32 see infra section iiib 33 see supra note 3 and

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32. See infra Section III.B. 33 . See supra note 3 and accompanying text. 34. Id. 35. Laycock, supra note 10; NeJaime & Siegel, supra note 10. 36. N USSBAUM , supra note 12, at 160–61. 37. All references to RFRA in this article include federal and state RFRAs unless otherwise noted. These references at the federal level, unless otherwise noted, also include RLUIPA, which applies to land use issues. 42 U.S.C. § 2000cc (2012).
02.R AVITCH .FIN (D O N OT D ELETE ) 8/4/2016 6:07 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW 2016 62 treatments, and shops to discriminate in the provision of generally available products and services, etc. 38 Until the Hobby Lobby litigation, this latter view was a demonstrably skewed view of what RFRA had actually done. Yet, after Hobby Lobby , the latter view seems more realistic and has gained in political strength. This is evidenced by recent state battles over RFRAs. Hobby Lobby gives opponents of religious freedom the best ammunition yet to undermine it, and with good reason. It is now possible that large, for-profit landlords may discriminate and use RFRA (or RLUIPA, the Religious Land Use and Institutionalized Persons Act) to avoid liability, and that large, closely held companies will be able to discriminate in the benefits they provide and avoid liability. Those who argue such results are likely, however, often minimize the fact that in many of these situations government will succeed in demonstrating a compelling interest to prohibit the conduct. Even so, Hobby Lobby makes such scenarios more likely than before. At the same time, another factor is likely to come into play to weaken religious freedom in the wake of Hobby Lobby . Unfortunately, it is often true that when the breadth of a constitutional right or civil rights statute is expanded, the courts begin to interpret the constitutional right or statute more narrowly. So breadth in coverage often leads to less depth in protection. 39 This can be seen in a number of civil rights and civil liberties contexts from Title VII of the Civil Rights Act of 1964 (Title VII), 40 to the Americans with Disabilities Act (ADA), 41 to 42 U.S.C. § 1983, as well as in the constitutional context under the Free Speech Clause and under the Free Exercise Clause itself. 42 Since RFRA is a civil liberties statute, the Title VII, ADA, and § 1983 examples may be most apropos. 38. See infra Section III.B. 39. Cf. Philip Hamburger, More Is Less , 90 V A . L. R EV . 835, 837–38 (2004) (addressing this phenomenon under the First Amendment). 40. See Judith Olans Brown et al., Some Thoughts about Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue , 46 E MORY L.J. 1487 (1997). 41. See Frank S. Ravitch & Marsha B. Freeman, The Americans with “Certain” Disabilities Act: Title I of the ADA and the Supreme Court’s Result Oriented Jurisprudence , 77 D ENV . U. L. R EV . 119 (1999).

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