A couple of additional observations on the Obama administration’s supplemental brief in the Little Sisters cases, on top of my original post and Michael McConnell’s initial critique:

1. The Obama administration contends (on p. 11) that the arrangement outlined by the Supreme Court (a) somehow shows that the existing “accommodation” rule doesn’t impose a substantial burden on the exercise of religion (within the meaning of RFRA), and (b) isn’t “materially less restrictive” of religious liberty than the accommodation is.

This contention is absurd in two respects. First, the accommodation, unlike some plausible understandings of the Court’s alternative, requires objecting employers to take actions that violate their religious consciences. Second, it subjects those employers to massive fines for refusing to take those actions. Together those requirements plainly impose a substantial burden and are much more restrictive of religious liberty than the alternative that the Court’s question envisions.

2. The Obama administration asserts (p. 14) that the Court’s alternative “would impose real costs on the parties whose rights and duties are affected—including objecting employers.” But while its professed concern for objecting employers is touching, the Obama administration never provides any explanation—not a word—of what those supposedly “real costs” to anyone would be. Instead, it concedes (pp. 14-15) that the Court’s alternative would “still ensur[e] that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”