RUNNING MOM AND POP BUSINESSES BY THE GOOD BOOK: THE SCOPE OF RELIGIOUS RIGHTS OF BUSINESS OWNERS.

I. INTRODUCTION Prior to the (2014) decision in Burwell v. Hobby Lobby Stores, Inc., (1) a separation of church and commerce doctrine was developing unabated in federal and state courts. (2) As United States Solicitor General Donald B. Verrilli, Jr. put it at the Hobby Lobby argument: "[O]nce you make a choice to go into the commercial sphere, ... you are making a choice to live by the rules that govern you and your competitors in the commercial sphere." (3) In other words, business owners were free to practice religion on their own time, but when they entered the commercial world, faith had to bow to secular law. The Hobby Lobby case, construing the federal Religious Freedom Restoration Act, put an end to the notion of a nationally-imposed, religion-free commercial zone. (4) State and local zones, however, are a different matter. This article will contrast the religious rights of small business owners under federal and state law by visiting two recent battle sites in the American culture war. (5) Both controversies involved family-owned businesses operated in accordance with deeply held religious beliefs. (6) In both, the government required business owners to perform acts that violated their religious convictions. (7) In the federal cases, closely-held businesses faced fines under the Affordable Care Act for refusing to include emergency contraceptives in their employee health plans. (8) In the state cases, small businesses were penalized for violating antidiscrimination laws when they declined to provide services for same-sex weddings. (9) The issue is whether family-owned businesses can be run in accordance with religious principles when those principles conflict with the law. To what extent can federal, state, and local governments compel business owners to take actions they believe to be sinful? What has been the effect of Burwell v. Hobby Lobby Stores, Inc. on the separation of church and commerce theory? II. HISTORICAL SETTING OF RELIGIOUS FREEDOM IN BUSINESS Religious freedom and tolerance are imbedded in the American psyche. Students begin learning about the history and tradition as early as nursery school and kindergarten when they are taught about the Thanksgiving holiday. (10) While Americans have generally accepted the concept of separation of church and state, the government and some interest groups have pressed for a separation between church and private business as well. (11) The concept would have been inconceivable to the Pilgrims and Puritans who escaped England seeking the freedom to live by their religious principles. When they came to North America, the Puritans sought the freedom to practice their religious faith "by applying the doctrines and commandments of the Bible to every detail of life," (12) including their commercial dealings. Puritanism was practiced primarily through day-to-day conduct and public action rather than "through sacred symbol" or "the glories or the pomps of art." (13) The "emphasis" was "on serving the Lord in one's vocation--as a tradesman, as a merchant, as an artisan, or as a magistrate or 'citizen.'" (14) The Quakers, too, established themselves in business by conducting their commercial enterprises in accordance with religious principles. (15) The Founders of the United States over a century later recognized the role of religion in commercial pursuits. (16) Thomas Jefferson said: "[Th]ose who labour in the earth are the chosen people of God.... It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth." (17) Benjamin Franklin said, "God governs in the Affairs of Men." (18) Between the Revolution and the Civil War, the United States became home to a number of religious communal movements in which religious rule ordered every facet of life, including the economy and the family. (19) Individuals spiritually rooted in the Great Awakening cleansed their own homes and their businesses of slavery. …