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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.

RNC, Rhode Island Republicans ask justices to intervene in absentee-ballot dispute

in Featured, Emergency appeals and applications on Aug 10, 2020 at 6:17 pm

The Republican National Committee and Rhode Island Republicans asked the Supreme Court on Monday to block an order by a federal district court that relaxed the state’s witness requirement for absentee ballots. The two groups argued that the relief they have requested – putting the lower court’s ruling on hold – was compelled by the Supreme Court’s ruling in July in a similar case from Alabama.

Under Rhode Island law, voters who opt to submit absentee ballots must sign their ballots in the presence of either two witnesses or one notary. The state’s governor, Democrat Gina Raimondo, waived the witness requirement for the June presidential primary, but she opted not to do so for either the September primary election or the November general election.

Civic groups, including the League of Women Voters, went to court in late July, arguing that the witness requirement was unconstitutional because of COVID-19. Secretary of State Nellie Gorbea did not defend the witness requirement. Instead, the challengers and Gorbea worked together to negotiate a consent decree that suspended the witness requirement for all Rhode Island voters for the upcoming elections. (more…)


Symposium: Free exercise, RFRA and the need for a constitutional safety net

in Symposium on the Roberts court and the religion clauses, Featured on Aug 10, 2020 at 11:20 am

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

Kim Colby is director of the Christian Legal Society’s Center for Law and Religious Freedom. She was counsel on amicus briefs on behalf of the Christian Legal Society in Espinoza v. Montana Department of RevenueOur Lady of Guadalupe School v. Morrissey-Berru, Tanzin v. Tanvir and Fulton v. City of Philadelphia.

Americans’ religious freedom depends on a patchwork of protections scattered throughout federal and state laws. Religious freedom is protected to a limited degree by the First Amendment’s free exercise clause; to a much greater degree, but only at the federal level, by the Religious Freedom Restoration Act; and to various degrees by specific religious exemptions tucked here and there into federal statutes and regulations. While state constitutions, as well as some state and local statutes, pay homage to religious freedom, when state courts apply them the results frequently tend to be less robust than their language would suggest.

The Supreme Court’s 2019-20 term brought significant religious freedom victories. But it also highlighted the lack of a constitutional safety net for religious freedom. The 2020-21 term offers a critical opportunity to restore a constitutional safety net that has been sorely lacking for three decades. (more…)


Monday round-up

in Round-up on Aug 10, 2020 at 8:06 am


  • In the Atlantic, Ryan Doerfler and Samuel Moyn weigh in on the debate over potential structural reforms to the Supreme Court, arguing that Democrats should abandon proposals to add justices or impose term limits and, instead, should strip power from the institution itself by “removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes.”
  • At the National Review’s Bench Memos blog, John Bursch looks at the nascent effects of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, highlighting a ruling last week from the U.S. Court of Appeals for the 2nd Circuit that cited Espinoza in ruling against a Vermont educational program that excludes students attending religious high schools.



Symposium: Religious freedom and the Roberts court’s doctrinal clean-up

in Symposium on the Roberts court and the religion clauses, Featured on Aug 7, 2020 at 9:57 am

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.” (more…)


Friday round-up

in Round-up 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.”



Petitions of the week: Religious employees, religious developers and more

in Dalberiste v. GLE Associates Inc., Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, Kollaritsch v. Michigan State University Board of Trustees, Alexis v. Barr, Congregation Rabbinical College of Tartikov Inc. v. Village of Pomona, New York, Cases in the Pipeline on Aug 6, 2020 at 3:39 pm

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: (more…)


Symposium: The unfolding revolution in the jurisprudence of the religion clauses

in Symposium on the Roberts court and the religion clauses, Featured on Aug 6, 2020 at 10:36 am

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. (more…)


Thursday round-up

in Round-up 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. (more…)


Siding with jail officials, court lifts injunction that imposed coronavirus safety measures

in Featured, Emergency appeals and applications on Aug 5, 2020 at 11:57 pm

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. (more…)


Symposium: Amid polarization and chaos, the court charts a path toward peaceful pluralism

in Symposium on the Roberts court and the religion clauses, Featured on Aug 5, 2020 at 10:59 am

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. (more…)

More Posts:
Term Snapshot
At a Glance