The Hobby Lobby Case and Jeffrey Toobin Continuing His Hackery

UPDATED IN BOLD TO GET A LITTLE MORE TECHNICAL/LEGALISTIC

Awhile back, I wrote a post called "Jeffrey Toobin Is a Hack". I was reminded of this when Ann Althouse wrote a post today on a similar topic: Toobin's Hackery. Althouse calls his piece on the Hobby Lobby Oral arguments "embarrassingly bad" I commend it to you only to demonstrate that my opinion of Toobin's hackery abounds all over the internet.

Anyway, you don't come here to get bad analysis, so if you want some actual, good analysis of the Hobby Lobby case, I am going to send you over to SCOTUSblog. 

My short and sweet thought is that an employer's failing to pay for an employee's preferred form of birth control is not a denial of that employee's ability to use that form of birth control. The employer not preventing the employee from using the birth control, the employer is simply saying they won't pay for it.

And that's fine.

But now you have a law (Obamacare) that says employers have to provide basically every type of birth control. And to be really technical about it, the actual law doesn't say that. HHS is issuing regulations that say this because Congress didn't explicitly want to take the heat for mandating the birth control requirement. This is an important issue, because regulations issued by HHS can be changed...by HHS. Regulations aren't as strong as federal statues.

So now, you have an employer (Hobby Lobby) that claims a sincere religious belief would be violated by complying with the regulation promulgated under the law, but claiming protection under a federal statute.

And so now you have a complicated problem. You have to balance the employer's religious beliefs against the compelling government interest (the regulation). Also, you've got to deal with a federal law (the Religious Freedom Restoration Act) passed in 1993 that basically says you have to apply "strict scrutiny" to laws that burden religious views, even if the law is religiously neutral - which is what we have here.

Note, the government's position concedes that the RFRA applies to for profit corporations, but they're basically asking the Supreme Court to ignore that.

Strict scrutiny is basically a death knell for anything that has to pass through it, so my guess is that the Court will apply the RFRA and issue a very narrow decision allowing Hobby Lobby an exemption based on religious grounds.

One big problem for the government is getting out from under the RFRA, and Toobin doesn't even mention the statue in his stupid little write up!

Also, It's not going to help the government's case that so many other waivers have been granted. It's hard to argue that there's a compelling government interest in this specific case when the government itself has given other entities a pass.

But that's just me.