Hobby Lobby and the Dubious Enterprise of Religious Exemptions
Ira C. Lupu
George Washington University Law School
Harvard Journal of Law & Gender, Vol. 38, #1 (in Symposium, Religious Accommodation in the Age of Civil Rights, 2015, Forthcoming)
GWU Law School Public Law Research Paper No. 2014-32
GWU Legal Studies Research Paper No. 2014-32
The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., provides grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay views the problem in the current legal and cultural moment, which includes religious objections to employer-provided insurance that covers contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory – in which such disputes have played out. Such regimes will tend to be strong in rhetoric and weak in practice, with an occasional outburst of religion-protecting vigor. The decision in Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to massive, result-oriented manipulability. Part IV addresses issues likely to arise in the wake of Hobby Lobby, including questions of LGBT equality. In light of past experience, Part IV argues that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemption regimes. Ultimately, it will wither on a malnourished vine.
Number of Pages in PDF File: 120
Keywords: religious freedom, free exercise of religion, contraceptive mandate, LGBT discriminationAccepted Paper Series
Date posted: July 21, 2014 ; Last revised: October 8, 2014
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