Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom

The United States Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., which brought for-profit corporations under the protection of the Religious Freedom Restoration Act, has been the subject of widespread support and criticism. Some have lauded the Hobby Lobby decision as an important step in protecting religious freedom. Others have derided it as an affront to the civil rights of corporate employees. This Article suggests a third perspective, namely, that Hobby Lobby harms, rather than helps, religious freedom. Both legally and politically, Hobby Lobby is likely to lead to a reduction in protection for religious individuals and entities that have traditionally been included under the Free Exercise Clause and the Religious Freedom Restoration Act. This is particularly troubling because the Hobby Lobby decision is legally flawed. The Article takes seriously the reality that many religious people do not experience religion as a divisible phenomenon that they can separate from the rest of their lives. Sometimes this requires exemptions to generally applicable laws if there is a legal mechanism for doing so, but cases involving large, for-profit entities like Hobby Lobby raise additional concerns. In these cases, religious individuals seek exemptions in the name of the company, which imposes the owners’ religious tenets on corporate employees. This creates a confrontation between “lived religion” and the legal or civil rights of others. Over time, as courts create precedent in cases involving for-profit entities, the rights of religious individuals and religious entities will likely be weakened. Moreover, the legislative, legal, and public response to Hobby Lobby does not bode well for religious accommodation claims in the long run, and, sadly, will have a negative impact on accommodation claims brought by religious individuals and entities