Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby

Abstract

The United States Supreme Court in Burwell v. Hobby Lobby held that for-profit businesses may claim a statutory right to an exemption from federal laws that burden their religious expression. The Court ostensibly limited the decision to its facts, but more commercial actors likely will seek religious exemptions in the years ahead. This Article offers a first look at steps government might take if this occurs. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions when granted. It examines in particular an “exemption-subject-to-notice” option, under which commercial actors would be required to provide notice to adversely affected third parties or would be subject to government-provided notice of their noncompliance. A notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a third way for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.