"Justice Samuel A. Alito Jr. denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case..."

"... regarding contraceptives and religious rights. The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a 'once-right-wing religious leader but now dissenting evangelical voice,' said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife. But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well."

WaPo reports.

Whatever the truth is about whether Schenck really heard what he says he heard from Wright and whether Wright is accurately telling us now what she got from Alito and what she relayed to Schenck at the time — and it's easy to imagine that all 3 are kinda-sorta telling the truth! — I'd just like to say that there's a big difference between leaking the draft opinion — as was done with Dobbs — and revealing the outcome of a pending case.

With the leak of the draft opinion in Dobbs, we saw the text and we saw it before the opinion was released. With this report that the outcome was revealed in advance in Hobby Lobby, we're hearing about it after the fact and second hand. 

And I wonder if there have been other times when leaks like this one — assuming it happened — have occurred. Where there is no published draft opinion to show the leak to us all, there needs to be not only a leak, but a leak to someone with a motivation to talk about it. 

"A Portland transgender woman filed a lawsuit Wednesday claiming that the popular dating app Tinder is discriminating against transgender people by deleting their dating profiles."

The Oregonian reports.

Tinder offered the following statement Wednesday, saying it has not been discriminating:

“While we do not comment on pending litigation, we can say, categorically, that we do not ban users from Tinder due to gender identity. At Tinder, we fundamentally believe that gender is not binary and we support inclusivity and acceptance of all people, which is why we offer more than 37 gender identity options for our users in the United States.”

ADDED:  Are corporations people? Do they have the capacity to "fundamentally believe" anything? I'm reminded of arguments I beat to death when the Hobby Lobby case was pending. (Could a corporation have a religion that could be substantially burdened by having to pay for abortions?)

When a corporation says "we fundamentally believe X," isn't it simply deploying a slogan intended to win favor from customers? Isn't Tinder simply saying the corporation's position is what it's management has determined is most likely to enhance its profits? Or, especially in this case, it's saying what is most like to fend off lawsuits, like this one, which cost money and generate what we've determined is bad PR.

The "startling moment" in the argument about Obamacare and religious accommodations when Justice Kennedy said the word "hijacking."

Lyle Denniston describes today's oral argument in  Zubik v. Burwell:

“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students...

Four Justices remain from the majority... in the ruling two years ago... [in] Burwell v. Hobby Lobby Stores...  [Justice Kennedy, one of the 4, wrote a separate opinion endorsing] the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too.  But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans....

Kennedy's use of the word may suggest that he will not vote with the Hobby Lobby dissenters, and the prediction would be that there will be a 4-4 tie, setting no precedent and leaving the results from the Courts of Appeals in place. That is, the government's accommodation would work in most states but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota — the 8th Circuit.

Imagine a restaurant that "believes in hamburgers" and just wants to "persuade you to eat them."

If you can do that, you're ready for Jonathan Chait's analogy, quoted in "The New Republic Is for Sale Again":

A business is something that is trying to make money. If you’re in a town and you’re trying to sell hamburgers, and everyone wants pizza, you’d switch to pizza. But The New Republic believes in hamburgers. We think you need hamburgers, and we will continue to make hamburgers and try and persuade you to eat them.

Maybe I could imagine a restaurant that believes in vegetables — believes to such a degree that just getting you to eat them is all they want. They? A restaurant is an "it." The "it" doesn't believe. There's a "they" there for any belief to be going on. And there can be people working through a corporation who intend to stick to their beliefs. It's hard to imagine people caring so much about other people eating hamburgers — thinking "you need hamburgers" — that they'd invest and work in a restaurant that only lost money. You know, maybe Chait's writing would be more persuasive if he made good analogies.

But let's upgrade the analogy to a restaurant that serves locally grown organic vegetables and refuses to switch to cheaper, commercially grown stuff. Now, that we've got something we can imagine, we're empowered to see what's really wrong with Chait's analogy. The people running that restaurant would still want to make money, and they sure wouldn't want to lose money. And it would be a business.

