Free Exercise Lochnerism

Free Exercise Lochnerism

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 pheno­menon 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 doct­rine 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.

INTRODUCTION

  1. DEFINING LOCHNERISM
  2. THE RISE OF FREE EXERCISE LOCHNERISM
    1. Constitutional and Quasi-Constitutional Business Religious Liberty Claims
    2. Lochnerian Premises of Business Religious Liberty Claims
      1. Private Ordering as Baseline for Religious Liberty
      2. Regulation as Suspect “Redistribution”
    3. Narrowing Compelling Interests to Market Access
    4. Burdens and Subsidies Under the Market Baseline
    5. Maintaining the “Private” Order as Least Restrictive Means
      1. Letting the Market Work
      2. Making the Government Pay
  3. ON THE THRESHOLD OF LOCHNER
    1. Merging Liberties of Contract and Religion
    2. Unsettling Least-Restrictive-Means and Third-Party-Burden Analysis
  4. THE THREAT TO THE REGULATORY STATE
    1. The Deregulatory Potential of Exemptions
    2. Vulnerable Regulatory Efforts

CONCLUSION