Amicus Curiae Brief — Youth 71Five Ministries, Petitioner v. Charlene Williams, Individually and as Director of Oregon Department of Education, et al.

No. 25-776

In the Supreme Court of the United States

YOUTH 71FIVE MINISTRIES,

Petitioner,

V.

CHARLENE WILLIAMS, Individually and as Director of

Oregon Department of Education, et al.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF MONTANA AND 12 OTHER STATES

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

AUSTIN KNUDSEN

Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

*Counsel of Record

MONT. DEPT. OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

christian.corrigan@mt.gov

(406) 444-2026

JOSEPH S. ST. JOHN

Spec. Asst. Sol. Gen.

Counsel for Amicus Curiae State of Montana

[Additional Counsel Listed After Signature Page]

i

QUESTIONS PRESENTED

As framed by Petitioners, the questions presented

are:

1. Whether a religious organization can raise the

First Amendment right to religious autonomy as an

affirmative claim challenging legislative or executive

action under 42 U.S.C. § 1983, like other

constitutional right, or whether the doctrine may only

be asserted as an affirmative defense after a suit has

been filed, as the Ninth Circuit held here.

2. Whether a state violates the First Amendment

by conditioning access to a public grant program on a

religious organization waiving its right to employ

coreligionists, including for ministerial positions.

ii

TABLE OF CONTENTS

Questions Presented ................................................... i

Table of Contents ....................................................... ii

Table of Authorities .................................................. iii

Interest of Amici States ............................................. 1

Background and Proceedings Below ......................... 1

Summary of Argument .............................................. 3

Reasons for Granting the Petition............................. 5

I.

The Ninth Circuit effectively departed from

the standards governing preliminary

injunctions by—yet again—requiring a

“carbon copy” of this Court’s religious

liberty precedents ................................................ 5

II. The petition presents a pure legal question

regarding the scope of a constitutional

right ...................................................................... 7

A. Religious

autonomy

claims

can

properly be subject to a declaratory

judgment, and that remains true even

if they are ordinarily viewed as an

affirmative defense ........................................ 7

B. 71Five’s religious autonomy claims can

also be viewed as an ordinary

affirmative claim for injunctive relief

raising a pure legal question ...................... 12

C. The Ninth Circuit’s categorization of

religious autonomy claims is a red

herring ......................................................... 13

Conclusion ................................................................ 14

iii

TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Haworth,

300 U.S. 227 (1937) .................................................. 8

AMTRAK v. Penn. Pub. Util. Comm’n,

342 F.3d 242 (3d Cir. 2003) .................................. 12

Baggett v. Bullitt, 377 U.S. 360 (1964) .................... 10

Biel v. St. James Sch.,

926 F.3d 1238 (9th Cir. 2019) .................................. 6

Calderon v. Ashmus, 523 U.S. 740 (1998) ................. 9

Cardinal Chem. Co. v. Morton Int’l, Inc.,

508 U.S. 83 (1993) .................................................... 9

City of Dallas v. Delta Airlines, Inc.,

847 F.3d 279 (5th Cir. 2017) .................................. 12

City of Tahlequah v. Bond, 595 U.S. 9 (2021) ........... 6

Commil USA, LLC v. Cisco Sys., Inc.,

575 U.S. 632 (2015) .................................................. 9

Cordis Corp. v. Medtronic, Inc.,

835 F.2d 859 (Fed. Cir. 1987) ................................ 12

Ex Parte Young,

209 U.S. 123 (1907) ................................................. 1

iv

Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1 (1983) ........................... 9

Freedman v. Maryland, 380 U.S. 51 (1965) .. 4, 11, 13

Gomez v. Toledo, 446 U.S. 635 (1980) ....................... 9

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171 (2012) .. 4, 13

Landers Frary & Clark v. Vischer Prods Co.,

201 F.2d 319 (7th Cir. 1953) .................................. 12

Mahmoud v. Taylor, 606 U.S. 522 (2025) ............... 11

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .............................................. 4, 8

Medtronic, Inc. v. Catalyst Research Corp.,

664 F.2d 660 (8th Cir. 1981) .................................. 12

Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732 (2020) ........... 4, 6, 13