It's bizarrely anti-business to think that if something is a business, making money is its only value. This is the same problem we saw in the context of the Hobby Lobby case, where some people thought that a for-profit corporation could not be protected by the Religious Freedom Restoration Act. If it was for profit, they argued, how could the people working through it have any religious values worth protecting? The corporation should have to be not for profit to merit any protection.

The Supreme Court takes 7 cases seeking Religious Freedom Accommodation Act exemptions from Obamacare.

Explained, at SCOTUSblog, by Lyle Denniston. These cases all involve non-profit religious organizations, which the federal government has tried to accommodate. You may remember the Hobby Lobby case. That had to do with for-profit corporations, which the government argued (unsuccessfully) had no right to accommodations under RFRA. In the new cases, non-profit organizations say that the accommodations they've been offered do not go far enough:

[The government's] accommodation requires the institution to notify the government of its objection; that, the government argues, is enough to excuse that institution from any direct role in providing contraceptives to their female employees. From then on, it is the government, working with the institution’s health insurer, that actually provides the free access to contraceptives for those employees....

The religious institutions have countered that, because the plans that will provide for the access are those institutions’ own heath insurance systems, the government will “hijack” those to provide the contraceptives. The mere act of notifying the government of a religious objection, those institutions have contended, works as a “trigger” to the government to go forward with contraceptive coverage through their plans. That, the institutions have said, confronts them with the choice of violating their religious beliefs or paying the heavy fines.

The organizations argue that their exercise of religion is substantially burdened by this level of involvement in the process. If this need to avoid even direct participation counts as a substantial burden on religion, then the government must have a compelling interest and it must meet that interest with the "least restrictive means."

In Hobby Lobby, the Supreme Court didn't decide but assumed that "the interest in guaranteeing cost-free access" contraception was compelling. It said that the government had certainly not used the least-restrictive means, because it didn't even give the accommodation that it worked out for not-for-profit organizations.

In these new cases, the question is whether even that accommodation is the least restrictive, a question Hobby Lobby left open. As the Court wrote in that case, the "most straightforward" accommodation "would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections."

The Supreme Court requires an exemption from the anti-beard policy for prisoners with religious needs.

As I predicted here, the prisoner who used the federal Religious Land Use and Institutionalized Persons Act to challenge the prison policy against beards has won in the Supreme Court.

Here's the PDF of the just-issued opinion in Holt v. Hobbs. It's unsurprisingly unanimous. The main opinion is written by Justice Alito, and there are concurring opinions by Justices Ginsburg and Sotomayor.

The prisoner showed that he had a sincere belief that his religion — Islam — requires him to have a beard, so it didn't matter that some Muslims believe a believe a beard isn't required or that the prisoner believed that if the government forced him to shave, he'd get "credit" in his religion for trying to do what was required. There was a substantial burden on his religion within the meaning of the statute, and that meant the government had to show that imposing that burden was necessary to serve its compelling interest.

As explained at the earlier post — at the first link, above — the government's assertions came across as ludicrous because the prisoner's beard was only one-half inch long. Justice Alito wrote:

Today in the Supreme Court, another religious accommodations case — this time, about beards in prison.

You remember all the fuss about Hobby Lobby, last summer's case about the Religious Freedom Restoration Act and the Obamacare requirement that employers provide health insurance coverage that includes birth control. The Religious Freedom Restoration Act doesn't apply to the states — not because Congress didn't try to impose it on the states, but because Congress only has the powers enumerated in the Constitution — really! — and the Supreme Court actually said that Congress didn't have an enumerated power for that. But then Congress passed the Religious Land Use and Institutionalized Persons Act, using its spending power to impose the same obligation to accommodate the religion of prisoners on any state accepts federal money for its prisons.

