Article Title

Hobby Lobby and the Zero-Sum Game


Kathryn Kovacs

Publication Title

Washington University Law Review Commentaries

Publication Date



In a zero-sum game, one person’s gain is another person’s loss. Some claims under the Religious Freedom Restoration Act present such zero-sum circumstances in that easing the claimant’s religious burden increases someone else’s burden. This Commentary explores the effect of Burwell v. Hobby Lobby Stores on such zero-sum claims using a paradigmatic example: RFRA claims challenging the Bald and Golden Eagle Protection Act. This inquiry reveals that Hobby Lobby did not open the door for cases involving true zero-sum games, including those under the Eagle Act and some under the anti-discrimination laws. In such cases, granting the requested religious accommodation merely shifts the claimant’s burden onto a third party. RFRA provides for easing burdens, not transferring them to others. Hence, even after Hobby Lobby, such zero-sum claims should fail.

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