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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically—though anticlimactically—in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.

This chapter suggests that the Supreme Court's inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court's con­tinuing, and arguably expanding, hands-off approach to religious doctrine. The hands-off approach, developed in a series of landmark cases, precludes judges from engaging in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims in deference to adherents' characterizations of the substance and significance of a religious practice or belief. Although the Court has offered both constitutional and practical justifications for this deference, the hands-off approach has been subject to considerable criticism among legal scholars. Indeed, notwithstanding sound policy considerations underlying the Court's attempts to prevent judges from evaluating the substance of religious doctrine, the hands-off approach may bring about additional problems of its own.

First, conceptually, in its articulation of the hands-off approach, the Court has failed to clarify a number of descriptive and normative issues. Second, as applied, a hands-off approach that requires unquestioned deference to religious claims may impose unworkable burdens on the government, courts, and society as a whole. Conversely, courts may respond by placing substantial limitations on the range of claims that qualify for religious protection. Perhaps most basically, adjudicating cases under the Religion Clauses, the Religious Freedom Restoration Act (RFRA), state RFRAs, and the Religious Land Use and Institutionalized Persons Act (RLUIPA) requires consideration of religious claims and, at times, may necessitate careful judicial examination of the substance and nature of religious doctrine. This chapter argues that the challenge of reconciling the dual goals of adjudicating cases involving religion and maintaining appropriate deference to the beliefs of religious adherents manifests itself in the somewhat unsatisfying and often contentious nature of the religious freedom decisions handed down by the Supreme Court over the last four terms.


This is Chapter 5 in Law, Religion, and Health in the United States (Cambridge University Press 2017). This chapter was excerpted with permission from Cambridge University Press.This version is free to view and download for personal use only. Not for re-distribution, re-sale or use in derivative works.

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Cambridge University Press