So the question up for argument today is whether the Arkansas prison rule against beards must give way to a prisoner's religion-based demand. The man is Gregory Holt, and it doesn't matter why he's in prison, does it? (If you're interested: He murdered a woman.) It doesn't matter which religion is the source of his need, does it? (If you're interested: He's Muslim.)

Under RLUIPA, if the no-beards rule puts a substantial burden on Holt's exercise of religion, the state must show that it's the least restrictive means for serving a compelling interest. (An added problem here is that Arkansas also allows quarter-inch long beards for prisoners with a medical need to avoid shaving. Holt wants a half-inch beard.)

The assertion of compelling interest is based on, first, the idea that a prisoner might — and I confess to giggling while typing this — hide things in his beard...


(That illustrates for this limerick.)

... and second, the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.

Is it obvious that Holt should win under this standard? What can you hide in a half-inch beard? As for escaping, don't let him escape! But, on the other hand, the Court might be especially deferential toward the judgment of the prison officials. Back in 2005, in Cutter v. Wilkinson, when a unanimous Supreme Court said that RLUIPA didn't violate the Establishment Clause, there was some talk about deference:

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a "compelling governmental interest" standard, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003). 

Grutter v. Bollinger is the affirmative action case that accepted classroom diversity as a compelling governmental interest. You see the point: Compelling is maybe not really all that compelling when we've got government authorities who need to exercise subtly context-based judgment.

Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103–111, p. 10 (1993)).

So RLUIPA applied to the state prisons should perhaps work quite differently from the Religious Freedom Restoration Act applied to the federal government. Deferring to the HHS's idea of what is compelling in the area of health insurance coverage is different from deferring to prison authorities about what's compelling in the area of prison security. The state prison authorities, the Court suggested in Cutter are more like those law school admissions committees in Grutter, more worthy of deference.

Freedom of religion includes not just the freedom to believe but the freedom to try to believe.

This is an interesting concept I noticed as I reread the Hobby Lobby case today, from Justice Kennedy's concurring opinion (boldface added):

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.

I've written a number of times on this blog that I think many people don't really believe the religion they profess to believe, and in the cases about freedom of religion — including Hobby Lobby — the courts tend to regard sincerity as a necessary component of a freedom of religion claim. But here is Justice Kennedy lumping striving to believe in with actual belief. There's still a sincerity issue, since one might pretend to believe without seeing the nonbelief as a problem to be overcome.

The Freedom From Religion Foundation settles with the IRS about investigating tax-exempt religious groups that get involved in politics.

AP reports:

"This is a victory, and we're pleased with this development in which the IRS has proved to our satisfaction that it now has in place a protocol to enforce its own anti-electioneering provisions," said [Freedom From Religion] co-president Annie Laurie Gaylor....

The FFRF argued that churches and other religious organizations have become increasingly more involved in political campaigns, "blatantly and deliberately flaunting the electioneering restrictions."

("Flaunting." Somebody — AP or FFRF — made the old flouting/flaunting mistake.)

Anyway, the point is — as we know from the big IRS scandal about Tea Party groups — if a group is too political, it doesn't qualify for a tax exemption. The same degree of enforcement should apply to all groups who seek tax-exempt status, whether they are conservative or liberal and whether they are religious or secular.

The IRS had said publicly in 2012 that it was not investigating complaints of partisan political activity by churches, leaving religious groups who make direct or thinly veiled endorsements of political candidates unchallenged.

Perhaps you think religious organizations should get special treatment from the IRS or, at least, you may not be comfortable with this issue getting resolved in a settlement between the IRS and the Freedom From Religion Foundation. I prefer applying the same rules to everyone and not giving special deference to religious groups, but the Religious Freedom Restoration Action requires the federal government to justify substantial burdens on religion with a compelling interest and narrow tailoring, as we saw in the Hobby Lobby case.

