Document Type

Working Paper

Publication Date

11-2-2014

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; PSN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Humanities Network; Political Science Network

Abstract

American religious liberty is in state of flux and uncertainty The controversy surrounding Burwell v Hobby Lobby Stores Inc is both a cause and a symptom of this condition It suggests the unsettled nature of one of the central elements of the churchstate settlement the accommodation of religion Beyond that Hobby Lobby both the Supreme Court decision itself and the public controversy that has surrounded the contraception mandate litigation raises a host of other issues the interpretation of the Religious Freedom Restoration Act the status of reproductive rights the disputed relationship between religious liberty and LGBT rights and the changing nature of the commercial marketplace More broadly the Hobby Lobby controversy says much about the relationship between law and social change This article explores these issues Although it analyzes the opinions in the case its primary focus is on Hobby Lobby as a moment as a stage in the lifecycle of both churchstate law and the social and legal meaning of equality An analysis of the Hobby Lobby moment suggests that the legal and social factors that turned a simple statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself The Hobby Lobby decision speaks to these larger controversies but does not resolve them After examining the legal dispute and the decision in Hobby Lobby this article discusses the legal and social sources of the controversy that surrounded it Legally it finds a rapid dissolution of consensus around a key aspect of churchstate law the accommodation of religion which has become a foregrounded subject of legal and social contestation This contestation has been driven or accompanied by significant social change of various kinds The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment First although the Hobby Lobby decision itself involved an important social issue womens reproductive rights I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and samesex marriage and their relationship to religious accommodation Second I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself The paper concludes with some observations about what the Hobby Lobby moment teaches us about the relationship between law and social change

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