SCOTUS decision in Hobby Lobby was hailed by some religious freedom advocates as a victory for religious freedom, but the fallout from that case has harmed religious freedom more broadly and has fueled recent attacks on religious freedom generally. The idea that Hobby Lobby is bad for religious freedom might seem counterintuitive. The following three excerpts from Chapter 5 of Freedom’s Edge explain why Hobby Lobby may be damaging to religious freedom in the long-run:

“. . .The purpose of this section is to argue that granting for-profit entities religious freedom rights under a RFRA is not just a legal error but also a strategic error of epic proportions for religious freedom advocates.

Simply put, Hobby Lobby is bad for religious freedom. Even if I did not think it was a terrible legal decision, the fact remains that it is a strategic catastrophe for religious freedom generally. Ironically, one of the best ways to protect religious freedom for individuals and traditional religious entities against the immense backlash religious freedom has been facing would be to amend the federal RFRA and state RFRAs to deny protection to for-profit entities. This is the opposite of what many state legislatures have been attempting to do.

In making this argument, I am not disparaging the Green or Hahn families, who no doubt had sincere religious beliefs that forced their hand. Nor am I disparaging the excellent lawyers who advocated on their behalf (in my opinion, it was a great job of lawyering since they were able to sell Justice Samuel Alito and the majority of the Supreme Court, except for perhaps Justice Anthony Kennedy, the legal equivalent of the Brooklyn Bridge). I am pointing out the simple reality that Hobby Lobby will prove to be worse for religious freedom than Employment Division v. Smith (the peyote case).

I realize this is a radical statement, so I will back it up later in this chapter. Unfortunately, backing it up becomes easier almost every week as the country experiences more cultural backlash and fallout from the Hobby Lobby Court’s protection of for-profit entities’ religious freedom in a manner that could potentially harm third parties’ rights. Both the protection of for-profit entities’ religious freedom and the implication that religious freedom claims could negatively affect third parties were unprecedented. But even assuming that these were the correct legal decisions, the fallout from these arguments both before and since Hobby Lobby has been stunning.

Again, I am not attempting to belittle the impact that owners of closely held companies such as the Greens and the Hahns face. In fact, you could add Elane Huguenin and Jack Phillips to that list. These people are faced with a Hobson’s Choice: violate the tenets of your faith and become complicit in something you believe to be sin, thus damaging
the very core of your being and depending on your belief perhaps your eternal life, or give up the profit-making element of your business.

Of course, there is a profound difference between a religious entity and a for-profit corporation. This is the problem. Once we begin protecting for-profit entities, the likelihood of claims of discrimination will increase dramatically. We witnessed public outrage over the argument that a for-profit business can discriminate based on religious
freedom even before Hobby Lobby was decided, but that outrage has reached a fever pitch since and will only increase.”

“. . . [T]here is a fundamental difference between for-profit entities and religious entities. Religious entities generally serve their own flocks, and to the extent that they reach out through charity to serve others, they do so as part of their religious mission and not for
any profit motive. The purpose of these endeavors is religious. When a church opens a “restaurant” and only serves food for free to the poor, we call it a soup kitchen, not a restaurant. If a church opened a department store for the general public and did so as a profit-making venture, the store could lose its status as a protected religious entity.”

“Many advocates of religious freedom hailed the Hobby Lobby decision as an important and welcomed victory. If it is a victory, it is a pyrrhic one, because it threatens to undermine religious freedom more generally. I promised I would offer proof of this point. Offering that proof is the purpose of this section.

Religious freedom has recently come under blistering attacks in public discourse. Both the courts and the public have been slow to understand “lived religion,” the idea that for many people of faith, religion is inseparable from other aspects of life and is lived daily, not just at services on Saturday or Sunday. Ironically, while the Hobby Lobby decision recognizes this, it does so in a context where lived religion is asserted by a for-profit entity to the detriment of employees who do not necessarily share the owners’ faith commitments, thus giving further ammunition to those attacking religious freedom.
As this section explains, protecting for-profit entities, whether large closely held corporations such as Hobby Lobby or smaller public accommodations such as Elane Photography and Masterpiece Cakeshop, will undermine religious freedom in the long run.

There are two reasons for this. First, as rights have been applied to broader classes of people and situations, the courts have often interpreted those rights more narrowly for everyone. Second, we are already witnessing significant backlash against the Hobby Lobby decision in battles over state RFRAs and other state and federal legislation. Moreover, arguments that for-profit corporations should be protected by RFRA and the decision in Hobby Lobby confirming this have helped push religious freedom directly into the culture wars in a way that it was not before these claims arose.

Both in public discourse and in legislative battles, Hobby Lobby has left a wake of destruction for religious freedom and discourse about religious freedom, and this trend is only beginning. RFRA was once seen as being about protecting religious minorities and other religious people from state intrusion on their religious freedom, but RFRA is increasingly being characterized as a license for religious entities to discriminate and harm third parties. This undermines arguments for passing more state RFRAs and may undermine existing RFRAs.”

The above passages point out the conundrum posed by the Hobby Lobby decision. Prior to Hobby Lobby, RFRAs traditionally served to protect religious individuals and religious entities such as churches and religious non-profits. While it is certainly possible that religious entities might follow their views on sexual freedom within the entity itself, this was not particularly damaging to the broader cause of religious freedom. Once we bring for-profit entities into the mix, however, the possibility of discrimination in public life increases exponentially. As a result those who oppose religious freedom more generally were given a PR gift by the Hobby Lobby decision. Now, any RFRA is likely to be equated with discrimination, even if the primary focus of RFRAs is protecting Native Americans, Jews, Buddhists, Muslims, and yes Christians, from having their religion substantially burdened by government in contexts that have no impact on third parties.

I don’t think for-profit entities, except perhaps sole proprietorships and small family shops, should receive any protection under RFRA. Even if you disagree with me legally, it is hard to ignore the pragmatic harm of protecting for-profit entities under RFRA. As for sole proprietorships and the like, accommodations that do not harm the rights of third parties are possible, but they would have to be very carefully drawn as suggested in earlier posts on this blog.



2 thoughts on “The Hobby Lobby Conundrum

  1. You make a strong case for the backlash argument, but I’m still not sure I’m convinced. Surely, fear of the public’s reaction can’t always determine the outcome a legal decision. It’s one thing if you disagree with “Hobby Lobby”‘s legal reasoning. But for those who do agree, I don’t quite see how negative reaction can keep you from coming to the same conclusion.

    For example, take a case like “Lawrence v. Texas.” That decision certainly engendered a lot of backlash. Should the Supreme Court have ruled the other way out of fear of the potentially negative impact to the gay rights movement? Isn’t that a similar situation? And if not, how do we decide when public opinion is going to determine the course of the law?


    1. I agree that public reaction can’t always–and should never–control the outcome of a legal decision, but the Hobby Lobby Court was interpreting a statute and Congress can amend the statute (as can state legislatures with state RFRAs). I do think Hobby Lobby was wrongly decided for a number of reasons, but even if it were not RFRA can be amended to take it back to its pre-Hobby Lobby understanding. Congress has done this numerous times when it has disagreed with the SCOTUS’ interpretation of statutes. In this situation public opinion about protecting for-profits has led to the undermining of the concept of religious freedom generally and in states like Michigan to the defeat of normal everyday RFRAs. This is not ordinary backlash. It is a concerted effort to undermine religious freedom more generally. Lawrence v Texas is a very different situation because there SCOTUS was interpreting the Constitution and SCOTUS has the final word on that.


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