Youth 71five Ministries v. Williams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOUTH 71FIVE MINISTRIES, No. 24-4101

D.C. No.

Plaintiff - Appellant,

1:24-cv-00399-CL

v.

OPINION

CHARLENE WILLIAMS, Director

of the Oregon Department of

Education, in her individual and

official capacities; BRIAN

DETMAN, Director of the Youth

Development Division, in his

individual and official capacities;

CORD BUEKER, Jr., Deputy

Director of the Youth Development

Division, in his individual and

official capacities,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Oregon

Mark D. Clarke, Magistrate Judge, Presiding

Argued and Submitted November 20, 2024

Pasadena, California

Filed August 18, 2025

2 YOUTH 71FIVE MINISTRIES V. WILLIAMS

Before: Johnnie B. Rawlinson, Morgan B. Christen, and

Anthony D. Johnstone, Circuit Judges.

Opinion by Judge Johnstone;

Concurrence by Judge Rawlinson

SUMMARY *

First Amendment

In a suit brought by Youth 71Five Ministries alleging

that the Oregon Department of Education, through its Youth

Development Division, violated 71Five’s First Amendment

rights when the Division withdrew its conditional award of

a grant to 71Five, the panel affirmed in part and reversed in

part the district court’s denial of 71Five’s request for a

preliminary injunction and its dismissal of 71Five’s claims

based on qualified immunity.

The Division added a new grant eligibility Rule that

prohibits grantees from discriminating based on religion,

and withdrew 71Five’s conditional grant award after

discovering that 71Five imposes religious requirements on

all employees and volunteers.

The panel affirmed the district court’s decision not to

enjoin the Division’s enforcement of the Rule as to 71Five’s

grant-funded initiatives. 71Five was unlikely to succeed on

the merits of its claim that the Rule violates the First

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

YOUTH 71FIVE MINISTRIES V. WILLIAMS 3

Amendment right to the free exercise of religion because the

Rule is neutral and generally applicable, and likely satisfies

rational-basis review. Nor was 71Five likely to succeed on

the merits of its novel religious autonomy claims that

conditioning grant funding on compliance with the Rule

impermissibly interferes with its choice of ministers and

faith-based hiring of non-ministers.

Addressing 71Five’s claim that the Rule abridges its

expressive association by requiring it to accept employees

and volunteers who disagree with its message, the panel held

that the Rule was likely permissible as a reasonable and

viewpoint-neutral regulation as to Division-funded

initiatives. But to the extent that Rule restricts 71Five’s

selection of speakers to spread its Christian message through

initiatives that receive no Division funding, the Rule likely

imposes an unconstitutional condition. Accordingly, the

panel directed the district court to enter an order enjoining

enforcement of the Rule as to initiatives that do not receive

grant funding from the Division.

The panel affirmed the district court’s dismissal of

71Five’s claims for damages because 71Five did not allege

any violation of a clearly established right, and therefore

defendants were entitled to qualified immunity. However,

the panel reversed the district court’s dismissal of 71Five’s

claims for declaratory and injunctive relief, against which

qualified immunity does not protect.

Judge Rawlinson concurred in the judgment only

because of this court’s truncated review of a district court’s

decision granting or denying injunctive relief, and obligatory

deference to a district court’s discretionary decision to

decline consideration of the arguments and evidence

presented in a Reply Brief. Otherwise, she would conclude

4 YOUTH 71FIVE MINISTRIES V. WILLIAMS

that the State of Oregon’s application of the rules governing

its grant program violated 71Five’s right to the free exercise

of religion.

COUNSEL

Jeremiah Galus (argued), James A. Campbell, Mark

Lippelmann, and Ryan J. Tucker, Alliance Defending

Freedom, Scottsdale, Arizona; David A. Cortman, Alliance

Defending Freedom, Lawrenceville, Georgia; John J.

Bursch, Alliance Defending Freedom, Washington, D.C.;

for Plaintiff-Appellant.

Kirsten M. Naito (argued), Assistant Attorney General;

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,

Attorney General; Oregon Department of Justice, Salem,

Oregon; for Defendants-Appellees.

YOUTH 71FIVE MINISTRIES V. WILLIAMS 5

OPINION

JOHNSTONE, Circuit Judge:

Oregon’s Department of Education, through its Youth

Development Division, runs a Youth Community

Investment Grant Program. The Program funds community

organizations that serve at-risk youth in furtherance of the

Division’s statutory goals to support educational success,

prevent crime, and reduce high-risk behaviors. The Division

awards grants through a competitive application process that

requires applicants to certify compliance with the Division’s

policies. To ensure that its grants benefit Oregonians of all

backgrounds, the Division implemented a new policy for the

2023–2025 grant cycle requiring applicants to certify that

they “do[] not discriminate . . . with regard to,” among other

protected characteristics, religion.

Since 2017, Youth 71Five Ministries (“71Five”) has

received funding from the Division for several of its

initiatives. While it serves all youth who choose to

participate, 71Five’s “primary purpose” is “to teach and

share about the life of Jesus Christ.” To that end, 71Five

requires that its board members, employees, and volunteers

agree to a Christian Statement of Faith and be involved in a

local church. Because 71Five’s hiring practices violate the

Division’s antidiscrimination policy, the Division withdrew

its conditional award of a grant for 2023–2025. 71Five sued

for equitable and monetary relief and sought a preliminary

injunction. It claims that the Division’s enforcement of the

antidiscrimination policy violates its free-exercise,

religious-autonomy, and expressive-association rights under

the First Amendment. The district court declined to grant the

preliminary injunction and dismissed 71Five’s claims based

6 YOUTH 71FIVE MINISTRIES V. WILLIAMS

on qualified immunity. We affirm in part, reverse in part, and

remand.

Though 71Five advances several claims, most of them

boil down to an argument that the Division treats it worse

than secular grantees because of its religious exercise or

message. If that is true, then the Division almost certainly

violates the First Amendment. But the district court did not

abuse its discretion in determining that—on the current

record—71Five has yet to show any such discrimination. We

therefore affirm the district court’s decision not to enjoin the

Division’s enforcement of its policy as to 71Five’s grant-

funded initiatives. Even absent discrimination, however, the

Constitution does not permit the Division to leverage its

grants to restrict 71Five’s expression in initiatives that

receive no public funds. To the extent that the Division’s

nondiscrimination policy applies beyond 71Five’s grant-

funded initiatives, the policy likely violates 71Five’s right of

expressive association. At this early stage, 71Five is entitled

to a preliminary injunction on that basis, and it can continue

to pursue final declaratory and injunctive relief for all its

claims. But because 71Five does not allege a violation of any

“clearly established” right, qualified immunity bars its

claims for damages.

I. 71Five challenges the Division’s religious non-

discrimination Rule.

Oregon’s Department of Education created its Youth

Development Division “to invest in communities to ensure

equitable and effective services for youth.” As part of that

mission, the Division administers the Youth Community

Investment Grant Program, which funds community-based

initiatives serving youth at risk of disengaging from school

or work. The Program serves the Division’s statutory goal of

YOUTH 71FIVE MINISTRIES V. WILLIAMS 7

“[p]rovid[ing] services to children and youth in a manner

that supports educational success, focuses on crime

prevention, reduces high risk behaviors,” and generally

“improve[s] outcomes for youth[.]” To ensure that its grants

benefit communities across Oregon, the Division funds

grantees that work in different regions, provide a wide array

of services, and offer “culturally responsive” programs

tailored to the “perceptions and behaviors unique to [the]

specific culture” of various groups.

The Division awards grants through a competitive

application process, which requires applicants to certify that

they meet certain eligibility requirements. For the 2023–

2025 cycle, the Division added a new eligibility Rule

requiring every grant applicant to certify that it “does not

discriminate in its employment practices, vendor selection,

subcontracting, or service delivery with regard to race,

ethnicity, religion, age, political affiliation, gender,

disability, sexual orientation, national origin or citizenship

status.” The Division added the Rule to align with other state

agencies’ practices and to further its “commitment to

equitable access, equal opportunity, and inclusion.”

