"The Unestablished Constitutionality of the Religious Freedom Restoration Act"

And Also: Had another mini-snowfall.  As is usual, it does not really last. The first one was quickly followed by a night rain storm that washed a lot of the snow away. Still, last weekend's storm was nice -- small enough not to be a pain, big enough to have the snow experience. Waiting on the curb in twenty degree weather while buses pass you in by is always fun, after all. 

The worry for now, with Justice Stevens retired from the Court, is that no current Justice will recognize that RFRA has provided churches, as well as numerous religious organizations and now, possibly, secular for-profit companies “with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”

I think that this argument is taken too far.  Take Stevens' own example.  Not true that an atheist or agnostic has lacks a means to use this "legal weapon." The local Ethical Society, e.g., on its website calls itself a "religion" last time I searched and if the agnostic stands in to sue under RFRA to protect their meeting place, s/he might have a good claim.  Torcasco v. Watkins famously has a footnote noting some religions "do not teach what would generally be considered a belief in the existence of God." Provided are two lower court cases where ethical societies obtained privileges as part as an overall benefit to religious groups.

The argument alludes to another that says the contraceptive mandate lawsuit should partially be seen as a threat of establishment of religion, since Hobby Lobby etc. are trying to burden third parties who are not fellow travelers (separate from the ministerial exemption) and obtain a benefit solely on religious grounds. I think the argument has some force. But, strategically or not, it is not as broad as that article desires. Prof. Hamilton, whose writings on the subject are worthwhile up to a point, e.g., opposed Wisconsin v. Yoder (limited exemption to mandatory education laws for teenage Amish students). The ministerial exemption to her is overused too.  At some point, this is baby/bathwater territory.

RFRA very well might be problematic as an overbroad accommodation of religion, the general supporter not saying much of what it is done is obligated by the First Amendment.  If it is used to give Hobby Lobby a win, it to me is being overused.  It makes more sense to tie exemptions to specific laws, especially when dealing with major federal policies like ACA. Some default rule to accommodate makes some degree of sense. "The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin." This on some level "singles out religious practices, en masse" as compared to other things.

The First Amendment itself "privileges religion over all other expressions of conscience" on some level.  Free exercise of religion is protected, not "conscience" or philosophical thought. Likewise, the state can "establish" various things, including democracy and  the idea of equality of humankind.  It cannot establish "religion."  So, accommodations can up to a point give some special concern to religious beliefs and practices. Furthermore, "religion" can be and is interpreted broadly.  Conscience is respected too in the long run too, one way or another. As it should, as I said repeatedly.  The true test turns out to be one of degree and balance.

So, the part way establishment argument is a better one. And, the idea that atheists and agnostics do not have "religion" is not necessarily true anyhow.  Just go to some local Unitarian-Universalist service.