Religious Freedom

President Trump has promised to protect religious liberty—but in ways that may injure other groups, offend many faith traditions, and establish (rather than truly accommodate) religion.

Animus Revisited: DOJ Fails To Explain Change in Position on Relevance of Campaign Statements

6/23/17  //  In-Depth Analysis

DOJ can't distinguish a case from 1995 in which it took a diametrically opposed view on the relevance of campaign statements.

Jim Oleske

Lewis & Clark Law School

The Slants, Government Speech, and Elane Photography

6/22/17  //  In-Depth Analysis

Thanks to the Supreme Court's ruling in Matal v. Tam, the government speech doctrine will not swallow the First Amendment.

Michael C. Dorf

Cornell Law School

Opposing Trump's Muslim Ban at the Supreme Court

6/16/17  //  Quick Reactions

President Trump has asked the Supreme Court to lift the stay preventing him from implementing his travel ban. Nelson Tebbe, Micah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.

Corey Brettschneider

Brown University

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

A federal district court ruled that the Supreme Court's ban on plaza demonstrations does not violate RFRA.

The Muslim Ban and Trump's Latest Tweets

6/5/17  //  Quick Reactions

Thanks in part to the President's own recent tweets and public comments, the case for concluding that his revised travel ban is unconstitutional has now become overwhelming.

Corey Brettschneider

Brown University

Trump and Pence Invoke Conscience to Block Contraception, Contrary to Our Religious Liberty Tradition

6/4/17  //  In-Depth Analysis

Regulatory changes that the Trump-Pence Administration reportedly plans to implement extend well beyond our religious liberty traditions (and beyond accommodations authorized by the Supreme Court)

Douglas NeJaime

UCLA Law School

Reva Siegel

Yale Law School

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

Analysts argue that President Trump’s executive order on religious liberty advances his discriminatory agenda.President Trump’s executive order on religious liberty advances his discriminatory agenda.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump released a new religious freedom executive order to widespread criticism and concern.

Take Care

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

The Administration sought an extension to negotiate over the Affordable Care Act's birth control provisions, and it hired a State Department spokesperson who has a history of anti-Muslim rhetoric.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

"Big data" may already provide the necessary technology to create a Muslim registry covertly.

A Different View of Why the Muslim Ban Violates the Establishment Clause

4/20/17  //  Commentary

A diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—has filed an amicus brief challenging the Muslim Ban. Here's what you need to know.

Joshua Matz

Publisher

Corey Brettschneider

Brown University

Micah Schwartzman

University of Virginia School of Law

Nelson Tebbe

Brooklyn Law School

No Peeking? Korematsu and Judicial Credulity

3/22/17  //  Commentary

The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.

Ian Samuel

Harvard Law School

Leah Litman

U.C. Irvine School of Law

McKayla Maroney Is Not Impressed (With DOJ's Brief in the Fourth Circuit)

3/27/17  //  In-Depth Analysis

The Department of Justice has filed a brief in the Fourth Circuit defending President Trump's revised entry ban. This is not an impressive brief: it is rife with misstatements of fact and incorrect legal arguments.

Leah Litman

U.C. Irvine School of Law

Women Should Decide When and How to “Dress Like a Woman”

3/17/17  //  Commentary

The President should set a better example for other employers and leave the question of how to dress like a woman—with all of the trade-offs and nuances it entails—to the people who actually have to do it.

Richard Thompson Ford

Stanford Law School

Trump’s Latest Affront To Women, and to the Constitution

6/2/17  //  In-Depth Analysis

A draft of the Trump Administration's revised contraception mandate has been leaked. If implemented, this policy would weaken civil rights for women. Moreover, the plan could violate the Establishment Clause by providing a religious accommodation for some private citizens only by shifting costs to others who may not share their beliefs.

Nelson Tebbe

Brooklyn Law School

Micah Schwartzman

University of Virginia School of Law

Richard C. Schragger

UVA School of Law

[UPDATED] Don't Believe the Hype: Understanding the Johnson Amendment Kerfuffle

5/4/17  //  Uncategorized

An executive order to be issued today likely will direct the IRS to exercise “maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit.” Here's what that means and why it matters.

Marty Lederman

Georgetown Law

What Trump Got Wrong In The Rose Garden

5/4/17  //  Quick Reactions

President Trump misstates the law, and mischaracterizes his own Executive Order, in the Rose Garden.

Moral Convictions And The Contraception Exemptions

6/5/17  //  Commentary

Yet another major flaw in the draft contraception rule, which would not only allow employers to drop contraception coverage for *religious* reasons, but would also (without any lawful basis) allow employers who have *moral* objections to do the same.

