Bench Memos

Hobby Lobby: The “Accommodation” as Less Restrictive Means

As I spelled out in a pre-argument post, it is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist—and that it therefore violates the federal Religious Freedom Restoration Act—as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that it says is less restrictive of their religious liberty. It is conceivable that a minimalist resolution of the Hobby Lobby case on this ground might garner a supermajority or even unanimity on the Court.

I’ve seen some confused discussion about what such a holding would involve, so I’d like to reiterate what seems to me straightforward:

As compared 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. If the Court rules against the HHS mandate on the ground that the accommodation is a less restrictive means, there would be no reason for it to express any view on whether the accommodation itself satisfies RFRA. Among other things, that question hasn’t been briefed at all in this case, and it is the subject of pending litigation brought by religious nonprofits.

Similarly, for purposes of Hobby Lobby’s challenge to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA even though Hobby Lobby has not agreed that the accommodation would satisfy RFRA. Because the accommodation has never been offered to Hobby Lobby, Hobby Lobby has had no reason to assess its adequacy. (Indeed, the accommodation wasn’t even finalized until after the Tenth Circuit ruled in favor of Hobby Lobby.)​ Further, Hobby Lobby’s arguments about why the HHS mandate doesn’t further a compelling governmental interest—the first prong of RFRA’s strict scrutiny—would also apply against the accommodation.

In sum (and contrary to what Linda Greenhouse, near the end of her latest online column, seems to suppose), a resolution of the Hobby Lobby case on this minimalist ground would not mean that Hobby Lobby and other for-profit challengers would have to accept the accommodation. Nor would such a resolution eliminate the prospect that the Court would have to address, a year or so down the road, the separate arguments that the accommodation does not further any compelling interest and that it is not the least restrictive means of advancing any such interest.

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