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Selected Posts on Hobby Lobby



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In advance of next Tuesday’s oral argument in the HHS mandate cases, here’s an outline of posts of mine that bear on the major issues:

1. Does the HHS mandate substantially burden the plaintiffs’ exercise of religion?

a. Is a for-profit corporation categorically incapable of engaging in an exercise of religion for purposes of RFRA? [No]

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations

EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA

EPPC Amicus Brief on Government’s Parade of Horribles

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 1

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1

Can a For-Profit Corporation Have a Racial Identity?

b. Is the burden of which plaintiffs complain too attenuated and remote to be substantial? [No]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2

c. Are the individual plaintiffs burdened by the HHS mandate? [Yes]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2 (last paragraph)

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2 (last paragraph)

2. Can the government satisfy both prongs of the strict-scrutiny test? [No]

a. Does the HHS mandate further a compelling governmental interest? [No]

On the HHS Mandate’s “Sieve” of Exceptions

DOJ’s Reply Brief in Hobby Lobby—Part 2

DOJ’s Reply Brief in Hobby Lobby—Part 3

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

b. Is the HHS mandate the least restrictive means of furthering the asserted governmental interests? [No]

[Addendum:] The “Accommodation” as Less Restrictive Means

DOJ’s Reply Brief in Hobby Lobby—Part 1

The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

There are also some tangential issues that I’ve addressed in detail. On the irrelevance to the substantial-burden inquiry of the fact that large employers do not have a legal duty to provide health insurance, see:

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?

Reply to Lederman on “Substantial Burden”—Part 1

Reply to Lederman on “Substantial Burden”—Part 2

On whether the drugs and devices that Hobby Lobby objects to can operate to kill human embryos, see:

On Embryo-Killing “Contraceptives”



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