Gay Rights vs. Religious Freedom

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

Executive Order 13672: The LGBT Executive Order - Podcast

Religious Liberties Practice Group Podcast
Carl H. Esbeck, Stanley Carlson-Thies, Robin Fretwell Wilson September 18, 2014

On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties.

Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act.

  • Prof. Carl H. Esbeck, R.B. Price Professor Emeritus and Isabelle Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri, Columbia School of Law
  • Dr. Stanley W. Carlson-Thies, Founder and President, Institutional Religious Freedom Alliance; Senior Fellow and former Director of Social Policy Studies, Center for Public Justice; former Director, White House Office of Faith-Based & Community Initiatives
  • Prof. Robin Fretwell Wilson, Director, Program in Family Law and Policy, University of Illinois College of Law

History and Recent Developments in Same-Sex Marriage Litigation

State Courts Project White Paper
Austin R. Nimocks May 28, 2014

The purpose of this paper is to provide a comprehensive national survey of recent cases regarding same-sex marriage laws. The cases span over half the states and are being litigated in both federal and state courts. We hope this paper serves as a useful reference and guide to any questions you may have about the legal landscape of same-sex marriage.....[Read 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

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The First Amendment and Government Benefits - Event Audio/Video

2013 National Lawyers Convention
Lillian R. BeVier, David D. Cole, John C. Eastman, Martin S. Lederman, Timothy M. Tymkovich, Erik S. Jaffe November 22, 2013

The First Amendment and Government Benefits - Event Audio/Video

The government (federal, state, and local) offers a wide range of benefits to groups.  Some benefits are monetary subsidies.  Some consist of access to government property such as university classrooms and bulletin boards.  Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies.  What sorts of speech-restrictive conditions may the government impose on such subsidies?  May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art?  May the government insist that benefited groups not discriminate in their choice of leaders or members?  May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)?

This issue has divided the Court in a wide range of cases, such as Rust v. SullivanRosenberger v. University of VirginiaNEA v. FinleyChristian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International.  It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups.  And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits.

The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention.

Free Speech: The First Amendment and Government Benefits
3:30 p.m. – 5:00 p.m.

State Room

  • Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law
  • Prof. David D. Cole, Professor of Law, Georgetown University Law Center
  • Dr. John C. Eastman, Professor, Henry Salvatori Professor of Law and Community Service; Former Dean (2007-2010); Director, Center of Constitutional Jurisprudence, Chapman University School of Law
  • Prof. Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

Mayflower Hotel
Washington, DC

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