S.I. Strong (University of Missouri School of Law) has posted Religious Rights in Historical, Theoretical and International Context: Hobby Lobby as a Jurisprudential Anomaly? (Vanderbilt Journal of Transnational Law, 2015 Forthcoming) on SSRN. Here is the abstract:
The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.
This Article undertakes precisely that analysis by setting Hobby Lobby into a wider historical, theoretical and international setting so as to determine whether the decision to grant a commercial corporation a religious accommodation is consistent with the rationales underlying religious rights. The discussion considers the work of key theorists in this field while also contemplating relevant principles of international and comparative constitutional law. In so doing, the Article seeks to determine whether the Supreme Court has remained true to established principles of religious liberty or whether Hobby Lobby has made the United States an outlier in this important field of law.
