Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 30, 2014

Hobby Lobby Wins, Narrowly

The Court holds for Hobby Lobby, with Kennedy joining the majority but also writing a concurrence emphasizing the limits of the decision. The broad issues are resolved in the plaintiffs' favor (rightly in my view): for-profit closely-held corporations can be persons exercising religion, and the coverage mandate with accompaying fines and assessments imposes a substantial burden. The Court dodges the compelling-interest question and decides the case on "less restrictive means": the majority opinion and the Kennedy concurrence ultimately point to the insurer-pays accommodation for nonprofits as a less restrictive means of providing contraception coverage. I think the opinion and concurrence imply that some form of the nonprofit accommodation will be held a permissible solution (perhaps with tweaking about who the notification of opt-out must be sent to.)

Is it too crass to say that I predicted this as a likely result? (OK, guessed right.)

I also think this is a good result. RFRA should apply in the commercial sphere and should be taken seriously, but it also was not meant to--and should not--cut a swath of destruction through general commercial regulation.

Breyer and Kagan decline to join the part of Ginsburg's dissent that denies all religious-freedom rights to for-profit corporations.


Berg, Thomas | Permalink