You can't expect the Freedom From Religion Foundation to push that point, however, and nothing about this settlement prevents other parties from raising that question in their own lawsuits. In any event, the IRS has a moratorium on investigations right now, but it will be interesting to see what happens in the future with this FFRF-satisfying "protocol" if some church that's used to telling its parishioners how to vote gets surprised by a deprivation of its tax-exempt status.

The blogging federal judge tangles with the blogging corporate lawprof.

Judge Richard Kopf — the one that advised the U.S. Supreme Court to "stfu" — criticizes Professor Bainbridge:

I received some critical reaction from “serious” law professors regarding my use of “stfu” in my Hobby Lobby post. Here is a particularly florid one from a corporation’s guy who so far as I know has never stepped into a trial courtroom let alone any other courtroom.

For a second and a half, I wondered which corporation Bainbridge might belong to. You'd think that a judge knocking another man's writing ("particularly florid") would take care not to let a grocer's apostrophe slip into his own ("corporation’s guy"). And what's with the gratuitous "never stepped into a trial courtroom" backed with the lame "so far as I know"? And "serious" with scare quotes? You'd think a federal judge lambasting a lawprof would be more careful, less pettish.

Kopf continues:

Without intending to shove a stick in the eye of such types, I encourage them to read Christopher M. Fairman, FUCK, 28 Cardozo Law Review 1711 (2007). I then encourage them to grow up.

A violent metaphor, couched in denial, followed by an appeal to authority — a serious lawprof. I guess we're supposed to assume the appropriateness of a well-deployed "fuck." I haven't read "FUCK" yet, but I may get to it. I'll think about it. For now, I'll just say that a stick is a phallic symbol and aimed into an eye is close enough to a rape metaphor that I'd caution against using it in the same sentence as yelling "FUCK."

And here's Professor Bainbridge who — having been told to "grow up" — calls the judge "DummKopf."

ADDED: The "florid" post of Bainbridge's accused Kopf of "(thinly veiled) anti-Catholicism," which (understandably) irked Kopf. Kopf says Bainbridge cited no evidence, but the evidence was Kopf's own statement that all the Justices in the Hobby Lobby majority are Catholic. That's some evidence, but not enough to meet the burden of proof in the courtroom Kopf has no knowledge of Bainbridge ever stepping into if somehow the question of Kopf's anti-Catholicism were an issue.

"Things you can do at #hobbylobby #keepyourrosariesoffmyovaries #prochoice."

Instagramming in-store activism protesting the Hobby Lobby decision:



More at "Crafty activists are trolling Hobby Lobby by rearranging in-store craft displays to spell ‘pro-choice’" in The Washington Post.

Shea’s fans — actress Wendi McLendon-Covey and columnist Dan Savage among them — have lauded the stunt as a clever, light-hearted way to draw attention to women’s health and the Hobby Lobby case. Her critics, meanwhile, have dismissed it as childish and misguided, less sticking it to “the man” and more inconveniencing a bunch of frazzled, innocent store employees....

In either case, what Shea terms a “protest” or a “prank” is almost indistinguishable from trolling — provoking annoyance and fury, merely to infuriate and annoy. That’s not a criticism, but it’s certainly an intriguing commentary on the state of political discourse these days. We have reached a point where the end-game, perhaps necessarily, isn’t to convert hearts and minds — it’s just to make some noise.

I'm torn. Making some noise = free speech. Yeah, speech doesn't necessarily persuade, but that's a good thing. I wouldn't say it's just noise. Speech is valuable precisely because it is not coercive. Sometimes we call speech "compelling," but it depends on what you say... and how you say it.

The form of expression matters. Here, the speaker appropriates the store's merchandise (and employee labor) as a medium. And the medium is (part of) the message. This prankery strikes me as sort of fun-loving, a way to vent frustration, but I'm distracted by 2 things:

1.  "Pro-choice" is the wrong word in the context where the business owners resisted being denied the choice about covering birth control and where that resistance is premised on their religion which they have the right to choose. Those who don't like the choices the business owners have made have the choice to shop elsewhere.

