Religious Accommodation in the Welfare State: Hobby Lobby and For-Profit Exemptions

I'm summarizing two or three points of my draft article on "Religious Accommodation in the Welfare State" in separate posts, because they cover a bit of a spectrum. One argument is that although Hobby Lobby firmly establishes that commercial businesses have religious freedom rights, its results for exemption claims by businesses will be "far [from] radical":

As already discussed, the Court in Hobby Lobby held firmly that for-profit closely held corporations can assert religious freedom claims. That holding was correct because people should be able to carry their faith and conscience into their businesses, even when they incorporate, and because RFRA should be interpreted vigorously to take seriously people’s ability to follow their faith in all aspects of life.

At the same time, the holding of Hobby Lobby is also limited. After firmly establishing that the closely held companies could sue, the majority proceeded cautiously in assessing whether the mandate served a compelling governmental interest by the least restrictive means.

One conclusion from this, I explain in some detail, is that--contrary to the claims of some accommodation opponents--Hobby Lobby does not create a slippery slope in which enactment or recognition of any religious freedom exemption will lead to a flood of commercial-business claims:

Hobby Lobby should not deter decision makers from recognizing accommodations for religiously affiliated non-profits for fear that this will automatically trigger identical exemptions under RFRA for for-profit businesses. Such fears may have contributed to the decision by several civil rights groups, immediately after Hobby Lobby, to withdraw support for the federal gay-rights employment bill on the ground that it contained an exemption for religious organizations.[1] But the fact that Hobby Lobby extended the non-profit contraception accommodation to for-profits does not mean that the same thing will happen in other contexts—certainly not that it will happen willy-nilly.

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[1] See Joint Statement on Withdrawal of Support for ENDA and Call for Equal Workplace Protections for Gay People (July 8, 2014),  (giving as one reason for withdrawal that “opponents of LGBT equality are already misreading [Hobby Lobby] as having broadly endorsed rights to discriminate.”). See also Thomas Reese, What’s Next in the Ongoing Struggle Between the Bishops and Obama?, Nat’l Cath. Rptr., July 25, 2014 (“Ironically, the Hobby Lobby decision discouraged compromise because the gay community feared that any exemption for religious nonprofits might be expanded to for-profit corporations by the courts. This, after all, is what happened in the Hobby Lobby case.”).