Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom

I. IntroductionThe United States Supreme Court's decision in Burwell v. Hobby Lobby,1 has been hailed by some as an important step in protecting religious freedom. This article explains that Hobby Lobby will be a pyrrhic victory-if a victory at all-for religious freedom. Both legally and politically, Hobby Lobby is likely to lead to a reduction in protection for religious individuals and entities that have traditionally been included under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA).2 Simply put, in the long run the Hobby Lobby Court's expansion of RFRA to protect closely held, forprofit entities regardless of their size, and to potentially allow religious freedom claims to harm third parties, will weaken religious freedom for individuals and traditional religious entities. This is particularly troubling because, as this Article asserts, the Hobby Lobby decision is legally flawed.This is not to understate the stakes in cases like Hobby Lobby. Many religious people do not experience religion as a divisible phenomenon that they can separate from the rest of their lives.3 Under RFRA, religious exemptions to generally applicable laws are available unless the government has a compelling interest to deny the exemption and can meet the narrow-tailoring requirement.4 This makes sense for claims by individuals and religious entities, which were the original focus of RFRA. But cases involving large, for-profit entities like Hobby Lobby raise additional concerns. In these cases, religious individuals seek exemptions in the name of the company, which imposes the owners' religious tenets on corporate employees in contexts where many of those imposed upon are not of the same faith (or the same perspective from within a faith).5 This creates a confrontation between what this Article calls "lived religion" and the legal or civil rights of others.It was clear long before Hobby Lobby that RFRA and the Free Exercise clause apply to religious individuals and the houses of worship where many come together to practice their religion.6 Moreover, it was also clear that some other religious entities were protected.7 Yet, until recently, it seemed unlikely that for-profit entities-or at least those that are not sole proprietorships-would enjoy protection under RFRA or the Free Exercise Clause.8 This does impose significant burdens on those who operate for-profit businesses in the public sphere, but as the Court explained in United States v. Lee, that is part of the price for operating a profit-making business.9 Or so we thought.Until recently, the "Culture Wars" in the U.S. had not led to widespread political or public disagreement over accommodating religious individuals, and even religious entities,10 except perhaps in the context of religious exemptions for medical professionals and facilities.11 In fact, exemptions to generally applicable laws for religious people were not controversial when RFRA was passed with extensive bi-partisan and public support in 1993.12 RFRA was a reaction to the Supreme Court's decision in Employment Division v. Smith.13 In Smith, the Court formally abandoned a line of cases requiring government to provide religious exemptions to generally applicable laws absent a compelling interest and narrow tailoring.14 Smith effectively held there is no duty to provide such exemptions.15 The public response was swift and overwhelming. RFRA was passed by a vast majority in Congress (97-3 in the Senate; unanimous in the House),16 and was signed by President Clinton.17 RFRA was also supported by an incredibly diverse group of civil liberties and religious groups.18When the Court held four years later that Congress had exceeded its authority by applying RFRA to the states,19 a number of states passed state RFRAs or amended state constitutions to include broader religious freedom provisions.20 Other states continued to interpret their state constitutions in a manner consistent with preSmith law. …