Bad Statutes Make Bad Law: Hobby Lobby v. Burwell

48 Pages Posted: 11 Feb 2015

See all articles by William P. Marshall

William P. Marshall

University of North Carolina School of Law

Date Written: February 10, 2015


In Employment Division v. Smith, the Court ruled the Free Exercise Clause would no longer be interpreted to grant religious objectors constitutionally compelled exemptions from valid and neutral laws of general applicability. In response, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA) to undo the Court’s decision and resurrect the compelling interest standard.

The Court in Burwell v. Hobby Lobby chose to interpret RFRA vigorously and to provide more protection for religious exercise than what was allowed under the Free Exercise Clause in the pre-Smith cases. The decision ignores, however, the fact that Smith was decided the way it was for a reason. The pre-Smith cases showed that the application of a compelling interest test to religious exercise challenges is latent with problems of coherency and consistency. It also led to a troubling form of relief -- special exemptions from neutral laws for a limited class of beneficiaries -- that is in tension with other constitutional principles and that opens the door to a disconcerting favoritism for those able to frame their objections to neutral laws in religious terms. Further, the compelling interest test raises serious constitutional issues in administrability because it requires courts to get into the dangerous businesses of defining religion, evaluating religious sincerity, and measuring religious burdens. These concerns do not subside because the compelling interest test stems from a statute rather than a constitutional provision.

This Article, demonstrates why RFRA and its interpretation by the Court in Hobby Lobby are problematic. Part I traces the enactment of RFRA and its history before the Court leading up to Hobby Lobby. Part II introduces Hobby Lobby. It sets forth the factual background to the litigation and identifies the key points of statutory interpretation at issue, including the core question of whether RFRA should be interpreted as restoring the pre-Smith free exercise jurisprudence or as providing even greater protection for religious exercise than the free exercise cases had allowed. Part III provides insight into that issue by describing the free exercise jurisprudence that led up to Smith and explaining why that jurisprudence proved unsuccessful. Part IV than returns to Hobby Lobby to assess the majority and dissenting opinions in light of this pre-Smith history. Part V examines what the Court’s construction of RFRA portends for future cases. It argues that, at best, the Court’s interpretation of RFRA will lead to a jumbled jurisprudence beset by the same problems that plagued the Court’s pre-Smith free exercise decisions. At worst it may lead to results that are normatively problematic and constitutionally unsound. Part V suggests, however, that the blame for any problems with RFRA going forward may rest less with the Court’s construction of the statute than with the Congress that passed it. Bad statutes make bad law.

Suggested Citation

Marshall, William P., Bad Statutes Make Bad Law: Hobby Lobby v. Burwell (February 10, 2015). Supreme Court Review, Vol. 2014, UNC Legal Studies Research Paper No. 2562949, Available at SSRN:

William P. Marshall (Contact Author)

University of North Carolina School of Law ( email )

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