2. The pranksters are taunting those who have taken a strong stand based on religion. Are we really going to taunt people about religion? If you're inclined to say yes, do you really mean it, across the board for all religions, or is this a special willingness to taunt Christians? If it's special for Christians, why is that? Is it because you think it's okay to taunt what you think is the dominant group? If Christians like the ones your protesting against really were dominant, we shouldn't, in a democracy, end up with laws forcing them to do things against their conscience, so I'd say, the existence of the birth control mandate is evidence that they are not the dominant group, in which case, you're harassing a minority. Why would you do that? Is it that you feel safe picking on Christians?

ADDED: Have you ever moved merchandise around in a store as a way to make a political example? I'm trying to remember if I've ever done something like that. Moving books in a bookstore is the most common protest of this sort, like Code Pink's "Move Cheney's Book to the Crime Section of Bookstores!"

I'm seeing a list of 500 fun things to do at WalMart that I'm not going to link to. #1 is "Take shopping carts for the express purpose of filling them and stranding them at strategic locations." I didn't read the whole list, but it made me think of the "Shopping for Others" scene in the movie "Pecker."

"That American religion is involved in business and obsessed with sex is not news."

"What is surprising is that those who object to this kind of religion continue to hold on to a faith in the idea that religious freedom means protection only for the kind of religion they like, the private, individualized, progressive kind."

From a long post called "The impossibility of religious freedom," by Winnifred Fallers Sullivan, who is a professor of Religious Studies and law at Indiana University Bloomington, via Samuel Goldman, at The American Conservative.

"Several major gay rights groups withdrew support Tuesday for the Employment Non-Discrimination Act that would bolster gay and transgender rights in the workplace..."

"... saying they fear that broad religious exemptions included in the current bill might compel private companies to begin citing objections similar to those that prevailed in a U.S. Supreme Court case last week."

Rea Carey, [National Gay and Lesbian Task Force]'s executive director, said in an interview that “If a private company can take its own religious beliefs and say you can't have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them. We disagree with that trend. The implications of Hobby Lobby are becoming clear. We do not take this move lightly.... We've been pushing for this bill for 20 years."...

A new, separate push to rewrite ENDA may serve as a useful political tool for gay rights organizations that have used previous election cycles to pressure Democrats to take up legislation important to their concerns. The threat of withholding campaign donations during the 2010 campaign cycle helped push Obama and congressional Democrats to push for repeal of the military's "don't ask, don't tell" policy. And Obama's decision to announce his support for same-sex marriage before his reelection in 2012 also was seen as a nod to the gay community, a reliable and leading source of campaign donations to Democratic candidates....

Sen. Tammy Baldwin (D-Wis.), a lead sponsor of ENDA and the Senate’s first openly lesbian member, said Tuesday that she was reviewing the decision of groups to withdraw support for the bill. She noted that the bill’s religious exemption language had been tweaked last year to secure more support from Democrats and Republicans, “and there was clearly discomfort expressed at that point” by gay rights groups concerned that the changes might make it easier for employers to seek religious exemptions.

Well, this is great news for people who want to see politics get more vigorously contentious on the social issues, but it's very unpleasant for people in the middle — like me — who care about both gay rights and religious freedom.

After the Supreme Court issued its Hobby Lobby opinion, I blogged about the difference between a religious exemption from covering contraceptives for employees and a religious exemption from a ban on employment discrimination. That's about how the Religious Freedom Restoration Act (RFRA) might apply, and Congress has the power to exclude ENDA from RFRA. Senator Baldwin is talking about an exemption (in addition to RFRA) that is written into ENDA itself. You can read the ENDA exemption here. I don't read that as applying to businesses like Hobby Lobby, but it shows congressional intent to accommodate religion, so it would be hard to read that as excluding the applicability of RFRA.

