A Critique of Hobby Lobby and the Supreme Court's Hands-Off Approach to Religion

25 Pages Posted: 15 Dec 2015 Last revised: 31 Mar 2016

See all articles by Samuel J. Levine

Samuel J. Levine

Touro University - Jacob D. Fuchsberg Law Center

Date Written: 2015


Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible — and typically necessary — for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into religion in the context of both Justice Alito’s majority opinion and Justice Ginsburg’s dissenting opinion. This Part finds that while Justice Alito closely followed Supreme Court precedent regarding the hands-off doctrine, Justice Ginsburg seems to have departed significantly from central aspects of the Court’s previous decisions.

Accordingly, Part III of this Essay takes a closer look at Justice Ginsburg’s dissenting opinion, finding that her analysis may suggest a reformulated hands-off approach that, in some ways, extends the degree of deference afforded to the claims of religious adherents. Specifically, Justice Ginsburg seems to revive the view of Justice Robert Jackson, who argued, in a 1944 dissenting opinion, that judges should not question the sincerity of a religious claim. At the same time, however, Justice Ginsburg’s approach likewise departs from Supreme Court precedent in allowing judges to question a claimant’s characterization of a law or regulation as placing a substantial burden on the claimant’s religious exercise. As a result, Justice Ginsburg’s approach would appear to place additional limitations on the exercise of religious freedoms, beyond those presented by the Court’s current hands-off approach. Thus, building on my previous work critiquing the Court’s hands-off approach, this Essay calls upon the Court to reassess and rethink the scope and contours of the hands-off approach, both to remedy the problems inherent in the current approach and to prevent the additional concerns raised by the opinions in Hobby Lobby.

Keywords: Burwell v. Hobby Lobby Stores, Free Exercise of Religion, Establishment Clause, Supreme Court, hands-off approach, Justice Alito, Justice Ginsburg

Suggested Citation

Levine, Samuel J., A Critique of Hobby Lobby and the Supreme Court's Hands-Off Approach to Religion (2015). 91 Notre Dame L. Rev. Online 26 (2015), Touro Law Center Legal Studies Research Paper Series No. 16-12, Available at SSRN: https://ssrn.com/abstract=2703376

Samuel J. Levine (Contact Author)

Touro University - Jacob D. Fuchsberg Law Center ( email )

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