Let me reply briefly to Richard Epstein’s final response in our debate over his Hobby Lobby essay. (See my initial critique, his first response, and my first reply.)
First, Epstein maintains that his “normative position”—that in competitive markets the government does not have any compelling interest in barring discrimination—“dovetails” with the meaning of compelling interest in RFRA. I don’t see how ordinary statutory interpretation (including consideration of RFRA’s reference to Sherbert v. Verner and Wisconsin v. Yoder) would yield this very surprising result.
Second, Epstein continues to argue that Justice Alito supposedly made a “tactical mistake” in not deciding the case on the basis of Epstein’s understanding of lack of compelling interest. But Epstein’s argument doesn’t work. For starters, he can’t have it both ways: If he is going to descend from the higher level of the judicial ideal to the lower level of the “practical politics of the bench,” then he also needs to confront the reality (which he seems to concede in his earlier post) that Alito couldn’t have garnered a majority for the Epstein position. He can’t fault Alito for one alleged tactical mistake yet ignore the consequences if Alito had adopted the tactic of pursuing Epstein’s favored holding.
Epstein does—for the first time, I think—consider the possibility that his reading of Alito’s use of the accommodation for religious nonprofits might be wrong. It’s very strange that he now seems to think that there are no means less restrictive of religious liberty than the accommodation (“In my view, this method is not just a viable alternative, but an ideal method which could apply across the board”), as he explains in his essay that the “off-balance-sheet financing authorized by the HHS [accommodation] regulations cannot be tolerated” and that the “only reasonable accommodation … is for the government [not insurers or administrators] to foot the entire bill” (p. 63).
Epstein opines that Justice Sotomayor, in her dissent from the Wheaton College order, quoted a sentence from Alito’s Hobby Lobby opinion about the accommodation “with telling effect.” But, as I’ve explained, Sotomayor is wrong. (For fuller explanation, I’ll again refer the reader to this post and to point 3 here.) Jonathan Adler also makes the same point nicely. How odd that Sotomayor seems to fare better with Epstein than she did with Justice Breyer (who didn’t dissent in Wheaton College).