Toward a New Separation of Church and State: Implications for Analogies to the Supreme Court Decision in Hobby Lobby by the Decision in Obergefell v. Hodges

INTRODUCTIONThis article will offer a reading of the 2014 United States Supreme Court decision in Burwell v. Hobby Lobby Stores1 that is both consistent with the Court's landmark 2015 decision in Obergefell v. Hodges2 and which also affords some direction to state courts interpreting their state Religious Freedom Restoration Acts (RFRAs) in light of the these two recent Supreme Court decisions. Because the factual situations that attend future RFRA cases before the state and federal courts will likely involve two fundamental constitutional rights-the free exercise of religion and the right to marry-as well as the state's compelling interest in favor of equality, determining how to understand what these two cases represent should afford needed clarity to this area of law.Part I will review the arguments in the Justices' opinions in the Hobby Lobby case as they might have been understood prior to the 2015 Court decision in Obergefell v. Hodges. Part II will attempt to draw out the various concerns that future cases are likely to raise both for the LGBT community and those concerned about protecting the free exercise of religion. Part III will closely examine the Court's holding in Obergefell v. Hodges, the arguments it relied upon to justify marriage equality, and the concerns raised by the dissent. Part IV will then make use of what Obergefell provides to both clarify ambiguities that may have been left open in Hobby Lobby as well as to provide a basis for future court interpretations of state RFRA statutes and the separation of church and state. Hobby Lobby can be distinguished from Obergefell v. Hodges because the former involves a statutory interpretation of a federal statute while the latter is a federal constitutional case. This difference will have a substantial bearing as to what rights are considered privileged going forward. A brief conclusion setting forth the views of this article will occur at the end.I. HOBBY LOBBY AND WHAT THAT CASE SIGNIFIESIn Burwell v. Hobby Lobby, the Court heard a consolidated set of two cases challenging a United States Department of Health and Human Services (HHS) regulation under the Patient Protection and Affordable Care Act (ACA). 3 The regulation required all non-exempt organizations "to provide [heath insurance] 'coverage, without cost sharing' for '[a]ll Food and Drug Administration approved contraceptive methods, sterilization proce- dures, and patient education and counseling,'" including contraceptives that would block "an already fertilized egg from developing any further by inhibiting its attachment to the uterus."4The petitioners, three closely held corporations, claimed that they had a religious view "that life begins at conception" and that following the HHS regulation would force them to violate their religious beliefs.5 The corporations claimed an exemption from the regulation on the ground that it would constitute a "substantial burden" on their freedom of religion in violation of the federal Religious Freedom Restoration Act (RFRA). 6By a five to four majority, the Court ruled in favor of the petitioners.7 The majority opinion written by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy, Scalia, and Thomas, adopted the petitioners' view that closely held corporations could hold religious beliefs by adopting the beliefs of their shareholders because they were not publically traded.8 It then went on to agree with the petitioners that the present regulation would substantially burden their exercise of religion because, unlike previously disallowed secular challenges to general tax revenue, the claimed issue at stake concerned "the specific contraceptive methods [petitioners would have to fund even though it] violates their religious beliefs."9The majority opinion next considered whether RFRA itself might provide an exception covering the HHS regulation. The Court noted that RFRA prohibits the "[g]overnment [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government "demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. …