But the majority opinion makes a sharp, clear distinction that it's very important for people to understand before they accept the invitation to become inflamed over the horrible prospect of religious exemptions from laws that restrict businesses that are causing harm to others.
Under the Religious Freedom Restoration Act, when the federal government imposes a substantial burden on the exercise of religion, it must justify that burden by showing that it is the least restrictive means of achieving a compelling governmental interest. In Hobby Lobby, the compelling governmental interest is comprehensive preventive health care for women, and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest. There are other ways the government could get the cost of contraceptives covered, ways that wouldn't rope in the employer.
So the government's interest could be served without imposing the burden on religion.
But when the government bans race discrimination, it is serving a compelling interest in banning race discrimination and there is no alternative way to achieve that end. From the majority opinion:
The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.With race discrimination, the corporation that gets the burden is the source of the harm to others that the government seeks to eliminate. That can only be done by regulating the business. It's automatically the least restrictive way to meet the compelling interest.
As Chief Justice Roberts famously said (in another context): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Making employers cover particular health needs of employees is tapping them to provide a benefit. The corporation is not the source of the harm. It's the source of jobs. Historically, businesses have included health insurance as part of the pay package, and then the employees are getting their personal health-care needs met with this benefit, but there are other ways that health care could be funded. And that's why the government in Hobby Lobby couldn't show that it had used the least restrictive alternative.
So don't think that Hobby Lobby would apply to situations where the business is itself inflicting the harm to others that the government wants to alleviate. So let's say that in the future the federal government would like to ban employment discrimination against gay people, and a business wants to use RFRA to claim an entitlement to continue to discriminate. Quite aside from the difficulty of expounding a sincere religious belief that is substantially burdened by needing to refrain from discriminating, the government's argument that banning discrimination would easily satisfy the least-restrictive-alternative requirement.
The way to stop discrimination on the basis of sexual orientation is to stop discriminating on the basis of sexual orientation.
Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose.