Tuesday, January 21, 2014

Hobby Lobby and the Establishment Clause: Gedicks and the Government

Guest Blogger

Micah Schwartzman, Rich Schragger, and Nelson Tebbe

We wanted to post a couple updates to the Establishment Clause argument against granting an exemption under RFRA to the so-called “contraception mandate” – which may be a misnomer (as Marty Lederman has argued).  

First, Fred Gedicks has an op-ed in the Washington Post laying out the Establishment Clause argument against cost-shifting accommodations, which he initially developed with Rebecca Van Tassell in an important paper available here. As Gedicks writes in the op-ed:

The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs and practices but only when doing so does not impose significant burdens on others …. the Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don’t.

Second, in its opening merits brief in Sebelius v. Hobby Lobby, Inc., the United States adopts a similar cost-shifting argument as part of its compelling interest analysis under RFRA. As the government points out, the Supreme Court “has never permitted a secular employer to obtain a religious accommodation that comes at the expense of employees” (p. 39). Importantly, the brief cites Cutter v. Wilkinson for the proposition that courts “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” (p. 42). And in a footnote that effectively invites the Court to consider the broader Establishment Clause objection, the government observes that “[i]ndeed, the Court has held that, under certain circumstances, an accommodation that imposes on employees can violate the Establishment Clause” (p. 39 n.9).

As we have been arguing, Hobby Lobby represents just one of those circumstances. 

Micah J. Schwartzman is
Edward F. Howrey Professor of Law at
the University of Virginia School of Law. You can reach him by e-mail at schwartzman at

Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at

Nelson Tebbe is Professor of Law at
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at 

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