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At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and strongly criticized by others who worried that it will undermine basic concerns about equality for women and nondiscrimination based on sexual orientation.4 Among other effects, it has sharply intensified both efforts to enact new state laws like RFRA and the opposition to such efforts.

The focus of this Essay is not upon whether the result itself is on balance justified, which I urge is indeed a close question. Rather, it describes and criticizes the basic approach to interpretation and the standards adopted by the Court's majority. It examines in successive Parts the Court's treatment of the relevant statutory criteria, offering some critiques that, as construed, their effectiveness is sharply curtailed. But the overarching theme is that these standards should not have been addressed wholly independently of each other, but with consideration of how together they can accomplish what the statute aims to do.


Civil Rights and Discrimination | Law | Supreme Court of the United States


This article originally appeared in 115 Colum. L. Rev. Sidebar 153 (2015). Reprinted by permission.