12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

7/20/20  //  In-Depth Analysis

The Supreme Court majority's expanding concept of complicity is likely to result in judges acting inconsistently, accommodating sympathetic religious claimants and denying relief to those who are not

7/8/20  //  Commentary

Thousands upon thousands of schoolteachers at religious schools – teachers who are mostly women – have been stripped of protection against anti-discrimination laws. Once again, religious rights trump women’s right to equality.

7/8/20  //  Commentary

Despite legitimate controversy over the application of the ministerial exception, Morrissey-Berru is a reassuring nod toward the continuity of a principle long rooted in the American tradition of church-state separation.

7/1/20  //  In-Depth Analysis

Espinoza leaves us with a gluttonous Free Exercise Clause, and a starved Establishment Clause.

7/1/20  //  In-Depth Analysis

Those who still believe that the Constitution precludes state involvement in promoting religious thought and experience now have some work cut out for them

1/28/18  //  Daily Update

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.

12/24/17  //  Daily Update

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.

12/4/17  //  Daily Update

This week, the Supreme Court will hear oral argument in Masterpiece Cakeshop, a case invoking the conflict between religious beliefs and non-discrimination ordinances.

8/6/17  //  Daily Update

The White House met with evangelical leaders.

6/25/17  //  Daily Update

The ACLU alleges the Trump Administration's plans to expand religious freedom may amount to a license to discriminate.

6/11/17  //  Daily Update

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

2/12/18  //  Commentary

Tolerating discrimination and tolerating the desire not to be discriminated against are simply not the same.

6/26/18  //  Commentary

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.

6/15/18  //  In-Depth Analysis

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

1/24/18  //  Commentary

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

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.

11/1/17  //  In-Depth Analysis

In Masterpiece, the Petitioner's argument would wreak havoc on long established First Amendment principles, giving businesses a right to disregard content-neutral regulations of their conduct

11/14/19  //  Uncategorized

On this week’s Versus Trump, Jason, Charlie, and Easha discuss a court's opinion vacating the Trump Administration's so-called "conscience rule." This rule would have broadly permitted many employees in the healthcare sector from in any way participating in procedures with which they have religious or moral disagreements—even in emergencies. Listen now!

10/31/17  //  In-Depth Analysis

Robbie Kaplan and I have filed a brief on behalf of Church-State Scholars addressing the Free Exercise Clause issues in this important case.

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.

10/30/18  //  Commentary

Judges should strive toward constitutional understandings that protect the interests of people on different sides of the ideological spectrum

6/6/18  //  Quick Reactions

Justice Kennedy makes an open-ended call for tolerance and compromise in his opinion. For that, he should be commended

9/12/19  //  In-Depth Analysis

The Supreme Court recently made the exception into the rule for Establishment Clause cases, and signaled how it will refashion and discount disfavored precedent going forward.

6/5/18  //  Quick Reactions

In some cases, the public perception of a case — not its actual holding — is what is most important.

9/28/17  //  Commentary

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.

1/4/18  //  Uncategorized

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!

2/28/19  //  In-Depth Analysis

There are reasons to worry about whether certain liberal justices on the Supreme Court fully appreciate that we are at an inflection point in the history of the Religion Clause

4/19/18  //  Commentary

The Supreme Court should strike down Trump’s travel ban.

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.

9/21/17  //  In-Depth Analysis

A sleeper issue is brought center stage by two leading religious liberty scholars

5/4/17  //  Quick Reactions

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

6/26/18  //  Commentary

Let's not kid ourselves. Today's decision in NIFLA is an ideological decision.

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.

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.

3/18/17  //  Commentary

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

10/18/17  //  In-Depth Analysis

DOJ's effort to to transform this case into a freedom of speech decision threatens the integrity of First Amendment rights. It should be rejected.

6/12/18  //  Commentary

Will SCOTUS minimize its view of religious animus as applied to Muslims, despite having just magnified it as applied to conservative Christians?

9/5/17  //  In-Depth Analysis

Analysis of the Ninth Circuit's latest travel ban argument (and some personal reflections).

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.

10/26/17  //  Commentary

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!

3/14/19  //  In-Depth Analysis

The Supreme Court's decision in Masterpiece Cakeshop offers no warrant for a rampant free exercise exceptionalism, in which the normal rules of constitutional law are suspended or inverted

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

7/9/18  //  Commentary

Sometimes the oncoming storm is easier to spot than the silver linings.

2/13/19  //  In-Depth Analysis

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.

12/7/17  //  Commentary

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.

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.

5/17/19  //  In-Depth Analysis

Race and class are intricately entwined with laws like the Hyde Amendment, and no advocacy on the issue can ignore this fact

6/5/18  //  Commentary

There are times when strategic ducking makes sense practically if not strictly legally

2/24/19  //  In-Depth Analysis

The Bladensburg Cross case has our country on the verge of abandonment of longstanding and hard won principles about the secular character of American government. SCOTUS can and should step back from the brink.

