Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights after Hobby Lobby

In the blowback over Hobby Lobby, nothing has figured more prominently than the implications for same-sex marriage and LGBT rights. Critics now challenge all concessions to religious believers—whether generalized religious freedom protections, like RFRAs or specific exemptions to particular statutes—as “licenses to discriminate.” Both, critics charge, hamper social change, create unfair surprise, and tread on the interests of third parties. This chapter contends that general accommodations and specific exemptions are quite different in their burdens and impacts. Specific exemptions, which reach a limited universe of situations, often are written as specific rules, making them more predictable. Specific exemptions clarify the government’s intent not to impose a legal duty on everyone. They create little risk of unfair surprise and can be tailored to avoid hardships to third parties. More fundamentally, specific exemptions can smooth the way for the realization of new civil rights, as the recent Utah Compromise illustrates.