Hobby Lobby and Conestoga Wood as ordinary cases

The Hobby Lobby and Conestoga Wood cases being argued this morning are important. But in my view they are not "extraordinary cases," which is Richard Fallon's term for those cases in which "no existing doctrine resolves the issues before the Court" or "a majority of the Justices believes that existing doctrinal structures must be reassessed in light of more fundamental concerns." (Fallon, Implementing the Constitution at 134-35.) At the risk of appearing unappreciative of legal complexity or difficulty, I'll share my boring bottom-line assessment of the likely outcome and reasoning in Hobby Lobby and Conestoga Woods: These cases will be doctrinally uninteresting losses for the government.

In order to rule for the challengers, which is how I expect a majority of the Justices will rule, the Justices will need to decide three issues:

(1) Can either the companies or their owners assert a claim under RFRA?

(2) Is the threat of massive fines for the companies' offering of health coverage that excludes certain drugs and devices for reasons of religious conscience a substantial burden on the companies' or their owners' exercise of religion?

(3) Has the government satisfied strict scrutiny?

If a majority of the Justices gets to issue (3), it is hard to see how the government can win. The government did not even try to take into account the religious beliefs of challengers like these in their regulatory implementation of the statutory preventive services mandate. There are a variety of ways for thinking about the right way to answer (1) and (2), some of which would require the Supreme Court to address novel questions. But there are also simple ways of resolving these issues in the challengers' favor.

With respect to who can assert a claim here, the Court could straightforwardly reason that "person" in RFRA includes a corporate person, and that there is no limitation on which kinds of corporate person may assert a claim, as long as that person may engage in the exercise of religion. And in this context, "exercise of religion" means nothing more than a religiously based act or refusal to act. With respect to substantial burden, there seems little difficulty finding this present in the threat of massive penalties for these companies' religion-based decision to offer non-compliant health coverage that excludes no-additional-cost coverage of various drugs and devices.

Given all the commentary generated by these cases already, with much of it focusing on novel or difficult issues, my assessment in this post is admittedly contrarian. Am I confident that a majority of Justices will follow the relatively uninteresting path through the issues in these cases? That is probably too strong a word. But while the Supreme Court retains the ability to surprise and confound, sometimes the legal path of least resistance is the path a majority is most likely to follow.