Analysis and Commentary on Speech and Religion
The Scandalous Religious Liberty Project of this Era: Rights to Discriminate, Harass, and Harm at Will

A Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, Marci Hamilton comments on disclosure requirement and the non-discrimination component of California SB-1146. Hamilton argues that religious entities continue to demand the freedom to discriminate and harass, while insisting on calling it “religious liberty.”

The Vexing Nature of California’s Attempt to Protect Free Speech Through its Anti-SLAPP Statute

University of Illinois dean and law professor Vikram David Amar comments on a recent case that highlights the challenging nature of California’s attempt to protect free speech through its anti-SLAPP statute. Amar describes the background of the case as well as the larger problems that arise when applying the Anti-SLAPP law to discrimination and harassment lawsuits.

What Do the Satanic Temple and Jehovah’s Witnesses Have in Common? They Are Champions Against Government Inculcation of Belief

Marci Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, explains how the Satanic Temple is fighting the same fight Jehovah’s Witnesses started—to keep the government from imposing tenets of any specific religion on all citizens despite their faith. Hamilton describes the history of this issue in the United States and discusses the current lawsuit involving the Satanic Temple.

Mississippi, the First Amendment Defense Act, Accommodation, and Apartheid

Cardozo Law professor Marci Hamilton comments on Mississippi’s latest law stigmatizing and marginalizing the LGBTQ community, and compares it to the federal First Amendment Defense Act. Hamilton argues that these divisive and discriminatory laws resemble apartheid in South Africa in that they are purported to be accommodations but in fact are simply immoral and wrong.

Hooray! Finally Dropping the Blinders, Religious Leaders Are Calling Out Terrorists, Haters, Pedophiles and the Institutions that Enable Them

Cardozo law professor Marci A. Hamilton describes a relatively new phenomenon of religious leaders coming together to criticize bad acts—even bad acts perpetrated by people who purport to be religious themselves. Hamilton explains how for too long, religious actors seemed beyond reproach no matter what they did, simply by nature of being religious. She expresses great relief that such a period seems to be passing, as evidenced by the widespread support for the LGBTQ community in response to the recent shooting at the Orlando gay club Pulse.

A Public Service Translation of a Catholic Bishop’s Letter Against SOL Reform

Cardozo Law professor Marci Hamilton explains what is really behind a Catholic bishop’s letter urging Catholics to oppose Pennsylvania HB 1947—a significant bill that would reform statutes of limitations for victims of child abuse and incest thereby giving them greater access to justice.

RFRA, Zubik v. Burwell, and the Do No Harm Act

Cardozo Law professor Marci Hamilton comments on the recent decision by the U.S. Supreme Court in Zubik v. Burwell, in which the Court via a per curiam opinion declined to interpret the Religious Freedom Restoration Act (RFRA) as applied to the Affordable Care Act. Hamilton also describes the Do No Harm Act, which is a bill proposed this week that attempts to carve out of RFRA some of its worst incentives and inclinations. While Hamilton argues that RFRA should be repealed outright, she acknowledges that the Do No Harm Act is absolutely a step in the right direction.

Game’s On: Big Leaguers Zimmerman & Howard Versus Al Jazeera

Former counsel to the president John W. Dean continues his discussion of the defamation lawsuits filed by Philadelphia Phillies first baseman Ryan Howard and by Washington Nationals infielder Ryan Zimmerman against Al Jazeera America (AJAM). Dean assesses defendant AJAM’s motions to dismiss both cases for failure to describe facts that give rise to a plausible entitlement to relief, a requirement under federal law.

Supreme Court Convenes a Settlement Conference

Cornell University law professor Michael Dorf comments on a recent unusual order by the U.S. Supreme Court asking for supplemental briefing from the parties to the latest religious challenge to Obamacare. In contrast with other commentators who have described the order as “puzzling” or “baffling,” Dorf explains how the Court’s order resembles something federal district courts do on a routine basis: facilitate settlement of the dispute.

