(For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on an interest that is little talked about in the briefing of the various employer mandate exemption cases, but that I think strikes a chord with many people who have expressed concern about the exemption requests. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting employee private rights, since it would provide employees with the same benefits as they would get under the unmodified employer mandate.)
1. Let me start by approaching the question indirectly. Say that someone feels religiously motivated to make a pilgrimage to a particular place — for instance, a supposed visitation of the Virgin Mary. And say that this place happens to be on an unimproved parcel of land you own somewhere. That would normally be a trespass, but the pilgrim sues for an exemption from trespass law under RFRA.
I take it that courts wouldn’t, and shouldn’t, create such an exemption. Indeed, the compelling interest test provides a means for courts to avoid creating such an exemption — the compelling interest would be in preventing intrusion on your property rights. And it doesn’t matter that the intrusion would actually cause only modest harm to you, or that allowing the intrusion would cause only modest harm to the social interests served by property law [...]