Nick Bagley

University of Michigan Law School

A Legal Challenge to Trump's "Religious Liberty" Executive Order

5/5/17  //  Commentary

Yesterday, the Freedom from Religion Foundation (FFRF) filed a lawsuit against Donald Trump’s most recent Executive Order, “Promoting Free Speech and Religious Liberty.” While there has been muted reaction to Trump’s executive order, the FFRF complaint makes two important points that have been mostly unappreciated.

Richard C. Schragger

UVA School of Law

The Establishment Clause and the Muslim Ban

3/18/17  //  Commentary

Why the Establishment Clause Has Emerged as the Chief Stumbling Block for Trump's Muslim Ban

Michael C. Dorf

Cornell Law School

Andrew Sullivan Is Wrong About Public-Accommodations Law

5/10/17  //  Commentary

Andrew Sullivan recently criticized gay people who seek to obtain services from those with religious objections to serving them. But Sullivan's criticism fundamentally misunderstands the basic purpose of public accommodations laws and should be rejected.

Charlie Gerstein

Civil Rights Corps

The Trump Administration May Already Have What It Needs for a Serviceable (and Unconstitutional) “Muslim Registry”

4/19/17  //  In-Depth Analysis

The Trump Administration may already have the tools it would need to predict with high accuracy the religious identity of a significant percentage of U.S. citizens and visiting Muslims. And software engineers, not lawyers, may be our first line of alarm and defense.

Animus, Past and Present

5/9/17  //  Commentary

In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.

Leah Litman

U.C. Irvine School of Law

The First Amendment Belongs Only to Americans? Wrong

3/29/17  //  Commentary

The First Amendment makes America great for everyone, not just for citizens.

Nikolas Bowie

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose

4/6/17  //  Commentary

Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.

Joshua Matz

Publisher

A Lurking Threat to LGBT Rights & Religious Freedom

4/3/17  //  In-Depth Analysis

Today, the Fifth Circuit hears argument in a major case about the future of religious liberty and LGBT rights. The law under review, HB 1523, is flagrantly unconstitutional. And the result of this appeal may profoundly influence Trump's still-evolving policies.

Joshua Matz

Publisher

The Imperatives of Structure: The Travel Ban, the Establishment Clause, and Standing to Sue

4/3/17  //  In-Depth Analysis

In the Fourth Circuit travel ban appeal, DOJ contends that the plaintiffs lack standing. But a deeper examination of the Establishment Clause proves that the plaintiffs’ claims must be heard on the merits.

Ira C. Lupu

George Washington University Law School

Peter J. Smith

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Is the Trinity Lutheran Church Case Moot?

4/18/17  //  Commentary

Under President Trump, questions about the role of religion have come to the fore. The Supreme Court was set to decide a major Free Exercise issue this Term, but it now seems that the case is moot.

Marty Lederman

Georgetown Law

Deep Problems with the Proposed Executive Order on Religious Freedom

5/3/17  //  In-Depth Analysis

It's rumored that tomorrow, Trump will issue an executive order on "religious freedom," singling out for protection only traditional and conservative religious views on sex, marriage, sexual orientation, gender identity, and pregnancy. That order will most certainly raise grave constitutional issues under the Establishment Clause.

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Why Courts Have Probed Trump’s Motives for the Travel Ban

4/4/17  //  Commentary

Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.

Joshua Matz

Publisher

A Landmark Victory for LGBT Rights (And The Path Ahead)

4/5/17  //  Commentary

The en banc Seventh Circuit has held that Title VII protects against sexual orientation discrimination. SCOTUS is likely to grant review of this important issue in the near future. But it remains unclear what position the Trump Administration will take.

Joshua Matz

Publisher

Those Who Do Not Know History

4/12/17  //  Commentary

On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.

Leah Litman

U.C. Irvine School of Law

Joshua Matz

Publisher

The Muslim Ban: Answering Tough Questions About Motive

4/21/17  //  In-Depth Analysis

The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.

Richard Primus

University of Michigan Law School

The World Is Not Made Brand New Every Morning

3/20/17  //  Commentary

Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.

Jonathan Taylor

Gupta Wessler PLLC

Mitch Landrieu and the Anti-Denigration Constitution

5/25/17  //  Commentary

Mitch Landrieu’s speech defending the removal of Confederate war monuments in the heart of New Orleans is an eloquent reminder that the Constitution forbids acts that subordinate or denigrate, whether in the context of religion, LGBT rights, or racial equality.

Richard C. Schragger

UVA School of Law

Micah Schwartzman

University of Virginia School of Law

Nelson Tebbe

Brooklyn Law School

The Draft Religious Liberty EO

3/27/17  //  Daily Update

A leaked draft of the Administration's proposed executive order on religious liberty.

Take Care

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Joshua Matz offered analysis of a Mississippi "religious freedom" law on Take Care, while a DoJ memorandum "gives new emphasis to combating religious hate crimes."