Eugene Volokh hosts a genuinely excellent recap of the issues in the Hobby Lobby case before the Supreme Court, written by Stanford law professor Michael McConnell. Professor McConnell identifies four questions the Supreme Court must consider:
(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
(4) Has the government satisfied the least restrictive means test?
His answer to each of those questions is “No” and he goes into some depth in the reasoning behind his answer. Here’s a brief sample:
Even accepting (arguendo) the notion that insurance coverage for contraceptives is a compelling interest, it is hardly obvious that the least restrictive way to provide that coverage is by forcing employers to provide it. Indeed, the government’s argument that Hobby Lobby should just drop insurance altogether demonstrates that the government actually does not view it as essential that people receive insurance through their employers as opposed to from other sources. The important point for the government, it seems, is that employees who work at Hobby Lobby have access to this coverage from some source.
This could be structured in any number of ways. The government could extend the same accommodation to the small number of businesses with this conscientious objection that it already has to religious employers. It could subsidize the contraceptive coverage directly. Employers with conscientious objections could compensate for not providing contraceptive coverage by adding other valuable coverage to the employees’ plans, thus ensuring that the employer receives no financial benefit from the objection and that the employees bear no net burden. The government could allow employers to substitute cash for coverage on a tax-free and tax-deductible basis.
If you’re at all interested in this case, whether in agreement with the government’s position, disagreement, or simple curiosity, you owe it to yourself to read this post.