Justice Alito Has Both Opinions ...

Some were not in good spirits when it was announced (flagged by SCOTUSBlog live-blogging) that both of today's opinions were written by Justice Alito. First, with a good dissent by Justice Kagan, a 5-4 ruling screwed domestic workers protected by public unions -- if you take away the dues, those things tend to have problems.  As some did with the second ruling, one can say "could have been worse," since public unions (for now) across the board were differentiated from a narrower class.  But, as in the Hobby Lobby case, the general principle applied is broader in scope.

The narrow take on the Hobby Lobby case is that closely held corporations are protected by RFRA and here need at least to have the same exemption as given to non-profits. Plus, since employees will generally (certain church type employees for now might be out of luck) have an alternative means of getting the coverage, it really is not too bad at all.  And, signals are sent, especially by Kennedy's concurrence, that this alternative is an appropriate least restrictive means.  One can hope. But see:

It seems highly unlikely that the organizations seeking this accommodation to the accommodation will be satisfied to accept what the Court said literally on Monday, and giving up further legal challenges because of that.   Since that was not directly at issue, they would have a quite strong argument that, whatever the Court did say on the point, it actually remains unresolved.

The ruling -- other than the author -- is not really surprising. The "closely-held corporation" gambit was predicted though it should be noted that the opinion doesn't really seem to say only they get protection here. Such corporations might be the one who are at stake in this specific case, just like certain types of contraceptives (sic) are, but Supreme Court cases aren't for merely the specific particulars. They set forth broader rules.  As one of Andrew Sullivan's readers responded to his limited reach view:

I’m surprised that language in the majority opinion is read so credulously. The underlying reasoning in an opinion is more important than bald statements like “this opinion doesn’t mean that our reasoning can be taken to its logical conclusion.” Yes it does. That’s why we keep winning handily every time Lawrence v. Texas and its progeny (Windsor) comes up. Lawrence explicitly said “this case is not about gay marriage.” Scalia’s dissent howled that it in fact does – and he was right. Lawrence led directly to Windsor and every court that has considered the issue has cited Windsor (and its predecessor, Lawrence) for the proposition that marriage equality is a constitutional mandate. Pretending that Alito’s one throwaway sentence in this opinion somehow immunizes the reasoning from being applied to other areas looks to me like a refusal to grapple with the actual reasoning of the opinion.

"Closely-held corporations" alone cover a lot of people. The opinion suggests other types won't bring RFRA claims (both Alito and Kennedy have language that suggest it goes beyond that to "free exercise" principles generally*).  A limited wrong is still a wrong, but Ginsburg notes:

Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve-nues and employs some 140,000 persons.

One person wondered why Ginsburg opened her dissent in such broad term, including given it arguably gives the majority more breadth than its specific terms.  I find this a tad naive, especially given past actions (see, e.g., Shelby/NAMUNDO)  suggesting the Roberts' long game approach.  And, Ginsburg well describes the problems with trying to claim. This is what drove me the most crazy, I think, with some of the commentary while the case was ongoing.  As she says late in her opinion, the realistic result will be “perceived as favoring one religion over another,” faux lines drawn depending on the specific claims.  Too often the support for HL was mixed with disdain over the specific subject matter. 

The majority, down to the  least restrictive alternative (rejected by some as too burdensome, Ginsburg also notes it is more burdensome both to the government and to individual women "requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit”), hedges.  A lot of "may" type language. Kennedy, doing an O'Connor, was led to write a concurrence to insist it only did so much. But, you take what you get, not what you want it to be. We have this bit, which for those "in the know" should lead to a double take:

At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.

As noted, I'm not so sure, but the tell to me is that Kennedy actually alluded to the dissent. He doesn't do that sort of thing.  The majority took for the sake of argument what Kennedy here thankfully explicitly says: the "mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee."  Likewise, he notes the "existing, recognized, workable" means set up by the government for certain religious non-profits, suggesting something still being litigated -- merely having to ask or some distant connection all the same with the insurance companies who must offer contraceptive coverage is not a "substantial burden" or one not overridden by a compelling state interest applied with a least restrictive means.

So, with at least during the current Administration, there seems (who knows for sure) to be five votes to find a way to cover the employees of Hobby Lobby and so forth.  With added administrative difficulty and some burden on employees.  Though the matter is still in litigation and the USSC did not clearly so hold. What about the next claim on some issue?  I think, per U.S. v. Lee et. al. (the dissent makes clear that "restoring" the law to pre-Smith days is what RFRA can soundly be deemed to do), Ginsburg has it right here:

“When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, 30 at least in the absence of directions from the Legislature or Administration to do so.

There very well might be a way to make, as applied to this issue, this opinion one that sane people can live with.  It should be pushed to be applied in the most reasonable way as would be the case with other troublesome rulings. All the same, it is a camel's nose under the tent sort of thing. We should be very wary. 

---

* Alito's opinion specifically uses free exercise cases to show that corporations, including for profits, are protected to protect religious liberty generally.  Kennedy noted:

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. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) . It means, too, the right to express those beliefs and to establish one’s religious(or nonreligious) self-definition in the political, civic, and economic life of our larger community.

Breyer and Kagan joined Ginsburg in full except to not take a position on "whether either for-profit corporations or their owners may bring claims under RFRA," and I could live with some argument they could. Alito is correct the legal fiction of corporate personhood protects the interests of human persons. The question would be line-drawing.

Still, Kennedy's phrasing makes me wonder his current take on Smith, which did focus on freedom of belief.