The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. This Article examines the potential effect of the Court’s Hobby Lobby decision on interpreting the Religious Freedom Restoration Act (“RFRA”) on both federal and state levels, detailing why the Court’s decision is irrelevant to addressing the incursions on liberty experienced by children subject to religious and home schooling.
Ultimately, the Article finds that home schools and private schools are unfazed by the Hobby Lobby decision in their capacities as employers and educators because (1) unchanged free-exercise jurisprudence accords stronger constitutional protection to parents against state oversight, (2) religious schools are generally operated by religious entities whose RFRA standing is already well established, (3) Hobby Lobby interpreted a law that imposes restrictions only on the federal government, (4) federal laws governing employers generally exempt religious entities, (5) federal laws pertaining specifically to schooling do not apply to private schools, and (6) state legislatures already voluntarily leave religious schools entirely unregulated, except for some standard, superficial business regulations.
Even with RFRA’s version of strict scrutiny post-Hobby Lobby, states could nonetheless regulate private and home schooling. The Article concludes that state inaction will continue as a result of a troubling pervasive indifference—stemming from societal attitudes and fundamental misconceptions about childrearing—toward children subject to these types of schooling.
The full text of this Symposium is available to download as a PDF.