Demystifying Hobby Lobby

The Supreme Court’s decision in Burwell v. Hobby Lobby Stores generated significant commentary on America’s conception of religious liberty, both inside and outside of the United States. This chapter places Hobby Lobby in the larger context of religious freedom in the United States, first explaining how the Supreme Court’s decision in Employment Division v. Smith — which held that a “neutral, generally applicable law” would not offend Free Exercise Clause guarantees even if that law tended to burden religion — opened the door for greater legislative protection of religious freedom. Smith hastened the enactment of the federal Religious Freedom Restoration Act (“RFRA”) and parallel protections in 21 states to provide more robust religious liberty protection than that provided by the United States Constitution.

The chapter then unpacks the Hobby Lobby decision, analyzing the claims made by the plaintiffs, the Obama Administration’s attempt to satisfy RFRA’s stringent test, and issues raised by the dissenting opinion. It charts the pivotal role played by the Administration’s accommodation for religious nonprofits, which provided proof-in-principle that a workable alternative existed to the Affordable Care Act’s contraceptive coverage mandate (“Mandate”). Finally, the chapter examines the breadth of Hobby Lobby’s holding, especially as it relates to the next wave of litigation over the Mandate brought by nonprofit faith organizations concerned about the accommodation. In light of RFRA’s exacting test, the parade of horribles forecasted by its critics will likely not come to pass.