ABSTRACT
The Religious Freedom Restoration Act (RFRA) severely limits the ability of the federal government to impose substantial burdens on free exercise. In Burwell v. Hobby Lobby Stores, Incorporated, the Court examined whether RFRA protections apply to for-profit corporations. The Court concluded that they do, offering a very forgiving account of both who is covered and what burdens will be thought sufficiently substantial to trigger the relevant protections. The Hobby Lobby Court’s analysis ignored the past jurisprudence while claiming to apply it, which means either that RFRA will now be interpreted to offer much more robust protection of free exercise than had been offered prior to Smith or that courts will revert to the inconsistent, unprincipled, pre-Smith approach in an attempt to avoid some of the great burdens that will otherwise be imposed on the state if robust free exercise protections are recognized for everyone rather than a chosen few. Hobby Lobby illustrates how some of the mistakes and inconsistence of the pre-Smith free exercise jurisprudence may well be incorporated into the interpretation of federal statutory law.