So I can see why the gay rights groups want explicit language saying RFRA does not apply, unless they want to show some empathy for the religious needs of those who feel compelled to discriminate against gay people. Why would they?! (Answer: To help the Democratic Party.) Clearly, some of them have chosen to take a stand and make this conflict an issue right now. I think it's good that there are special interest groups like this that are not simply fully allied with the political interests of Democrats (or Republicans). That's healthy. And painful.

"There's a good lesson in Justice Sonia Sotomayor's heated dissent from a Thursday order in the case of Wheaton College v. Burwell..."

"When making an argument, you should be cautious about imputing bad faith to your adversaries — not only because civility has intrinsic value but also because such aggression magnifies the embarrassment if you turn out to be mistaken."

Warns James Taranto, succinctly delineating the mistake: "In order to disprove the government's contention that the mandate is the least restrictive alternative, it is sufficient to establish that there is a less restrictive alternative.... But for the accommodation to withstand a RFRA challenge, the government would have to prove that it is the least restrictive alternative."

Rush Limbaugh saying "Pajama Boy types having sex, sex, sex/That's what it's all about" made me realize something about the political division over Obamacare and birth control.

It really is about sex. It's not about women. You may think women are getting a benefit, and we hear a lot of "War on Women" politics, but the real division is not between men and women. There are men and women on both sides of a line that is determined by sexual behavior and sexual attitudes.

First, here's the Rush monologue that got me thinking in these terms:

... I, and I assume a lot of you folks, too, we're from the old school where you provide for yourself.  We were raised that whatever you want or need, you go out and get a job and earn enough to buy it. If you can't afford it, then you put it off until you can.  But the last thing you do is ask somebody else.... But the thing I have learned is that men are totally supportive.  Today's young men are totally supportive of somebody else buying women their birth control pills. Make sure the women are taking them, 'cause sex is what it's all about.

Pajama Boy types having sex, sex, sex. That's what it's all about. Everybody wants it and whatever it takes to make it safe. And if it takes the taxpayers buying women birth control, the men are for it, too.  It's cheap insurance, and if this is what women want before they'll have sex, then fine.  So this is the change that you and I were slow to arrive to because we were brought up with the idea that sex has consequences and that it's somewhat special, and that if you want something you provide it yourself.  You don't ask somebody else....

See how revealing that is? There's this basic idea that people should earn their own money and pay for their own stuff. You're free to choose to do what you want — which might be to have sex — but you need to cover your own expenses. You can see that this is a moral precept, because it takes no account of the costs to all of us when children are born to women who are economically and emotionally unprepared and who do not have a stable household. To me, thinking pragmatically, paying for other people to use birth control seems like a way for society as a whole to save money, because I'm picturing planned pregnancies leading to better behaved, more educable children.

"I’m not in your bedroom... Obama’s in your bedroom."

Said Michael Potter, founder and CEO of Eden Foods, straining to try to stave off the bad press and threats of boycott in a phone call with a Salon reporter (Irin Carmon) who had reported on his company's Hobby Lobby-type lawsuit about contraception coverage.

Did he worry about the impact on his bottom line? “Oh my god,” he said, “from what we’ve seen the last couple of days, it’s a big deal.”

But he isn’t prepared to back off. “I worked my ass off at figuring out what to do on it. I worked hard on it and I made a decision,” he said. “The federal government has no right to do what they’ve done. No constitutional right, no standing.” Apparently, his apology only goes so far.

That "apology" business refers to the fact that Potter began the phone call with an apology for not responding to Carmon's request for a comment when she was working on the first article — "Organic Eden Foods’ quiet right-wing agenda/A crunchy, natural food company marketed to liberals discreetly sues to stop covering employees' contraception."

If your business is all about massaging minds with concepts like "organic" and the notion that good old cow's milk should give way to something milked from a bean, you need to know your customers. These are folks with manipulable minds... womanipulable minds.

