Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause
The Patient Protection and Affordable Care Act and implementing regulations require for-profit businesses with more than fifty employees to include contraceptive products in their health care coverage for employees. Throughout the country, privately held corporations and their owners challenged this requirement on the grounds that it violates the Religious Freedom Restoration Act (RFRA), which states that the government shall not “substantially burden” a religious practice unless the regulation is “the least restrictive means” of serving a “compelling governmental interest.” The employers argued that requiring them to include contraceptives in employees’ health coverage substantially burdened their religious opposition to using certain contraceptives. In Burwell v. Hobby Lobby Stores, the Supreme Court held (5–4) that the contraceptive coverage mandate imposed a substantial burden on the employers’ religious opposition to contraception, and that the coverage mandate was not the “least restrictive means” of serving the government’s interest “in guaranteeing cost-free access to the . . . contraceptive methods.” Justice Ginsburg, in dissent, argued that the mandate did not substantially burden the employers’ personal practice of opposing contraception because it did not require employers to purchase or use contraceptives themselves; using contraceptives remained the independent decision of each employee. The dissent further noted two troubling aspects of the majority’s position. First, it denies employees benefits available to most other workers, and thereby imposes the employer’s religious practice on its employees. Second, it lays the ground for employers to challenge numerous regulations that protect workers, such as nondiscrimination and minimum wage laws, which may impose requirements in tension with an employer’s personal religious practices.
In this Essay, I argue that, in light of Hobby Lobby, RFRA should be amended to recognize the difference between religious practice that takes place in a personal setting and religious practice that takes place in a commercial setting, that is, during the course of a commercial employment relationship, “an area traditionally subject to government regulation.” This distinction between personal freedom and freedom when operating in the commercial sphere is far from novel. It is recognized elsewhere in constitutional law. The commercial speech doctrine, for example, applies a lesser degree of scrutiny to restrictions on “commercial speech” than to restrictions on noncommercial expression. Tighter regulation is justified in a commercial setting because commercial relationships impact the interests of third parties. This reasoning translates to religious exercise. Commercial speech is entitled to less protection because it does not further public discourse and it has the potential to deceive or mislead consumers. Religious exercise in a commercial employment setting may be entitled to less constitutional protection because it goes beyond the employer’s personal autonomy, and may burden the employees’ rights. Although employers may argue that their personal religious practices are inseparable from their commercial employment practices, commercial speech doctrine cases show that it is possible to objectively distinguish primarily commercial from primarily noncommercial settings, based on the broader purpose of the employer’s operation. Burdens on religious practice that occur during a commercial employment relationship should therefore be treated like commercial speech and subject to a lesser degree of scrutiny.
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