Title

The Deeper Meaning in the Hobby Lobby Opinion

Document Type

Essay

Publication Title

Law & Liberty

Publication Date

7-1-2014

Abstract

(Excerpt)

The Supreme Court has issued its long-awaited ruling in Burwell v. Hobby Lobby Stores, Inc. On both the standing and merits questions under the Religious Freedom Restoration Act, the federal government lost. In a 5-4 majority decision authored by Justice Alito, the Court held that:

  • Closely held for-profit corporations such as Hobby Lobby are “persons” within the compass of RFRA and can exercise religion (Justices Breyer and Kagan did not decide this issue one way or the other);
  • Closely held for-profit corporations that have religious objections to providing contraception as part of their employee health plans suffer a substantial burden on their religious exercise by operation of the contraception mandate; and
  • Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve its interests by the least restrictive means.

The least restrictive means portion of the analysis was always the most difficult part of the test for mandate supporters. It is, as the Court said, “exceptionally demanding and it is not satisfied here.”

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