As every religious freedom organization under the sun claims a victory with today's Hobby Lobby decision, there's one aspect of Justice Samuel Alito's opinion that is surely giving some groups pause.
The main thrust of the decision is a victory for Hobby Lobby and its allies, determining that the contraceptive mandate violates a religious freedom law as applied to "closely held" businesses. The tricky part is the proposed work-around for the government to continue providing contraceptive coverage, as suggested in the decision: an existing accommodation for religious non-profits wishing to be exempt from the mandate could also apply to the relevant for-profit companies as a more religious freedom-friendly alternative to current practice. That accommodation is itself the subject of a handful of legal challenges from religious freedom groups who believe that it violates their religious beliefs by, essentially, asking them to fill out a form.
At least one federal appeals court seems to believe that today's decision bodes poorly for that accommodation: hours after the Supreme Court issued its opinion, the 11th Circuit Court of Appeals granted an injunction blocking enforcement, pending appeal, for the Eternal Word Television Network (ETWN), a non-profit. Circuit Judge William H. Pryor, Jr. argued in his concurring opinion that ETWN is likely to succeed in its challenge of the accommodation, specifically to the requirement that it fill out a form in order to exempt itself from the contraception mandate. Pryor addressed the defense of the accommodation — that filling out the form is not a "trigger" for contraceptive coverage, with one word: "Rubbish." In more words:
I'm curious to see how contraception coverage opponents spin part of opinion that says accommodation they hate=least restrictive means.— Sarah Posner (@sarahposner) June 30, 2014
Pryor goes on: "even if we assume, for the sake of argument as the Supreme Court did in Hobby Lobby, that the mandate serves a compelling governmental interest, the accommodation provision is not the least restrictive means to address that."