Youth 71Five Ministries is a nonprofit Christian ministry

that “exists to share God’s Story of Hope with young

people.” 71Five fulfills this mission by offering youth-

oriented programs that “provide social interaction,

vocational training, and meaningful relationships, all while

emphasizing the importance of having a relationship with

Jesus Christ.” The ministry’s services include youth centers,

apprenticeship and career programs, camps, conflict-

resolution workshops, and mentoring. While these various

services “strive to meet participants’ physical, mental,

emotional, and social needs,” 71Five’s “primary purpose” is

“to teach and share about the life of Jesus Christ.”

8 YOUTH 71FIVE MINISTRIES V. WILLIAMS

71Five does not discriminate in its vendor selection,

subcontracting, or service delivery. But because it “depends

on its staff and volunteers to fulfill the ministry’s distinctly

Christian mission and purpose,” by “articulat[ing] and

advanc[ing] its Christian messages,” 71Five “requires all

board members, employees and volunteers ‘to be authentic

followers of Christ.’” Officers, staff, and volunteers must

“subscribe and adhere” to a “Statement of Faith” reflecting

“the beliefs of historic Christianity” and “must also be

actively involved in a local church.” And although it serves

students and families regardless of their religion, 71Five

“encourage[s] [them] to be involved in a local church too.”

From 2017 to 2023, the Division awarded seven grants

to 71Five. In 2023, after the Division implemented the Rule,

71Five again applied for grants to fund its youth centers and

“Break the Cycle,” a mountain-biking initiative that serves

youth in juvenile correction facilities. Though it

discriminates in employment based on religion, 71Five

certified in its applications that it complied with the Rule

because it believed its religious hiring practices were

constitutionally exempt. In July 2023, the Division

conditionally awarded 71Five grants totaling $410,000.

Four months later, the Division received an anonymous

report that, according to its website, 71Five discriminates in

hiring on the basis of religion. In response, the Division

reviewed 71Five’s website and discovered that 71Five

imposes religious requirements on all employees and

volunteers. The Division then wrote to 71Five to confirm

what its website suggested: that 71Five discriminates based

on religion in apparent violation of the Rule. 71Five’s

executive director confirmed that the ministry requires

applicants for staff and volunteer positions to affirm its

Statement of Faith and expects them to be affiliated with a

YOUTH 71FIVE MINISTRIES V. WILLIAMS 9

local church. As a result, the Division withdrew the

conditional awards.

71Five sued several state officials under 42 U.S.C.

§ 1983. 71Five claimed that the Defendants’ enforcement of

the Rule violates its First Amendment rights to the free

exercise of religion, religious autonomy, and expressive

association. 71Five sought declaratory and injunctive relief

against the Defendants in their official capacities, as well as

damages from the Defendants in their individual capacities.

71Five also moved for a preliminary injunction to

reinstate its conditionally awarded grants and to enjoin the

Division from refusing to award future grants based on

71Five’s religious hiring practices. The Defendants opposed

the motion and moved to dismiss 71Five’s claims for

damages based on qualified immunity. In its reply brief in

support of the motion for a preliminary injunction, 71Five

argued—for the first time and based on new factual

assertions—that the Division allows secular grantees to

violate the Rule by “openly discriminat[ing] in the provision

of services based on race, ethnicity, gender, and national

origin[.]”

The district court denied the preliminary injunction

because it found that 71Five was unlikely to succeed on the

merits, any past monetary harm would be reparable without

an injunction, and neither the balance of equities nor public

interest favored an injunction. For the same reasons it

deemed 71Five unlikely to succeed on the merits, the district

court determined that the Defendants were entitled to

qualified immunity. Though the Defendants moved to

dismiss only the damages claims, the district court dismissed

all claims with prejudice. After 71Five timely appealed, a

10 YOUTH 71FIVE MINISTRIES V. WILLIAMS

motions panel of this Court granted an emergency injunction

and set the case for argument on an expedited basis.

We have jurisdiction to review the denial of a

preliminary injunction under 28 U.S.C. § 1292(a)(1), and we

review such decisions for abuse of discretion. Fellowship of

Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ.

(“FCA”), 82 F.4th 664, 680 (9th Cir. 2023) (en banc). “A

district court abuses its discretion when it utilizes ‘an

erroneous legal standard or clearly erroneous finding of

fact.’” Id. (quoting All. for the Wild Rockies v. Cottrell, 632

F.3d 1127, 1131 (9th Cir. 2011)).

II. The district court abused its discretion only in

declining to enjoin the Rule’s application beyond

Division-funded initiatives.

71Five seeks a preliminary injunction on the grounds

that the Division’s enforcement of the Rule violates its

religious and expressive freedoms under the First

Amendment. To obtain a preliminary injunction, 71Five

must establish that (1) it “is likely to succeed on the merits,”

(2) it “is likely to suffer irreparable harm in the absence of

preliminary relief,” (3) “the balance of equities tips in [its]

favor,” and (4) “an injunction is in the public interest.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“Where, as here, the party opposing injunctive relief is a

government entity, the third and fourth factors—the balance

of equities and the public interest—‘merge.’” FCA, 82 F.4th

at 695 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).

Likelihood of success is the most important factor in the

analysis, particularly where a plaintiff alleges a

constitutional violation. Meinecke v. City of Seattle, 99 F.4th

514, 521 (9th Cir. 2024). And here, it is the only factor we

need to consider at any length because the other three factors

YOUTH 71FIVE MINISTRIES V. WILLIAMS 11

favor an injunction. First, if 71Five shows that it is likely to

succeed on the merits, it has “demonstrate[d] the existence

of a colorable First Amendment claim” and established the

requisite irreparable injury. See FCA, 82 F.4th at 694–95

(quoting Cal. Chamber of Com. v. Council for Educ. & Rsch.

On Toxics, 29 F.4th 468, 482 (9th Cir. 2022)). Similarly, if

“we find that [the Rule] offends the First

Amendment, . . . the balance of hardships favors” 71Five.

Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d

741, 749 (9th Cir. 2012); but cf. Dep’t of Educ. v. California,

145 S. Ct. 966, 968–69 (2025) (noting that the government’s

inability to recover grant funds after they are disbursed

weighs against compelling immediate disbursement). And

“it is always in the public interest to prevent the violation of

a party’s constitutional rights.” FCA, 82 F.4th at 695

(quoting Am. Beverage Ass’n v. City of San Francisco, 916

F.3d 749, 758 (9th Cir. 2019)).

One last note on the applicable standard: we have so far

assumed that 71Five must show only that it is likely to

succeed on the merits. This standard applies to prohibitory

injunctions, which aim to preserve the status quo by

preventing a party from taking action. FCA, 82 F.4th at 684

(quoting Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053,

1060 (9th Cir. 2014)). The Defendants argue, and the district

court concluded, that the standard for mandatory injunctions

applies. A mandatory injunction alters the status quo by

requiring a party to take action and thus “place[s] a higher

burden on the plaintiff to show ‘the facts and law clearly

favor the moving party.’” Id. (quoting Stanley v. Univ. of S.

Cal., 13 F.3d 1313, 1320 (9th Cir. 1994)). But we determine

the status quo based on “the legally relevant relationship

between the parties before the controversy arose,” that is,

before the action challenged in the complaint occurred. Ariz.

12 YOUTH 71FIVE MINISTRIES V. WILLIAMS

Dream, 757 F.3d at 1061 (emphasis omitted). Here, the

challenged action is the Division’s enforcement of the Rule

against 71Five; before that, 71Five had a conditional grant

award and was eligible for future Division funding.

“Because it was the [Division]’s action that ‘affirmatively

changed’ that status quo and [71Five’s] motion for a

preliminary injunction seeks to restore that status quo, the

relief sought is properly viewed as a prohibitory injunction.”

FCA, 82 F.4th at 685. We therefore disagree with the district

court and decline the Defendants’ request to apply the

heightened standard for mandatory injunctions.

We turn to 71Five’s likelihood of success on the merits

of its First Amendment claims. The district court did not

abuse its discretion in concluding that 71Five is unlikely to

succeed on its free-exercise and religious-autonomy claims,

and the Rule’s application to Division-funded initiatives is

likely a permissible burden on 71Five’s expressive

association. But applying the Rule to initiatives that receive

no grant funding likely violates 71Five’s right of expressive

association. Denying a preliminary injunction as to those

initiatives was an abuse of discretion.

A. The Rule likely does not prohibit the free exercise

of religion.

The Free Exercise Clause of the First Amendment,

applicable to the states under the Fourteenth Amendment,

provides that “Congress shall make no law . . . prohibiting

the free exercise” of religion. U.S. Const. amend. I; U.S.

