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Harvard Law & Policy Review

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There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, taking issue with Justice Alito’s treatment (or lack thereof) of the “substantial burden” issue. The Court makes three errors: it defers to Hobby Lobby’s view of the matter rather than independently examining it; it treats the penalty (or tax), rather than the operative legal requirement, as a substantial burden; and it fails to fit the attenuated nature of the burden with three areas of constitutional case law, all of which strongly suggest that employer-funded health care choices made by employees should be attributed to the employees, not the employer, and that this should render the burden legally insubstantial.