On February 5, the Lindsay and Matt Moroun Religious Liberty Clinic welcomed Mark Rienzi, president and CEO of the Becket Fund for Religious Liberty, for a lecture examining how the Supreme Court under Chief Justice John Roberts has reshaped religious liberty doctrine over the past 15 years. The event drew students, faculty, and members of the law school community. Meredith Kessler, managing attorney for the Clinic, moderated the discussion.
Rienzi, who is also a professor at the Catholic University of America’s Columbus School of Law, brought his perspective as both a scholar and a practitioner to the discussion. He routinely litigates before the U.S. Supreme Court, where he has won a series of important First Amendment cases. Rienzi’s scholarship has appeared in prominent academic journals and national publications.
Rienzi began his lecture by challenging the common perception that the Court’s religious liberty decisions are narrowly focused on high-profile culture war disputes or favor only conservative Christians. Instead, he argued, the Roberts Court has pursued a broad, pluralistic vision of religious liberty, one that protects believers of all faiths.
“Over the past 15 years, the Court has decided cases in favor of Catholics, Protestants, Jews, Muslims, Buddhists, and others,” Rienzi said. “It has done things that are coded liberal and coded conservative. What the headlines miss is that this is a religious liberty for all approach.”
Rienzi briefly addressed the current Supreme Court’s approach to the First Amendment’s Establishment Clause. For much of the latter half of the twentieth century, he explained, courts routinely interpreted this provision to require to be excluded from public life.
That approach, Rienzi argued, allowed the government to remove religion from the public square while permitting other viewpoints to flourish. More recently, the Court has rejected that misguided interpretation.
Rather than relying on subjective judgments about what feels like “too much religion,” the Court has returned to a historical understanding of what constitutes an establishment of religion. “The Constitution doesn’t say ‘no religion in public’ or ‘no religion that makes anyone uncomfortable,’” Rienzi said. “It says no establishment of religion, and that term had a real, concrete meaning.”
Rienzi then focused on the Free Exercise Clause. In 1990, the Supreme Court held in Employment Division v. Smith that neutral, generally applicable laws that incidentally burdened religious practices did not violate this constitutional protection for religious exercise.
While the Court has not formally overruled Smith, Rienzi argued that the Roberts Court has significantly limited its reach. For example, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court unanimously recognized that the government cannot interfere with religious organizations’ decisions about who teaches or leads their faith, even if it does so in a neutral and evenhanded manner.
Just last year, in Mahmoud v. Taylor, the Court ruled that parents have the right to opt their children out of mandatory instruction in public schools that substantially conflicts with their religious beliefs. Rienzi emphasized that the decision especially protects the many religious families who have no real choice but to send their children to public schools.
Finally, Rienzi pointed to a series of cases during the COVID-19 pandemic in which the Court confronted restrictions on public activity that treated religious worship less favorably than comparable secular activities.“The lesson from those cases,” Rienzi said, “is that when the government plays favorites, religion can’t always be the loser.”
"Mark Rienzi is an excellent advocate and scholar who has tirelessly defended religious freedom for people of all faiths before the U.S. Supreme Court and around the country," said Kessler. "We are grateful to Mark for sharing with our community both his experience as a skilled appellate advocate and his perspective as an academic."
Throughout the lecture, Rienzi returned to a central theme: religious liberty as a cornerstone of peaceful pluralism. “If we’re going to live together in a diverse society,” Rienzi said, “the answer can’t be crushing people who disagree with us or forcing them out of public life. Religious liberty is how we make space for those differences.”
“What the Court is doing,” he said, “is trying, slowly and imperfectly, to build a legal framework that allows people of different faiths to live out their beliefs in peace. That’s not a culture war project. That’s a constitutional one.”
About the Notre Dame Law School Religious Liberty Clinic
The Lindsay and Matt Moroun Religious Liberty Clinic is a teaching law practice that educates, forms, and prepares Notre Dame law students to become the rising generation of religious liberty leaders by training students in the practice of the law as they defend religious freedom for all people.
Under the guidance of Law School faculty and staff, students work on a broad variety of legal matters to promote religious freedom on behalf of individuals and organizations of all beliefs—both domestically and abroad. The Clinic represents clients from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Learn more about the work of the Clinic here.