Establishment Clause

Religious Liberty after Hobby Lobby - Event Video

2014 National Lawyers Convention
Kim Colby, William P. Marshall, Robin Fretwell Wilson, Diarmuid F. O'Scannlain, William L. Saunders November 14, 2014

The U.S. Supreme Court’s 2013-14 Term included two major religion cases, Town of Greece v. Galloway and Burwell v. Hobby Lobby.  In Galloway, the Court held that prayers offered by local clergy at the start of town board meetings did not violate the Establishment Clause.  In Hobby Lobby, the Court held that the Religious Freedom Restoration Act required that corporations whose owners object to the HHS contraceptive mandate be exempt from it.  The panel will explore, from a range of perspectives, the significance of Hobby Lobby and the religious freedom jurisprudence of the Roberts Court.  Among the topics to be considered are the analysis under RFRA of the government’s compelling interest and the narrow tailoring requirements, the interplay between religious exemptions and the Establishment Clause, emerging issues at the intersection of religious freedom and anti-discrimination laws, ongoing challenges to the HHS contraceptive mandate, and the legacy of Hobby Lobby for future First Amendment and religious freedom cases.

The Federalist Society's Religious Liberties Practice Groups presented this panel on "Religious Liberty after Hobby Lobby" on Thursday, November 13, during the 2014 National Lawyers Convention.


  • Ms. Kim Colby, Senior Counsel, Christian Legal Society
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished --Professor of Law, University of North Carolina School of Law
  • Prof. Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law and Director, Program in Family Law and Policy, University of Illinois College of Law
  • Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals for the 9th Circuit
  • Introduction: Mr. William L. Saunders, Senior Vice President and Senior Counsel, Americans United for Life and Chairman, Religious Liberties Practice Group

Mayflower Hotel
Washington, DC

Town of Greece v. Galloway - Post-Decision SCOTUScast

SCOTUScast 5-8-14 featuring Kim Colby
Kim Colby May 08, 2014

Kim ColbyOn May 5, 2014, the Supreme Court issued its decision in Town of Greece v. Galloway. The question in the case was whether the practice of opening a town meeting with prayer violates the Establishment Clause of the First Amendment.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the town's prayer practice did not violate the Establishment Clause. Justice Kennedy was joined by Chief Justice Roberts and Justice Alito in full; Justices Scalia and Thomas joined except for Part II-B; Justice Alito filed a concurring opinion joined by Justice Scalia. Justice Thomas concurred in part and concurred in the judgment, joined in part by Justice Scalia. Justice Breyer dissented alone; Justice Kagan filed a dissenting opinion in which Justices Breyer, Ginsburg, and Sotomayor joined. The opinion of the Second Circuit was reversed.

To discuss the case, we have Kim Colby, who is Senior Counsel for the Christian Legal Society.

Prayer in the Public Square: Town of Greece v. Galloway Decided - Podcast

Religious Liberties Practice Group Podcast
Kim Colby May 08, 2014

church and flag

On May 5, 2014, the Supreme Court issued its decision in Town of Greece v. Galloway, overturning a 2nd Circuit decision that held that a legislative prayer practice violates the Establishment Clause of the First Amendment. The Court held that “[l]egislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause,” and that the “[r]espondents’ insistence on nonsectarian prayer is not consistent with this tradition.” Our expert, Christian Legal Society Senior Counsel Kim Colby, offered her analysis of the implications of the decision for religious liberty jurisprudence.


  • Kim Colby, Senior Counsel, Christian Legal Society

Oral Arguments in the Contraceptive Mandate Case: Sebelius v. Hobby Lobby Stores, Inc. - Podcast

Religious Liberties Practice Group Podcast
Robert A. Destro, Adèle Keim March 26, 2014

Hobby Lobby

On March 25, 2014, the contraceptive mandate case was argued in the U.S. Supreme Court. Hobby Lobby Stores’ owners have no moral or other objection to the use of 16 of 20 contraceptives required by the contraceptive mandate under the Affordable Care Act (ACA), but cite their deeply held religious beliefs in objecting to providing or paying for four others they see as possibly life-threatening. How will the Supreme Court rule? Does the Religious Freedom Restoration Act of 1993 (RFRA), allow Hobby Lobby a way around the ACA ‘s contraceptive mandate? Our experts reviewed the oral arguments and took questions from the audience in this Courthouse Steps Teleforum.


  • Prof. Robert A. Destro, Professor of Law, and Director, Interdisciplinary Program in Law & Religion, The Catholic University of America Columbus School of Law
  • Adele Keim, Counsel, The Becket Fund for Religious Liberty

[Listen now!]

Employment Non-Discrimination Act - Podcast

Religious Liberties Practice Group Podcast
David E. Bernstein, William N. Eskridge, Jr. February 21, 2014

Prop 8 flagsA bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.

Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.

There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.


  • Prof. David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

[Listen now!]