Roman Catholic Diocese v. Cuomo,

592 U.S. 14 (2020) .................................................. 11

Serbian E. Orthodox Diocese for U.S. &

Can. v. Milivojevich, 426 U.S. 696 (1976) ......... 4, 13

Skelly Oil Co. v. Phillips Petrol. Co.,

339 U.S. 667 (1950) .................................................. 8

v

Steffel v. Thompson, 415 U.S. 452 (1974) .......... 10, 11

Wilson v. Garcia, 471 U.S. 261 (1985) ....................... 9

Wooley v. Maynard, 430 U.S. 705 (1977)............ 12-13

Youth 71Five Ministries v. Williams,

153 F.4th 704 (9th Cir. 2025) .................................. 3

Youth 71Five Ministries v. Williams,

160 F.4th 964 (9th Cir. 2025) ....................... 3, 4, 13

Youth 71Five Ministries v. Williams,

No. 1:24-cv-399, 2024 U.S. Dist. LEXIS 113695

(D. Or. June 26, 2024) .............................................. 2

Youth 71Five Ministries v. Williams,

No. 24-4101, 2024 U.S. App. LEXIS 20409

(9th Cir. Aug. 8, 2024)........................................... 2-3

Youth 71Five Ministries v. Williams,

No. 24-4101, 2025 U.S. App. LEXIS 31002

(9th Cir. Nov. 26, 2025) ............................................ 3

Zwickler v. Koota, 389 U.S. 241 (1967) ................. 5, 6

Statutes

28 U.S.C. § 1331 ..................................................... 2, 6

28 U.S.C. § 1343 ......................................................... 5

28 U.S.C. § 2201 ......................................................... 7

vi

28 U.S.C. § 2202 ....................................................... 12

35 U.S.C. § 282 ........................................................... 8

42 U.S.C. § 1983 ................................1, 2, 3, 4, 5, 9, 12

Other Authorities

10A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure § 2767 (2d ed. 1983) ......... 9

S. Rep. 73-1005 (1934) ........................................... 7, 8

1

INTEREST OF AMICI STATES1

Amici are sovereign States of the Union. Their

citizens have religious rights under the First

Amendment that amici are obligated to protect. And

as frequent participants — see Ex Parte Young, 209

U.S. 123 (1907); 42 U.S.C. § 1983 — in litigation

attacking the actions of State officials, amici have a

strong interest in clear, consistent rules for the

presentation of First Amendment claims.

BACKGROUND AND PROCEEDINGS BELOW

Petitioner Youth 71Five Ministries (“71Five”) is a

Christian, youth-mentoring ministry in Medford,

Oregon. While 71Five’s various programs and

ministries strive to meet participants’ physical,

mental, emotional, and social needs, the ministry’s

“primary purpose” is “to teach and share about the life

of Jesus Christ” so that individuals “might have an

opportunity of having a personal relationship” with

Him. Like many religious organizations, 71Five

requires all of its board members, employees, and

volunteers to “subscribe and adhere without mental

reservation” to a Statement of Faith and be actively

involved in a local church.

For years, 71Five successfully applied for and

received grants through Oregon’s Youth Community

Investment Grant Program, a grant program

designed to support existing services for youth who

are at risk of disengaging from school, work, and

community. That changed in the 2023-2025 grant

cycle. Three or four months after being notified it had

Pursuant to Supreme Court Rule 37.2, Amici timely notified

counsel of record for the parties of their intent to file this brief.

1

2

been awarded grants but before any funds were

received, an Oregon official unexpectedly emailed

71Five’s Executive Director and told him that the

ministry was being disqualified because of its practice

of only hiring employees and working with volunteers

who share its religious beliefs. That decision was

apparently based on an anonymous report that

pointed to 71Five’s website.

After unsuccessfully attempting to resolve the

dispute through amicable means, 71Five filed a

verified complaint for declaratory and injunctive

relief, and for damages. The complaint asserted

“federal questions under the United States

Constitution and the Civil Rights Act of 1871, 42

U.S.C. § 1983,” and “original jurisdiction under 28

U.S.C. §§ 1331 and 1343.” It then asserted four

counts, each under the First Amendment: Free

Exercise Clause - Exclusion from Otherwise Available

Government Benefits (Count I), Religion Clauses Church Autonomy and the Ministerial Exception

(Count II), Free Exercise Clause - Not Neutral and

Generally Applicable (Count III), and Free Speech

Clause - Expressive Association (Count IV).

71Five sought a preliminary injunction, which the

district court denied. Youth 71Five Ministries v.

