Editor's Note :

close editor's note Editor's Note :

We’re hosting a symposium on the Roberts court and the First Amendment’s religion clauses. In a series of six essays, scholars and commentators will analyze major decisions from the 2019-20 term and look to the future of the court’s religion jurisprudence. Click to follow along.

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation professor of law at the University of Notre Dame and is the founding director of the school’s Program on Church, State and Society. He wrote or joined amicus briefs in several of the cases described below, including most recently joining an amicus brief on behalf of the petitioners in Our Lady of Guadalupe School v. Morrissey-Berru.

Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A “hot mess” was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalia’s 1993 portrayal of the so-called “Lemon test” as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”

An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and – full disclosure – I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually “pretty, pretty good.” Continue reading »

Friday round-up

By on Aug 7, 2020 at 7:00 am


  • The long-running dispute over compensation for college athletes is back at the Supreme Court. CNN’s Ariane de Vogue reports that the NCAA filed an emergency request on Thursday asking the justices to issue a stay of a lower court’s ruling that allows colleges to give student-athletes money for computers, study-abroad scholarships and other academic products and services. “The case,” de Vogue writes, “is the latest dispute between those who believe that schools should be able to decide for themselves how to compensate their athletes against the NCAA, which says such efforts could blur the line between college and professional sports.”

Continue reading »

Posted in Round-up

This week we highlight cert petitions pending before the Supreme Court that ask the court to assess, among other things, claims of religious discrimination under Title VII of the Civil Rights Act of 1964 and standing requirements under the Religious Land Use and Institutionalized Persons Act. In Dalberiste v. GLE Associates Inc., a Seventh-Day Adventist claims he did not receive a reasonable accommodation from a Florida firm so that he could have Saturdays off to observe the Sabbath. He asks the court to reconsider Trans World Airlines Inc. v. Hardison, which held that, under Title VII, an employer need not accommodate religious practices if doing so would impose more than a “de minimis” burden on the employer. And in Congregation Rabbinical College of Tartikov Inc. v. Village of Pomona, New York, a Jewish organization seeking to build a rabbinical college was blocked from doing so by local zoning laws. The organization, which claims the laws target its religious exercise, wants the court to resolve a circuit split over the circumstances in which land owners have standing to challenge land-use restrictions under the Religious Land Use and Institutionalized Persons Act.

These and other petitions of the week are below the jump: Continue reading »

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Erwin Chemerinsky is the dean and Jesse H. Choper distinguished professor of law at University of California, Berkeley School of Law. Howard Gillman is the chancellor and a professor of political science and law at University of California, Irvine. Their book, “The Religion Clauses: The Case for Separating Church and State,” will be published by Oxford University Press in September.

Although there were a number of surprising victories for liberal positions in the 2019-20 Supreme Court term, there was one area where the conservative position consistently prevailed: the protection for religion.

It is becoming increasing clear that longstanding principles concerning the First Amendment’s religion clauses are being discarded by the conservative justices. These justices are bent on eliminating many of the limits on direct government involvement in religious activity. They are loosening restrictions on the use of tax dollars to support religious practice and instruction and, indeed, requiring government financial support for religious institutions. They are eager to exempt private religious individuals from the need to comply with general laws promoting public health and protecting against discrimination. Continue reading »

Thursday round-up

By on Aug 6, 2020 at 7:00 am

In the latest entry on the Supreme Court’s unofficial coronavirus docket, the court divided 5-4 on Wednesday over health-and-safety protocols designed to curb the spread of COVID-19 in a California county jail. The five conservative justices voted to temporarily put a stop to a lower court’s injunction that had required the jail to take various specific steps, such as allowing inmates to engage in social distancing. SCOTUSblog’s full story on the emergency ruling is here. Additional coverages comes from Adam Liptak of the New York Times and Greg Stohr of Bloomberg. Continue reading »

Posted in Round-up

A divided Supreme Court on Wednesday revoked a lower-court order that required a California jail to implement stricter health and safety measures in response to the coronavirus pandemic. The 5-4 decision to undo the lower court’s injunction is the latest in a series of emergency rulings the justices have issued in disputes relating to the pandemic.

