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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 ...

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The First Amendment Decision Nobody's Talking About
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