Const. amend XIV. But not all laws that burden religious

exercise presumptively violate this mandate. “[L]aws

incidentally burdening religion are ordinarily not subject to

strict scrutiny under the Free Exercise Clause so long as they

are neutral and generally applicable.” Fulton v. City of

YOUTH 71FIVE MINISTRIES V. WILLIAMS 13

Philadelphia, 593 U.S. 522, 533 (2021) (citing Emp. Div.,

Dep’t. of Hum. Res. of Or. v. Smith, 494 U.S. 872, 878–82

(1990)). The Defendants do not dispute that the Rule burdens

71Five’s religious exercise, so our analysis turns on whether

the Rule is both neutral and generally applicable. Although

71Five claims that the Rule is neither, the district court did

not abuse its discretion in determining that the Rule is both.

1. The Rule is likely neutral.

“[I]f it is to respect the Constitution’s guarantee of free

exercise,” the Division “cannot impose regulations that are

hostile to . . . religious beliefs” or engage in “even ‘subtle

departures from neutrality’ on matters of religion.”

Masterpiece Cakeshop v. Colo. Civ. Rts. Comm’n, 584 U.S.

617, 638 (2018) (quoting Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 534 (1993)). We may infer

hostility from “the historical background of the decision

under challenge, the specific series of events leading to the

enactment or official policy in question, and the legislative

or administrative history, including contemporaneous

statements made by members of the decisionmaking body.”

FCA, 82 F.4th at 690 (quoting Masterpiece Cakeshop, 584

U.S. at 639).

71Five does not contend that any historical background

or events leading to the Division’s adoption of the Rule show

hostility to religion. Nor does 71Five contend that Division

officials made any statements of the kind courts have found

to show hostility to religion. See FCA, 82 F.4th at 692;

Masterpiece Cakeshop, 584 U.S. at 634–36; Lukumi, 508

U.S. at 541–42. Instead, 71Five’s motion argued that the

Division’s hostility toward religion was reflected in its

“target[ed]” enforcement of the Rule against 71Five while

excepting secular groups, which operated to “single out the

14 YOUTH 71FIVE MINISTRIES V. WILLIAMS

ministry’s religious beliefs and practices.” But as we discuss

below, the district court did not clearly err in finding that the

Division did not and could not grant such exceptions. 71Five

also asserts that the Division “went out of its way to

scrutinize 71Five’s website” without inspecting secular

organizations’ websites, showing animus toward religion.

Yet 71Five admits that the Division first reviewed 71Five’s

website based on an anonymous complaint. And the record

contains no evidence that the Division received similar

complaints about any secular grantee.

71Five next argues that the Rule is hostile toward

religion because “disqualifying otherwise eligible recipients

from a public benefit ‘solely because of their religious

character’ imposes ‘a penalty on the free exercise of

religion’” that is not neutral. Espinoza v. Mont. Dep’t of

Revenue, 591 U.S. 464, 475 (2020) (quoting Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449,

462 (2017)). It styles this argument as a distinct claim, but

we have situated this analysis within our ordinary framework

for free-exercise claims under Smith. See Loffman v. Cal.

Dep’t of Educ., 119 F.4th 1147, 1166–69 (9th Cir. 2024). In

Carson ex rel. O.C. v. Makin, the Supreme Court held that

denying public funds based on an entity’s religious use for

those funds is no different than denying funds based on

religious status because, in practice, only religious entities

use funds for religious purposes. 596 U.S. 767, 787–88

(2022). So 71Five contends that, in disqualifying potential

grantees who discriminate in hiring based on religion, the

Rule effectively “exclude[s] otherwise eligible organizations

because of their religious character and exercise.”

But unlike the religious-use prohibition at issue in

Carson, the Rule does not deny funding based on a practice

exclusive to religious organizations. Government agencies,

YOUTH 71FIVE MINISTRIES V. WILLIAMS 15

secular corporations, and religious ministries alike might

engage in religion-based employment discrimination. See,

e.g., Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th

1215, 1219–20 (9th Cir. 2023) (government); EEOC v.

Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 770–71

(2015) (private retailer). So the Rule does not discriminate

based on religious status or exercise; it merely disqualifies a

class of potential grantees—those who discriminate based on

religion—that includes both secular and religious

organizations.

Nor does the Rule “grant[] a denominational preference

by explicitly differentiating between religions based on

theological practices.” Catholic Charities Bureau, Inc. v.

Wisc. Lab. & Indus. Rev. Comm., 605 U.S. 238, 250 (2025)

(emphasis added). 71Five contends that the Rule does so

because it permits the Division to fund religious grantees

whose beliefs, unlike 71Five’s, do not require them to hire

only co-religionists. While that may be the Rule’s result, it is

not due to any “explicit [or] deliberate distinctions between

different religious organizations” that would render the Rule

presumptively unconstitutional. Larson v. Valente, 456 U.S.

228, 246 n.23 (1982). Rather, it is the indirect consequence

of the Rule’s general prohibition on religious exclusion by

all grantees, whether faith-based or not. Such “‘secular

criteria’ that ‘happen to have a ‘disparate impact’ upon

different religious organizations” do not contravene the First

Amendment’s mandate of denominational neutrality.

Catholic Charities, 605 U.S. at 250 (quoting Larson, 456

U.S. at 246 n.23). The Rule is therefore neutral as to religion.

2. The Rule is likely generally applicable.

A policy is not generally applicable if the government

can or does apply it in a way that disfavors religious activity.

16 YOUTH 71FIVE MINISTRIES V. WILLIAMS

FCA, 82 F.4th at 686. So the policy may not have any

discretionary “mechanism for individualized exemptions”

that “invites the government to consider the particular

reasons for a person’s conduct.” Id. at 687 (quoting Fulton,

593 U.S. at 533). And “the government may not

‘treat . . . comparable secular activity more favorably than

religious exercise.’” Id. at 686 (omission in original)

(quoting Tandon v. Newsom, 593 U.S. 61, 62 (2021)). The

district court did not abuse its discretion in determining that

the Rule likely satisfies both requirements.

a. The Rule does not provide for individualized

exemptions.

71Five has not shown that the Rule contains any

“mechanism for individualized exemptions” that gives the

Division discretion to discriminate against religious conduct.

Fulton, 593 U.S. at 533 (citation omitted). Under the Rule,

an “Applicant must complete all . . . Certification

information.” That language is mandatory, leaving the

Division no room to make exceptions. 71Five recognizes as

much, conceding that a “failure to check the box” confirming

compliance with the Rule “would have caused 71Five’s

[grant] application . . . [not] to be considered.”

Unable to show that the Rule itself contains a mechanism

for exemptions, 71Five points to a separate policy providing

that “[i]t may be possible” for grant recipients “to negotiate

some provisions of the final Grant,” including the scope of

work to be funded. 71Five argues that, under this separate

policy, the Division may waive grantees’ compliance with

the Rule. But on its face, that policy allows the Division only

to negotiate the terms of its agreements with applicants who

have already satisfied baseline eligibility requirements like

the Rule. And the Division’s director confirmed that those

YOUTH 71FIVE MINISTRIES V. WILLIAMS 17

eligibility requirements cannot be waived or negotiated. In

any case, the policy notes that “many provisions cannot be

changed,” and 71Five offers no evidence that the Rule is

among the negotiable provisions. The district court thus did

not clearly err in finding that the Rule has no mechanism for

individualized exemptions.

b. The Division likely treats comparable

religious and secular activity the same.

It was also within the district court’s discretion to find

that, in enforcing the Rule, the Division does not treat

71Five’s religious exercise less favorably than comparable

secular activity. “[W]hether two activities are comparable

for purposes of the Free Exercise Clause must be judged

against the asserted government interest that justifies the

[policy] at issue.” Tandon, 593 U.S. at 62 (citing Roman

Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 17–18

(2020) (per curiam)). The Division’s interest is its

“commitment to equitable access, equal opportunity, and

inclusion” in the programs it funds. Neither 71Five’s

complaint nor its motion for a preliminary injunction

identified any secular activity funded by the Division that

undermines the Division’s commitment to equity and

inclusion like 71Five’s religious hiring practices do. Instead,

71Five’s motion argued that the Rule triggers strict scrutiny

under the Free Exercise Clause only for the reasons we have

already rejected: that the Rule is not generally applicable due

to a “[s]ystem of [i]ndividualized [e]xemptions” and is not

neutral because it “[t]argeted” 71Five’s religious beliefs. So

the district court concluded that the Division does not favor

comparable secular activity over 71Five’s religious exercise.

