Narrow Tailoring, Compelling Interests, and Free Exercise: On ACA, RFRA, and Predictability

Abstract

The holding of Burwell v. Hobby Lobby Stores, Incorporated is narrow in scope — closely held corporations must be afforded a religious exemption from providing insurance for what are sincerely viewed as abortifacients. That holding is based on an interpretation of federal statute rather than constitutional guarantees. While the opinion’s narrowness might make it appear relatively inconsequential, Hobby Lobby’s import should not be underestimated. This article explains why the Hobby Lobby Court’s expositions of free exercise guarantees and federal statutes are neither plausible nor sensible, and unless Congress corrects the mischaracterization or the courts narrowly construe the opinion, Hobby Lobby will prove to be much more revolutionary than is commonly understood.

Keywords: free exercise, substantial burden ACA, RFRA, RLUIPA, Hobby Lobby

JEL Classification: K10