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Tuesday, November 10, 2015

The Slippery Slope that is Hobby Lobby Is Only One Step

As you may have read, the Supreme Court is taking up the question of contraception coverage under RFRA again.  There are 37 different parties challenging the government regulation in question, and so the factual nature of each claim is slightly different.  But I think each of the challenges share the same fundamental flaw. Specifically, the challenge only can succeed to the extent the Court allows the challengers to the law to phrase their argument as the challengers select, without questioning whether the challengers are really making a different, quite indefensible, argument.  And, for reasons I will explain, I do not think RFRA requires this.


RFRA, the Religious Freedom Restoration Act, is essentially a statutory rule of interpretation.  The Act was designed to overturn a decision of the Supreme Court (written by Scalia) called Employment Division v. Smith.   Scalia, who has a habit of making dire warnings which sometimes comes true (Megan McArdle once joked that Paul Krugman has predicted 8 of the last none recessions, and I think it is fair to say that Scalia has predicted 100 of the last 12 major legal breakdowns), accurately noted that a rule which allowed individuals to "opt out" of generally applicable laws for religious reasons would lead to chaos (citations and emphasis omitted):

"To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' -- permitting him, by virtue of his beliefs, 'to become a law unto himself,' contradicts both constitutional tradition and common sense....


Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order."


Unfortunately, Congress ignored this warning and enacted RFRA, which creates a presumption in each law by Congress that the law does not apply in individual instances to the extent it creates a "substantial burden" on an individual's religious rights, unless doing so is "in furtherance of a compelling government interest," and "is the least restrictive means of furthering that compelling governmental interest."


Hobby Lobby, the first contraception case, notoriously extended the right of "individuals" to for-profit corporations, and I do not want to get into the merits of that point here.  But it also did something else.  The language quoted in the statute describing the least-restrictive/compelling interest test from RFRA comes from the language used by courts in pre-Smith law, when there was a First Amendment religious liberty exception to generally-applicable law, but it does not accurately reflect how the Court ruled on those claims.  Instead, the Court applied something more akin to a balancing test, which allowed the Court to generally enforce (taken from Smith itself) compulsory military service, tax law, child neglect law, vaccination law, drug laws, traffic laws, social welfare laws, child labor laws, animal cruelty laws, environmental protection laws, and civil rights laws, even though in almost all of these cases, it's easy to show that the government interest in the law could have been done in a slightly different way, which perhaps might not have "infringed" on the practitioner's religious interests quite so much.  But Hobby Lobby took Congress literally, and untethered the language from the pre-Smith caselaw.  

Further complicating this is how Courts define the burden of religious exercise.  Under the Supreme Court's analysis, other than a sop to sincerity that rarely goes enforced, one cannot question the truth of the individual's religious claims.  To some extent, that's fair:  If someone wants to go to Church to praise Jesus, a Court obviously shouldn't say they have no religious interest because, really, everyone knows that the Flying Spaghetti Monster is the one true God.  Nor should the Court be judging religious doctrine:  If someone thinks their religious interpretation of Judaism allows them to eat pork but not leavened bread on Passover, it's not for Courts to interpret religious doctrine.

But Hobby Lobby went too far in a different way - it allowed the petitioner to not only phrase the religious belief without question, it also allowed no inquiry into the scientific facts as they apply to the religious belief.  In Hobby Lobby, the plaintiffs did not claim that contraceptives qua contraceptives violated their religious beliefs (and, indeed, did not object to all contraceptions).  Rather, they objected to that abortifacients violated their religious beliefs, and providing coverage for certain contraception meant providing abortifacients.  The problem--ignored by the Courts--was that this was false, and that the contraception that Hobby Lobby objected to were, scientifically speaking, not abortifacients.  

Post Hobby Lobby, all a religious objector really has to do to opt out of the contraception coverage is....to opt out (seriously, go look at it).  Specifically, they have to fill out a form stating that they object.  Then, HHS - without involving the objector at all - works individually with the insurer or administrator of the insurance in providing contraceptive coverage for the objector's employees.  But even this scheme has led to another round of challengers.

The new challengers cause a wholly new problem with how the Court unquestioningly allows the petitioner to frame the religious question.  And here, I think, the Court goes too far.

Let's go to the Eighth Circuit decision (the one which found for the challengers, leading to a circuit split):  


"CNS and HCC contend that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage through the [form] accommodation process."

