In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the courts’ widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Today, in their interpretations of the First Amendment and the Religious Freedom Restoration Act, courts replicate the commitment to private ordering and resistance to redistribution that were at the heart of Lochner. While this phenomenon is exemplified by Burwell v. Hobby Lobby, its reach is wider.
The comparison to Lochner offers two insights overlooked in contemporary debates over business religious liberty. First, in resisting compliance with antidiscrimination laws, pharmacy regulations, and insurance mandates (most prominently, the Affordable Care Act’s contraceptive mandate), businesses make claims more reminiscent of market libertarianism than of religious freedom. In siding with these businesses, courts have begun to incorporate the premises of Lochner into religious liberty doctrine. In the contraceptive mandate litigation in particular, courts—from the trial level to the Supreme Court—defined a business’s right to free exercise of religion by reference to its ability to contract. They postulated private market ordering as a legally and economically neutral baseline and regulation as an unnecessary and unfair redistribution. Second, comparing business religious liberty doctrine to Lochner-era freedom of contract lays bare the implications for the regulatory state beyond contraception and same-sex marriage. While scholars have recognized a link between Lochner and the Free Speech Clause, this Article establishes that free exercise has taken on a similar role with potential to undermine the regulation of business more broadly.