This Article contends that arguments for and against Hobby Lobby both fail to comprehend the special nature of money. As a consequence, opponents of Hobby Lobby wrongly deny the existence of a substantial burden, while Hobby Lobby's supporters fail to see that the understanding of financial transactions that underlies their conception of complicity refutes their libertarian views. Financial complicity, as construed by Hobby Lobby's proponents, should be recognized as a burden on religious exercise. But for the same reason that the financial obligations imposed by the "contraceptive mandate" constitute a burden, they also correlate to countervailing state interests that necessarily outweigh the right to religious freedom. A proper assessment of complicity-based claims and a proper application of the compelling state interest standard both require a better understanding of how money ties people together in relationships which make them mutually responsible for one another's actions, regardless of what they intend. This recognition of how money works is already reflected in our laws against "material support." This Article seeks to show the similarities between religious conceptions of complicity and legal conceptions of material support and to develop a better theoretical understanding of the distinctive properties of money and financial complicity claims.
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Date of this Version
Nomi M. Stolzenberg, "It's About Money: The Fundamental Contradiction of "Hobby Lobby"" (October 2016). University of Southern California Legal Studies Working Paper Series. Working Paper 223.
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