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115 Colum. L. Rev. 1453 (2015)
Free Exercise Lochnerism

handle is hein.journals/clr115 and id is 1525 raw text is: FREE EXERCISE LOCHNERISM Elizabeth Sepper* In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York-a case symbolic of the courts' widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Today, in their interpretations of the First Amendment and the Religious Freedom Restoration Act, courts replicate the commitment to private ordering and resistance to redistribution that were at the heart of Lochner. While this pheno- menon is exemplified by Burwell v. Hobby Lobby, its reach is wider. The comparison to Lochner offers two insights overlooked in contemporary debates over business religious liberty. First, in resisting compliance with antidiscrimination laws, pharmacy regulations, and insurance mandates (most prominently, the Affordable Care Act's contraceptive mandate), businesses make claims more reminiscent of market libertarianism than of religious freedom. In siding with these businesses, courts have begun to incorporate the premises of Lochner into religious liberty doctrine. In the contraceptive mandate litigation in particular, courts-from the trial level to the Supreme Court-defined a business's right to free exercise of religion by reference to its ability to contract. They postulated private market ordering as a legally and economically neutral baseline and regulation as an unnecessary and unfair redistribution. Second, comparing business religious liberty doct- rine to Lochner-era freedom of contract lays bare the implications for the regulatory state beyond contraception and same-sex marriage. While scholars have recognized a link between Lochner and the Free Speech Clause, this Article establishes that free exercise has taken on a similar role with potential to undermine the regulation of business more broadly. * Associate Professor, Washington University School of Law. Thank you to the participants in the Annual Law & Religion Roundtable 2014; the Southeastern Association of Law Schools Annual Meeting 2013; the Southeast Law Schools Junior-Senior Workshop 2014; Washington University's Midwest Region Junior Faculty Workshop 2013; the Washington University Faculty Workshop 2014; the Annual Constitutional Law Colloquium at Loyola University Chicago School of Law 2014; Religious Accommodation in the Age of Civil Rights at Harvard Law School 2014; the University of Pennsylvania Wharton School Hobby Lobby Conference 2014; and the University of Missouri School of Law Faculty Workshop 2015. Special thanks to Mark Tushnet, Nelson Tebbe, Ganesh Sitaraman, Amy Sepinwall, Micah Schwartzman, Richard Schragger, Sharon Rush, Laura Rosenbury, Jedediah Purdy, Wilson Parker, Doug NeJaime, Greg Magarian, Ira Lupu, Andrew Koppelman, John Inazu, Frederick Gedicks, Deborah Dinner, Thomas Berg, and Susan Appleton. 1453

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