The Court has ruled that under RFRA, the Religious Freedom Restoration Act, Congress cannot require closely held corporations to provide contraception coverage as part of ObamaCare when there are readily available alternatives to serve the government’s objectives that would not tread on conscience rights. So said a five-Justice majority led by Justice Alito, including a whittle-it-down concurrence by Justice Kennedy emphasizing the narrowness of the ruling. Why narrow?
* “Closely held” is important — private corporations like Hobby Lobby and Conestoga are closer to surrogates for the owning family than are publicly traded corporations.
* The available alternatives are important — in many closely related situations it won’t be as easy to devise a workaround that serves the government’s policy objectives, and in those situations the claims of conscience may lose out.
* And the basis of the decision in RFRA, that is to say, statutory rather than constitutional law, is important. Congress is free to tinker with RFRA, Obamacare law, or both if public opinion is dissatisfied with the outcome. Although objectors may later raise First Amendment arguments, today’s decision in no way decides those issues.
Earlier coverage here. Cato’s brief is here, and Ilya Shapiro is out with a statement for Cato (“Obamacare’s contraceptive mandate had to [fail under RFRA] because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs.”)
P.S. My colleague Julian Sanchez argues that the outcry against Hobby Lobby had almost nothing to do with whether any actual female employees will gain or lose access to contraception, and was instead was almost entirely a matter of cultural signal-sending.