71Five asks us to reverse based on a new argument and

new factual assertions in its reply brief in district court in

18 YOUTH 71FIVE MINISTRIES V. WILLIAMS

support of the motion for a preliminary injunction. There, for

the first time, 71Five attached screenshots of several secular

grantees’ websites, which state that the grantees: “serve

African and African American families” through programs

“designed to . . . empower[] Black students”; “serve & work

with . . . Latin/e/o/a/x, immigrant, Indigena, [and]

Afrodescendiente” communities; “create equitable

opportunities for African refugees and immigrant[s]”; “focus

on the needs of . . . immigrant Latine women”; and are

“committed to providing a pro-girl and girl-centered

environment” through “programming . . . designed for those

who identify as girls,” are “exploring their gender identity,”

or “are gender non-conforming.” The website of one grantee

featured a page addressing common questions, including

“Why not boys?”

Based on these screenshots, 71Five raised a new

argument that the Division allows secular grantees to

categorically deny services to particular demographic

groups. The reply brief further argued, again for the first

time, that the secular grantees’ alleged discrimination in

service provision is akin to 71Five’s admitted discrimination

in hiring, as both violate the Rule. Because, the reply brief

contended, the Division has not revoked funding from these

secular grantees, it treats comparable secular activity more

favorably than 71Five’s religious exercise.

71Five faults the district court for rejecting its belated

argument based on the court’s concerns about “depriving

Defendants of notice and an opportunity to respond.” But a

“district court need not consider arguments raised for the

first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990,

997 (9th Cir. 2007). So it did not abuse its discretion by

declining to do so. And now, on appeal, 71Five asks us to

consider more screenshots of secular grantees’ websites that

YOUTH 71FIVE MINISTRIES V. WILLIAMS 19

were not included even in its reply brief to the district court.

We decline to consider this evidence in the first instance. See

Fed. R. App. P. 10(a)(1); Martinez v. Newsom, 46 F.4th 965,

975 (9th Cir. 2022). Based on the evidence properly before

the district court, it was not an abuse of discretion to

conclude that the Division likely treats comparable secular

and religious activity the same.

c. Considering the arguments and assertions in

71Five’s reply brief to the district court

would not change the outcome.

In any event, considering the new argument and

assertions in 71Five’s reply brief to the district court would

not alter our highly deferential review of the district court’s

finding that secular grantees comply with the Rule. 71Five’s

argument turns on inferences drawn from the statements on

secular grantees’ websites that they “serve,” “work with,”

“focus on the needs of,” “create . . . opportunities for,” and

offer “programming . . . designed for” particular

demographic groups. In 71Five’s view, such statements must

mean that the secular grantees deny services to anyone not

in the specified demographic groups. If so, 71Five contends,

the secular grantees violate the Rule just like 71Five, so the

Division must either treat them the same or satisfy strict

scrutiny. FCA, 82 F.4th at 686. Were this evidence properly

before us, the Concurrence would reach the same conclusion

based on the same premise. Yet the district court did not read

the secular grantees’ websites that way. It explained that

“even if the facts alleged in [71Five]’s Reply were properly

at issue . . . , none of the allegations” suggest that the secular

grantees violate the Rule. The district court instead found the

statements on the secular grantees’ websites to show only

that the grantees “direct[] . . . services to particular

20 YOUTH 71FIVE MINISTRIES V. WILLIAMS

demographics in the community,” without refusing service

to others “who fall outside the target demographics.”

The Concurrence, with 71Five, sees these findings as

“mistaken.” But on abuse-of-discretion review we do not

“automatically reverse a district court’s factual finding if we

decide a ‘mistake has been committed.’” United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

Instead, we can reverse a district court’s factual finding only

for clear error—that is, only if it was “illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record.” FCA, 82 F.4th at 680 (quoting M.R. v.

Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)). That is not the

case here. Unlike 71Five’s publicly posted hiring policy,

none of the secular grantees’ websites expressly state that

they serve only their target demographics or refuse to serve

individuals outside those groups. Even the statement that

comes closest—“Why not boys?”—is ambiguous. It is

possible to read that statement, as 71Five does, to mean that

the grantee does not serve boys. Or the statement could mean

that the grantee does not focus on boys but still allows them

to access the organization’s girl-centered programming. For

example, the grantee’s website also explained that “each

gender engages . . . differently” with “issues while growing

up,” so the grantee aims to “help youth who have

experienced girlhood” but “understand[s] that to help girls,

all genders . . . must be part of the conversation.” While we

may draw different inferences from this limited information,

and the district court may make different findings with a

fuller record on remand, its findings are logically coherent,

plausible, and supported by the record as it now stands.

Our decision in Fellowship of Christian Athletes is not to

the contrary. See 82 F.4th at 687–90. There, a school district

revoked its recognition of a Christian student club because

YOUTH 71FIVE MINISTRIES V. WILLIAMS 21

the club required its student leaders to affirm a statement of

faith, which violated the district’s nondiscrimination policy.

FCA, 82 F.4th at 672–75. Sitting en banc, we reversed the

district court’s denial of a preliminary injunction, holding

that the school district had likely violated the Free Exercise

Clause because its enforcement of the policy was neither

neutral nor generally applicable. Id. at 695–96. Our analysis

turned, in large part, on our determination that the school

district continued to recognize secular clubs with

discriminatory membership policies. Id. at 687–90.

Unlike in this case, though, the record before our en banc

court included some evidence that we interpreted as showing

that secular clubs expressly excluded individuals based on

protected characteristics. See, e.g., id. at 689 (noting

statement on club application form that a “student shall no

longer be considered a member if the student . . . does not

identify as female” (omission in original)). We also pointed

to a school district official’s statement that we took as an

acknowledgment that other groups could limit their

membership with impunity. Id. at 678. Here, the district

court found that the secular grantees did not categorically

exclude based on protected characteristics, and there is no

evidence in the record clearly establishing that they do. Quite

the opposite: every secular grantee has certified that it does

not discriminate, as is required to receive funding.

Recognizing that even its reply-brief attachments do not

conclusively show that secular grantees deny service based

on protected characteristics, 71Five argues that merely

tailoring services to a target demographic is comparable to

71Five’s categorical exclusion of non-Christians. We

disagree. The sole basis for that argument is FCA’s holding

that a South Asian Heritage club’s policy “‘prioritiz[ing]’

acceptance of south Asian students” was likely comparable

22 YOUTH 71FIVE MINISTRIES V. WILLIAMS

to a Christian club’s denial of leadership positions to all non-

Christians. Id. at 678, 688. But in FCA, we read that policy

prioritizing “acceptance” of members from a particular

ethnic group not just to inform program design, but also to

“limit . . . membership” based on ethnicity. Id. at 678. Thus,

FCA held that secular and religious organizations’

exclusions are comparable when they both restrict who gets

in the door. Yet, as the district court found, 71Five did not

conclusively show that the secular grantees exclude anyone.

And FCA does not suggest that tailoring services to meet the

needs of a particular demographic, while allowing everyone

to access those services, is somehow comparable to shutting

out an entire protected class. 71Five offers no other

explanation to support that proposition. See Doe v. San

Diego Unified Sch. Dist., 19 F.4th 1173, 1176–77 (9th Cir.

2021) (noting that a free-exercise plaintiff seeking a

preliminary injunction bears the burden of establishing a

likelihood that the challenged policy is not generally

applicable).

Nor does the record reflect that the Division ever treats

service-tailoring as contrary to its interests, let alone a

violation of the Rule. That makes sense: the Program aims

to fund initiatives that are accessible to as many Oregonians

as possible. The Division allows grantees to accommodate

“perceptions and behaviors unique to a specific culture” to

ensure that many different communities can receive services

that suit their particular needs. For example, the Division

took no issue with 71Five’s tailoring of its services to

promote uniquely Christian values—those projects likely

serve people of faith who would not access less “culturally

responsive” secular resources. And the Division continues to

fund other faith-based groups. It revoked funding only after

learning that 71Five denies employment and volunteer

YOUTH 71FIVE MINISTRIES V. WILLIAMS 23

opportunities to non-Christians, which limits the number of

Oregonians who can be involved in Division-funded

initiatives. Service-tailoring does not similarly threaten the

Division’s interests, so allowing it does not favor

comparable secular activity over 71Five’s religious exercise.

d. On this record, we affirm the district court’s

preliminary conclusion that the Rule is likely

generally applicable.

