Religious Speech

President Trump's Religious Liberties Executive Order - Podcast

Religious Liberties Practice Group Podcast
Gregory S. Baylor, Carl H. Esbeck May 11, 2017

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty” Executive Order also directs “the Secretary of Health and Human Services” to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”

An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. This Teleforum is the third in our Executive Order Teleforum Series.


  • Mr. Gregory Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom 
  • Prof. Carl Esbeck, R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law 

Religious Liberty after the USCCR Report - Event Audio/Video

2017 National Student Symposium
William P. Marshall, Michael S. Paulsen, Marci A. Hamilton, Douglas Laycock, William H. Pryor Jr. March 15, 2017

In September, 2016, the United States Commission on Civil Rights released a report entitled Peaceful CoexistenceReconciling Nondiscrimination Principles with Civil Liberties. In the report, the USCCR concluded that religious exercise is in tension with individual rights of certain subsections of the American population. It then went on to make a number of recommendations that suggest that that religious exercise must give way to civil rights protections when the two come into conflict: 

  • Narrow Tailoring of Religious Exceptions: Federal and state courts, lawmakers, and policy-makers at every level must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires.
  • Protections of Beliefs Over Conduct: The recognition of religious exemptions to nondiscrimination laws and policies should be made pursuant to the holdings of Employment Division v. Smith, which protect religious beliefs rather than conduct.
  • Amending the Religious Freedoms Restoration Act (“RFRA") (and State equivalents): Federal legislation should be considered to clarify that RFRA creates First Amendment Free Exercise Clause rights only for individuals and religious institutions and only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination. States with laws similar to RFRA should similarly amend their laws.

This panel will first explore whether the USSCR Report is correct that there is, in fact, an irreconcilable tension between religious liberty and civil liberties. And second, if there is a conflict between religious liberty and civil liberties, the panel will debate whether the recommendation by USCCR to limit religious exemptions is the best way to navigate such conflict.

This panel was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Panel 3: Religious Liberty after the USCCR Report
2:00 p.m. -3:45 p.m.
Jerome Greene Hall 104

  • Prof. Bill Marshall, Kenan Professor of Law, University of North Carolina
  • Prof. Michael Paulsen, Distinguished University Chair and Professor, University of St. Thomas
  • Prof. Marci Hamilton, Fox Family Pavilion Distinguished Scholar, University of Pennsylvania
  • Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law; University of Virginia Law School; Professor of Religious Studies, University of Virginia
  • Moderator: Hon. William H. Pryor, Jr. U.S. Court of Appeals, 11th Circuit

Columbia Law School
New York, New York

The Future of Religious Liberties under the New Administration - Podcast

Religious Liberties Practice Group Podcast
Thomas C. Berg, Richard W. Garnett December 15, 2016

What is ahead for religious liberties under the Trump administration? Will churches be granted a victory in Trinity Lutheran v. Pauley? Will Trump’s Justice and Education Departments continue the push for transgender rights in public schools? Professor Richard Garnett of The University of Notre Dame Law School and Professor Thomas Berg of the University of St. Thomas School of Law joined us to answer these questions and many others on religious liberties in 2017.


  • Professor Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law
  • Professor Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor and Concurrent Professor of Political Science, University of Notre Dame Law School

Ninth Annual Rosenkranz Debate: Hostile Environment Law and the First Amendment - Event Audio/Video

2016 National Lawyers Convention
Deborah L. Rhode, Eugene Volokh, Jennifer Walker Elrod, Eugene B. Meyer November 24, 2016

RESOLVED: Hostile Environment Law, On and Off Campus, Often Violates the First Amendment.

The Ninth Annual Rosenkranz Debate was held on November 19, 2016, during The Federalist Society's 2016 National Lawyers Convention.

Ninth Annual Rosenkranz Debate & Luncheon
12:30 p.m. – 2:30 p.m.         
Grand Ballroom

  • Prof. Deborah L. Rhode, Ernest W. McFarland Professor of Law; Director, Center on the Legal Profession; Director, Program in Law and Social Entrepreneurship, Stanford Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Moderator: Hon. Jennifer W. Elrod, U.S Court of Appeals, Fifth Circuit
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

The Mayflower Hotel
Washington, DC

Is the Religious Freedom Restoration Act (RFRA) the Future of Religious Liberty? - Event Audio/Video

2016 National Lawyers Convention
John C. Eastman, Richard W. Garnett, William P. Marshall, Vincent Phillip Munoz, Michael Uhlmann, William L. Saunders November 23, 2016

In his seminal decision in Employment Division v. Smith in 1990, Justice Antonin Scalia held that the First Amendment typically does not authorize courts to grant religious exemptions from generally applicable laws. This decision altered the 1963 Sherbert v. Verner test which had given courts the power to strike down any law that (1) if it substantially burdened religious practice, was not (2) based on a compelling government interest, and (3) narrowly tailored to achieve that interest. Rather, Scalia said that religious adherents should look to the political process for accommodation, and he consistently supported the constitutionality of such accommodations. In response to Smith, a primary means of such accommodation has been the passage of state and federal Religious Freedom Restoration Acts (RFRAs), which codify the Sherbert test. However, in the wake of Obergefell v. Hodges (or Hobby Lobby), RFRAs have become the focus of intense political controversy. What do these laws actually do in practice? Are they a good idea? Would a different approach to protect religious liberty be better?

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Religious Liberties: Is the Religious Freedom Restoration Act (RFRA) the Future of Religious Liberty?
3:30 p.m. – 5:00 p.m. 
State Room

  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University Fowler School of Law; Senior Fellow, The Claremont Institute
  • Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor, Concurrent Professor of Political Science, Notre Dame Law School
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Prof. Vincent Phillip Muñoz, Tocqueville Associate Professor of Religion & Public Life, University of Notre Dame
  • Moderator: Prof. Michael M. Uhlmann, Professor of Politics and Policy/SPE, Claremont Graduate University
  • Introduction: Mr. William L. Saunders, Senior Vice President of Legal Affairs and Senior Counsel, Americans United for Life

The Mayflower Hotel
Washington, DC