Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby

Toni M. Massaro

University of Arizona College of Law

July 16, 2014

92 Denver University Law Review ___ (2015, Forthcoming)
Arizona Legal Studies Discussion Paper No. 14-10

The United States Supreme Court in Burwell v. Hobby Lobby held that for-profit businesses may claim a statutory right to an exemption from federal laws that burden their religious expression. The Court ostensibly limited the decision to its facts, but more commercial actors likely will seek religious exemptions in the years ahead.

This Article offers a first look at steps government might take if this occurs. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions when granted. It examines in particular an “exemption-subject-to-notice” option, under which commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance.

A notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.

Number of Pages in PDF File: 48

Keywords: Freedom of religion, Religious Freedom Restoration Act, Freedom of expression, Compelled speech, Anti discrimination law, Public Accommodations, Gay rights, Establishment Clause, Equal employment law, Reproductive rights, Women's rights, Hobby Lobby

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Date posted: July 18, 2014 ; Last revised: July 19, 2014

Suggested Citation

Massaro, Toni M., Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby (July 16, 2014). 92 Denver University Law Review ___ (2015, Forthcoming); Arizona Legal Studies Discussion Paper No. 14-10. Available at SSRN: http://ssrn.com/abstract=2414187 or http://dx.doi.org/10.2139/ssrn.2414187

Contact Information

Toni Marie Massaro (Contact Author)
University of Arizona College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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