Williams, No. 1:24-cv-399, 2024 U.S. Dist. LEXIS

113695 (D. Or. June 26, 2024). Although Defendants

had moved only to dismiss 71Five’s request for

damages, the district court then dismissed the entire

complaint with prejudice on the basis of qualified

immunity, including 71Five’s claims for declaratory

and injunctive relief. Id. at *23.

71Five timely appealed. A motions panel granted

an injunction pending appeal. Youth 71Five

3

Ministries v. Williams, No. 24-4101, 2024 U.S. App.

LEXIS 20409 (9th Cir. Aug. 8, 2024). The merits panel

reached a contrary conclusion, and it affirmed-in-part

the denial of a preliminary injunction. Youth 71Five

Ministries v. Williams, 153 F.4th 704 (9th Cir. 2025).

That opinion was subsequently amended. Youth

71Five Ministries v. Williams, No. 24-4101, 2025 U.S.

App. LEXIS 31002 (9th Cir. Nov. 26, 2025). Although

71Five had identified two district court cases

supporting its position, 2024 U.S. Dist. LEXIS

113695, at *14 n.2, the merits panel carefully faulted

71Five for having “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,” Youth 71Five Ministries v.

Williams, 160 F.4th 964, 983 (9th Cir. 2025). The

merits panel then concluded the district court did not

err by “declin[ing] to address the merits of 71Five’s

argument” and treating ecclesiastical abstention and

the ministerial exception as affirmative defenses that

cannot be brought as standalone claims. 160 F.4th at

983-984. 71Five now petitions for a writ of certiorari

on those issues.

Although not directly relevant to the issues on

which certiorari is sought, the record includes

evidence of the identities of other participants in the

grant program, as well as judicially noticeable

evidence—website printouts—that evidence racial

discrimination by those participants.

SUMMARY OF ARGUMENT

The Ninth Circuit held the district court did not err

by declining to review the merits of 71Five’s religious

4

autonomy claims. The court of appeal reached that

conclusion despite acknowledging that 71Five’s

claims are based on three of this Court’s opinions, and

despite 71Five having identified supporting district

court precedent. By refusing to reach the merits

merely based on a lack of sufficiently analogous

appellate precedent, the Ninth Circuit elevated the

likelihood of success standard to something akin to

the standard for overcoming qualified immunity.

The only identifiable basis for the Ninth Circuit’s

opinion is that religious autonomy claims are

generally treated as affirmative defenses. But

affirmative defenses are properly the subject of

declaratory judgments, MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118 (2007), and Section 1983

provides a cause of action for affirmative assertions of

constitutional rights.

Moreover, the Ninth Circuit acknowledged that “a

broad principle of religious autonomy” is grounded in

the First Amendment and this Court’s precedent.

Youth 71Five Ministries, 160 F.4th at 983 (citing Our

Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S.

732, 746 (2020); Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186

(2012); and Serbian E. Orthodox Diocese for U.S. &

Can. v. Milivojevich, 426 U.S. 696, 710 (1976)). The

inquiry thus collapses to the purely legal question of

the scope of those rights, as 71Five urges in its

questions presented. Regardless of the procedural

mechanism, a First Amendment claim must be

subject to prompt, pre-enforcement judicial review.

See Freedman v. Maryland, 380 U.S. 51, 58-59 (1965).

But the Ninth Circuit’s opinion would leave religious

organizations unable to exercise aspects of their

5

religious autonomy rights without risking civil or

criminal liability. That outcome is contrary to decades

of this Court’s First Amendment jurisprudence.

REASONS FOR GRANTING THE PETITION

I. The Ninth Circuit effectively departed

from

the

standards

governing

preliminary injunctions by — yet again —

requiring a “carbon copy” of this Court’s

religious liberty precedents.

Start with the foundational premise: federal courts

are the primary forum for vindicating federal rights.

That wasn’t always true. “During most of the Nation's

first century, Congress relied on the state courts to

vindicate essential rights arising under the

Constitution and federal laws.” Zwickler v. Koota, 389

U.S. 241, 245 (1967). “But that policy was

completely altered after the Civil War[.]” Id. at 246.

Congress, in the Civil Rights Act of 1871, subjected

to suit “every person who, under color of any statute,

ordinance, regulation, custom, or usage … subjects, or

causes to be subjected, any citizen of the United

States or other person … to the deprivation of any

rights … secured by the Constitution and laws …,” 42

U.S.C. § 1983; see also Act of April 20, 1871, 17 Stat.

