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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