliefs but expect others to be completely in line with theirs.
The plaintiff parents have seven and four children respectively and homeschool them all. They are entitled to send their children to a religious school but on their own dime, not the taxpayers. They claim the policy burdens their religious practice. No it doesn’t. They don’t have to have premarital sex or marry a same sex person or be a lesbian. They can still practice their religion and shun those things. However, they can’t tell others what to do. They can’t require others to abide by their rules.
Likewise, the institution can continue to make its own policies. The state is not interfering with their internal affairs. They just don’t get taxpayer dollars to mandate that others adhere to their beliefs. That is precisely what the First Amendment says – don’t create a state church, don’t tell others what they must believe.
On June 14, 2023, the U.S. District Court in the district of Minnesota granted a preliminary injunction that prohibited MN from enforcing the law during the pendency of the lawsuit. MN had agreed to that.
On September 10, 2024, the FFRF submitted an amicus brief in support of the State’s motion for summary judgment. They pretty much said what is sensible i.e. it’s a neutral and generally applicable condition that does not restrict a person’s practices and is designed to prohibit undermining the state’s interest of non-discrimination based on religion. In fact it’s required not to discriminate against those who have a different understanding of the Christian or any religion.
FFRF argues that in fact it is the religious institutions who are discriminating by requiring students to sign a document to discriminate against certain groups, in which that person may belong, in order to be accepted into the school. In other words, the religious institutions want to be exempt from non-discrimination laws. They want special privileges to discriminate against those who do not believe as they do.
The goal of the MN program was to ensure that students were not discriminated against under their existing law saying specifically that schools may not discriminate based on religion yet that is precisely what these schools want to do. Other religious schools do participate in the program with no problem. The First Amendment gives right to people – not institutions. The right of people i.e. students to go to any school should not be violated because of the bylaws or policies of an institution. Unfortunately, the Hobby Lobby case said that businesses and institutions can have religious beliefs too.
This policy has nothing to do with internal policies. The institutions can believe and manage their institution however they want. But when they get public taxpayer money, they must follow the law and not discriminate. The FFRF brief outlines why someone might want to go to that school i.e. they live close by, their friends are going there, it has a specific course they want or a specific faculty member who has a top reputation. The students should not be rejected because they do not adhere to that schools particular interpretation of Christianity including that men are inherently sinful, only Jesus Christ can fix it, the Bible is truth, and hell is real - otherwise you are not allowed on campus. If everyone must think the same thing, and no questioning is allowed, that’s not education, it’s indoctrination. What are these kids going to do when they get out of college and go into a world that disagrees with them?
Fortunately FFRF was able to quote a new Supreme Cult case, Students for Fair Admissions,
Inc. v. President & Fellows of Harv. Coll., 143 S.Ct. 2141, 2147 (2023) (quoting Brown v. Bd. of Educ., at 493) that said “the right to a public education ‘must be made available to all on equal terms.’” We will eventually find out what the Supreme Cult really meant by that. I’m afraid it might mean white, wealthy, male students must have a right to education.
On August 22, 2025, the court released its order on cross-motions for summary judgment i.e. both the religious institutions (and parents) and the state asked for summary judgment. MN argued that it was the schools who were discriminating especially on sex and sexual orientation. The institutions bleated, “I’m besieged, my religion is being attacked.”
The Court heeded the Supreme Court’s instruction that the First Amendment “gives special solicitude to the rights of religious organizations.” Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 189 (2012) (emphasis added). Religious organization should NOT get special solicitude, so says the founding fathers.
James Madison said:
“It was the universal opinion of the Century preceding the last, that Civil Govt. could not stand without the prop of a Religious establishment, & that the [Christian] religion itself, would perish if not supported by a legal provision for its Clergy. The experience of Virginia conspicuously corroborates the disproof of both opinions. The Civil Govt. tho’ bereft of every thing like an associated hierarchy possesses the requisite Stability and performs its functions with complete success: Whilst the number, the industry, and the morality of the priesthood & the devotion of the people have been manifestly increased by the total separation of the Church from the State.
