Wednesday, March 30, 2016
Here is the Court's order. Lawyers, pundits, and blog-readers everywhere are wondering what it means. Until I get the authoritative answer from our own Kevin Walsh, I'm inclined to think -- in the spirit of Sports Illustrated's Peter King, perhaps -- the following:
(1) I infer that Justice Kennedy did not join the Hobby Lobby dissenters (and, perhaps, one of them wobbled, too) on the gov't's argument that this case fails at the threshold (because the "substantial burden" argument is too "attenuated"). I take that as good news for the RFRA regime generally. While I understand the concern that Doug Laycock and others have raised -- i.e., that requiring "absolute deference" to RFRA claimants' on the "substantial burden" element will undermine religious accommodations generally -- I do not think that the Little Sisters et al. are asking for such deference.
(2) I infer that at least one of the Hobby Lobby dissenters is sufficiently concerned about avoiding a "tie" (in a case where the lower courts are themselves divided) that he or she is willing to at least consider letting the Little Sisters win *if* that can be done without interrupting the "seamless" flow of contraception coverage.
(3) But . . . it does not seem plausible that the government actually has a "compelling interest" in completely "seamless" coverage (as opposed to coverage-without-cost-sharing-via-some-reasonable-means). I expect at least some of the parties will argue that, if the coverage is provided to their employees, by their insurance companies, by virtue of the fact that the companies and the employees are theirs, then their religious exercise is burdened. (I could be wrong about this, of course.) And, I expect at least some of the parties to argue that the existence of the exemption for religious institutions (churches, etc.) puts a heavy burden on the government to show why such an exemption cannot be provided to them.
Meanwhile, in news stories and headlines everywhere, the "scare-quoting" of religious freedom continues . . .