Academic journal article South Dakota Law Review

Interpreting Hobby Lobby to Not Harm LGBT Civil Rights

Academic journal article South Dakota Law Review

Interpreting Hobby Lobby to Not Harm LGBT Civil Rights

Article excerpt

In this essay I argue that the dual obligations of the political branches to provide for the common good, while at the same time protecting the free exercise of religion, can be achieved only if the Supreme Court's recent decision in Burwell v. Hobby Lobby Stores (1) is interpreted narrowly along the lines suggested by Justice Kennedy in his concurring opinion. An interpretative problem arises because the logic of Justice Alito's majority opinion could be read to suggest not just that any intrusion on religious freedom by laws of general applicability requires, under the Court's interpretation of the Religious Freedom Restoration Act of 1993 (RFRA), the presence of a compelling state interest and that the intrusion be the least restrictive possible, but that the least restrictive prong in effect, obviates any intrusion whatsoever on the private sector. (2) This essay hopes to make clear why this broader interpretation of the opinion is not warranted, notwithstanding the logic of Justice Alito's opinion.

Section I briefly describes what the Court said in Hobby Lobby, what some of the concerns of the dissent were, and why the view expressed by Justice Kennedy in his concurring opinion--which provided the necessary fifth vote in the case--is so important. Section II discusses what Congress meant when it passed RFRA and why courts need to ask that question. Section III describes the concerns of the LGBT civil rights community and why those concerns should rise to a compelling state interest. Section IV presents the practical problem involved in trying to provide adequate civil rights legislation while holding such legislation hostage as the least restrictive intrusion on religious freedom. Finally, Section V focuses on the need for the government to protect equality as a basic right.


Hobby Lobby is the name of three cases consolidated before the United States Supreme Court considering whether a regulation affecting employee health plans, which were promulgated by the Department of Health and Human Services (HHS) under the Affordable Care Act (ACA), violated the employers' religious freedom. The regulation required for-profit employers, who were not grandfathered in and who employed more than fifty employees, "to provide 'coverage, without cost sharing' for '[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.'" (3) The employers in these cases alleged that because four of the approved contraceptive methods prevent a fertilized egg from adhering to a uterus, the regulation makes them complicit in providing abortions in violation of their religious beliefs. (4)

The Supreme Court, per Justice Alito's majority opinion, found that Congress adopted RFRA following the Court's prior decision in Employment Division Department of Human Resources of Oregon, v. Smith, (5) which held that the First Amendment was not violated when a state denies unemployment benefits to Native Americans who lose their jobs following ingestion of peyote as part of a religious ritual. (6) The Smith Court held that the state did not need to establish a compelling interest under the First Amendment if its intrusion on the free exercises of religion was based on a law of general applicability that on its face was religiously neutral. (7)

According to the Court, Congress, in passing RFRA, wanted to reaffirm a previously held view that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless it "demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (8) Moreover, RFRA, as adopted by Congress in 1993, specifically states that it applies to all federal and state law and the implementation of that law, whether statutory or otherwise, and whether adopted before or after enactment of the Act. …

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