At this early stage, the district court did not abuse its

discretion in concluding that the Rule is generally

applicable. To be clear, we do not foreclose the possibility

that 71Five may prove on remand that some secular grantees

refuse to serve individuals outside their target demographics.

In that case, the Division’s continued funding of those

secular grantees could reveal that it has discretion to grant

exemptions from the Rule. See Fulton, 593 U.S. at 533. And

if 71Five shows that such refusals of service are comparable

to its own exclusionary hiring practices, that would doubly

trigger strict scrutiny, as the Division would be favoring

comparable secular activity over religious exercise. FCA, 82

F.4th at 686. As is often the case “at a very preliminary stage

of the proceedings, . . . [f]urther development of the

record . . . as this case progresses,” such as the timely

presentation of screenshots of secular grantees’ websites,

“may alter [the district court’s] conclusions.” In re Creech,

119 F.4th 1114, 1119 (9th Cir. 2024) (alteration in original;

citation omitted); see also Univ. of Tex. v. Camenisch, 451

U.S. 390, 395 (1981) (“[T]he findings of fact and

conclusions of law made by a court [deciding] a preliminary

injunction are not binding at trial on the merits.”). But under

our deferential standard of review, the district court did not

abuse its discretion in refusing to consider 71Five’s new

arguments and evidence in its reply brief. Nor did it clearly

24 YOUTH 71FIVE MINISTRIES V. WILLIAMS

err in finding, in the alternative, that 71Five has thus far not

shown categorical exclusion by the secular grantees. So we

must affirm the district court’s preliminary conclusion.

3. The Rule likely satisfies rational-basis review.

Because the Rule is neutral and generally applicable, it

is subject only to rational-basis review. Tingley v. Ferguson,

47 F.4th 1055, 1084 (9th Cir. 2022). “States carry a ‘light

burden’ under this review”—a “law is ‘presumed to be valid

and will be sustained’ . . . if it is ‘rationally related to a

legitimate state interest.’” Id. at 1077–78 (quoting Erotic

Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880

F.3d 450, 457 (9th Cir. 2018)). The Division adopted the

Rule to, among other reasons, better reflect its “commitment

to equitable access, equal opportunity, and inclusion.” That

is a legitimate interest. Cf. Doe v. Horne, 115 F.4th 1083,

1112 (9th Cir. 2024) (explaining that “[s]tates have

important interests in inclusion,

nondiscrimination, . . . [and] ensuring equal athletic

opportunities”); Roberts v. U.S. Jaycees, 468 U.S. 609, 625

(1984). The Rule rationally furthers that interest by ensuring

that Division-funded initiatives are equally open to

employees, volunteers, and participants regardless of race,

sex, religion, or any other protected characteristic. The

district court therefore did not abuse its discretion in

determining that 71Five is not likely to succeed on the merits

of its free-exercise claim.

B. The district court did not abuse its discretion in

concluding that 71Five’s religious-autonomy

claims are unlikely to succeed.

In addition to guaranteeing the free exercise of religion,

the First Amendment prohibits laws “respecting an

establishment of religion[.]” U.S. Const. amend. I. Together,

YOUTH 71FIVE MINISTRIES V. WILLIAMS 25

“the Religion Clauses protect the right of churches and other

religious institutions to decide matters ‘of faith and doctrine’

without government intrusion.” Our Lady of Guadalupe Sch.

v. Morrissey-Berru, 591 U.S. 732, 746 (2020) (quoting

Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC, 565 U.S. 171, 186 (2012)). That broad principle of

religious autonomy has given rise to two related doctrines.

See id. at 747. First, ecclesiastical abstention “limit[s] the

role of civil courts in the resolution of religious controversies

that incidentally affect civil rights.” Puri v. Khalsa, 844 F.3d

1152, 1162 (9th Cir. 2017) (quoting Serbian E. Orthodox

Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 710

(1976)). Second, the ministerial exception “precludes

application of [certain] legislation to claims concerning the

employment relationship between a religious institution and

its ministers.” Hosanna-Tabor, 565 U.S. at 188. 71Five

argues that these doctrines prevent the Division from

conditioning grant funding on compliance with the Rule, as

doing so impermissibly interferes with 71Five’s choice of

ministers and faith-based hiring of non-ministers.

The district court declined to address the merits of

71Five’s argument. Instead it determined that 71Five is

unlikely to succeed because ecclesiastical abstention and the

ministerial exception are “affirmative defense[s] against

suit” and not “standalone right[s] that can be wielded against

a state agency.” Indeed, we have consistently described and

applied the ministerial exception as an affirmative defense.

Puri, 844 F.3d at 1157–58; Bollard v. Cal. Province of the

Soc’y of Jesus, 196 F.3d 940, 945–51 (9th Cir. 1999),

overruled on other grounds by Markel v. Union of Orthodox

Jewish Congregations of Am., 124 F.4th 796, 810 n.6 (9th

Cir. 2024). And we have explained that the ecclesiastical-

abstention doctrine limits civil courts’ redetermination of

26 YOUTH 71FIVE MINISTRIES V. WILLIAMS

inherently religious decisions. See Paul v. Watchtower Bible

& Tract Soc’y of N.Y., Inc., 819 F.2d 875, 878 n.1 (9th Cir.

1987); Puri, 844 F.3d at 1162–64. The Supreme Court has

similarly characterized these doctrines. See Watson v. Jones,

80 U.S. (13 Wall.) 679, 733 (1871) (first articulating the

principle of religious autonomy as requiring “civil courts” to

defer to ecclesiastical authorities on questions of

“theological controversy, church discipline, [and]

ecclesiastical government”); Milivojevich, 426 U.S. at 710–

14; Hosanna-Tabor, 565 U.S. at 195 n.4 (recognizing the

ministerial exception “as an affirmative defense to an

otherwise cognizable claim”). And we are aware of no court

of appeals that treats the religious-autonomy doctrines as the

basis for standalone claims challenging legislative or

executive action, rather than as defenses against or limits

upon plaintiffs’ invocation of judicial authority. See, e.g.,

O’Connell v. U.S. Conf. of Cath. Bishops, 134 F.4th 1243,

1253–54 (D.C. Cir. 2025); Tucker v. Faith Bible Chapel Int’l,

36 F.4th 1021, 1028–29 (10th Cir. 2022); Demkovich v. St.

Andrew the Apostle Parish, 3 F.4th 968, 977 (7th Cir. 2021)

(en banc); McRaney v. N. Am. Mission Bd. of S. Baptist

Convention, Inc., 966 F.3d 346, 348 n.1 (5th Cir. 2020).

71Five has identified no opinion from the Supreme

Court, this Court, or another court of appeals suggesting that

plaintiffs may assert ecclesiastical abstention or the

ministerial exception as § 1983 claims, nor any “historical

practices [or] understandings” that would justify our

recognition of these novel claims under the Religion

Clauses. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,

535–36 (2022) (quoting Town of Greece v. Galloway, 572

U.S. 565, 576 (2014)). Without more, we cannot say that the

district court abused its discretion in concluding that 71Five’

religious-autonomy claims are unlikely to succeed.

YOUTH 71FIVE MINISTRIES V. WILLIAMS 27

C. The Rule’s application beyond grant-funded

activities likely violates 71Five’s right of

expressive association.

The Free Speech Clause of the First Amendment protects

the “right to associate with others in pursuit of a wide variety

of political, social, economic, educational, religious, and

cultural ends[,]” which “plainly presupposes a freedom not

to associate.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 647–

48 (2000) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609,

622–23 (1984)). 71Five claims that the Rule abridges its

expressive association by requiring it to accept employees

and volunteers “who disagree” with its message “or would

express a contrary view.” “Even though the district court did

not address this argument, we consider it in the first instance

because [71Five] raised the argument before the district

court.” Rosales-Martinez v. Palmer, 753 F.3d 890, 897 n.7

(9th Cir. 2014). We hold that 71Five has established that it is

likely to succeed, at least in part. As to Division-funded

initiatives, the Rule is likely permissible as a reasonable and

viewpoint-neutral regulation of expressive association in a

limited public forum—the Grant Program. But to the extent

that it restricts 71Five’s selection of speakers to spread its

Christian message through initiatives that receive no

Division funding, the Rule likely imposes an

unconstitutional condition.