The decision drew an eight-page dissent from Justice Sonia Sotomayor, who accused the five-justice majority of disregarding the lower court’s factual findings and removing crucial judicial supervision of a jail that, she wrote, has “failed to safeguard the health of the inmates in its care.” Sotomayor also reiterated a concern that she raised last week about the court’s recent willingness to intervene on an emergency basis and second-guess lower courts’ judgments about how to manage pandemic-related litigation. Continue reading »

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Mark Rienzi is president of the Becket Fund for Religious Liberty, which represents parties or amici in many of the cases described below, including Bostock v. Clayton County, Little Sisters of the Poor v. Pennsylvania, Our Lady of Guadalupe School v. Morrissey-Berru, Espinoza v. Montana Department of Revenue, Fulton v. City of Philadelphia and Tanzin v. Tanvir. Rienzi is also a professor of law at the Catholic University of America Columbus School of Law, and a visiting professor at Harvard Law School.

This term had it all: blockbuster opinions, a presidential impeachment trial and a global pandemic that closed the court, necessitating historic oral arguments by telephone. It was a stormy year for the nine justices who — like the nation they serve — were often deeply divided over important questions and dealing with chaotic circumstances.

Amid the turmoil, there was one area of the law in which the justices seemed to be weaving together a set of precedents that could nurture some long-term peace. The term’s religious liberty decisions touched on a wide variety of subjects: teachers at religious schools, religious exemptions from federal mandates and state constitutional provisions rooted in anti-Catholic bigotry. But all of the court’s religion-related decisions harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society. Continue reading »

Wednesday round-up

By on Aug 5, 2020 at 7:00 am

The movement to impose term limits on Supreme Court justices gained a bit of traction this week with an endorsement from a prominent think tank with deep ties to the Democratic establishment. In a new report, the Center for American Progress argues that term limits would depoliticize the judicial confirmation process and make justices more responsive to the public, and in a Tuesday webinar tied to the report, a panel of experts explained various term-limit proposals. In a story for SCOTUSblog, Kalvis Golde provides a detailed summary of the webinar, including the panelists’ discussion of the constitutional issues raised by attempts to establish term limits by statute. At Bloomberg Law, Kimberly Strawbridge Robinson has additional coverage of the CAP report. The report comes at an important time for Democrats: They will soon be releasing a new party platform, and as Carl Hulse reports for the New York Times, they are promising to use the platform to fight for “structural court reforms,” which could include term limits. Continue reading »

Posted in Round-up

Term limits for Supreme Court justices, once a fringe idea, have seemingly entered the political and academic mainstream. Recently, both the conservative Federalist Society and the liberal American Constitution Society have hosted events and published scholarship on the question. The Center for American Progress joined the conversation on Tuesday with a virtual discussion of recent term limit proposals, their constitutionality and what it would take to enact them. Continue reading »


This article is the first entry in a SCOTUSblog symposium on the Roberts court and the religion clauses.

Leslie C. Griffin is the William S. Boyd professor of law at the University of Nevada, Las Vegas. She is the author of Law and Religion: Cases and Materials. She wrote amicus briefs in support of the respondents in Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru, and she is writing an amicus brief in support of the respondent in Fulton v. City of Philadelphia.

The First Amendment has two religion clauses: establishment and free exercise. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religion won several cases during the Supreme Court’s 2019-20 term, and it could win more in the upcoming term.

That sounds like a great idea. But it is not.

Religion’s victories are bad for civil rights, especially for rights of women, LGBTQ individuals and people of color. As religion’s influence increases at the court, victories for civil rights decrease. The court’s recent cases confirm that some religious exemptions are incompatible with civil rights. Things could get even worse this coming term for civil rights, as religions appear to repeatedly trump civil rights — even those of religious people. Continue reading »

More Posts: Older Posts
Term Snapshot
At a Glance