January 6, 2015

To: Participants in the Workshop, Thursday, Feb. 12 – Columbia Public Rights/Private Conscience Project

From: Chip Lupu

Re: Hobby Lobby and the Dubious Enterprise of Religious Exemption, 38 Harv. J. Law & Gender 36 (forthcoming, 2015)

Thanks very much for the invitation to present this paper, which will be published in hard copy sometime in February 2015. The paper will be part of a Symposium on Religious Accommodation in the Age of Civil Rights.[1]

I initially drafted Parts I (“Gender Equality and Religious Accommodations on the Eve of Hobby Lobby”) and II (“A Brief History of Religious Exemption Regimes”) between April 2014 and the end of June 2014, while the case of Burwell v. Hobby Lobby Stores, Inc. was under advisement in the Supreme Court. I drafted Parts III (an analysis of the opinions in Hobby Lobby) and IV (“Religious Exemptions in the Wake of Hobby Lobby”) over the summer and fall of 2014.

For those of you who want to read some of the paper but not all of it, I suggest that you OMIT pp. 56-71 (tracing lower court interpretations of federal RFRA and state RFRA’s). I will briefly discuss this material, which reinforces my view that religious exemption regimes tend to be rhetorically robust but operationally weak. You might also OMIT pp. 43-48 (discussing legislative battles over religious freedom and LGBT rights in Kansas, Arizona, and Mississippi in the spring of 2014), and pp. 75-80 (discussing, in the context of the Hobby Lobby opinion, the issue of corporate personhood, which I believe has received far more media and scholarly attention than it deserves).

To put the reading instructions more affirmatively, I suggest that you prioritize pp. 36-42; 48-56; 71-75; and 80-100. This will give you my overview account of the field, and the constitutional history of religious exemption law; analysis of what turned out to be the key issues in Hobby Lobby; and my prediction of where Hobby Lobby will (and won’t) take us, especially in relation to concerns of LGBT equality.

I look forward to spending time with you all on Feb. 12. I am now writing another paper (for a Symposium at the University of Alabama in March) focused entirely on the subject of LGBT rights, post-Hobby Lobby, so comments on this paper (especially Part IV) will be very useful in helping me structure my thoughts for that project.

[1] The papers from the Symposium, held at Harvard in April 2014, will be published in three separate journals – University of Southern California Law Review, Harvard Journal of Law & Gender, and Harvard Law and Policy Review.