[T]he number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” Letter to Robert Walsh, March 2, 1819
“[I]t is proper to take alarm at the first experiment on our liberties....Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” From the "Memorial and Remonstrance," 1785
“We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt.” -Letter to Edward Livingston, July 10, 1822
Benjamin Franklin in 1780 said:
“When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not care to support it, so that its professors are obliged to call for the help of the civil power, ‘tis a sign, I apprehend, of its being a bad one. Letter from Benjamin Franklin to Richard Price (Oct. 9, 1780), quoted in The American Enlightenment: The Shaping of the American Experiment in a Free Society 93 (Adrienne Koch ed. 1965).
Thomas Jefferson said:
“[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern...” Jefferson’s “Virginia Act for Establishing Religious Freedom,” Adopted January 1786
James Garfield, 1881, said:
“Whatever help the nation can justly afford should be generously given to aid the States in supporting common schools; but it would be unjust to our people and dangerous to our institutions to apply any portion of the revenues of the nation or of the States to the support of sectarian schools. The separation of Church and State in everything relating to taxation should be absolute.”
For those who claim to believe in “originalism,” the Supreme Cult is unconstitutional, not this Minnesota law.
The Trump-appointed MN judge found for the plaintiff parents and religious institutions saying the “faith ban” was unconstitutional under the Free Exercise Clause of the United States Constitution and the Freedom of Conscience Clause of the Minnesota Constitution. In their argument, the religious institutions also asked to declare the ban on secular courses unconstitutional as well. This is where they are going – that religious schools can offer, and you get to pay for religious education.
Most of the 70 pages of the decision was on jurisdictional and standing issues. The families argued that their children wanted to attend a school of their choice while still being educated in “faith based communities.”
I don’t know how these people grew up, but you don’t aways get what you want. “Choice” means you may have to choose between two or more imperfect solutions. If they don’t like the beliefs/actions of a school, they don’t need to go there. No where does the Constitution say you get the education you specifically design for yourself.
If you want that, pay for it yourself.
Under existing jurisprudence outlining the procedure and tests for these kinds of questions, I find the judges reasoning completely insane. The court claims the law makes students choose between their belief and their school choice. That is Minnesota’s point. Those students who don’t believe as the school does are discriminated against because they must choose between their belief and their school. So the judge should have ruled for MN. But she didn’t.
If the court had framed it as a clash of constitution protections i.e. for those who believed in the “statement of faith” and those who didn’t, she would have to use a different framework because both are constitutional rights. But she didn’t. She just said these people’s beliefs (the particular Christian interpretation) win regardless of what religious beliefs others may have. The judge was very careful to say that other “strongly held beliefs” for example of atheists would not be given the same deference. She opined about how a devoted Christian would be harmed but said nothing about how a devoted non-christian or even another sect of Christianity would be harmed.
The court specifically puts the interest of religious institutions above the state’s interest in nondiscrimination though both are constitutional rights while at the same time citing to a footnote that says:
See St. Mary Cath. Par. in Littleton v. Roy, 736 F. Supp. 3d 956, 963 (D. Colo. 2024) (“While it is settled at this point that states may not generally decline to fund religious schools as part of an educational benefits program, the weight of the relevant precedent supports that states administering such programs are not obligated to subsidize discrimination using taxpayer dollars, even when that discrimination is based on religious beliefs.”), appeal filed, No. 24‐1267 (10th Cir. June 24, 2024).
So while the judge said, the right of the church is above the right of the state, she cites to a decision that says the opposite i.e. that the state does NOT have to fund discrimination based on religious beliefs. But putting the right of the church above the right of the state is very dangerous.
The judge said that one solution is to give no monies to any religious institution. I would support that, and MN lawmakers should take her up on it though it is unlikely they will as they have been supporting parochial school for a long time. Many religious schools would not exist but for the infusion of state taxpayer money. Hence, they have been trying to get their fingers deeper in the cookie jar for years.
The state could appeal to the circuit court, but they are the only Blue state in the Eighth circuit that is notorious for its bad decisions. They also may not want to open an pathway to the Supreme Court to get an even worse ruling. They could also try a legislative fix and let it take several years to get to the court again which may be a better approach.
BILKING PEOPLE OUT OF MONEY IS A KEY RELIGIOUS FUNCTION.
The Ninth Circuit to which Arizona belongs, has not been silent lately about religion. McMahon v. World Vision, a case from Seattle was decided on August 5. McMahon had sued World Vision for discrimination based on sex, sexual orientation, and marital status when World Vision revoked an employment offer after finding out McMahon was in a same sex marriage. She was to be a customer service representative (CSR). You might ask - what does a church need with a customer service representative? Is the customer to complain – Jesus didn’t answer my prayer, god didn’t smite my neighbor, prosperity has not darkened my door?
