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October 14, 2020 Rapid Response

The Revival of the Free Exercise Clause?

The U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, often referred to as the peyote case, marked a turning point in interpretation of the First Amendment’s prohibition of laws abridging the free exercise of religion. In that case, the Court held that religion-neutral laws enacted or implemented without discriminatory intent do not violate the Free Exercise Clause regardless of their impact on religious practices. The predictable result – free exercise claims have been largely unsuccessful, absent a clear showing of anti-religious bias.

Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (“RFRA”), which subjects federal action affecting religious practice to more or less the strict scrutiny test that had been applied prior to Smith, and a number of states passed their own RFRA bills.  The Supreme Court is slated to consider whether to return to the earlier free-exercise standard, thereby expanding constitutional rights to religious exemptions from antidiscrimination and other laws, when it hears argument on November 4th in Fulton v. City of Philadelphia. In the meanwhile, federal courts are facing free-exercise challenges to COVID-19-related restrictions on gatherings, in which houses of worship seek exemptions for in-person religious services.

The panel addresses whether and how the Supreme Court may move to an earlier vision of the Free Exercise Clause jurisprudence, and the implications of such a change in the law for religious freedom and for other state interests, including the civil rights of LGBTQ people.

Welcome and Introduction

  • Patricia Lee Refo, President, American Bar Association; Partner, Snell & Wilmer LLP


  • Stephanie Barclay, Associate Professor of Law, Notre Dame Law School
  • Richard B. Katskee, Legal Director, Americans United for Separation of Church and State
  • Douglas Laycock, Alice McKean Young Regents Chair Emeritus, The University of Texas at Austin School of Law
  • Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law, The George Washington University Law School


  • Kara H. Stein, Vice President of Policy and Program, American Constitution Society


Transcript: The Revival of the Free Exercise Clause?

Brief of Professors Ira C. Lupu, Frederick Mark Gedicks, William P. Marshall, and Robert W. Tuttle as Amici Curiae in support of the City of Philadelphia, in Fulton v. City of Philadelphia, available here.

Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J. Law & Gender 35 (2015), available here.

An Economic Approach to Religious Exemptions, __ Florida Law Review (forthcoming 2020)

Constitutional Anomalies or As-applied Challenges? A Defense of Religious Exemptions, 59 Boston College Law Review 1595 (2018), coauthored with Professor Mark Rienzi

The Historical Origins of Judicial Religious Exemptions, __ Notre Dame Law Review (forthcoming 2020)

Americans United for Separation of Church and State Fulton v. City of Philadelphia amicus brief

Americans United for Separation of Church and State Espinoza v. Montana Dept. of Revenue amicus brief

What Comes Next: Religious Freedom After The Espinoza v. Montana Decision
Americans United for Separation of Church and State | July 2020

Are You A Minister? Supreme Court Denies Employment Protection to More Religious School Teachers
Americans United for Separation of Church and State | July 2020

Fulton v. City of Philadelphia amicus brief

Our Lady of Guadalupe School v. Agenes Morrissey-Berru amicus brief

Little Sisters of the Poor Saints Peter and Paul Home v. The Commonwealth of Pennsylvania and the State of New Jersey amicus brief

FNU Tanzin v. Muhammed Tanvir amicus brief

Mitche A. Dalberiste v. GLE Associates, Inc. amicus brief

Jason Small v. Memphis Light, Gas & Water amicus brief

Espinoza, Government Funding, and Religious Choice

The Broader Implications of Masterpiece Cakeshop

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