"Women’s bodies are used as the defining and unifying issue to bring together people — men — to get them to behave in ways that are disadvantageous to women but prop up rulers."

A quote from Hillary Clinton. The topic was Hobby Lobby, but I'm fascinated by this sentence as a great generality and because it connects to that quote of mine, which I foisted upon you yesterday morning: "I believe there is no more profound subject in human civilization than the female body. It is the central focus."

How should Obama respond to Hobby Lobby and Wheaton College?

Now that the Supreme Court has shown how seriously it intends to take RFRA-based demands for exemptions to contraception coverage, Obama has many things to consider. As the NYT puts it, he's going to pay attention to getting no-added-copay contraception to women. But there's also the politics:

Still, the administration has another motivation to act as quickly as possible: It is eager to court the votes of women dismayed by the rulings. The Democratic National Committee is already urging voters to fight back against the Hobby Lobby decision and to “stand up for Obamacare” in the November elections.

Of course, political advantage will be taken. This issue is served up nicely for Democrats. What can Republicans do? Personally, I recommend that the federal government directly pay for all birth control. Take the employers, all employers, out of the process of funding birth control and make it a straightforward public health program.

You know, we ought to be glad that women control their reproductive function to the extent that they do. We can't force women to use birth control. We should at least facilitate the voluntary behavior that benefits all of us. It's ridiculous that we've stumbled into a position where this perfectly wholesome governmental policy is bedeviling religious people.

The difference between requiring a business to cover contraceptives for employees and barring it from committing acts of racial discrimination.

The dissenting opinion in Hobby Lobby and many sincere commentators worry that the Supreme Court's opinion could mean that the government won't be able to require businesses — if they cite a religious objection — to refrain from race discrimination and other acts that we, as a society, consider morally wrong and terribly harmful.

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.

Morning Hobby Lobby blogging dilemma.

I've read the 27,000+ words of the Hobby Lobby case — all of the opinions. I read the whole thing out loud to Meade yesterday as we drove 500 miles. And it took all 500 miles, with pauses to talk about the details and to debate the issues. Has anyone spent as much time with this text as I have? (Other than lucky/poor Meade?) I have the notes I took as we drove so I'd remember specific points I want to develop in blog posts. I was totally immersed in my engagement with this text, which includes the analysis of many cases — like Lee and Braunfeld — that I know very well, having taught Religion and the Constitution for more than a decade.

When we arrived at our destination, one of the first things I saw was a TV tuned to MSNBC and a news head was interviewing the president of NARAL who was delivering talking points that, every few seconds, misstated what was in the case. I glance around the internet in my usual way and see the chatter about the case and get the nagging feeling that everyone on the internet is getting things wrong and it's my job to get busy chiding them for this and that or making sport of their stupidity and deviousness. Why these folks have a political agenda! Don't you need me to entertain and enlighten you by selecting some egregious examples of what you very well know they must be doing? War on Women! The warriors are out in force, determined to strike first and leave a mark, a mark that's unlikely to fade, because the marked ones — the masses of American electorate — are never going to do what I, the law professor, would like them to do to erase that mark: Read those 27,000+ words.

What should Althouse do?
	First blog from the notes she took when she read the case.
	First push back the deceivers and politicos.
	Intersperse blogging from her notes and pushing back deceivers and politicos.
	Blog a variety of things, with a little Hobby Lobby here and there.
	She should take some big War-on-Women shots of her own and draw fire.
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About that car ride?
	Meade is a fortunate man to have 7 straight hours of law with Althouse.
	Meade must be an extremely patient, tolerant, supportive individual.
	If you had the GoPro running, I would watch that 7-hour movie.
	Althouse is an unfathomably dogged and shamefully selfish woman.
	This scenario is too bizarre to have an opinion about.
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ADDED: I'm preserving the poll results: