A few takeaways from oral arguments in the Little Sisters of the Poor case

Most reports of yesterday's oral arguments in the Little Sisters of the Poor case suggest that the Court is likely to split 4-4. That may be, I suppose, but who knows? In any event, this suggestion of an split understates just how bad of a day it was for the federal government. If Justice Scalia were still on the Court, the stories would be describing the argument as a government rout.

Even with the Court composed as it is, the government's position coming out was substantially weakened from what it was going in. Post-argument, there is less reason to simply assume that the Hobby Lobby dissenters will not recognize the valid religious liberty claims of the nonexempt religious nonprofits appearing yesterday (in contrast with the religious liberty claims of for-profit corporations). Apart from the identity of the nonexempt entities, the big asserted difference between Hobby Lobby and the Little Sisters' case was supposed to be the government's "accommodation," which is just an alternative means of compliance for nonexempt religious nonprofits who can purportedly hand the obligation off to somebody else while washing their own hands of complicity. If nothing else, it became clear that a majority of the Court understood that the government's alternative means of compliance does not make contraceptive coverage under it independent of the nonexempt religious nonprofits. 

Here are a few takeaways that I left arguments with yesterday and that still seem right after having slept on them:

1. Every circuit court that ruled for the government in these cases held that the contraceptives mandate imposed no substantial burden under RFRA. A majority of the Court yesterday seemed unlikely to agree.
   
   
2. The government has characterized its accommodation for nonexempt religious nonprofits as a simple opt out coupled with an "independent" coverage obligation imposed on third parties. A majority of the Court yesterday seemed to reject this characterization.
   
   
3. The government has somehow succeeded up until this point in (A) insisting on contraceptive coverage for employees of nonexempt religious nonprofits that is "seamless" from the employees' point of view, while (B) simultaneously asserting that the resulting coverage is "independent" of the employer's choice. A majority of the Court yesterday seemed to appreciate that makes no sense.

If these observations are right, it's difficult to see how the government wins.