13. Congress also gave the district courts “original

jurisdiction” of actions “to redress the deprivation,

under color of any State law ... of any right ... secured

by the Constitution ….” 28 U.S.C. § 1343(a)(3). Lest

there be any doubt, Congress then enacted the

Jurisdiction and Removal Act of March 3, 1875, which

granted district courts jurisdiction over civil matters

6

“arising under the Constitution or laws of the United

States.” 28 U.S.C. § 1331. Federal district courts thus

“became the primary and powerful reliances for

vindicating every right given by the Constitution[.]”

Zwickler, 389 U.S. at 247. And it’s precisely those

jurisdictional provisions that 71Five invoked.

71Five may not ultimately prevail. But the Ninth

Circuit’s affirming the district court’s “declin[ing] to

address the merits” of 71Five’s claims based simply

on the lack of binding appellate precedent — despite

71Five’s claims being grounding in three of this

Court’s cases, and despite the presence of non-binding

supporting precedent — is a significant departure

from ordinary practice. In doing so, the Ninth

effectively elevated the standard for a preliminary

injunction to something akin to the standard for

overcoming qualified immunity. Cf. City of Tahlequah

v. Bond, 595 U.S. 9 (2021) (applying qualified

immunity due to the lack of sufficiently analogous

appellate precedent).

That was a fundamental error, and it wasn’t

isolated. Rather, it followed the Ninth Circuit’s

troubling pattern of “demanding nothing less than a

‘carbon copy’ of the specific facts” in this Court’s

religious liberty precedents. Our Lady of Guadalupe

Sch., 591 U.S. at 745 (quoting Biel v. St. James Sch.,

926 F.3d 1238, 1239 (9th Cir. 2019) (Nelson, J.,

dissenting from denial of rehearing en banc)).

7

II. The petition presents a pure legal

question regarding the scope of a

constitutional right.

A. Religious

autonomy

claims

can

properly be subject to a declaratory

judgment, and that remains true even

if they are ordinarily viewed as an

affirmative defense.

Assuming arguendo the opinions below are correct

in finding that religious autonomy is only an

affirmative defense, 71Five’s claims were still ripe for

a declaratory judgment.

1. The Declaratory Judgment Act provides that

“[i]n a case of actual controversy within its

jurisdiction … any court of the United States, upon

the filing of an appropriate pleading, may declare the

rights and other legal relations of any interested

party seeking such declaration, whether or not

further relief is or could be sought.” 28 U.S.C. § 2201;

see also Act of June 14, 1934, Pub. L. 73-343, 48 Stat.

955.

Prior to that Act, analogous state provisions “had

been employed … for the declaration of rights

contested under a statute or municipal ordinance,

where it was not possible or necessary to obtain an

injunction.” S. Rep. 73-1005, at 2 (1934). But in

federal courts, in the absence of the declaratory

judgment procedure, it was “often necessary … to

violate or purport to violate a statute in order to

obtain a judicial determination of its meaning or

8

validity.” Id. at 2-3. The Declaratory Judgment Act

eliminated that problem.

The Act did so by authorizing a judgment where

adjudication “may not require the award of

[injunctive] process or the payment of damages.”

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241

(1937). Indeed, the Act authorizes a declaratory

judgment even when those forms of relief are

unavailable. See id. The Act simply “allow[s] relief to

be given by way of recognizing the plaintiff's right

even though no immediate enforcement of it was

asked.” Skelly Oil Co. v. Phillips Petrol. Co., 339 U.S.

667, 671-672 (1950). The critical requirement is that

“[t]he dispute is definite and concrete, not

hypothetical or abstract,” and otherwise within the

jurisdiction of the federal courts. Aetna, 300 U.S. at

242. The party who would ordinarily be a defendant

may bring a declaratory action. “It is the nature of the

controversy, not the method of its presentation or the

particular party who presents it that is

determinative.” Id. at 244.

2. A declaratory judgment thus may be sought visà-vis an affirmative defense. In MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118 (2007), this Court held

that a patentee was not required to break or

terminate its license agreement “before seeking a

declaratory judgment … that the underlying patent is

invalid….” Id. at 137. It did so despite

“patent invalidity [being] an affirmative defense to

patent infringement, not a freestanding cause of

action.” Id. at 142 (Thomas, J., dissenting and citing

35 U.S.C. § 282(2)-(3)). Indeed, notwithstanding

9

patent invalidity being an affirmative defense, this

Court has repeatedly explained that “[a] party

seeking a declaratory judgment of invalidity presents

a claim independent of the patentee’s charge of

infringement.” Commil USA, LLC v. Cisco Sys., Inc.,

575 U.S. 632, 643 (2015) (quoting Cardinal Chem. Co.

v. Morton Int’l, Inc., 508 U.S. 83, 96 (1993)).2

To be sure, “if, but for the availability of the

declaratory judgment procedure, the federal claim

would arise only as a defense to a state created action,

jurisdiction is lacking.” Franchise Tax Bd. v. Constr.

