The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend to be rhetorically strong and experientially weak, with an occasional outburst of religion-protecting vigor. Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to infinite, result-oriented manipulability. Part IV concludes with a prediction that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemptions. Ultimately, it will wither on a malnourished vine.
GW Paper Series
38 Harv. J.L. & Gender (forthcoming 2015)