The Obama Administration Draws Back From the Precipice of Theocracy

Cardozo Law professor Marci Hamilton describes two recent events that indicate that the United States remains dedicated to a culture of freedom and tolerance, rather than moving toward theocracy. As Hamilton explains, the federal government has taken action against the Fundamentalist Church of Jesus Christ of Latter-day Saints for establishing a theocracy on the border of Utah and Arizona, and also for money laundering and food stamp fraud.

A Specific Proposal That Helps Give Us a Sense of What Getting Rid of Citizens United Might Entail

Illinois Law dean and professor Vikram David Amar examines California’s Proposition 49—which seeks the voters’ approval for the California legislature to ratify an amendment to the federal Constitution to overturn the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC—in order to shine light on what might be required to overturn the decision on a federal level. Amar argues that Proposition 49 highlights just how difficult it would be to craft a workable constitutional amendment to overturn Citizens United.

Differing Perspectives on California Law Requiring Pregnancy Clinics to Post Abortion Information

Cornell University law professor Sherry Colb considers the perspectives of both sides of the controversy over a relatively new California law requiring licensed pregnancy centers to prominently post a notice about the availability of free or low-cost abortion, contraception, and prenatal care. Colb offers a compelling narrative to illustrate each perspective, ultimately concluding that while she personally agrees with one side neither is “right” in a moral sense.

What Does Ancient Athens Have to Do With University Protesters?

Chapman University law professor Ronald Rotunda describes how freedom—specifically freedom of speech—was recognized as important as far back as ancient Athens, and how it remains important in the United States today, not only for its inherent value but also in setting an example for the rest of the world to use. Rotunda argues that when the United States restricts speech, other countries will use our example to justify their own repression.

The 2016 RFRA Decline Is Due to the Difficulty of Selling Discrimination and Child Endangerment as Good Policy

Cardozo Law professor Marci Hamilton explains why the pace of new state Religious Freedom Restoration Acts is slower in 2016 than in previous years. Hamilton points out that to pass these bills, legislators have to not only advocate for discrimination, but also for child endangerment—hard policies to sell.

In Defense of Justice Scalia on Religious Liberty and Smith

In honor of the recently deceased Supreme Court Justice Antonin Scalia, Cardozo Law professor Marci Hamilton discusses the Court’s decision in Employment Div. v. Smith, in which Justice Scalia wrote for the majority holding that a law is constitutional under the Free Exercise Clause of the First Amendment if it is facially neutral and generally applied. Hamilton lauds the decision as striking the right balance between liberty and harm, and between religious diversity and religious tyranny.

Godly Rhetoric in Presidential Campaigns: Cruz, Rubio, and Reagan

Cardozo law professor Marci Hamilton comments on the use of religious terms in among the Republican presidential candidates, particularly terms that refer to a specific religio-political world view. Hamilton especially critiques Cruz’s and Rubio’s invocation of Ronald Reagan’s name, pointing out that Reagan tried to bring Americans together in his speeches, even in his references to God.

How Un-rule-y is the First Amendment?

Cornell University law professor Michael Dorf considers an issue on which the U.S. Supreme Court recently heard oral argument: whether the First Amendment protects a government employee from adverse action based on the government’s mistaken belief that the employee was engaged in speech or association. Dorf highlights the nuances of the case and whether there is a meaningful difference between rule-guided conduct and reason-guided conduct.

Heading for The Dark Side of Journalism

Former counsel to the president John W. Dean continues his discussion of the controversial investigative report by Al Jazeera Investigates that implicates several elite American athletes of illegal doping. Dean discusses the two lawsuits filed in federal court in the District of Columbia and the possible role an anti-SLAPP statute might play in those lawsuits.

The Supreme Court Could Hear a Third License Plate Case

Cornell University law professor Michael Dorf comments on a case involving free speech on license plates that may reach the U.S. Supreme Court in the near future. As Dorf points out, if the Court agrees to hear the case, it will be the third major license plate case it has decided. Dorf argues that the appeals court in the present case most likely erred in failing to protect the plaintiff’s right against compelled speech, but a broadly written Supreme Court opinion reversing the lower court could potentially undermine anti-discrimination law.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more