Monday, March 16, 2015

Is Hobby Lobby Worse for Religious Liberty than Smith?

Andrew Koppelman

Imagine a world where religious people are a kind of aristocratic elite who are entitled to injure nonadherents with impunity – a world which would “permit every citizen to become a law unto himself.” Employment Division v. Smith held that “courting anarchy” in this manner was a conclusive reason to hold that there is no constitutional right to religious exemptions from laws of general applicability. The Hobby Lobby decision (by some of the same judges!) threatens to bring that world into being.

If government refusals to accommodate are viewed with the kind of skepticism that the Court displays in Hobby Lobby, then claims of accommodation will always be supported by some imaginable less restrictive means, even if its enactment is politically impossible. The consequence in practice will be an interpretation of religious liberty in which adherents get to harm nonadherents. Religious liberty here means the right to impose your religion on other people who don’t share your views.

One of the principal attractions of the idea of religious liberty has always been that the exercise of one person’s religion doesn’t hurt anyone else. In Thomas Jefferson’s classic formulation: “it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” But paying for contraceptives that should be covered by insurance is exactly like having one’s pocket picked, while involuntary pregnancy is worse than a broken leg. If this is the official meaning of religious liberty, then the broad acceptance of religious liberty will quickly fade.

Frederick Mark Gedicks and I elaborate on these claims in a new paper just posted on SSRN, here.

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