In advance of next Tuesday’s oral argument in the HHS mandate cases, let’s consider the reply brief that the Obama administration filed last week in Hobby Lobby.
In my two posts on DOJ’s Round 2 brief in Conestoga Wood, I’ve already critiqued DOJ’s arguments that closely held for-profit corporations are categorically incapable of engaging in exercises of religion and that the HHS mandate does not substantially burden religious objectors. I see nothing new in DOJ’s reply brief on these threshold issues, so I’ll rest on what I’ve written.
Once we’re past these threshold issues, RFRA’s strict-scrutiny test applies. Under that test, the federal government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Emphasis added.)
DOJ spends nearly all of the second half of its reply brief arguing that the HHS mandate furthers a compelling governmental interest. I’ll explain in my Part 2 post why I think its argument is deeply flawed. But for purposes of deciding the Hobby Lobby and Conestoga Wood cases, the Supreme Court has a simple path available to it that does not require it to sort through the competing arguments on compelling interest.
Specifically: It is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist, as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a less restrictive means that, it says, “strike[s] the appropriate balance between respecting the religious considerations raised by non-profit religious organizations and increasing access to important preventive services for women.” RFRA therefore requires, at a minimum, that the Obama administration also make the accommodation arrangement available to others who object to the HHS mandate on religious grounds.
Nothing in this argument, as I see it, requires that an objector agree that the accommodation rule would eliminate his objections. It ought to be enough that the objector finds the accommodation even marginally less objectionable or less burdensome than the HHS mandate. (Hobby Lobby’s brief—pp. 5-6, 58—indicates that that is its position.) In other words, in challenges to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. (Whether the accommodation satisfies RFRA is being litigated in the challenges brought by the Little Sisters of the Poor and other religious nonprofits.)