(For an introduction to this series of posts, see here.)
In the preceding post, I’ve argued that Hobby Lobby might well prevail on the claim that the employer mandate substantially burdens its owners’ religious practice. This means that Hobby Lobby would be presumptively entitled to an exemption under RFRA, though that presumption could be rebutted if denying the exemption is the least restrictive means of serving a compelling government interest. (I’ll turn to that tomorrow.)
But for now, let me discuss the argument that granting such an exemption would violate the Establishment Clause, “[b]ecause exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees.” (I quote here a Slate piece by Micah Schwartzman & Nelson Tebbe, though the argument was also made in much more detail in this law review article by Fred Gedicks & Rebecca Van Tassell.)
If the argument is right, then not only is Hobby Lobby (alongside similar employers) not entitled to a RFRA exemption — it couldn’t get an exemption even if Congress or the Administration were eager to create such an exemption. Thus, for purposes of this post I will assume that Hobby Lobby and similar employers are statutorily given this exemption, and I will ask whether that would be constitutional. I won’t ask whether RFRA calls for the exemption; that is a story for tomorrow.
1. To begin with, let’s be precise about the effect of an employer mandate exemption would have on employee: If the employees want certain implantation-preventing contraceptives, they would have to buy them with their own funds, rather than getting them for free through an employer-provided health insurance plan. They would thus be in essentially the same legal position [...]