Establishment Clause

The Rise and Decline of American Religious Freedom - Podcast

Religious Liberties Practice Group Podcast
Steven D. Smith, John Inazu March 12, 2015

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, University of San Diego School of Law Prof. Steven D. Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

In The Rise and Decline of American Religious Freedom, Prof. Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics. Prof. Smith was joined by Prof. John Inazu of Washington University (Saint Louis) Law School to discuss the premises, analysis, and conclusions of Prof. Smith’s book.

  • Prof. Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego School of Law
  • John Inazu, Washington University School of Law

The Little Sisters of the Poor and the HHS Mandate - Podcast

Religious Liberties Practice Group Podcast
Mark L. Rienzi December 19, 2014

On December 8, 2014, the Tenth Circuit Court of Appeals heard arguments in three cases challenging the HHS contraceptive mandate, including Little Sisters of the Poor v. Burwell. The Little Sisters case has already been to the Supreme Court once when Justice Sotomayor gave the nuns an emergency injunction on December 31, 2013, and the full court gave them an injunction in January 2014. The Little Sisters returned to court on December 8 to challenge whether the government can force them to sign forms that would let the government and third parties use their plan to provide contraceptives.

Mark Rienzi is Senior Counsel at the Becket Fund for Religious Liberty, and an Associate Professor of Constitutional Law at the Catholic University of America. He argued on behalf of the Little Sisters and several other parties before the 10th Circuit, and he gave a report on the argument and the status of the challenges to the contraceptive mandate.

  • Prof. Mark L. Rienzi, Columbus School of Law, The Catholic University of America, Senior Counsel, Becket Fund for Religious Liberty

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