Accommodation, Establishment, and Freedom of Religion

Abstract

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an aspect of the public good, it is both appropriate and unremarkable that, sometimes, maintaining the conditions for religious freedom is not cost-free.

Keywords: Establishment Clause, Hobby Lobby, First Amendment, religious freedom, secular purpose, HHS mandate

JEL Classification: K19