Justice Ginsburg’s dissent in Hobby Lobby purports to offer three independent grounds for ruling against Hobby Lobby: (1) for-profit corporations have no rights under the Religious Freedom Restoration Act, as they are not persons capable of engaging in an exercise of religion (pp. 13-20) (again, Justices Breyer and Kagan don’t embrace this ground); (2) the HHS mandate does not impose a substantial burden (pp. 20-23); and (3) the government has shown both that the HHS mandate furthers a compelling governmental interest (pp. 23-27) and that it is the least restrictive means of furthering that interest (pp. 27-31).
For reasons I have spelled out before, I think that Ginsburg is wrong on all counts.
I’d like to focus here on how feeble Ginsburg’s response (pp. 29-30) to Justice Alito’s majority opinion is on the question whether the existence of the so-called accommodation for religious nonprofits means that the government flunks the least-restrictive-means prong. Again, keep in mind that Alito used the accommodation (and the government’s robust claims about its supposed virtues) merely to show that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means of furthering its (supposed) compelling interest. In other words, because, on the government’s own account, the accommodation would be less restrictive than the HHS mandate of Hobby Lobby’s religious liberty (while serving the government’s stated interests equally well), the government failed to establish that the HHS mandate was the least restrictive means of furthering its interests.
What does Ginsburg have to say to dispute Alito on this point? Nothing, really.
First, Ginsburg contends that the majority “hedges” by not deciding whether the accommodation would itself satisfy RFRA. But what Ginsburg disparages as a hedge is simply the properly limited use that Alito makes of the accommodation. (A mere three days later in their Wheaton College dissent, Ginsburg, Sotomayor, and Kagan falsely claimed that the Court “retreat[ed]” from a supposed embrace of the accommodation in Hobby Lobby.)
Second, Ginsburg complains in a footnote (30 n. 27) that Hobby Lobby “barely addressed” the accommodation in their briefing and that the majority “is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations.” According to Ginsburg, “RFRA cannot sensibly be read to ‘requir[e] the government to … refute each and every conceivable regulation,” especially where the alternative on which the Court seizes was not pressed by any challenger.” (Citation omitted.)
But it’s the government that had the burden of demonstrating that the HHS mandate was the least restrictive alternative. Far from asking the government to “refute each and every conceivable” alternative, Alito relied on the government’s own accommodation to find that the government had failed to meet its burden. (Ginsburg also shifts in a few sentences from acknowledging that Hobby Lobby did raise the accommodation—as her backhanded “barely addressed” concedes—to claiming, falsely, that it was “never suggested in the parties’ presentations.”)