1. The Rule likely burdens 71Five’s expressive

association.

To establish that the Rule likely burdens its expressive

associational right, 71Five first must show that, as a group,

it “engage[s] in some form of expression.” Dale, 530 U.S. at

648, 650 (citing N.Y. State Club Ass’n, Inc. v. City of New

York, 487 U.S. 1, 13 (1988)). It has done so. The ministry is

28 YOUTH 71FIVE MINISTRIES V. WILLIAMS

a nonprofit organization incorporated for the purely

expressive purpose of “teach[ing] and shar[ing] about the

life of Jesus Christ.” 71Five presented evidence that it relies

on employees and volunteers to fulfill that “overriding

religious purpose and mission” by “communicat[ing] and

introduc[ing] the Gospel of Jesus Christ to young people and

their families.” As its executive director explained, 71Five

provides “a wide range of voluntary programs” through its

employees and volunteers to “guide young people and to

help them develop the spiritual, mental, physical, and social

components of their lives[.]” “It seems indisputable that an

association that seeks to transmit such a system of values

engages in expressive activity.” Dale, 530 U.S. at 650 (citing

Roberts, 468 U.S. at 636 (O’Connor, J., concurring)).

Second, 71Five must show that compliance with the

Rule would likely affect that expression “in a significant

way.” Id. at 648, 650 (citing N.Y. State Club Ass’n, 487 U.S.

at 13). An organization cannot “erect a shield against

antidiscrimination laws simply by asserting that mere

acceptance of a member from a particular group would

impair its message.” Id. at 653. Instead, the right of

expressive association protects an organization’s decisions

to choose its messengers based only on what a person

expresses. Id.; see also Roberts, 468 U.S. at 647–48. So

when a law compels an organization to accept a messenger

who expresses views inconsistent with the core values the

organization promotes, the law may impose a cognizable

burden on expressive association. Dale, 530 U.S. at 654; see

also Roberts, 468 U.S. at 627–28 (1984); N.Y. State Club

Ass’n, 487 U.S. at 13. The key inquiry for finding a burden

is whether the law would “require the [organization] ‘to

abandon or alter’” its protected expressive activities. N.Y.

State Club Ass’n, 487 U.S. at 13 (quoting Bd. of Dirs. of

YOUTH 71FIVE MINISTRIES V. WILLIAMS 29

Rotary Int’l. v. Rotary Club of Duarte, 481 U.S. 537, 548

(1987)).

71Five has established that complying with the Rule

would likely alter its expression “in a significant way.” Dale,

530 U.S. at 648. The ministry’s executive director attested

that 71Five selects employees and volunteers to carry out its

expressive mission by “shar[ing] God’s Story of Hope” with

those it serves. Though 71Five imposes several religious

requirements on employees and volunteers, its core demand

is that they “subscribe and adhere” to a “Statement of Faith,

which reflects the beliefs of historic Christianity” that

71Five hopes to spread. In essence, 71Five wants its

spokespeople to affirm the very message they are tasked with

communicating on its behalf. Yet the Rule likely prohibits it

from doing so. In 71Five’s view, the Rule thus compels it not

just to use imperfect messengers, but to speak through

individuals who reject its message. The Defendants have

offered no evidence at the preliminary injunction stage to

rebut 71Five’s assertion that all its employees and volunteers

contribute to its expressive mission, nor 71Five’s argument

that the Rule requires it to hire speakers who disavow its

religious views.

The Supreme Court found a similar requirement to

significantly alter an organization’s expressive activity in

Dale. There, a state antidiscrimination law required the Boy

Scouts to accept as an adult leader an outspoken gay-rights

activist whose public statements were “inconsistent with the

values [the Boy Scouts sought] to instill in its . . . members.”

Id. at 654. Because accepting the activist as a spokesperson

would have “force[d] the organization to send a

message . . . that the Boy Scouts accept[ed] homosexual

conduct as a legitimate form of behavior,” contrary to the

organization’s actual views, the Court held that the law

30 YOUTH 71FIVE MINISTRIES V. WILLIAMS

burdened the Boy Scouts’ expressive association. Id. at 653.

On the record before us, the Rule would likely burden

71Five’s expressive association in a similar way by forcing

it to speak through individuals who reject its Statement of

Faith and thereby express their disagreement with 71Five’s

message.

2. The Rule is likely a permissible regulation of

71Five’s expressive association within Division-

funded initiatives.

That the Rule burdens 71Five’s expressive association

does not end our inquiry—we next consider whether that

burden is permissible. 71Five insists that any regulation of

expressive association is subject to strict scrutiny. But as for

all expression, the appropriate standard depends on context.

See Sullivan v. Univ. of Wash., 60 F.4th 574, 580–81 (9th Cir.

2023) (analyzing the expressive association of appointees to

a public committee as the speech of public employees

“pursuant to their official duties” under Garcetti v. Ceballos,

547 U.S. 410 (2006)).

In Dale, the antidiscrimination law under challenge was

subject to heightened scrutiny because it directly regulated

the expression of organizations like the Boy Scouts,

regardless of whether those organizations received

government funding. See 530 U.S. at 659. That is not the

case here. Instead, the Rule affects only those who seek grant

funding from the Division. In cases challenging expressive

regulations attached to government grants, we usually must

decide whether the government is using the grants to

facilitate private expression, or whether it is merely hiring

private speakers to spread its own message. See, e.g.,

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 833–34 (1995). Where the government itself is

YOUTH 71FIVE MINISTRIES V. WILLIAMS 31

speaking, even through private contractors, the First

Amendment affords it a freer hand to control such

expression. See id.; Boquist v. Courtney, 32 F.4th 764, 779

(9th Cir. 2022). That is what the Division appears to be

doing. It does not award grants simply to enable independent

speech—it uses them to enlist grantees in carrying out its

own statutory mandate of supporting at-risk youth in

Oregon, and it selects its preferred conduits through a

competitive application process. So the Rule is perhaps best

analyzed as a regulation of government speech, see

Rosenberger, 515 U.S. at 833 (citing Rust v. Sullivan, 500

U.S. 173, 194, 196–200 (1991)), or speech by government

contractors, see Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v.

Umbehr, 518 U.S. 668, 673–81 (1996); Planned Parenthood

Ass’n of Utah v. Herbert, 828 F.3d 1245, 1258–63 (10th Cir.

2016).

But the Defendants do not argue that the Rule simply

shapes the Division’s own speech. Instead, they argue, the

Rule regulates grantees’ use of public funding to facilitate

the grantees’ independent expression. When the government

creates a forum to enable private speech, the applicable free-

speech standard depends on the government’s purpose for

opening its doors or, in this case, its purse. See Koala v.

Khosla, 931 F.3d 887, 900 (9th Cir. 2019). Where the

government holds its resources “open for indiscriminate

public use for communicative purposes,” the result is a

traditional or designated public forum, in which content-

based restrictions on expression are subject to strict scrutiny.

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508

U.S. 384, 392 (1993); see also Pleasant Grove City v.

Summum, 555 U.S. 460, 470 (2009). The Division’s grant

program does not, however, facilitate just any speech. It

funds speech only by “certain groups” (i.e., select

32 YOUTH 71FIVE MINISTRIES V. WILLIAMS

community initiatives) and only on “certain subjects” (i.e.,

supporting youth development and reducing high-risk

behaviors). Christian Legal Soc’y Chapter of the Univ. of

Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679

n.11 (2010) (quoting Pleasant Grove City, 555 U.S. at 470).

As the Defendants argue, the grant program thus looks more

like a limited public forum, so “a less restrictive level of

scrutiny” applies. Id. at 680. To pass constitutional muster,

the Rule need only be “reasonable and viewpoint neutral.”

Koala, 931 F.3d at 900.

a. Reasonableness.