In other words, they aren't objecting to the form itself, although lazy journalists have used that terminology.  Of course not:  the Catholic Church does not have a prohibition on forms!  Instead, they are objecting to the fact that a) they have a legal obligation to provide unobjectionable health care, which in turn b) allows Congress to arrange objectionable health care for their employees, but c) If they don't provide any health care, they would be on the hook for a big fine, but their employees would remain uncovered.  


Although the law doesn't technically treat the requirement to provide unobjectionable health care as a choice, these challengers are taking advantage of the fact that the side-effect of non-compliance is preventing their employees from getting (objectionable) health care, as well as huge fines.   From their view, Congress is allowing them to decrease the number of people who are provided objectionable health care (by breaking the law), but only at the cost of a huge fine; which in turn, according to the challengers, should allow them to be excused from the law itself.  

One does not have to challenge their religious convictions to look critically at their claim of substantial burden.  The burden they claim is not a burden on themselves.  Rather, they claim a religious freedom right to prevent their employees from obtaining health care coverage from others.  And this is a right that, even under RFRA, cannot stand.  Religious Jews can't claim a religious right to be exempt from anti-theft laws if they decide that nobody should eat pork and therefore go around destroying all the pork.  And a Religious Jewish employer can't go around refusing lunch breaks to their employees because the employees might go to the local BBQ Rib joint on the break.  That's not how democracy *or* freedom works.

And yet, if one has to accept the claim that even providing health care under the ACA at all violates their religious beliefs so long as the net result of compliance is more people covered for contraception, this claim would pass muster, and go up against the Hobby Lobby least-restrictive/compelling interest test, which, when used in other contexts (such as the Equal Protection clause) is almost always fatal to any regulation at all.  


The solution, of course, is to overturn Hobby Lobby's decision to defer entirely to the challenger's characterization of what infringes their religious beliefs, as well as the decision to depart from the pre-Smith meaning of the least-restrictive/compelling interest test.   As soon as we make any inquiry into that characterization, two flaws immediately appear:

1) The employer's interest in seeing that their employees are denied health care can be seen as the real "religious liberty", and we can deny this as a legitimate interest protected by RFRA in the first instance; 


2) There is no "less restrictive" way of the government providing the contraception care in this instance which does not substantially burden the challengers' religious liberty because it is the providing of that care which creates the coverage, and under the challengers' own theory, they would be complicit in any event because the employing of the individual is what creates the coverage in question.

This does not require challenging the employer's fundamental religious conviction that contraception are bad and that the employer should not be required to do anything complicit in providing them.  It instead merely requires that Courts look to see whether the religious interest asserted by their "complicity" is really a "liberty" interest at all.  It also - to a lesser degree - requires a Court to balance the supposed interference with the religious interest with the government's interest generally (not just in providing contraceptive coverage but providing health care) as well as with any proposed alternatives that the objector suggests.  But I think this was what was always done, practically if not explicitly, both in pre-Smith cases and in pre-Hobby Lobby RFRA cases.

The Eighth Circuit opinion, instead, notes that once the government has conceded that the interest is sincere, the Court's inquiry regarding whether the government's action burdens that interest is at an end, because we must take the challengers at their word that their religious interests are being burdened, even though the challengers are often evasive as to what, exactly, burdens their religion.*  It then goes into the least-restrictive/compelling test merely by noting that the government has the burden of proving the lack of any alternative--something that is essentially unprovable.  It should be the burden of the Plaintiff - and the Court - to at least *suggest* an alternative.

The Court lists only one "least restrictive" alternative that the plaintiffs use a different way of opting out (one that does not provide the identity Third-Party Administrator to the government, although my own reading of Form 700 does not indicate this is even required).  Really?  Does the Eighth Circuit really think that the real problem with the notice was that the form asked them who the third party administrator is?  While one could mock the merits of that argument-filling the form out in English instead of Latin does the government a really-unwelcome solid-do you think the challengers would think of themselves as huge victors if they only could refuse to provide that one detail?  And do you think anyone has really won out if the government now has to  bear the costs of discovering this information (imagine the job posting - a Third-Party-Administrator-discoverer!).  It should be worth pointing out that there are cases where other challengers did not have to provide that information, and the Supreme Court decided to hear those cases along with this case.

Again, the case can be easily disposed of once one critically identifies the (sincere) religious objection that is *actually* being made.  The challengers want to deny their employees contraceptive care.  Not being complicit in providing contraceptive care is not the same thing as being permitted to deny others their right to obtain it from a third party.  Otherwise, watch out, because I can destroy your pork.

