Here is the New York Times offering an opinion about the Obama Administration’s decision to press on ahead with the contraception mandate and about the Tenth Circuit’s decision in the Hobby Lobby case (the case was handed down when Mark and I were at a conference last week, and it is quite long, so I haven’t quite yet had a chance to review it). The Times quotes Professor Marci Hamilton as saying that the Tenth Circuit decision is a “fantasy.” The opposition in the Times editorial has almost nothing to do with the specific issue decided in Hobby Lobby–whether for-profit corporations may exercise religious liberty rights. The Times’s position is that the mandate is “an important advance in public health” and that the Obama Administration “has gone further than fairness or the First Amendment require to reach a compromise that respects the concerns of some religious entities without sacrificing an employee’s right to make her own decisions regarding contraceptives and not to conform to the religious beliefs of her employer.” It then says this:
Contrary to the majority opinion, a corporation like Hobby Lobby is plainly not a “person” covered by the Restoration Act. In any case, the contraceptive rule still leaves the company’s owners free to rail about the different forms of birth control to which they object and to try to convince employees not to use them. As the Justice Department cogently argued, the burden imposed on any religion is trivial in allowing employees to make their own independent decisions to obtain free contraceptives.
Note that unless one is putting a whole lot of emphasis on the phrase “like Hobby Lobby,” this opinion really has nothing to do with the issue in Hobby Lobby itself. And the points thereafter about freedom of owners to object (is it a great concession that the Obama Administration did not curtail the freedom of individuals to object?) and the triviality of the burden on religion do not depend on the status–for-profit or non-profit–of a particular corporation. All of these points would apply with equal force to a non-profit, like a church. If the burden imposed on religion is “trivial,” then it would be important to understand why it is so in the case of for-profits and not in the case of non-profits. Otherwise, it’s trivial as to both (to be clear, some people take this view. But that’s not a particular claim about the issue in Hobby Lobby, so much as skepticism that “fairness” requires any accommodation at all).