Hastings Constitutional Law Quarterly


The Religious Freedom Restoration Act ("RFRA") threatens religious freedom. Burwell v. Hobby Lobby, the Supreme Court's recent decision exempting for-profit corporations from the contraceptive mandate of the Affordable Care Act ("ACA"), proves this counterintuitive point.

This Article identifies Hobby Lobby as part of an alarming twenty-fiveyear trend to impose religious beliefs through force of law. This imposition was undertaken in the name of religious freedom, and was defended by Republicans, Democrats, professors, and politicians, however in practice it has restricted civil rights. Women's rights were limited in Hobby Lobby, where the Court didn't even factor women's equality and reproductive liberty into its analysis of Hobby Lobby's obligations toward its female employees.

The next RFRA threat is to LGBT rights and marriage equality, which gained constitutional protection only after the courts rejected religion- and philosophy-based definitions of marriage. The Court's broad, pro-religion reasoning in Hobby Lobby puts many other civil rights in danger.

This Article argues that RFRA and Hobby Lobby do not protect religious freedom; instead they impose religious beliefs through force of law. This Article also identifies and defends constitution-based government, which protects religious freedom because it is based on values shared by all citizens.