One year after the US Supreme Court ruling in Burwell v. Hobby Lobby, that decision’s significance appears to be as much social as legal. Debate has emerged in the states over the proper scope of accommodation for religious believers who claim exemptions from general laws. These claims once raised exclusively by ­individuals, now are frequently brought by corporations as well as against general policies of discrimination. The aftermath of the Hobby Lobby decision has been at times politically divisive; however, it has opened up possibilities for compromise that can more precisely define and secure religious liberty.

The legal implications of Hobby Lobby remain narrow. The case involved enforcement of part of the Affordable Care Act that mandates companies with more than fifty employees to offer health insurance that includes coverage for all FDA-approved contraception at no cost.  By a 5–4 vote, the Court held that enforcement of this provision violates the rights of closely-held, for-profit companies whose owners object on religious grounds. An exemption for these companies is required, the majority held, under the 1993 federal Religious Freedom Restoration Act (RFRA), intended “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”

The Court applied RFRA to the contraceptive mandate. Although Hobby Lobby is a national, for-profit corporation with more than five hundred stores and thirteen thousand employees, it remains privately owned by five members of the Green family. As a closely-held firm under Internal Revenue Service rules, Hobby Lobby qualifies as a “person” under RFRA.  The Greens presented evidence of their sincerely-held beliefs that four of the FDA-approved forms of contraception acted after conception as abortifacients. Noncompliance would subject Hobby Lobby to annual fines of about $34 million.

Subjecting Hobby Lobby to the contraception mandate, the Court found, would contradict RFRA’s requirement that government use “the least restrictive means” of furthering any “compelling government interest.” The Obama administration previously had announced exemptions for non-profit religious groups that allow their employees to gain no-cost access to approved contraceptives under a separate policy paid for by insurance companies or the government. Under RFRA, these same exemptions could and must be extended to closely-held, for-profit corporations like Hobby Lobby.  “Under the accommodation,” the Court concluded, Hobby Lobby’s “female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives.”

 The ruling in Hobby Lobby demonstrates the unanticipated consequences of far-reaching legislative protections for religious freedom. Following a 1997 US Supreme Court decision limiting application of RFRA to federal law, nineteen states have passed their own versions of religious freedom legislation under state law. Many others are considering similar legislation.

Most recent state legislative action occurred in response to Hobby Lobby and to several state court decisions denying exemptions to businesses owners who refused to provide services for same-sex weddings and commitment ceremonies. In February, a Washington state court ruled that the owners of Arlene’s Flowers did not have a right to refuse to provide floral ­arrangements for a same-sex wedding that was legal under state law. (This was the first wedding in thirty-seven years for which the owners had refused service.)  That same month, an Oregon bakery had its claim to refuse to bake a cake for a same-sex ceremony rejected by the state’s Bureau of Labor and Industries. The owners of Sweet Cakes face damages of up to $150,000 and have since closed their business to the public. Two years previously, Elane’s Photography lost its claim to refuse services to a same-sex commitment ceremony in New Mexico. In each case, state legislation banning discrimination on the basis of sexual orientation in public accommodations was found to prevail over the owners’ claims of religious ­liberty.

Traditionally, free exercise claims were brought by members of minority religions for exemptions from direct government enforcement of a general law that would substantially burden their religious practice. Can a Seventh-day Adventist fired from her job for not working on Saturday Sabbath collect unemployment from the state?  Can an Amish family gain exemption for state mandatory school attendance laws once their children have passed eighth grade? Must an Air Force pilot who is an Orthodox Jew be allowed to wear a yarmulke when military regulations allow no headgear under the required helmet? Courts accepted some claims and rejected others. But each of these plaintiffs presents a claim that government policy burdens their ability to practice religion.

The cases of the baker, the florist, and the photographer present fundamentally different and more complex extensions of religious liberty. These new legal claims demand individualized, commercial exemptions from state laws that prohibit discrimination in public accommodations such as businesses, housing, and employment. Requests for exemptions from these general laws appear as efforts to enjoy the benefits of a public accommodation yet retain the personal right to refuse service and legal protections to some classes of fellow citizens.

Recent state legislation also seems motivated by anticipation of a US Supreme Court ruling this summer that would overturn state bans on same-sex marriage. Louisiana’s Marriage and Conscience Act, for example, would guarantee “this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage.” This immunity would include state officials who refuse to affirm or recognize a marriage found to be constitutionally required by the Supreme Court.

