Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause

Abstract

This essay responds to the Supreme Court's decision in Burwell v. Hobby Lobby Stores, which held that religious for-profit employers should be exempt from the Affordable Care Act's contraceptive coverage requirement. The Court held that the contraceptive coverage mandate imposes a "substantial burden" on religious exercise in violation of the Religious Freedom Restoration Act. I argue that, in light of Hobby Lobby, RFRA should be amended to recognize the difference between religious practice that takes place in a personal setting and religious practice that takes place in a commercial setting, that is, during the course of a commercial employment relationship, "an area traditionally subject to government regulation." The distinction I propose is analogous to the commercial speech doctrine, which applies a lesser degree of scrutiny to restrictions on "commercial speech" than to restrictions on noncommercial expression. Tighter regulation is justified in a commercial setting because commercial relationships impact the interests of third parties. This reasoning translates to religious exercise. Commercial speech is entitled to less protection because it does not further public discourse and it has the potential to deceive or mislead consumers. Religious exercise in a commercial employment setting may be entitled to less constitutional protection because it goes beyond the employer's personal autonomy, and may burden the employees' rights.

Keywords: First Amendment, free exercise, constitutional law, religious freedom, free speech