6/13/18  //  Commentary

Robert Post of Yale Law considers the status of free speech objections to serving same-sex couples in light of the Court's opinion.

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.

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.

6/30/17  //  Commentary

Our current political climate makes it especially troubling to imagine the government privileging majority religions over minority ones.

12/6/17  //  In-Depth Analysis

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.

9/7/17  //  Quick Reactions

And now what? We’re condemned to battle the zombie-like remains of this cruel order as it shuffles about the world for just a few more weeks, ruining lives and embarrassing our tradition of religious liberty.

6/21/18  //  In-Depth Analysis

Sirine Shebaya and Johnathan Smith: Trump has never been bashful about his anti-Muslim animus. And he has invoked that animus in creating policies, in defiance of the Constitution.

10/6/17  //  In-Depth Analysis

Maybe the whole compelling interest test is misguided in Establishment Clause cases.

3/29/17  //  Commentary

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

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.

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.

6/7/18  //  Quick Reactions

By Nelson Tebbe & Larry Sager: Now is the time to solidify our understanding of Masterpiece, because other wedding vendor cases are still pending in the Supreme Court and in lower courts.

10/4/17  //  In-Depth Analysis

Anti-Muslim animus on the face of the second travel ban requires clear proof that the third one is free of such bigotry.

10/7/19  //  Commentary

Permitting employers to discriminate against LGBT employees would open to the door to the same kind of discrimination against millions of Americans of faith

6/19/18  //  In-Depth Analysis

The Court’s newest member embraces a troubling “both sides” argument

9/12/19  //  Commentary

On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!

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)

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.

4/17/20  //  Commentary

By embracing Christian nationalist rhetoric, Secretary of State Pompeo ignores America’s secular constitutional tradition—and undermines the United States’ ability and credibility to promote human rights, pluralism, and the rule of law around the globe.

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.

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

3/25/19  //  Commentary

One of the core goals of the Establishment Clause is to stave off developments like Christian nationalism and its hierarchies of citizens. The Bladensburg cross reflects and strengthens this troubling strain in American society.

4/28/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss claims by churches that stay-at-home orders violate their religious freedom. Turns out it can be a tough issue! Listen now.

4/25/18  //  Commentary

Giving President Trump the benefit of the doubt is one thing. Fictionalizing an account of his motive so as to avoid reaching a certain conclusion is something else.

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.

12/6/17  //  In-Depth Analysis

If the baker loses in Masterpiece, could the government compel an African American sculptor to sculpt a cross for a Klan service? No, it could not.

9/19/17  //  In-Depth Analysis

Will the President’s own words mean nothing to the Court, even as they mean everything to millions affected by his order?

2/22/19  //  Commentary

By Nabihah Maqbool and Sirine Shebaya: There are major problems with the Countering Violent Extremism program. Trump has only made the program worse. It should be winded down for good.

10/30/17  //  In-Depth Analysis

Thomas C. Berg and Douglas Laycock respond to criticism of their amicus brief in the Masterpiece Cakeshop case.

4/17/18  //  In-Depth Analysis

The government can't act based on animus toward particular religions. But that's exactly what Trump did.

9/7/18  //  Quick Reactions

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.

12/8/17  //  Commentary

By Vicki Jackson & Judith Resnik: Upholding the third travel ban out of deference to the President on matters of foreign affairs would be a tragic mistake.

3/26/19  //  In-Depth Analysis

The administration has issued a religious exemption rule that collides with the Establishment Clause

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.

11/14/17  //  In-Depth Analysis

Tom Berg and Douglas Laycock defend a novel theory that could eviscerate civil rights laws

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.

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.

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.

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.

4/12/17  //  Commentary

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

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.

6/28/17  //  Commentary

The votes in this case mask very deep divisions on the Supreme Court about Religion Clause and federalism principles.

12/7/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha are joined by Take Care publisher Joshua Matz to talk about the Masterpiece Cake Shop oral argument, plus the status of Muslim Ban litigation and the future of Take Care.

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.

3/6/18  //  Commentary

The Constitution prohibits the government from accommodating religious practices when doing so entails undue hardship to third parties

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.

7/17/17  //  In-Depth Analysis

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.

4/25/18  //  Commentary

Korematsu holds that in a case like this one the obligation to strictly scrutinize invidiously discriminatory policies remains even when the government asserts a facially plausible national security justification.

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.

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.

3/27/17  //  Daily Update

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

4/23/17  //  Daily Update

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

5/7/17  //  Daily Update

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

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.

5/4/17  //  Daily Update

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."