For the same reasons the Rule satisfies rational-basis

review, it is reasonable. The program’s funding of

“community-based youth development programs and

services,” aims to support the Division’s overall mission of

“invest[ing] in communities to ensure equitable and

effective services for youth.” In prohibiting certain forms of

exclusion from grant-funded projects, the Rule rationally

aligns the grant program with that mission, ensuring that the

initiatives it funds are equally accessible to and can

effectively serve all Oregonians. Cf. Alpha Delta Chi-Delta

Chapter v. Reed, 648 F.3d 790, 799 (9th Cir. 2011) (finding

a university’s policy prohibiting discrimination based on

religion reasonable in light of the program’s purpose “to

promote diversity and nondiscrimination”), abrogated on

other grounds by FCA, 82 F.4th 686.

b. Viewpoint Neutrality.

The Rule is also likely viewpoint neutral. The

government discriminates based on viewpoint where it

“targets not merely a subject matter, ‘but particular views

taken by speakers on a subject.’” Vidal v. Elster, 602 U.S.

286, 293 (2024) (quoting Rosenberger, 515 U.S. at 829).

YOUTH 71FIVE MINISTRIES V. WILLIAMS 33

Even where there is no intent to suppress a particular

message about a topic, a law is viewpoint discriminatory if

it treats speech differently “based on the specific motivating

ideology or perspective of the speaker.” Interpipe

Contracting, Inc. v. Becerra, 898 F.3d 879, 899 (9th Cir.

2018) (quoting First Resort, Inc. v. Herrera, 860 F.3d 1263,

1277 (9th Cir. 2017)).

Here, the Rule prohibits grantees from excluding

employees, vendors, subcontractors, or clients based on their

religious expression. But the Rule neither singles out any

viewpoint about religion nor favors expressive associations

that lack any religious perspective. That distinguishes this

case from others in which restrictions on “religious activity”

did not merely “exclude religion as a subject matter” but

“select[ed] for disfavored treatment those [speakers] with

religious . . . viewpoints.” Rosenberger, 515 U.S. at 831. In

Lamb’s Chapel, for example, the Supreme Court held that a

school district’s rule was viewpoint discriminatory because

it “permit[ted] school property to be used for the

presentation of all views” about certain family issues “except

those dealing with the subject matter from a religious

standpoint.” 508 U.S. 384, 393 (1993). And in Rosenberger,

the Supreme Court held that a university discriminated based

on viewpoint where it refused to fund student publications

that “primarily promote[d] or manifest[ed] a particular belief

in or about a deity or an ultimate reality” but funded

publications expressing no view on such metaphysical

topics. 515 U.S. at 831–32, 836–37. The Court explained

that religion is not only “a vast area of inquiry,” but also

“provides . . . a specific premise, a perspective, a standpoint

from which a variety of subjects may be discussed and

considered.” Id. at 831. And in Rosenberger, “[t]he

prohibited perspective, not the general subject matter,

34 YOUTH 71FIVE MINISTRIES V. WILLIAMS

resulted in the refusal to make . . . payments,” resulting in

viewpoint discrimination. Id.

By contrast, the Division does not deny funding to all

organizations that express a religious viewpoint: it awarded

grants to support 71Five’s religious programming for five

years and continues to fund at least four other faith-based

grantees. Nor does the Division treat those organizations

differently based on their religious messages. The Rule

equally burdens the expressive association of grantees that

seek to promote a religious perspective, an antireligious

perspective, or no perspective on religion at all. An atheist

organization that refuses to employ anyone who professes a

belief in God is also disqualified from receiving grant

funding under the Rule. And an organization that wishes not

to speak about religion and excludes all who express a

viewpoint on the topic, whether positive or negative, cannot

receive grant funding either. For example, to avoid offending

any of its clients, an organization that provides counseling to

families of diverse religious backgrounds might want to

prohibit its employees from commenting on the propriety or

impropriety of different family structures. But the Rule

would bar it from excluding employees who, for religious

reasons, refused to sign a statement personally affirming that

all family structures should be equally accepted.

The Rule simply disqualifies all potential grantees,

regardless of viewpoint, that exclude anyone based on

personal religious beliefs. It is therefore viewpoint neutral

on its face, even if in practice “it has an incidental effect on

some speakers or messages but not others.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989); see also R.A.V. v.

City of St. Paul, 505 U.S. 377, 390 (1992). Of course, “a

policy that is ‘viewpoint neutral on its face may still be

unconstitutional if not applied uniformly.’” Waln v. Dysart

YOUTH 71FIVE MINISTRIES V. WILLIAMS 35

Sch. Dist., 54 F.4th 1152, 1162 (9th Cir. 2022) (quoting

Alpha Delta, 648 F.3d at 803). But the district court did not

abuse its discretion in finding that the Division has not

enforced the Rule in a discriminatory manner. So the Rule

is, on this record, likely viewpoint neutral as enforced. Cf.

FCA, 82 F.4th at 711–12 (Forrest, J., concurring) (stating that

a nondiscrimination policy was viewpoint discriminatory

due only to its “selective application” to a religious club).

3. The Rule is likely an unconstitutional condition

on 71Five’s expressive association outside

Division-funded initiatives.

Though the Rule is likely a permissible restriction on

expressive association within the limited public forum of the

Program, that does not justify the separate burden it imposes

on 71Five as a whole. When a policy attaches strings not

only to government-funded speech, but to the speaker itself,

we must further scrutinize the constitutionality of those

strings. See California ex rel. Becerra v. Azar, 950 F.3d

1067, 1093 (9th Cir. 2020). Even a valid condition on

government funding may not “interfere with a recipient’s

conduct outside the scope of the [government] funded

program.” Id. at 1093 n.24 (citing Agency for Int’l Dev. v.

All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)).

As 71Five argues, the “Rule does precisely that” by

“extending to all 71Five’s employees and every aspect of its

ministry,” including projects that receive no grant funding.

At oral argument, the Defendants conceded that the Rule’s

prohibition on discrimination is not limited to the particular

initiatives the Division funds. It applies to grantees as a

whole, leaving them no room “to conduct [expressive]

activities through programs that are separate and

independent from the project that receives [Division] funds.”

36 YOUTH 71FIVE MINISTRIES V. WILLIAMS

Rust, 500 U.S. at 196. Because 71Five seeks Division funds

for only some of its projects, requiring it to certify that it

does not discriminate in any of its projects is likely an

unconstitutional condition. This is because the Division

“seek[s] to leverage funding to regulate [expressive

association] outside the contours of the [Division-funded]

program itself.” Agency for Int’l Dev., 570 U.S. at 214–15.

The Defendants in theory could justify that extra-

programmatic burden on 71Five by showing that it satisfies

heightened scrutiny. See Crowe v. Or. State Bar, 112 F.4th

1218, 1233 (9th Cir. 2024). But they have not yet tried to do

so.

71Five’s expressive-association claim is therefore likely

to succeed only as much as it challenges the Rule’s

application to its expressive association in initiatives that

receive no Division funding. Because the remaining factors

also support granting injunctive relief, 71Five is entitled to a

preliminary injunction on that limited basis. See Flathead-

Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th

1180, 1195 (9th Cir. 2024) (“The scope of the [injunction]

must be no broader and no narrower than necessary to

redress the injury shown by the plaintiff[s].” (alterations in

original) (quoting California v. Azar, 911 F.3d 558, 584 (9th

Cir. 2018))).

III. The district court erred in dismissing 71Five’s

claims for declaratory and injunctive relief but

not its claims for damages.

Finally, we turn from 71Five’s motion for a preliminary

injunction to the Defendants’ motion to dismiss. 71Five

challenges the district court’s dismissal of all its claims—

both for declaratory and injunctive relief and for damages—

based on qualified immunity. We have jurisdiction to review

YOUTH 71FIVE MINISTRIES V. WILLIAMS 37

that decision under 28 U.S.C. § 1291 and review it de novo,

“accepting as true all well-pleaded allegations of material

fact and construing them in the light most favorable to the

non-moving party.” Hyde v. City of Willcox, 23 F.4th 863,

869 (9th Cir. 2022) (citing Padilla v. Yoo, 678 F.3d 748, 757

(9th Cir. 2012)). In contrast to our analysis of 71Five’s

motion for a preliminary injunction, this inquiry “consider[s]

only allegations contained in the pleadings, exhibits attached

to the complaint, and matters properly subject to judicial

notice.” Mendoza v. Amalgamated Transit Union Int’l, 30

F.4th 879, 884 (9th Cir. 2022) (quoting Swartz v. KPMG

LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam)).

