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So far we haven't said much about the strict scrutiny analysis that comes at the end of the Hobby Lobby opinion. That makes sense given our comparative advantage as corporate law scholars. However it does matter, both in general and for a few points we have discussed, such as Eric's call for paying attention to the interests of Hobby Lobby's employees and Jayne's skepticism as to whether a workable accommodation is truly available.

The majority assumed that assuring that women had access to contraception is a compelling interest, but argued that the mandate is not the least restrictive means to achieving that interest. The Alito opinion considers two alternatives, ultimately resting more on allowing Hobby Lobby to use the already existing accommmodation for religious nonprofits, under which the insurers pay for the contraceptive coverage. If this works, it means that the RFRA objection is met while the employees are still covered. I say "if" because the Court may yet strike down that accommodation as itself invalid under RFRA. That would be a nasty bait-and-switch, but given Justice Kennedy's concurrence, I remain hopeful that at least he will not do so.

The contrast between Alito and Kennedy illustrates at least a different tone in how they apply strict scrutiny. In law school we learn this is strict in theory but fatal in fact, which seems to fit Justice Alito's tone. However, sometimes the balancing is more nuanced and even-handed, as in Justice Kennedy's concurrence. Much anxiety over the opinion stems from a sense that Justice Alito's tone will prevail in future cases.

That could be problematic because of an inherent tension in RFRA. I am a big fan of the statute, but there is merit to some concern. RFRA applies to statutes that do not discriminate against religions either on their face or by intent, but only in effect as applied in some circumstances. Given our rich array of statutes and religious beliefs, that can happen quite a lot. If everytime it does we are going to re-write the law unless the government can satisfy a very toughly-applied strict scrutiny standard, we may be doing a lot of re-writing.

This concern isn't new. It is the core of Justice Scalia's refusal to follow a strict scrutiny standard in Employment Division v. Smith, the case that RFRA overturned. In essence, Scalia chose to follow rational basis scrutiny in such circumstances. But if strict scrutiny risks being too tough, rational basis scrutiny is too weak, providing in effect no religious liberty protection unless statutes explicitly regulate religion. Is a compromise possible?

That leads me to the missed opportunity and my doomed proposal.

The missed opportunity. There is of course an intermediate scrutiny standard of review available in constitutional law jurisprudence. That standard would allow a more even-handed weighing of the competing interests, not favoring plaintiffs as heavily as strict scrutiny or the government as heavily as rational basis. Moreover, precedent was readily available. In free speech cases (a clause separated from free exercise by a semi-colon), in time, place and manner cases the Court basically applies intermediate scrutiny. These cases occur where a statute does not regulate speech explicitly or by intent, but still has the effect of restricting speech--precisely analogous to the situation in Smith and RFRA.

So why did no one in Smith take the intermediate scrutiny route? Or, why didn't Congress do so in RFRA? Beats me. That is actually two missed opportunities.

The doomed proposal. It is still technically possible to re-visit the point. Congress could always amend RFRA. But the statute is now helplessly caught up in the culture wars, in stark contrast to the near unanimity of its passage. It is very hard to envision this weakening of RFRA passing as long as Republicans retain blocking power in the House, Senate, or Presidency.

Which leads to a more complicated version of the doomed proposal. What about a grand bargain? Republicans agree to amend the federal RFRA, and in return Democrats agree to pass the intermediate scrutiny version in a large number of states that currently have no RFRA. To my mind, it's not even a compromise--the result is better at both the federal and state levels. That's not the way the parties see it, but still each side gets a lot out of this. Alas, they both lose something too. Given the state of current politics, I can't see such a bargain working. The spirit of compromise is weak, and both sides are having too much fun rallying their bases with Hobby Lobby.

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So far we haven't said much about the strict scrutiny analysis that comes at the end of the Hobby Lobby opinion. That makes sense given our comparative advantage as corporate law scholars. However it does matter, both in general and for a few points we have discussed, such as Eric's call for paying attention to the interests of Hobby Lobby's employees and Jayne's skepticism as to whether a workable accommodation is truly available.

The majority assumed that assuring that women had access to contraception is a compelling interest, but argued that the mandate is not the least restrictive means to achieving that interest. The Alito opinion considers two alternatives, ultimately resting more on allowing Hobby Lobby to use the already existing accommmodation for religious nonprofits, under which the insurers pay for the contraceptive coverage. If this works, it means that the RFRA objection is met while the employees are still covered. I say "if" because the Court may yet strike down that accommodation as itself invalid under RFRA. That would be a nasty bait-and-switch, but given Justice Kennedy's concurrence, I remain hopeful that at least he will not do so.

The contrast between Alito and Kennedy illustrates at least a different tone in how they apply strict scrutiny. In law school we learn this is strict in theory but fatal in fact, which seems to fit Justice Alito's tone. However, sometimes the balancing is more nuanced and even-handed, as in Justice Kennedy's concurrence. Much anxiety over the opinion stems from a sense that Justice Alito's tone will prevail in future cases.

That could be problematic because of an inherent tension in RFRA. I am a big fan of the statute, but there is merit to some concern. RFRA applies to statutes that do not discriminate against religions either on their face or by intent, but only in effect as applied in some circumstances. Given our rich array of statutes and religious beliefs, that can happen quite a lot. If everytime it does we are going to re-write the law unless the government can satisfy a very toughly-applied strict scrutiny standard, we may be doing a lot of re-writing.

This concern isn't new. It is the core of Justice Scalia's refusal to follow a strict scrutiny standard in Employment Division v. Smith, the case that RFRA overturned. In essence, Scalia chose to follow rational basis scrutiny in such circumstances. But if strict scrutiny risks being too tough, rational basis scrutiny is too weak, providing in effect no religious liberty protection unless statutes explicitly regulate religion. Is a compromise possible?

That leads me to the missed opportunity and my doomed proposal.

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