Article by: Terri R. Day, Leticia M. Diaz, and Danielle Weatherby

42 PEPP. L. REV. 55 (2014)

Earlier this term, the United States Supreme Court heard oral argument in the consolidated case of Burwell v. Hobby Lobby Stores, Inc., the first of a litany of cases in which for-profit business entities are invoking the Religious Freedom Restoration Act (RFRA) in support of their claims that the Affordable Care Act’s Health and Human Services (HHS) mandate (the Mandate) violates their freedom of religion. In particular, these plaintiffs argue that the Mandate’s requirement that employer-provided health insurance cover the costs of contraceptives, the “morning after” pill, and other fertility-related drugs conflicts with their deeply held religious belief that life begins at conception and is, therefore, unconstitutional. While the Mandate does exempt religious employers from this requirement, it does not excuse all secular, for-profit corporations from complying simply because their officers, founders, or directors may have religious beliefs that conflict with the Mandate’s provisions.

Authors Day and Diaz were sitting just feet away from the advocates during the riveting Hobby Lobby oral argument. One question by Justice Kennedy piqued their interest in the nondelegation doctrine and the principle of separation of powers as they apply to the Mandate. As the first academic article authored during the crucial time between oral arguments and the Court’s decision, this Article breaks down the complex legal issues and provides a solid dose of common sense in analyzing what will ultimately be a decision with momentous and far-reaching consequences.

First, this Article sets the stage for the Court’s forthcoming decision by providing some background and insight into the parties’ arguments, the history of free exercise jurisprudence, and RFRA—the centerpiece of Hobby Lobby’s claim. The Article poses critical and timely questions, such as whether this decision will reinstate or expand the pre-Smith standard for assessing religious exercise claims and whether Hobby Lobby, as a forprofit commercial business, has standing under RFRA to bring a free exercise claim.

Second, this Article deconstructs the complexities of RFRA, providing a step-by-step analysis of its legal framework. It first provides a comprehensive overview of the dense “substantial burden” inquiry, which asks whether the government has imposed a substantial burden on the plaintiffs’ religious beliefs. Then, it outlines and analyzes the strict scrutiny standard applied in RFRA cases.

Next, the Article simplifies the complex and less widely discussed nondelegation doctrine and addresses the dangerous trend spreading countrywide, in which states are enacting their own RFRA laws to exempt religious employers from complying with public accommodation laws. These exemptions essentially condone a new wave of discrimination that gives wedding vendors and other businesses license to refuse service to same-sex couples or homosexual patrons.

Lastly, the Article cautions that, in the wake of Hobby Lobby and the other RFRA cases, where the clash between religion, politics, and the law have met head-on, the Court must be cautious not to set a dangerous precedent that would shield for-profit, secular businesses from liability when they fail to comply with public accommodation laws based on their asserted religious beliefs. Not only do we face a crucial crossroad in this country’s free exercise jurisprudence, but we also risk overlooking an impermissible delegation of legislative authority, which, when coupled with deference to administrative decision-making, threatens the constitutional structure and separation of powers. An accretion of administrative agency power—the headless fourth branch of government—threatens all of our rights, not just religious freedom.

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