The Substance of the Supreme Court’s procedure
Last week’s Supreme Court stay orders say a lot about how the Court views the substance of the underlying constitutional claims in Dunn v. Ray and June Medical Services v. Gee.
Birth Control Is Not Abortion
By Greg Lipper: At his confirmation hearing, Judge Kavanaugh used the phrase “abortion-inducing drugs" while referring to a case he heard on the DC Circuit. This description of the case is at odds with modern science and suggests his hostility to foundational privacy precedents.
The Travel Ban and Inter-Branch Conflict
The real problem is the Trump Administration itself. What feels like damage today is largely the echo of damage that already happened, rather than something new.
Updates | The Week of January 22, 2018
The Senate confirmed Sam Brownback, former Kansas governor, as the American Ambassador-at-Large for Religious Freedom. HHS's new religious freedom division constitutes a new attack on women's health, wrote Jamille Fields at The Hill.
Updates | The Week of December 18, 2017
President Trump’s Muslim ban echoes Japanese internment in the U.S. during World War II, and the Supreme Court should not make the same mistake today. President Trump has abandoned his campaign promises to help Christian refugees as his administration has accepted significantly fewer than previous administrations.
Update | The Week of November 27, 2017
This week, the Supreme Court will hear oral argument in Masterpiece Cakeshop, a case invoking the conflict between religious beliefs and non-discrimination ordinances.
Masterpiece Cakeshop and Protecting Both Sides
By Thomas C. Berg & Douglas Laycock: The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides
Guantánamo and President Trump’s Anti-Muslim Animus
By Nimra Azmi and Sirine Shebaya: Trump's position on Guantánamo perfectly aligns with his habitual rejection of the idea that Muslims accused of terrorism are entitled to any constitutional protections
No Peeking? Korematsu and Judicial Credulity
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.
Trump’s Latest Affront To Women, and to the Constitution
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.
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
Moral Convictions And The Contraception Exemptions
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.
A Legal Challenge to Trump's "Religious Liberty" Executive Order
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.
Versus Trump Emergency Pod: JD v. DHS
On this week’s episode of Versus Trump, Easha and Charlie have a quick turn-around emergency pod to discuss an ongoing—wait, just now resolved—case filed by a pregnant 17-year-old girl in federal immigration custody who seeks an abortion. Easha and Charlie first talk about the procedural wrangling that this case has wrought and second about the legal claims in the case, which bring them into the exciting worlds of reproductive rights, immigration law, and international relations. Listen now!
What’s the Price of Tolerance?
Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.
Andrew Sullivan Is Wrong About Public-Accommodations Law
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.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
What Masterpiece Cakeshop is Really About
The Alliance Defending Freedom, which represents Masterpiece Cakeshop, is not interested in a narrow exemption. Rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.
Opposing Trump's Muslim Ban at the Supreme Court
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.
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
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.
The Muslim Ban and Trump's Latest Tweets
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.
A Lurking Threat to LGBT Rights & Religious Freedom
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.
Is the Trinity Lutheran Church Case Moot?
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.
Deep Problems with the Proposed Executive Order on Religious Freedom
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.
A Landmark Victory for LGBT Rights (And The Path Ahead)
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.
Those Who Do Not Know History
On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.
The Muslim Ban: Answering Tough Questions About Motive
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.
The World Is Not Made Brand New Every Morning
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.
Fifth Circuit Ruling Threatens LGBT Rights & Religious Freedom
The Fifth Circuit his reversed a preliminary injunction against HB 1523, Mississippi's unusual anti-LGBT "religious freedom" law. Its reasoning is incorrect and at odds with precedent. En banc review is warranted to establish uniformity in the law and vindicate important constitutional principles.
Mitch Landrieu and the Anti-Denigration Constitution
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.
Updates | The Week of April 24, 2017
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 May 8, 2017
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 April 3, 2017
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."