And, going forward, the Court must either put some limits on how challengers phrase RFRA, or alternatively revisit its decision in Hobby Lobby to treat the least-restrictive/compelling interest test in an essentially-fatal way.  Otherwise, the law becomes subservient to religion generally, with any challenge to government action (civil or criminal) simply be a bare assertion that the action infringes on liberty, which can neither be challenged nor reasonably overcome in almost any instance.


*All that is really said is that they are forced to be "complicit" in providing contraceptive care burdens their religion.  But what "complicit" means is hopelessly vague.  


13 comments:

  1. I read the underlying issue a little differently, but with the same result.

    What I've found fascinating about the "substantial burden" question is that, in Hobby Lobby, the Court suggested that all it took to establish a substantial burden was 1) that the government required conduct contrary to an individual's religious belief; and 2) that the penalty for violating the law is substantial. To quote:

    "Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs."

    By contrast, all of the circuit court decisions until the most recent one have stated that the question also rests on the nature of the conduct required or prohibited. From the 5th Circuit decision:

    "A preliminary question at the heart of this case is the extent to which the courts defer to a religious objector’s view on whether there is a substantial burden. The inquiry has three components: (1) What is the adherent’s religious exercise? (2) Does the challenged law pressure him to modify that exercise? (3) Is the penalty for noncompliance substantial? It is well established that the court accepts the objector’s answer to the first question upon finding that his beliefs are sincerely held and religious. It is also undeniable that the court evaluates the third question as one of law. Although we have not directly addressed who decides the second question, all of our sister circuits that have considered contraceptive mandate cases have come to the same conclusion: The court makes that decision. We agree."

    This seems a pretty fundamental disagreement between the Court and most of the lower courts regarding the law, made more striking by the fact that many of the lower court decisions were made after the Hobby Lobby ruling. One could characterize it as a bit of a mutiny, it seems to me.

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    1. So that's an interesting point, but I think it is a little flawed.

      In Hobby Lobby, the Government's *only* argument regarding substantial burden was premised on the fact that Hobby Lobby, as a corporation, had no rights under RFRA. The Government went on to argue that the Green's rights were not substantially burdened by HL providing coverage because of the corporate separateness. The word "abortifacients" did not even make it into the brief at all. The Amicus Brief of the American College of Obstetricians and Gynecologists did make the "not an abortifacient" argument, but all the Court does in response is use the phrase "they consider to be abortifacients" in describing the Hahns and the Greens (the individuals who owned the companies at issue).

      So, basically, the "accept the plaintiffs at their word" dicta in Hobby Lobby was, well, dicta. The issue wasn't pressed by the Government, and although it was challenged by amici, it wasn't a focus.

      In contrast, in the lower courts here, the Government has challenged the substantial burden component, and not just on scientific grounds. On page 12 of their response to the Little Sisters' petition, the government says (correctly):

      The court of appeals emphasized that it was not questioning the sincerity or the “theological merit” of petitioners’ religious objections to the accommodation. But it explained that the question whether a regulation imposes a substantial burden cognizable under RFRA is a question of law that must be resolved by the court, not a question of fact controlled by the challenger’s sincere religious beliefs. After carefully analyzing petitioners’ challenges to the accommodation, the court concluded that petitioners had failed to establish the existence of a substantial burden because their challenges either rested on errors about how the accommodation operates or focused on the government’s arrangements with third parties rather than any burdens imposed on petitioners themselves. The court explained that although petitioners “sincerely oppose contraception, ... their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled” under federal law.

      That wasn't an issue in Hobby Lobby. In Hobby Lobby, once the corporation had RFRA rights of its own to exercise, substantial burden wasn't a live issue. Here, the Government concedes that the various entities have RFRA rights, but nevertheless argue that there is no substantial burden because of a lack of connection between the (conceded) sincerely-held religious belief and the government action they claim burdens that belief.

      That's why I think the Court has some wiggle room to walk back their position here, at least from how the Eighth Circuit characterized it. This "disagreement" you point out is mostly the lower courts ignoring the dicta seized upon by the Eighth Circuit.

      To the extent it is not dicta, it should be overturned, of course. Because Pork.

