Statutory Free Exercise

Recall that Employment Division v. Smith held that the First Amendment provided no special protection for religious liberty claims brought against “generally applicable laws.”  The Religious Freedom Restoration Act (RFRA) and other statutory responses were designed to counteract this standard.  RFRA says that the government shall not “substantially burden” a “person’s” free exercise of religion—unless it can demonstrate that there is a “compelling governmental interest” and that the law is the “least restrictive means” of furthering that interest.

The Supreme Court decided two statutory cases in 2014 and 2015: Burwell v. Hobby Lobby and Holt v. Hobbs.  Hobby Lobby is a RFRA case, and Holt falls under an amendment to RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA applies the same standard as RFRA, but while Hobby Lobby is a contentious 5-4 decision, Holt is unanimous.  What do you think explains the difference?

Justice Ginsburg’s dissent in Hobby Lobby asserted: “any First Amendment Free Exercise Clause claim Hobby Lobby . . . might assert is foreclosed by this Court’s decision in [Smith].” We cannot know for sure how the Court as a whole might have decided Hobby Lobby’s claims on First Amendment grounds, but the precedent in Smith gives us some reason to suspect that Justice Ginsburg is right.  

Hobby Lobby raises the question of whether RFRA’s protections are different and perhaps greater than the pre-Smith understandings of the First Amendment’s free exercise clause.  As Justice Alito wrote for the majority, “Congress enacted RFRA in 1993 in order to provide very broad protections for religious liberty.” More recently, Justice Gorsuch (for a six-Justice majority) suggested in Bostock v. Clayton County that “RFRA operates as a kind of super statute, displacing the normal operation of other federal laws.”  What might the implications be if RFRA is indeed a “kind of super statute”?  Does this prioritize religious freedom at the expense of antidiscrimination norms?

Reading Assignment:

  • Burwell v. Hobby Lobby, 573 U.S. ___ (2014)

  • Holt v. Hobbs, 574 U.S. ___ (2015)

  • Ramirez v. Collier 595 U. S. ___ (2022)

Optional Reading: