{"id":721,"date":"2019-08-05T11:23:47","date_gmt":"2019-08-05T15:23:47","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/103-online\/commercial-religious-exercise-translating-the-commercial-speech-doctrine-to-the-free-exercise-clause\/"},"modified":"2025-05-12T11:14:15","modified_gmt":"2025-05-12T15:14:15","slug":"commercial-religious-exercise-translating-the-commercial-speech-doctrine-to-the-free-exercise-clause","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/submit\/glj-online\/103-online\/commercial-religious-exercise-translating-the-commercial-speech-doctrine-to-the-free-exercise-clause\/","title":{"rendered":"Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause"},"content":{"rendered":"

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.\u00a0Throughout 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 \u201csubstantially burden\u201d a religious practice unless the regulation is \u201cthe least restrictive means\u201d of serving a \u201ccompelling governmental interest.\u201d\u00a0The employers argued that requiring them to include contraceptives in employees\u2019 health coverage substantially burdened their religious opposition to using certain contraceptives.\u00a0In\u00a0Burwell v. Hobby Lobby Stores<\/em>, the Supreme Court held (5\u20134) that the contraceptive coverage mandate imposed a substantial burden on the employers\u2019 religious opposition to contraception,\u00a0and that the coverage mandate was not the \u201cleast restrictive means\u201d of serving the government\u2019s interest \u201cin guaranteeing cost-free access to the . . . contraceptive methods.\u201d\u00a0Justice Ginsburg, in dissent, argued that the mandate did not substantially burden the employers\u2019 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.\u00a0The dissent further noted two troubling aspects of the majority\u2019s position. First, it denies employees benefits available to most other workers, and thereby imposes the employer\u2019s religious practice on its employees.\u00a0Second, 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\u2019s personal religious practices.<\/p>\n

In this Essay, I argue that, in light of\u00a0Hobby Lobby<\/em>, 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, \u201can area traditionally subject to government regulation.\u201d\u00a0This 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 \u201ccommercial speech\u201d than to restrictions on noncommercial expression.\u00a0Tighter 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\u2019s personal autonomy, and may burden the employees\u2019 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\u2019s 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.<\/p>\n

Continue reading Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause\u00a0<\/em>on HeinOnline<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0Throughout the […]<\/p>\n","protected":false},"author":627,"featured_media":0,"parent":671,"menu_order":12,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-721","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/721","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/users\/627"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/comments?post=721"}],"version-history":[{"count":3,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/721\/revisions"}],"predecessor-version":[{"id":933,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/721\/revisions\/933"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/671"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/media?parent=721"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}