When Governments Insulate Dissenters from Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions

After the U.S. Supreme Court’s decision in Burwell vs. Hobby Lobby, two great civil rights battles of our time — the extension of marriage to same-sex couples and women’s access to reproductive services — are firmly linked in the public’s mind. In Hobby Lobby, the Supreme Court held that, so long as less restrictive means are available, the federal Religious Freedom Restoration Act (“RFRA”) prohibits the government from forcing closely held family-owned corporations to cover drugs and devices to which that they are religiously opposed (the “Mandate”).

Almost immediately after the decision, pundits, editorial page editors and religious liberty scholars leapt from the Mandate to gay rights, seeing Hobby Lobby as “a prelude to [a] dawning conflict” over same-sex marriage and gay rights. Mere days after Hobby Lobby, five prominent gay rights groups, which included the American Civil Liberties Union and Lambda Legal, publicly withdrew their support for the proposed Federal Employment Non-Discrimination Act, which would ban discrimination in hiring on the basis of sexual orientation, citing Hobby Lobby. Hobby Lobby intensified concerns about government’s ability to effect desirable social change on a slew of questions, like whether religious believers could use it to “get around [other] insurance mandate[s]?”

Hobby Lobby highlights a “larger struggle” to “define the meaning of America – of how and on what terms Americans will live together, of what comprises a good society.”

Critics now challenge all concessions to religious believers, whether in the form of generalized accommodations for religious practice like RFRA’s or specific exemptions to particular statutes, as a kind of free pass or “get-out-of-jail-free card,” entitling the protected party to “discriminate.” For these critics, religious liberty accommodations are generally offensive because “[i]ndividuals (and entities) are expected to follow the laws of the land or face the consequences.” Religious believers, they contend, use general and specific religious accommodations not only to veto the law, but to hamper social change, creating unfair surprise and treading on the interests of third parties.

This Article contends that whatever else may be said of RFRA, the criticisms being leveled should not spill over to specific exemptions from specific laws. RFRAs and specific exemptions are quite different in their burdens and impacts, largely because they seek to serve different goods. RFRAs seek to protect all faiths from overreaching by the government. To encompass the varied forms that such overreaching may take, RFRAs must necessarily be written as standards, not rules. Thus, RFRA instructs and entrusts judges to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

By contrast, specific exemptions respond to predictable, foreseeable collisions between the demands of a new social order and the demands of faith, often in the same legislation that effects the social change. Unlike generalized protections, specific exemptions resolve one particular social conflict - or address one religious practice - at a time. Because specific exemptions reach a limited universe of situations, specific exemptions can often be written as specific rules and are therefore more predictable. Of course, specific exemptions run the gamut from the most narrow, rule-like exemptions to broader, more standard-like exemptions that begin to approach RFRA’s complexity.

When narrow and tailored, specific exemptions mute the concerns and criticisms now being leveled at RFRA. That is, specific exemptions clarify the government’s intent not to impose a legal duty on everyone. By their nature, specific exemptions describe specific acts that fall outside the law’s intended scope, ex ante, and so do not relieve the exempted parties from duties under the challenged statute.

Specific exemptions in their narrowest form also create little risk of unfair surprise. These statutes transparently balance competing interests. Many condition application of an exemption on straight-forward, easily ascertainable conditions, like whether an organization receives public funding or a contested service is necessary to avert serious risk to health. Even when legislators have approved an “absolute” right to object in a statute - where the risk is greatest that a member of the public could be blindsided by a religious objection - legislators have and can build in notice requirements to reduce the risk of unfair surprise.

While critics claim that all religious accommodations sacrifice the interests of third parties, the interests of third parties need not take a backseat to those of religious objectors when legislators protect religious conscience. Some conduct protected by specific exemptions does not implicate anybody else, like whether a Quaker must wear a hat in court, just as some conduct protected by generalized protections does not affect anyone, like whether a Muslim may have a beard in prison. With other protections that might impose a cost, like the right to object to performing an abortion, that cost can easily be avoided by qualifying the right to object by hardship on others, as many legislatures have done. Further, even when legislatures have absolutely protected religious conscience on questions of abortion - the exemption that most lends itself to the “religion-threatens-access” claim - they did so fearing that institutions deeply opposed to a service would shut down entirely. Thus, although counter-intuitive, an absolute exemption may yield more, not less, access.

Specific exemptions can smooth the way for the realization of new civil rights. This Article provides two concrete examples - the voluntary embrace if same-sex marriage and Congress’ archetypal abortion conscience clause, the Church Amendment, enacted on the heels of Roe v. Wade to allow individual providers to act on their moral and religious convictions about abortion, whether they supported abortion or opposed it. As to marriage equality, religious exemptions helped to, in the words of the New York Times, “pull [marriage equality] legislation over the finish line.” Absent those exemptions, marriage equality legislation likely would not have succeeded when it did. Likewise, although faulted today by some reproductive rights advocates for “jeopardiz[ing] women's health and lives,” in the early years after Roe, the Church amendment actually reinforced women’s access to abortion. It did so by making it illegal to discriminate against physicians who feel compelled, morally or religiously, to perform abortions outside the four walls of an objecting hospital.

Dismay and concern after Hobby Lobby threatens to undo all religious accommodations, even narrow, specific exemptions that raise little risk of surprise and need not create hardships for others. It would be a shame to take down these important American achievements in pluralism if we find we cannot live with Hobby Lobby.