“In § 1983 actions, ‘qualified immunity protects

government officials from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Sampson v. County of Los Angeles ex rel. L.A.

Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1018

(9th Cir. 2020) (internal quotation marks omitted) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). But

“[q]ualified immunity does not apply to claims for

declaratory or injunctive relief.” Shinault v. Hawks, 782 F.3d

1053, 1060 n.7 (9th Cir. 2015) (citing Hydrick v. Hunter, 669

F.3d 937, 939–40 (9th Cir. 2012)). So the dismissal of

71Five’s claims for declaratory and injunctive relief was

error. Still, we agree with the district court that qualified

immunity bars 71Five’s damages claims.

“To be entitled to qualified immunity at the motion to

dismiss stage, an [official] must show that the allegations in

the complaint do not make out a violation of a constitutional

right or that any such right was not clearly established at the

time of the alleged misconduct.” Hampton v. California, 83

F.4th 754, 765 (9th Cir. 2023) (citing Pearson, 555 U.S. at

38 YOUTH 71FIVE MINISTRIES V. WILLIAMS

232–36). Courts “have discretion to address the questions in

reverse order.” Sampson, 974 F.3d at 1018. The district court

did so here, dismissing 71Five’s claims under the “clearly

established” prong.

The complaint does not make out any clearly established

violation of 71Five’s free-exercise right. 71Five’s claim rests

on its argument that the Rule is neither neutral nor generally

applicable. Yet 71Five does not allege any facts from which

we can reasonably infer a lack of neutrality. The complaint

alleges that the Division “retained discretion to create

exceptions” from the Rule. As the exhibits to the complaint

show, however, the alleged waiver provisions do not apply

to the Rule. See Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1117

(9th Cir. 2018) (explaining that, in ruling on a motion to

dismiss, we “can consider ‘exhibits attached to the

Complaint’” (quoting Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010))). And while the complaint

vaguely alleges that the Rule “has not been applied or

enforced consistently,” it fails to “identify comparable

secular activity that undermines” the Division’s interest.

Tingley, 47 F.4th at 1088.

71Five also fails to establish any clear violation of its

right to religious autonomy. Neither the Supreme Court nor

we have ever held that the rights protected by the ministerial

exception and ecclesiastical abstention may be asserted as

standalone claims challenging executive action, rather than

as defenses to the invocation of judicial authority. A

reasonable official would therefore lack notice that

enforcing the Rule against 71Five, without resort to

litigation, might violate constitutional protections for

religious autonomy.

YOUTH 71FIVE MINISTRIES V. WILLIAMS 39

Finally, whether or not the complaint makes out a

violation of 71Five’s right of expressive association, that

right was not clearly established. 71Five’s complaint claims

that the Rule violates the First Amendment by attaching

nondiscrimination requirements to government grants that

are awarded only to select organizations. We are aware of no

case, either in this Court or the Supreme Court, clearly

establishing that such a requirement impermissibly infringes

a grantee’s right of expressive association. 71Five relies

solely on Dale, but that case involved a law forbidding

discrimination wholly apart from any government funding

scheme. See 530 U.S. at 644–45. Our cases finding

violations of plaintiffs’ expressive association also involve

contexts quite different from the grant program at issue here.

See, e.g., Crowe, 112 F.4th at 1233–40 (compelled

membership in state bar); Perry v. Schwarzenegger, 591 F.3d

1147, 1163–65 (9th Cir. 2010) (compelled disclosure of

ballot-measure campaign’s internal communications that

chilled plaintiffs’ expressive association); White v. Lee, 227

F.3d 1214, 1226–29 (9th Cir. 2000) (sweeping government

investigation that chilled plaintiffs’ expressive association).

None of these cases would put the Defendants on notice that

requiring recipients of competitive Division grants not to

discriminate violates the First Amendment. See District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018); Moore v.

Garnand, 83 F.4th 743, 750 (9th Cir. 2023).

71Five’s complaint does not allege a violation of any

clearly established right under the First Amendment, so the

Defendants are entitled to qualified immunity, and the

district court did not err in dismissing 71Five’s damages

claims with prejudice. See Daniels Sharpsmart, Inc. v. Smith,

889 F.3d 608, 616–17 (9th Cir. 2018) (holding that plaintiff

was likely to succeed on the merits of its constitutional

40 YOUTH 71FIVE MINISTRIES V. WILLIAMS

claims and that the doctrine of qualified immunity protected

defendants from damages liability).

IV. Conclusion

We hold that, on this record, the Division’s Rule

prohibiting religious discrimination by grantees does not

itself violate the First Amendment’s prohibitions on religious

discrimination. Because the district court did not abuse its

discretion in finding that the Division applies the Rule

neutrally and without exception to prohibit comparable

discrimination by all grantees, 71Five is not likely to succeed

on its free-exercise claim as presented in its motion. Nor is

71Five’s religious-autonomy claim likely to succeed, as we

have never held the ministerial exception or ecclesiastical

abstention to be standalone claims.

But 71Five has established that—though the Rule

permissibly regulates expressive association within

Division-funded initiatives—it likely imposes an

unconstitutional condition to the extent that it applies beyond

those projects to regulate 71Five’s independent speech. The

remaining preliminary-injunction factors are also satisfied.

Therefore, we reverse the district court’s denial of 71Five’s

motion for a preliminary injunction and direct the district

court to enter an order enjoining enforcement of the Rule as

to initiatives that do not receive grant funding from the

Division. Because 71Five does not allege any violation of a

clearly established right, we also hold that the Defendants

are entitled to qualified immunity and affirm the dismissal

of 71Five’s claims for damages. And we reverse the district

court’s dismissal of 71Five’s claims for declaratory and

injunctive relief, against which qualified immunity does not

protect.

YOUTH 71FIVE MINISTRIES V. WILLIAMS 41

AFFIRMED in part, REVERSED in part, and

REMANDED. 1

Rawlinson, Circuit Judge, concurring in the judgment:

I concur in the judgment because, and only because, of

our truncated review of a district court=s decision granting or

denying injunctive relief, and our obligatory deference to a

district court=s discretionary decision to decline

consideration of arguments and evidence presented in a

Reply Brief. See Harris v. Board of Supervisors, 366 F.3d

754, 760 (9th Cir. 2004); see also Zamani v. Carnes, 491

F.3d 990, 997 (9th Cir. 2007). Otherwise, I would agree with

the motions panel, and conclude that the State of Oregon=s

application of the rules governing its grant program violated

Youth 71Five Ministries= right to the free exercise of religion

in violation of the First Amendment to the United States

Constitution. See Tingley v. Ferguson, 47 F.4th 1055, 1088

(9th Cir. 2022) (holding that a law is not one of Agenerally

applicability (neutrality) . . . if the law. . . treat[s] any

comparable secular activity more favorably than religious

exercise@).

I decline to join the majority opinion=s analysis because

it relies heavily on the premise (mistaken, in my view), that

Youth Five=s website evidenced discrimination, while

websites from the secular organizations applying for grants

did not evidence discrimination. Keeping in mind that this

1

The emergency injunction, Dkt. No. 18, shall remain in effect until

issuance of the mandate. Each party shall bear its own costs on appeal.

42 YOUTH 71FIVE MINISTRIES V. WILLIAMS

analysis is conducted in light of Athe government=s interest

in enacting the law,@ see id., I cannot agree with this premise.

The State of Oregon=s stated purpose for the grant

program is to A[p]rovide services to children and youth in a

manner that supports educational success, focuses on crime

prevention, reduces high risk behaviors and is integrated,

measurable and accountable.@

Nothing on Youth 71Five=s website indicates exclusion

of any group from the provision of the services delineated by

the State in its grant application solicitation. In contrast,

several of the other grant applicants indicated on their

websites a focus on some populations to the exclusion of

others, including based on gender, race and ethnicity. On

these facts, I would conclude that Youth 71Five established

a likelihood of success on the merits of its free exercise

claim. See Meinecke v. City of Seattle, 99 F.4th 514, 521

(9th Cir. 2024) (observing that Alikelihood of success on the

merits . . . is the most important factor in the preliminary

injunction@ analysis, and that A[i]t is all the more critical

when a plaintiff alleges a constitutional violation@) (citation

and internal quotations omitted).