Other states have sought to expand the scope of corporate exemptions beyond Hobby Lobby to provide protection for these newer commercial cases. In March, Indiana passed SEA 101.  Sections 8 and 10 of the law, articulating the legal standards courts must apply to claims for religious exemptions from generally applicable laws, mirror the language of the federal RFRA.

But Indiana’s law departs significantly from federal protections. Section 7 defines persons to include not only individuals or nonprofit groups organized for religious purposes, or closely-held for-profit corporations like Hobby Lobby. It also expressly includes:

any entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Unlike in Hobby Lobby, Indiana’s religious freedom protections are not limited to closely-held for-profit corporations.

Indiana’s law extends beyond the federal RFRA. Its protections apply “regardless of whether the state or any other governmental entity is a party to the proceeding.” This act thus opens the possibility of extending religious exemptions beyond duties to government to public interactions with other citizens. While a federal court ruling requires the state to conduct same sex marriages, Indiana—unlike Washington, New Mexico, and Oregon, but similar to the federal government—has no general legal protections against discrimination in public accommodations or employment based on sexual orientation.

Responding to unexpected public criticism of its religious liberty bill, within a week Indiana passed a “clarification.” Senate Enrolled Act 50 states that Indiana law “does not”:

authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.

This revision parallels separate protections under federal and state law. Yet this is the first mention in Indiana statutes of legal protection based on sexual orientation and gender identity. Arkansas, which this spring passed similar legislation to Indiana’s, earlier this year prohibited cities and counties from enacting separate legal non-discrimination protections “on a basis not contained in state law.”

Broad religious liberty laws raise other, practical concerns about the extent of exemptions required from general laws. As the Supreme Court said in Reynolds v. US (1878), a case involving polygamy convictions in the Utah territory, unbounded religious exemptions could “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” A century later, in Oregon v. Smith (1990), Justice Scalia wrote that excessively broad free exercise protections—whether imposed by courts or required by legislation—“would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Even under the best intentions, broad free exercise protections could produce a legal regime “in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”

The consequences of expansive legislation like RFRA, the Hobby Lobby decision, and Indiana’s initial law has validated the fears Scalia expressed in Smith. Recent responses suggest the wisdom of legislation defining specific circumstances and areas where religious liberty legitimately deserves greater protection and exemption from general laws.

One alternative is to define more precisely areas of heightened protection for requests for religious exemptions. Congress did this in 2000 when it passed the Religious Land Use and Institutionalized Person Act. That legislation may provide a surer model than the initial federal RFRA. If the recent or forthcoming constitutional protection for same-sex marriage claims require similar accommodations, such exemptions should be defined precisely and debated directly on their own merits with clear recognition of the state interest in providing legal protections to all citizens.

Utah recently moved in this more defined direction. This March, the state passed two laws intended both to protect religious liberty and to prevent discrimination. Senate Bill 296 added “sexual orientation” and “gender identity” to classes receiving explicit legal protection from housing and employment discrimination. While providing exceptions for religious groups and the Boy Scouts, Senate Bill 297 protects religious officials and groups from being compelled to officiate, recognize, promote or provide for “a marriage that is contrary to that religious official’s or religious organization’s religious beliefs.” This law provides exemptions for objecting state clerks, so long as another official “is available during business hours to solemnize a legal marriage for which a marriage license has been issued.”

The Utah legislation differs from legislation in Louisiana and Indiana and the federal RFRA. Utah’s protections do not constitute a comprehensive religious freedom act. Rather, they specify exemptions from same-sex marriage ceremonies contrary to religious belief. Exemptions under Utah law apply to individuals, religious groups, and ministers and are not extended to for-profit businesses. At the same time, this legislation explicitly reiterates and extends access to government services, public accommodations, and employment to all.

Utah’s compromise embodies the political advantages of extensive social acceptance. Despite initial reservations, religious officials and leaders of LGBT groups in the state supported the package of legislation. The bills passed both houses of the state legislature by overwhelming margins and were publicly signed by the governor. The legislative process and result in Utah demonstrates the wisdom of more precisely defining the scope of religious liberty while guaranteeing legal protections to all.

The process and substance of the legislative achievement reached in Utah—in contrast to the divisiveness in Louisiana and Indiana—provides a path toward prudential resolutions.  Securing religious liberty requires clearer conception of the liberty to be restored, recognition of the competing public interests to be considered, and wide social and political acceptance of the resulting protection. If more states follow Utah’s lead, the Hobby Lobby decision may ultimately stand not for its legal holding but for the national conversation it inspired about the meaning of religious freedom. A

Frank J. Colucci is an Associate Professor of Political Science at Purdue University Calumet.