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The First Amendment Decision Nobody's Talking About
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The Supreme Court decided an important First Amendment case this past week. But it wasn't Burwell v. Hobby Lobby. On Thursday, a unanimous Court struck down a Massachusetts law that restricted peaceful expression on public streets and sidewalks outside of abortion clinics. And those who care about religious liberty should know at least as much about that case, McCullen v. Coakley, as they do about the more narrowly decided case with which the Court ended its term.

To be sure, Hobby Lobby is an important decision. The Court rightly concluded that the Religious Freedom Restoration Act (RFRA) protects certain kinds of corporations from federal laws that substantially burden the exercise of religion. As Justice Alito wrote for the majority, "Congress enacted RFRA in 1993 in order to provide very broad protections for religious liberty."

But this also means Hobby Lobby was decided based on a federal law, not the Constitution. From the Court's point of view, the case had nothing to do with the First Amendment—and if it had, Hobby Lobby and its owners might not have prevailed. Indeed, the reason that Congress overwhelmingly passed RFRA in the first place (97-3 in the Senate, by acclamation in the House) was a disturbing Supreme Court decision in 1990, Employment Division v. Smith, which lowered the First Amendment's protections for religious liberty. The decision in Smith held that the First Amendment provided no special protection for religious liberty claims brought against "generally applicable laws."

Since most laws (possibly including the contraceptive mandate at issue in the Hobby Lobby case) are generally applicable, Smith in effect meant that the government could prevail over religious liberty objections in its laws and regulations. RFRA (and similar statutes enacted by some states) was designed to counteract that troubling constitutional standard. But RFRA's protections are not First Amendment protections. The Hobby Lobby majority acknowledged this, and Justice Ginsburg, writing in dissent, contended that "any First Amendment Free Exercise Clause claim Hobby Lobby . . . might assert is foreclosed by this Court's decision in [Smith]." We cannot know for sure how the Court as a whole might have decided Hobby Lobby's claims on First Amendment grounds, but the precedent in Smith gives us some reason to suspect that Justice Ginsburg is right.

McCullen, in contrast to Hobby Lobby, is squarely a First Amendment case. It involves a 2007 Massachusetts law that established a 35-foot buffer zone around abortion clinics that categorically excluded citizens from engaging in any expressive conduct. The buffer zones extended to public streets and sidewalks.

A prolife woman named Eleanor McCullen, along with several others, challenged the law. The Court properly noted that McCullen and her fellow litigants were not "protesters" but people who sought "to inform women of various alternatives and to provide help in pursuing them," an objective they believed could be achieved "only through personal, caring, consensual conversations."

McCullen's activities were indisputably peaceable. Yet the Massachusetts law criminalized them. Had she approached a willing listener to discuss abortion in a covered zone, she would have been subject to three months' imprisonment for a first offense, and two and a half years' imprisonment for each subsequent violation. The statute also prevented McCullen from entering the covered zone to sing or pray quietly.

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The First Amendment Decision Nobody's Talking About