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

39 Pages Posted: 18 Jul 2014 Last revised: 16 Jul 2015

Toni M. Massaro

University of Arizona College of Law

Date Written: July 15, 2015

Abstract

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 would be subject to government-provided notice of their noncompliance.

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.

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

Suggested Citation

Massaro, Toni M., Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby (July 15, 2015). 92 Denver University Law Review 325 (2015); Arizona Legal Studies Discussion Paper No. 14-10. Available at SSRN: https://ssrn.com/abstract=2414187 or http://dx.doi.org/10.2139/ssrn.2414187

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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