Harvard Law & Policy Review

first amendment

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Dangerous Precedents in Hobby Lobby

by Noah Marks

Yesterday morning, the Supreme Court decided Burwell v. Hobby Lobby, holding 5-4 that religious owners of closely-held corporations are exempt from the contraception coverage requirement of the Affordable Care Act based on the 1993 Religious Freedom and Restoration Act.

Writing for the majority, Justice Alito strains to emphasize the limited scope of the decision, claiming that it applies only to closely held companies, only to contraception, and only to this preexisting accommodation. Justice Ginsburg, in dissent, cuts through the rhetoric and reveals the decision’s true, “startling breadth,” given the uncertainty of the accommodation’s legality, the quantity and variety of closely held corporations, and the Court’s ominously limited explicit assurance that racial discrimination is not covered by its logic. [Read more…] about Dangerous Precedents in Hobby Lobby

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Free Exercise Clause Protection for Junk Science

By Tom Watts

Today, the Supreme Court decided Burwell v. Hobby Lobby. In this post, I examine an issue that the Court passed over: whether Hobby Lobby’s belief is actually religious. The Court presumed so, but their presumption was incorrect, and the issue is dispositive. This makes the Court’s decision wrong.

The First Amendment protects religious freedom, but it does not provide protection to non-religious beliefs. As the Supreme Court observed in Wisconsin v. Yoder (a case that RFRA explicitly approves), “[I]f the Amish [the religious plaintiffs in the case] asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis.” [Read more…] about Free Exercise Clause Protection for Junk Science

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McCullen v. Coakley: “Something for Everyone”

By Ana Choi

The Supreme Court has handed down its decision in McCullen v. Coakley, holding that the Massachusetts statute creating a 35 feet buffer zone around abortion clinics is unconstitutional on First Amendment grounds. Although the holding is unanimous, the majority opinion (written by C.J. Roberts and joined by JJ. Ginsburg, Breyer, Sotomayor, and Kagan) and the two concurring opinions (one written by J. Scalia and joined by JJ. Kennedy and Thomas, the other written by J. Alito) reveal a deeply divided court.

The point of contention is whether the statute is content-neutral. This matters because in First Amendment jurisprudence, different levels of scrutiny apply depending on whether or not the statute in question is content-neutral. If the statute is content-neutral, it has to be “narrowly tailored to serve a significant governmental interest”; if it is content- or viewpoint-based, it must be the “least restrictive means of achieving a compelling state interest” (strict scrutiny). The majority found that the statute is content-neutral but is not narrowly tailored enough to survive the second prong of the test. On the other hand, the concurring justices argued that the statute is not content-neutral and therefore must be subjected to strict scrutiny. All of this may seem like an argument over semantics, given that both interpretations lead to the same result of unconstitutionality. However, by finding that the statute is content-neutral, the Court has managed to craft a decision that, in the words of J. Scalia, “has Something for Everyone.” [Read more…] about McCullen v. Coakley: “Something for Everyone”