The New Law of Religion

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


Anti-abortion demonstrators cheer as the ruling for Hobby Lobby is announced outside the Supreme Court on June 30.

Photo by Jonathan Ernst/Reuters

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.

Justice Alito’s argument for this radical new interpretation is wrong. He notes that Congress later amended RFRA to specify that “exercise of religion” should be understood broadly. But that did not cut off the statute from constitutional law that existed before Smith. Congress amended RFRA because it wanted to make sure courts did not inquire into the theological basis for a requested exemption. The law’s minor revision was intended to “clarify” a principle that courts had been applying already. It was not intended to work a clean break in the law, and nothing in the text or history of the law suggests otherwise. Justice Ginsburg is right in her dissent: The majority’s interpretation of the statute is a “bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

Not only does the court in Hobby Lobby ignore the legal principles behind RFRA, but it departs even more dramatically from the case law Congress actually meant to restore. During the Sherbert era, the Supreme Court only granted religious freedom exemptions in Yoder, Sherbert, and three unemployment compensation cases very similar to Sherbert. In every other case—13 out of 18, according to a definitive study—the court rejected the religious freedom claim.

By reading RFRA as creating a total break from decades of First Amendment jurisprudence, the court has freed itself from any precedent that would otherwise have blocked the outcome in Hobby Lobby. Before the Smith decision and the adoption of RFRA, every single free-exercise suit brought by a business was rejected by the court. The most important precedent is United States v. Lee, which rejected an Amish employer’s claim for an exemption from paying Social Security taxes. In Lee, the court wrote that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” It hard to imagine a precedent more directly foreclosing Hobby Lobby’s exemption to paying for contraceptive coverage under the Affordable Care Act.

But Lee was no obstacle at all for the majority. Moving right past it, as if it hardly registered anymore, Justice Alito wrote that “Lee was a [First Amendment] free exercise, not a RFRA, case.” From now on, only RFRA cases matter. The implication here is that none of the cases decided before the court’s decision in Smith are relevant to deciding the scope of religious liberty under federal law. Sherbert and Yoder—the cases that RFRA was designed to “restore”—are irrelevant. And by implication, so are more than a dozen other precedents that shaped the body of the law governing religious liberty in this country before 1990—the very legal doctrines that Congress intended to re-establish as the law of the land when it passed and later amended RFRA.

Hobby Lobby is unprecedented because it corporatizes religious liberty. It extends to for-profit businesses the rights and privileges that have long been associated only with churches and religious nonprofits. But that change is the result of a more pervasive and deeper upending of the law of religious liberty in America. Ignoring congressional intent, the court reads RFRA as having shed its First Amendment skin. It is not entirely clear what American law will look like after that change. But if anything is clear, it is that the Roberts Court is now unconstrained by precedent. It has loosened itself from decades of First Amendment doctrine and has begun remaking the law of free exercise.