I had my own experience working, or rather did not work, with World Vision in Cambodia. They were there allegedly working on sex trafficking but were the only international group that would not join a coalition of groups working on that issue. They required that each other group sign a document embracing their lord. This is Cambodia! If the people are anything, they are Buddhist. No one was going to sign any such thing. I reminded the woman who was a Jewish American that it’s unconstitutional. She reminded me that we were in Cambodia not the U.S. True enough but the money came from the U.S.
In this case, at first the lower court ruled for World Vision under church autonomy doctrine but then reversed itself using neutral principles of law that would not get the court entangled in religion. The church argued that CSRs were under the “ministerial exception” because they were the public voice of World Vision communicating to worldwide ministries and projects and to donors and supporters, and therefore these financial services (fundraising) were “vital religious duties.” Where would churches be without money after all. On this basis the Ninth Circuit panel (not full court) reversed the lower court and remanded for them to enter summary judgment for World Vision since raising money is a key religious function.
World Vision views its fundraising as “a form of ministry in itself.” They want the CSRs to pray with donors though it’s not required nor a reason for termination. World Vision fired McMahon when she asked for time off to have a baby. I thought these people loved Christians to have more children.
You can see how far the principle of what a religious function is has expanded. The arguments and ruling also make it clear that religion is about money. One of the four factors to determine if “ministerial exception” applies is “whether the employee performed important religious functions.” The exception has been applied to teachers and principals, workers at a Zen center who cleaned and rang bells, and Jewish meat inspector inspecting a vineyard.
The CSR job duties were answering calls, up-selling, data entry, sales work and typing but those were “vital religious duties” according to the panel. The court said those responsibilities lie at the very core of the mission – raising money. Teachers are essential to schools; Orthodox Jews are essential for kosher sales; CSRs are essential because they solicit donations which is a form of ministry or religious practice. World Vision’s goal is to pair donors with children. They introduced copies of real calls in which donors talked about the child they sponsored and asked the CSR to pray with them. Though these calls are rare, the court specifically found that engagement with donors is a form of ministry.
THE RULES DON’T APPLY TO ME.
In Foothills Christian Ministries et al v. Johnson and CA Dept of Social Services, decided August 15, 2025, Judge Andy Hurwitz from AZ wrote the opinion for the panel. Three CA churches brought a pre-enforcement challenge to a state regulation about day care facilities claiming the regulations violate the first amendment speech and exercise clauses and the due process requirement of the 14th amendment. They lost.
The Act and its regulations require that child day care facilities (1) be licensed by the Department of Social Services; (2) ensure that children be free to attend religious services or activities of their choice, as decided by a child’s authorized representative; and (3) provide notice to a child’s authorized representative of their right to make decisions about the child’s attendance at religious services.
Foothills challenged the requirement that they give notice to an “authorized representative” that they could make their own decision about religious attendance because ,“the right to religious autonomy is at odds with its stated mission.” The court held it was factual and uncontroversial information that was related to protecting children’s rights so not burdensome.
Foothills complained that it was a violation of due process to require them to get a license at all. The panel found no merit in that. If I were the parent of a child, I would be running as fast as I could from that day care.
Foothills could challenge the requirement of a license because they whined that secular child recreational programs like the YMCA and Boy Scouts did not have to get one. The state answered that those are recreation not day care and the focus is type of programming which is legitimate. It is a valid and neutral law, and Foothills must abide by it.
Here’s the rest of the story – Foothills had a license, but it was suspended because they refused to follow the mask mandate in 2021. Now they want to re-open but without any rules. They require the children to attend religious services, and they require parents to approve in advance so there is no violation. That argument was dismissed for lack of having a “case or controversy.”
Foothills does not want to tell parents that a child is free to attend religious services or activities of his/her choice because that is compelled speech. In this case, the only speech is low level factual and uncontroversial information not political or religious speech, therefore the lowest level of analysis i.e. rational relation applies and sustains the requirement. The due process claims were so patently ridiculous they were chucked out wholesale.
This gives you a flavor of where we are going in this theocratic government. Religious institutions and religious people believe the law does not apply to them. They feel free to swing the sword and not even let you hold up the shield.
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