(1) One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the "nexus of contracts" view of corporations put forward by "law and economics" scholars during the past 40 years. He says:
A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.... [P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.This approach avoids both the question of whether an "artificial person" can exercise religion, and whether traditional "piercing-the-corporate-veil" notions need to be invoked.
(2) Much attention has been focused on whether the government can show a "compelling interest" in imposing the contraceptive coverage mandate. Again Justice Alito is able to avoid dealing directly with the issue. By focusing instead on the "least restrictive means" prong of RFRA strict scrutiny, he is able merely to "assume" that the government has a compelling interest, without deciding the issue.
(3) Justice Alito's "least restrictive means" discussion creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for." Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.
Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well. However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts. Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it. Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation. For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.
