The New Law of Religion

Hobby Lobby rewrites religious-freedom law in ways that ignore everything that came before.

By Micah Schwartzman, Richard Schragger, and Nelson Tebbe


Monday’s decision in Hobby Lobby was unprecedented. Much of the commentary has focused on the Supreme Court’s decision to extend rights of religious free exercise to for-profit corporations. Hobby Lobby is for religion what Citizens United was for free speech—the corporatization of our basic liberties. But Hobby Lobby is also unprecedented in another, equally important way. For the first time, the court has interpreted a federal statute, the Religious Freedom Restoration Act (or RFRA), as affording more protection for religion than has ever been provided under the First Amendment. While some have read Hobby Lobby as a narrow statutory ruling, it is much more than that. The court has eviscerated decades of case law and, having done that, invites a new generation of challenges to federal laws, including those designed to protect civil rights.

To see how we got here requires some history. In the 1960s and 1970s, the Supreme Court adopted an expansive interpretation of the Free Exercise Clause of the First Amendment. In a pair of cases, Sherbert v. Verner (1962) and Wisconsin v. Yoder (1972), the court held that the government may not impose substantial burdens on religion unless it has a “compelling interest” and “no alternative forms of regulation” could be used to advance that interest. But in 1990, the Supreme Court repudiated this balancing test for assessing Free Exercise claims. In Employment Division v. Smith, which upheld a federal law banning the use of peyote, the court declared that generally applicable laws can incidentally burden religious practices without violating the First Amendment, and that the government does not need to provide any special justification for such laws.

After a storm of criticism, in 1993, a nearly unanimous Congress passed RFRA to overturn the Supreme Court’s decision in Smith. As the text of the law states, its purpose is to “restore the compelling interest test as set forth” in Sherbert and Yoder. In other words, RFRA was designed to reinstate the legal principles that had existed before the court’s dramatic anti-religion decision in Smith.

But that is not how the court in Hobby Lobby interprets the law. Instead, writing for the majority, Justice Samuel Alito claims that RFRA marks “a complete separation from First Amendment case law.” This is not a “restoration” of the legal principles that existed prior to the court’s decision in Smith. The majority isn’t just reading RFRA to overturn its decision in the much-maligned peyote case. It isn’t just bringing back the balancing test from its decisions in the 1960s and 1970s. Quietly, buried in the text and footnotes of the majority opinion, Justice Alito holds that RFRA is a complete break from earlier law, a discontinuity—not a “restoration,” but a revolution—in the test for protecting religious liberty. The law of religious exemptions can evolve past Smith, as Justice Alito points out, but there is a difference between evolution and revolution.

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http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/after_hobby_lobby_there_is_only_rfra_and_that_s_all_you_need.html

Great article on just how extreme and anti-conservative (in the old sense) this ruling was. Frightening.