One Cheer for Hobby Lobby: Improbable Alternatives, Truly Strict Scrutiny, and Third-Party Employee Burdens

Abstract

In Burwell v. Hobby Lobby Stores, Inc. (2014), a five-Justice majority held that the so-called “contraception mandate” of the Affordable Care Act failed to satisfy the strict scrutiny that the Religious Freedom Restoration Act requires of federal laws that burden religious exercise. It reasoned that the government could advance compelling interests in improving women’s health and reducing gender disparities in healthcare without burdening for-profit religious liberty, by extending to closely held for-profit corporations a regulatory accommodation originally restricted to religious nonprofit businesses.

One dimension of the many legal challenges to the mandate is how RFRA’s strict-scrutiny test should be understood and applied to claims for the exemption right it created. Hobby Lobby posed three questions in this regard:

(1) When a court applies strict scrutiny under RFRA, must it find that a proposed alternative to religiously burdensome government action is financially, politically, or otherwise viable before it can count as an “available” less-restrictive means of accomplishing the government’s goals?

(2) Is the strict scrutiny required by RFRA the deferential test of pre-Smith free-exercise doctrine, or the stringent test used in free speech, due process, and equal protection cases?

(3) Does the need to avoid material burdens on those who don’t believe or adhere to the exempted religious practice constitute a justification for denying exemptions that satisfies strict scrutiny under RFRA?

This Article is organized around the ironic answers to these questions put forward by Hobby Lobby’s counsel at oral argument. Part 1 shows that after Hobby Lobby, the government’s proof that it used the “least restrictive means” may be refuted by mere suggestion of a less-restrictive alternative that is not likely to be implemented or is otherwise not viable. Part 2 shows that in construing the strict scrutiny required by RFRA, the majority rejected the modest, even-handed balancing of the pre-Smith free exercise cases in favor of the robust and genuinely searching standard of review used in free speech, due process, and equal protection doctrine, and sketches the threatening implications of this move for the mandate and other important workplace laws. Finally, Part 3 argues that while four Justices in Hobby Lobby would apparently allow religious exemptions to burden nonbeneficiary employees in most instances, five Justices recognized that avoiding such burdens is a sufficient justification for refusing exemptions, even under RFRA strict scrutiny.

The Article concludes that avoiding material burdens on third party employees marks a necessary and desirable boundary to the unlimited right to religious exemption that otherwise would have emerged from Hobby Lobby’s determinations that “less restrictive alternatives” need not be practically available and “strict scrutiny” under RFRA is the same searching review that usually ends in invalidation of laws in other constitutional contexts.

Keywords: ACA, accommodation of religion, Affordable Care Act, contraception mandate, contraceptives, Establishment Clause, exemptions, Free Exercise Clause, Hobby Lobby, least-restrictive means, permissive accommodation, RFRA, Religious Freedom Restoration Act, strict scrutiny