No Surprise in Hobby Lobby

As this blog is at least partly about the law, here’s my brief take on today’s Hobby Lobby case: although it seems strange and petty to me that it’s 2014 and we’re still having debates about contraception, it’s an unsurprising decision.

Why unsurprising?  Two reasons:  First,  if the government admits that some groups (e.g., non-profit corporations) have rights under the Religious Freedom Restoration Act, and it also admits that for-profit business owners have such rights, it’s pretty hard to make a cogent argument why for-profit corporations shouldn’t also have such rights.

Secondly, whether the RFRA precludes a particular form of regulation often comes down – as it did here – to a question of the “least restrictive means.”  As in “is this regulation set up in a way to achieve the government’s goal while interfering as minimally as possible with religious rights?”  And again, it’s really hard for the government to win this point when it has already granted exceptions to the contraceptive mandate for religious non-profits.  

Ultimately, it comes down to the fact that Congress enacted a law – in response to a Supreme Court decision that many felt was unduly dismissive of religious concerns – that offers sweeping protection for religious rights. It shouldn’t surprise anyone that the government is going to be held to task in showing that it is complying with that law.  And on these facts, in this case, the government had a steeply uphill climb to make.

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