To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Alex J. Luchenitser’s A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws. Mr. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State, discusses the aftermath of the Supreme Court’s Hobby Lobby decision and its implications for the federal RFRA (and, by implication, state RFRAs). Mr. Luchenitser writes:
There are many options for repairing RFRA. For-profit businesses could be precluded from making claims under the statute. RFRA’s “substantial burden” requirement could be reinvigorated. The “least restrictive means” analysis could be rendered more deferential to the government. Specific statutes could be excluded from RFRA’s grasp. All the foregoing alternatives have drawbacks, however.
The soundest way of ensuring that Hobby Lobby does not open the door to private discrimination or other impositions of religious beliefs on persons who do not share them would be to specifically exclude from RFRA’s coverage requests for exemptions that would impose nontrivial burdens on third parties. Such an amendment would provide the most effective protection against future court decisions that—in the name of religious freedom—abridge such freedom instead of preserving it.
Like Professor Tebbe’s article, previously featured on Notice & Comment, Mr. Luchenitser’s article sheds some light on the recent controversy in Indiana and how we might avert potential subsequent controversies. Give it a read today!