Of Burdens and Baselines: Hobby Lobby's Puzzling Footnote 37

Abstract

Burwell v. Hobby Lobby Stores, Inc. (2014) was a remarkably controversial decision even for perpetually controversial church/state doctrine. The controversy has obscured an important principle that (remarkably) all of the Justices seemed to accept: Government may not exempt believers from the law when doing so imposes excessive burdens on so-called “third parties” - persons who derive no benefit from an exemption because they do not believe or engage in the exempted religious practices. Because the Court decided Hobby Lobby on less-restrictive means grounds, however, the Justices had no reason to work out a doctrine of third-party burdens, which would likely have splintered their apparent agreement on the general principle over details of its application.

This chapter makes three arguments. First, the opinions in Hobby Lobby followed religious liberty precedent in unanimously acknowledging that RFRA exemptions are limited by the burdens they impose on third parties who don’t believe or practice the exempted religion.

Second, the Hobby Lobby majority lost its way in footnote 37, where it used an anachronistic negative-liberty baseline to argue that employees in the for-profit workplace are somehow not burdened or harmed when their employers are excused from complying with laws adopted to benefit and protect employees.

And third, the Court’s Religion Clause and Title VII precedents suggest the widely used legal standard of “materiality” as the measure of when third-party burdens become excessive - that is, when they are sufficiently weighty to preclude RFRA exemptions and other permissive religious accommodations. Such accommodations should not be granted when third-party burdens would reasonably be expected to alter the private ordering of affected employees and other third parties.

The Court’s Religion Clause and statutory accommodation precedents and the more realistic positive-liberty baseline of the contemporary regulatory state together all compel the conclusion that courts may not order RFRA exemptions and legislatures may not enact permissive accommodations when doing so would materially burden third parties who believe and practice differently. No American should have to pay meaningful costs to fund the exercise of someone else’s religion.

Keywords: conraception mandate, Establishment Clause, Free Exercise Clause, Hobby Lobby, negative liberty, permissive accommodation, positive liberty, religious exemption, RFRA, RLUIPA, third-party burdens