In previous years, the Court released ... (click to view)
Editor's Note :
In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- we would not expect orders granting certiorari today.
Justice Kennedy write to respond, in part, to Ginsburg's characterization of the majority opinion, saying that it "does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."
Kennedy's opinion emphasizes that in this particular case, a mechanism for accommodating employers is "already in place" so that the majority opinion does not require the Govt to create "a whole new program or burden on the Govt"
Our symposium on the Hobby Lobby decision will include guest posts from: Dawn Johnsen (Indiana U.) Travis Weber (Family Research Council) Ayesha Khan (Americans United for Separation of Church and State) National Women's Law Center, Orlando Snead (Notre Dame) Kent Greenfield (Boston College) Kevin Walsh (U. Richmond) and John Eastman (Chapman). Lyle will of course have a report on the opinion, and Amy will be covering it "In Plain English."
The majority opinion, by holding that the nonprofit accommodation is a less restrictive means for accommodating closely held for-profit business suggests (at least to me) that the non-profits who object to that process (because they don't want to have to certify that they object to providing contraceptive coverage) are in trouble. Seems unlikely the Court would say that this is a less restrictive means in this case, only to later hold that it is unconstitutional. But that's a very quick reaction.
The first reactions from other news sources overread Hobby Lobby significantly. The Court makes clear that the government can provide coverage to the female employees. And it strongly suggests it would reject broad religious claims to, for example, discriminate against gay employees.
More on the closely held question: We have no occasion in these cases to consider RFRA's applicability to publicly traded corporations . The companies in the cases before us are closely held corporations each owned and controlled by members of a single family and no one has disputed the sincerity of their religious beliefs.
To be clear: the Court holds that corporations (including for-profit corporations) are "persons" for purposes of RFRA. The additional question was whether corporations can have a religious "belief" within the meaning of RFRA. On that question, the Court limits its holding to closely held corporations, leaving for another day whether larger, publicly traded corporations have religious beliefs.
Paraphrasing more from Justice Alito's opinion: The dissent is concerned about the possibility of disputes among the owners of a privately held corporation about this coverage. State corporate law provides a ready means for resolving any conflicts by (for example) dictating how a corporation can establish its governing structure, and courts will turn to that structure and the underlying state law in resolving such disputes.
The majority decision sidesteps the question of whether the Govt has a compelling interest in providing women FDA-approved contraception at no cost -- it assumes the Govt has this interest, but holds that the narrow tailoring requirement of RFRA is nonetheless not satisfied.