Bench Memos

Selected Posts on Hobby Lobby

In advance of next Tuesday’s oral argument in the HHS mandate cases, here’s an outline of posts of mine that bear on the major issues:

1. Does the HHS mandate substantially burden the plaintiffs’ exercise of religion?

a. Is a for-profit corporation categorically incapable of engaging in an exercise of religion for purposes of RFRA? [No]

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations

EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA

EPPC Amicus Brief on Government’s Parade of Horribles

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 1

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1

Can a For-Profit Corporation Have a Racial Identity?

b. Is the burden of which plaintiffs complain too attenuated and remote to be substantial? [No]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2

c. Are the individual plaintiffs burdened by the HHS mandate? [Yes]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2 (last paragraph)

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2 (last paragraph)

2. Can the government satisfy both prongs of the strict-scrutiny test? [No]

a. Does the HHS mandate further a compelling governmental interest? [No]

On the HHS Mandate’s “Sieve” of Exceptions

DOJ’s Reply Brief in Hobby Lobby—Part 2

DOJ’s Reply Brief in Hobby Lobby—Part 3

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

b. Is the HHS mandate the least restrictive means of furthering the asserted governmental interests? [No]

DOJ’s Reply Brief in Hobby Lobby—Part 1

The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

There are also some tangential issues that I’ve addressed in detail. On the irrelevance to the substantial-burden inquiry of the fact that large employers do not have a legal duty to provide health insurance, see:

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?

Reply to Lederman on “Substantial Burden”—Part 1

Reply to Lederman on “Substantial Burden”—Part 2

On whether the drugs and devices that Hobby Lobby objects to can operate to kill human embryos, see:

On Embryo-Killing “Contraceptives”

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