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    2. You like to make the "pork" argument in this post and its comments while failing to notice the government has a compelling government interest in ensuring People's legally acquired property is not stolen and the fact no less restrictive method exists other than to prohibit theft.

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    3. Of course they do, just as the government has an interest in providing contraceptive coverage to third parties. Of course, the government could vindicate this interest by creating safe zones for pork, so that the religious individual can simply avoid those safe zones. Or by creating a pork compensation system for those injured by pork theft.

      The broader point is that neither the Constitution not RFRA enshrined a private religious right to interfere with the rights of others. And so the objectors don't have a right to interfere with the government's private arrangements. Either the objectors can provide contraceptive coverage or they can opt out. What they can't do is opt out and insist nobody opts in to replace them. And that is the fundamental right the objectors are trying to vindicate.

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    4. “Of course, the government could vindicate this interest by creating safe zones for pork, so that the religious individual can simply avoid those safe zone”. -- We have such areas; they are called “private property”.

      “Or by creating a pork compensation system for those injured by pork theft.“ -- Again, You are misreading what People write. I said the government has a compelling interesting in the *prevention* of theft. Compensation for theft after the fact does not advance the interest of *prevention*.

      “The broader point is that neither the Constitution not RFRA enshrined a private religious right to interfere with the rights of others.” -- Which might be a valid argument if Anyone were making the explicit claim to such a right. Until Someone does, imputing such a claim is ignorant at best and dishonest at worst.

      “And so the objectors don't have a right to interfere with the government's private arrangements.” -- Expect the Objectors are not talking about “the government’s private arrangements” because those “arrangements” involve the Objectors and Their insurance policies.

      “What they can't do is opt out and insist nobody opts in to replace them.“ -- The Objectors are not making this claim. They are saying, if the government wants to come in after the fact and provide the products thru some means which does not involve the Objectors’ property (the insurance policy), the government would be free to do so. The key is whether the government is dragooning the Objector into having Their property (the insurance policy) used in the objected-to fashion. If the government wants to have the Employee fill out a form instead and, for example, make the products available via community health clinics funded by Medicaid, the government could do that today with a simple regulation change.

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  2. This may take a couple of comments to make sure the points are isolated and focused upon adequately. Please bare with Me.

    “But Hobby Lobby took Congress literally, and untethered the language from the pre-Smith caselaw.” -- No, the congress “took Congress literally” and added specific operative language to RFRA.

    In re “The problem--ignored by the Courts--was that this was false, and that the contraception that Hobby Lobby objected to were, scientifically speaking, not abortifacients.” -- The factual nature was not the issue in the case. What was the issue is the fact the religious beliefs in question say, “You must not do ‘___‘,“ and the ‘___’ in this particular case is the subsidy of the purchase of products which could reasonably prevent the implantation of a fertilized embryo into a uterine wall. The fact the Greens’ and the Hahns’ faith describes such products as “abortifacients” when Others do not is immaterial.

    In re “In other words, they aren't objecting to the form itself” -- While I agree the Catholic Church does not object to forms as forms, the church does object to any action which would foreseeably facilitate an action it otherwise prohibits. Therefore, what the Objectors in these cases actually object to is not the “a”, “b”, and “c” You claim per se. That fact is incidental because HHS could require the Employee seeking coverage to fill out a (postage pre-paid) form instead of the Employer.

    Nor do the Objectors say, “Congress is allowing them to decrease the number of people who are provided objectionable health care (by breaking the law), but only at the cost of a huge fine; which in turn, according to the challengers, should allow them to be excused from the law itself”. Instead They say, due to the wording of RFRA, They *are* excused from this particular regulation because less restrictive means exist to advance the government’s interest.

    In re “they claim a religious freedom right to prevent their employees from obtaining health care coverage from others” -- No, They certainly do not and a review of the briefs filed in these cases proves it. These briefs are readily available online. Please read Them or, if You have, please read them again.

    In re “That's not how democracy works.” -- Neither is mischaracterizing legal claims.

    In re “if one has to accept the claim that even providing health care under the ACA at all violates their religious beliefs so long as the net result of compliance is more people covered for contraception” -- Except that’s not the claim. While You have characterized the claim as such, that characterization is not the claim being made. Even if it were, if the government has available an alternative approach which does not require the Objectors to violate Their faith while still providing coverage to Anyone seeking it, insisting on using the current approach strains credulity.

    In re “two flaws” -- There is no evidence Anyone has claimed an “employer's interest in seeing that their employees are denied health care”. Additionally, there is a less restrictive way of providing this coverage, which I note above: the Employee seeking the coverage can fill out the form, leaving the employer out of the matter entirely. To say nothing of the fact You are effectively advocating the overturning of *Thomas* with this proposed approach without showing *Thomas* to be incorrect and asking the court to ignore the plain meaning of the RFRA statute.

    In re ”even though the challengers are often evasive as to what, exactly, burdens their religion” -- I thought it was quite clear: the almost $40,000 per Employee per year in fines for adhering to Their faith. You have read the briefs in these cases, yes?

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    1. I don't think Thomas is contrary to my argument. Thomas relates to whether a Court can question a person's sincerity in the face of doubt. It, I assume, can be read to indicate that a Court can't find a claim of burden insincere because of a supposed hypocrisy in what the alleged religious compulsion. But it does not go so far as to say that a Court has to defer to the burden part of substantially burden once the individual identifies the sincerely held religious belief. And the problem is that no such belief is identifies other than a vague complicity. Without identifying what exactly is making the objector complicit, the court can't appropriately identify if it is an interest protected by RFRA on the first place, much less the government's interest in it. And that's why the vague reference to the form is insufficient. It is creative, sure: we can't provide the coverage and we can't tell you we can't provide the coverage....but I suppose congress has a compelling interest in not having their laws hijacked by Catch 22 situations which would render them unenforceable against anyone.

      Your other comments are appreciated but I will refrain from responding. Thanks for reading.

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    2. One other point. RFRA is just a statute of interpretation. The contraception mandate is unambiguous. That does not mean that there can be no opt outs. But it does mean that allowing an interpretation of RFRA that undermines the basic purpose of the clear text is prohibited, and it does no good to say that if that was what Congress wanted it could (theoretically) have written a different statute, such as Medicare for all.

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    3. Note: I am going to presume, by leaving this post open to comments, You are sincerely interested in open honest objective discussion of the matter and, therefore, ignore Your comment about “I will refrain from responding”. The only alternative is to conclude You just want to post things to the internet for some unidentified reason and to conclude SCOTUSBlog, which led Me to Your site in the first place, is giving You undue attention.)

      “Thomas relates to whether a Court can question a person's sincerity in the face of doubt.“ -- No, testing the sincerity of a religious belief has always been part of the court’s authority what *Thomas* says is “We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” I know of no reasonable way to interpret this in the fashion You suggest.

      “It, I assume, can be read to indicate that a Court can't find a claim of burden insincere because of a supposed hypocrisy in what the alleged religious compulsion.” -- Actually, what it means is the courts can inquire as to whether the religious belief is one sincerely held or used as a matter of convenience, such as when People arrest on marijuana possession claim to have had a sudden conversion to the church of marijuana; the courts have routinely found such claims to be insincere.

      “But it does not go so far as to say that a Court has to defer to the burden part of substantially burden” -- Nobody is arguing otherwise. Meanwhile, as noted in *Thomas*, “Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.”

      “And the problem is that no such belief is identifies other than a vague complicity.“ -- Regardless of whether You find the notion vague, the Objectors’ beliefs prohibit a certain course of action for which HHS subsequently levies massive fines; the restraint from such action is the “exercise” of religion in question and it is that exercise which is burdened.

      ”Without identifying what exactly is making the objector complicit, the court can't appropriately identify if it is an interest protected by RFRA on the first place, much less the government's interest in it.“ -- Clearly, the government is capable of articulating what interest it has in requiring this specific course of action; otherwise, the entirety of the government’s case falls apart.

      “we can't provide the coverage and we can't tell you we can't provide the coverage” -- Please point to where in the Objectors’ briefs this statement is made.

      “but I suppose congress has a compelling interest in not having their laws hijacked by Catch 22 situations which would render them unenforceable against anyone.“ -- If there were such a situation, congress could easily amend the statute to address the matter.

      “it does mean that allowing an interpretation of RFRA that undermines the basic purpose of the clear text is prohibited” -- Where in the PPACA is there “clear text” which says there must be contraception coverage?

      “it does no good to say that if that was what Congress wanted it could (theoretically) have written a different statute, such as Medicare for all.“ -- Why not? Congress knows how to write a statute, does it not?

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  3. In re “Does the Eighth Circuit really think that the real problem with the notice was that the form asked them who the third party administrator is” -- You seem to be coming awfully close to asking the courts to evaluate the theological correctness of a Person’s beliefs. If One says They would be satisfied with that arrangement, what court has any legal authority to say, “No, You don’t want that outcome”?

