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25 B.U. Pub. Int. L.J. 239 (2016)
Hobby Lobby, RFRA, and Family Burdens

handle is hein.journals/bupi25 and id is 241 raw text is: HOBBY LOBBY, RFRA, AND FAMILY BURDENS MARK STRASSER* I. INTRODUCTION ............................................. 239 II. RFRA 's GENESIS ........................................... 240 A . Sm ith .................................................. 240 B . R FRA .................................................. 244 III. HOBBY LOBBY AND RFRA's REACH ............................. 248 A. Which Persons Can Invoke RFRA Protections? ........... 248 B. What Qualifies as a Substantial Burden? ................. 252 C. Hobby Lobby's Application .............................. 261 IV . CONCLUSION ............................................... 264 I. INTRODUCTION In Burwell v. Hobby Lobby Stores, Incorporated,' the United States Supreme Court held that the Religious Freedom Restoration Act2 (RFRA) sometimes requires for-profit corporations to be afforded exemptions if following federal law would have forced those corporations to violate their sincerely-held relig- ious convictions. Whether exemptions are required in particular cases will de- pend upon a number of factors, including the degree to which following the law would compromise the company's beliefs3 and the degree to which granting an exemption would undercut compelling state interests.4 Because courts are ill- suited to make judgments about whether religious beliefs are burdened by par- ticular practices and, if so, the degree to which the challenged practices burden beliefs, the current interpretation of RFRA coupled with the Court's Hobby Lobby opinion is likely to lead to similar cases being decided differently.5 As a result, the current approach is unsustainable and will likely be modified by * Trustees Professor of Law, Capital University Law School, Columbus, Ohio. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 2 Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb, 107 Stat. 1488 (1993). 3 See id. § 2000bb-l(a) (Government shall not substantially burden a person's exercise of religion.). 4 Id. § 2000bb-1 (b) (Government may substantially burden a person's exercise of relig- ion only if it demonstrates that application of the burden to the person- (]) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.). 5 Cf. Keirsten G. Anderson, Protecting Unmarried Cohabitants from the Religious Free- dom Restoration Act, 31 VAL. U. L. REv. 1017, 1036 (1997) (RFRA is not expected to provide guidance for consistent decisions.).

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