The Obama Era: Freedom of Religion

Forthcoming, Anna-Bettina Kaiser, Niels Petersen and Johannes Saurer (eds.), The U.S. Supreme Court and Contemporary Constitutional Law: The Obama Era and Its Legacy, 2018

13 Pages Posted: 19 Jan 2018

Date Written: December 12, 2017

Abstract

Religion remains one of the most controversial subjects in the United States, and Hobby Lobby, decided by a 5-4 Supreme Court majority in favor of a religious accommodation claim against the ‘Contraceptive Mandate’, is among the most controversial Supreme Court decisions of the Obama Era. This article comments Hobby Lobby (briefly going into other relevant case law on freedom of religion) from a German and European perspective. It argues that the Court’s broad understanding of religious rights of for-profit corporations is remarkable: The plaintiff’s burden is comparable to other financial duties like taxes that, generally, do not qualify for standing based on religious objections. Furthermore, the Court’s reasoning also seems to imply that existing accommodation clauses (i.e., an exemption from the Contraceptive Mandate for churches) weaken the case for a compelling government interest (i.e., health and gender equality). The legal comparison also illustrates that religious claims cannot only be based on fundamental rights – the predominant approach in Germany and Europe –, but also on religious freedom statutes that are of increasing importance in the United States. Finally, debates about religious freedom have to be contextualized. In Europe, religious accommodation is very often linked to the integration of religious minorities, which is less contested in the United States. In the United States, however, religion takes sides in many political issues ranging from abortion and healthcare to same-sex marriage. As a consequence, religious freedom might also support claims made by the majority or strong actors like for-profit corporations.

Keywords: religion, freedom of religion, free exercise, First Amendment, Supreme Court, Hobby Lobby, Religious Freedom Restoration Act, German Federal Constitutional Court, European Convention on Human Rights

Suggested Citation

von Ungern-Sternberg, Antje, The Obama Era: Freedom of Religion (December 12, 2017). Forthcoming, Anna-Bettina Kaiser, Niels Petersen and Johannes Saurer (eds.), The U.S. Supreme Court and Contemporary Constitutional Law: The Obama Era and Its Legacy, 2018. Available at SSRN: https://ssrn.com/abstract=3100799

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