I’m delighted to pass along this item from Prof. Michael McConnell at Stanford. In my view, Michael is probably tied for most influential and respected Religion Clauses scholar in the nation today, both on the Free Exercise Clause side and the Establishment Clause side. He obviously has a perspective of his own on the underlying issues — he was, for instance, a forceful critic of the Court’s Employment Division v. Smith decision (a decision that I myself support, though I also support the existence of jurisdiction-by-jurisdiction Religious Freedom Restoration Act statutes). But his writings are always very much worth reading.
What follows is from Prof. McConnell.
Cutting through the politicized hype about the Hobby Lobby and Conestoga case (“Corporations have no rights!” “War on Women!”) the Justices during oral argument focused on four serious legal questions, which deserve a serious answer:
(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
(4) Has the government satisfied the least restrictive means test?
I think the answer to all four questions is “no.” I offer brief thoughts on each below.