Laborers Vacation Trust, 463 U.S. 1, 16 (1983)

(quoting 10A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure § 2767, pp. 744-745 (2d ed.

1983)). But that concern is answered by Section 1983,

which “creates a cause of action where there has been

injury, under color of state law, to the person or to

the constitutional or federal statutory rights

which emanate from or are guaranteed to the person.”

Wilson v. Garcia, 471 U.S. 261, 278 (1985); see also

Gomez v. Toledo, 446 U.S. 635, 640 (1980) (setting

forth elements of cause of action). The inquiry thus

collapses into the pure legal question of the scope of

the religious autonomy right, as urged by 71Five in

the questions presented.

2 Critically, even if religious autonomy grounds are viewed as

affirmative defenses, those defenses would be 71Five’s. That

distinguishes Calderon v. Ashmus, 523 U.S. 740 (1998), where

the Court held that a declaratory judgment cannot be sought “as

to the validity of a defense the [declaratory judgment defendant]

may, or may not, raise in a [different] proceeding,” id. at 747.

10

3. This Court has repeatedly recognized the

availability of a pre-enforcement declaratory

judgment in First Amendment challenges. In Baggett

v. Bullitt, 377 U.S. 360 (1964), for example, the

plaintiffs sought a declaration that two oaths were

unconstitutional, as well as an injunction against

enforcement of the underlying statutes that required

those oaths as a condition of public employment. This

Court reversed a three-judge district court’s holding

that “adjudication was not proper in the absence of

proceedings in the state courts which might resolve or

avoid the constitutional issue.” 377 U.S. at 366.

Reaching the merits and finding the statutes

unconstitutional, the Court noted “[t]he teacher who

refused to salute the flag or advocated refusal because

of religious beliefs might well be accused of breaching

his promise.” Id. at 371. “Those with a conscientious

regard for what they solemnly swear or affirm …

avoid the risk of loss of employment, and perhaps

profession, only by restricting their conduct to that

which is unquestionably safe.” Id. at 372. “Free

speech may not be so inhibited.” Id. Numerous other

cases are in accord. E.g., Steffel v. Thompson, 415 U.S.

452 (1974). And, analogous to the immaterial

question of whether the constitutional claim is viewed

as free-standing or an affirmative defense, it doesn’t

matter “whether an attack is made on the

constitutionality of the statute on its face or as

applied.” Id. at 475.

The availability of declaratory relief isn’t limited to

cases asserting violations of free speech. Just last

term, the Court emphasized that “when a deprivation

11

of First Amendment rights is at stake, a plaintiff

need not wait for the damage to occur before filing

suit,” and it did so in a Free Exercise case. Mahmoud

v. Taylor, 606 U.S. 522, 559-560 (2025) (ultimately

citing Steffel, 415 U.S. at 459). That case, like this

one, notably involved a refusal to accommodate

religious exceptions to a government policy, despite

making such exceptions available on non-religious

grounds.

The underlying principle in cases like Baggett,

Mahmoud, and Steffel is ensuring First Amendment

rights can be exercised to their fullest extent, without

citizens needing to buffer their activities to avoid

liability. One way the law does so is by facilitating

prompt judicial review of laws, ordinances, etc.,

alleged to violate the First Amendment. Indeed,

where a scheme does not provide for prompt judicial

review of actions that may impinge on the First

Amendment, that’s an independent ground of

unconstitutionality. See Freedman v. Maryland, 380

U.S. 51, 58-59 (1965). The law requires such prompt

review

because

“[t]he

loss

of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Roman Catholic Diocese v. Cuomo, 592 U.S. 14, 14, 19

(2020) (granting injunction pending appeal based on

likely violation of Free Exercise Clause).

