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In Burwell v. Hobby Lobby, 573 U.S. ___, 124 S. Ct. 2751 (2014), the United States Supreme Court held that the religious liberty protections contained in the Religious Freedom Restoration Act apply to for-profit business corporations. Although many laud the decision as a hard-fought victory for religious freedom, others fear the consequences of the decision. Two consequences in particular have been most commonly identified by the decision’s detractors.

First, Burwell may give businesses a “license to discriminate,” by allowing them to opt out of laws that protect minorities and other groups on religious grounds. This threatens to undo decades of social progress.

Second, the decision could undermine ready access to contraception (or at least to certain forms of contraception), as businesses may seek an exemption from laws designed to promote such access. Indeed, the claimants in Burwell sought exactly such an exemption.

Although fears concerning the consequences of Burwell are likely exaggerated, they are not without foundation. At least equally legitimate, however, are the religious liberty interests of businesses and business owners as acknowledged by the Supreme Court. Given the magnitude of interests implicated and in collision here, the path forward should, I suggest, be one of compromise and balance. The insights of antitrust law may hold the key to such a path.

Much of antitrust law is predicated upon the concept of market power. Recourse to a firm’s market power enables antitrust law to best assess the potential harm that a particular course of conduct might inflict upon consumers. As a result, different rules of conduct apply to different businesses, depending upon their respective market power.

A similar approach could be used to blunt the most potentially pernicious effects of the Court’s holding in Burwell. Pursuant to such an approach, the law would, for example, recognize the difference between (1) a single pharmacy refusing to stock a particular form of contraception out of numerous other pharmacies that do stock that product, and (2) the only pharmacy in town refusing to stock a particular form of contraception. In short, the law’s assessment of a putative corporate religious exemption would turn not on some theoretical weighing of rights and interests, but rather on a fact-based assessment of genuine, instantialized harm within the context of the marketplace as a whole. This promises to best respect and safeguard the parties and competing interests at stake when corporations assert religious liberty claims.

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