    In re “the government now has to bear the costs of discovering this information”, until the law says otherwise, HHS may have to do just that. You seem to enjoy mocking the Objectors’ beliefs as if Your ability to mock carries any legal weight against a clearly written statute. I really don’t know why.

    In re “the case can be easily disposed of once one critically identifies the (sincere) religious objection that is *actually* being made” -- You are assuming the objection raised is insincere. Do You have proof to back Your assumption or are You resorting to stereotypes and/or conjecture? It's hard to tell.

    In re “the Court must either put some limits on how challengers phrase RFRA, or alternatively revisit its decision in Hobby Lobby to treat the least-restrictive/compelling interest test in an essentially-fatal way” -- No, it need not do either and I contend it has no legal authority to do either because both approaches would require the courts to either ignoring the unambiguous text the congress enacted without any legal basis or rewrite the statute which, being judicial entities, they have no legal authority to do.

    In re “Otherwise, the law becomes subservient to religion generally” et al. -- No, nothing, for example, prohibits the government from opening up Medicare to All; the court said so in Hobby Lobby how *Lee* and discrimination bans provide clear examples of situations where the requirements of RFRA are fulfilled. What will happen is legislating will have to be a more creative endeavor to ensure Everyone is as accommodated as is practical.

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  4. "“And the problem is that no such belief is identifies other than a vague complicity.“ -- Regardless of whether You find the notion vague, the Objectors’ beliefs prohibit a certain course of action for which HHS subsequently levies massive fines; the restraint from such action is the “exercise” of religion in question and it is that exercise which is burdened."

    That's a formulation of the "substantial burden" test with which all of the federal circuit courts but one that have ruled on this issue have not accepted. Instead, they are actually looking at the nature of the burden on belief, and have generally concluding that the act of asking for an exemption from a generally applicable law is not itself a substantial burden, claims of "complicity" notwithstanding.

    "In re “the Court must either put some limits on how challengers phrase RFRA, or alternatively revisit its decision in Hobby Lobby to treat the least-restrictive/compelling interest test in an essentially-fatal way” -- No, it need not do either and I contend it has no legal authority to do either because both approaches would require the courts to either ignoring the unambiguous text the congress enacted without any legal basis or rewrite the statute which, being judicial entities, they have no legal authority to do."

    They have the absolute legal authority to interpret the "least restrictive" test in such a way that it is consistent with how it was interpreted prior to Alito's dictum in Hobby Lobby. One could argue that they that have an obligation to, in fact. To couple the idea that "substantial burden" is determined solely by the penalty attached to not obeying the law with the idea that the "least restrictive" means will always be something that the the government hasn't thought of and can't realistically do is, as one judge said, to subject the entire Federal code to strict scrutiny. It's not possible to run a country like that.

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    1. Yes, I think this is right. Kennedy's concurring opinion seems like it was specifically written with these cases in mind:

      Yet neither may that same exercise unduly
      restrict other persons, such as employees, in protecting
      their own interests, interests the law deems compelling.
      In these cases the means to reconcile those two priorities
      are at hand in the existing accommodation the Government
      has designed, identified, and used for circumstances
      closely parallel to those presented here. RFRA requires
      the Government to use this less restrictive means. As the
      Court explains, this existing model, designed precisely for
      this problem, might well suffice to distinguish the instant
      cases from many others in which it is more difficult and
      expensive to accommodate a governmental program to
      countless religious claims based on an alleged statutory
      right of free exercise. Ante, at 45–46.

      It seems Kennedy thinks that to the extent that the claim of religious freedom is merely an intent to interfere with the rights of others, that right is not one protected by RFRA at all, and appears to argue that the closer a religious burden claim seems to look like a right-to-interfere, the lesser the government's burden should be.

      Because of this concurrence, I think the odds that the Supreme Court will rule for the Objectors is close to zero. The more interesting question is whether the majority will include Roberts, Alito, Scalia, and/or Thomas, how narrow the decision will be, and whether we have another 5-4-Kennedy-siding-with-the-liberals-problem (i.e., like in the gay marriage case, a situation where Kennedy writes an opinion that really stands only for his own beliefs, that the liberals do not necessary think right but choose to join rather than concur, which thus makes a mess of the broader jurisprudence).

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