4. That the question is presented in the context of

a request for a preliminary injunction isn’t an issue

either. On its face, the Declaratory Judgment Act

provides that “further necessary or proper relief

based on a declaratory judgment or decree may be

12

granted … against any adverse party whose rights

have been determined by such judgment.” 28 U.S.C. §

2202. And federal courts have long-recognized that

“[c]onsequential or executory relief may be demanded

either in association with or as a supplement to

declaratory relief.” Landers Frary & Clark v. Vischer

Prods Co., 201 F.2d 319, 322 (7th Cir. 1953). Not

surprisingly, the Courts of Appeal have repeatedly

affirmed preliminary injunctions in declaratory

judgment actions. See City of Dallas v. Delta Airlines,

Inc., 847 F.3d 279 (5th Cir. 2017) (affirming grant of

preliminary junction in declaratory judgment action);

AMTRAK v. Penn. Pub. Util. Comm’n, 342 F.3d 242,

257-259 (3d Cir. 2003) (holding that preliminary

injunction “satisfies the prerequisites of the

Declaratory Judgment Act”); Cordis Corp. v.

Medtronic, Inc., 835 F.2d 859 (Fed. Cir. 1987)

(affirming grant of preliminary injunction pending

resolution of declaratory judgment action); Medtronic,

Inc. v. Catalyst Research Corp., 664 F.2d 660 (8th Cir.

1981) (affirming grant of preliminary injunction in

favor of plaintiff seeking a declaratory judgment).

Preliminary relief being available in a declaratory

judgment action, the inquiry remains collapsed into

the pure legal question of the scope of the religious

autonomy right, as urged by 71Five in the questions

presented.

B. 71Five’s religious autonomy claims can

also be viewed as an ordinary

affirmative claim for injunctive relief

raising a pure legal question.

The simpler answer is to view 71Five as having

sought a preliminary injunction on a constitutional

claim pursuant to Section 1983. Cf. Wooley v.

13

Maynard, 430 U.S. 705, 711 (1977) (“Ordinarily… the

practical effect of [injunctive and declaratory] relief

will be virtually identical.” (citation omitted)). But

then, even more clearly, the inquiry collapses into the

pure legal question of the scope of the religious

autonomy right.

C. The Ninth Circuit’s categorization of

religious autonomy claims is a red

herring.

At bottom, the district court’s and the Ninth

Circuit’s reliance on religious autonomy claims most

commonly being presented as an affirmative defense

is a red herring. Even if commonly presented that

way, religious autonomy claims have a basis in

71Five’s constitutional rights and existing precedent.

The Ninth Circuit acknowledged as much, pointing to

three of this Court’s cases as establishing a “broad

principle of religious autonomy” under the First

Amendment. 160 F.4th at 983 (citing Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 746

(2020); Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 565 U.S. 171, 186 (2012); and

Serbian E. Orthodox Diocese for U.S. & Can. v.

Milivojevich, 426 U.S. 696, 710 (1976)). Again, the

only question is the purely legal question of the scope

of those rights.

This Court has made clear that claims of First

Amendment violations must be subject to prompt,

pre-enforcement judicial review. The Ninth Circuit’s

opinion below departed from that well-tread rule. See

Freedman, 380 U.S. at 58-59. Religious organizations

like 71Five cannot be left with the Hobson’s choice of

not exercising their religious rights or risking civil or

14

criminal liability down the road depending on

whether they prevail on an uncertain affirmative

defense.

CONCLUSION

The issues presented are squarely legal, and this

case presents and excellent vehicle to clarify the scope

of the right to religious autonomy. The petition should

be granted.

Respectfully submitted,

February 17, 2026

AUSTIN KNUDSEN

Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

*Counsel of Record

JOSEPH S. ST. JOHN

Spec. Asst. Solicitor General

MONTANA DEPT. OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

(406) 444-2026

christian.corrigan@mt.gov

Counsel for Amicus Curiae

State of Montana

15

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General of

Alabama

TIM GRIFFIN

Attorney General of

Arkansas

JAMES UTHMEIER

Attorney General of

Florida

BRENNA BIRD

Attorney General of

Iowa

KRIS W. KOBACH

Attorney General of

Kansas

CATHERINE L. HANAWAY

Attorney General of

Missouri

MIKE HILGERS

Attorney General of

Nebraska

DAVE YOST

Attorney General of

Ohio

ALAN WILSON

Attorney General of

South Carolina

MARTY J. JACKLEY

Attorney General of

South Dakota

KEN PAXTON

Attorney General of

Texas

DEREK BROWN

Attorney General of

Utah