Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.

By: Alan Brownstein

I do not dispute the Court’s core holding in Hobby Lobby. The government could satisfy the compelling interest of protecting women’s health through less restrictive means than the Affordable Care Act’s so-called “contraceptive mandate” without burdening the plaintiffs’ religious exercise. But Justice Alito’s opinion for the Court is problematic. Alito claims he wrote a narrow opinion. He should have. But he didn’t.

The Court begins, correctly, by focusing on the religious liberty interests of the individual owners of closely held corporations. It ends up saying that corporations are persons whose religious exercise is protected by RFRA. That broadens the opinion considerably. If corporations are persons and can decide how to exercise their religion using the same governing structure they employ to reach other corporate decisions, there is nothing in the Court’s analysis that precludes publicly traded corporations from asserting RFRA claims. Justice Alito says such claims are unlikely. That’s not a legal constraint. It’s wishful thinking.

The Court assumed that the contraceptive mandate furthered a compelling state interest in protecting women’s health. It should have stopped there. Instead, Justice Alito argues that under-inclusive laws that do not extend as far their asserted goals cannot easily be understood to further compelling interests. Since it is common for broad or new statutory frameworks to include exceptions, this argument suggests that numerous regulations would fail RFRA’s strict scrutiny review. Justice Kennedy’s concurring opinion is less equivocal about the government’s compelling interest in protecting women’s health, but he leaves unchallenged Alito’s discussion of under-inclusive laws.

Also, in its discussion of least restrictive means, the Court did not need to go beyond its core holding: The government could fulfill its goal of protecting women’s health, without burdening religious liberty, by expanding the accommodation it provided to religious nonprofits to religious for-profit employers. Instead, the Court strongly suggested that the government paying for insurance coverage for employees that work for religiously exempt employers would constitute a less restrictive means for accomplishing the government’s goals. I do not challenge the idea that protecting rights under RFRA, or protecting rights more generally, may require the expenditure of some public funds. Rights are often expensive political goods. But Justice Alito’s opinion provides no guidance for determining when the cost of protecting rights is unacceptably high. This is an open-ended invitation to lower courts. Justice Kennedy seems much less certain that government spending constitutes a less restrictive means than regulation to accomplish the state’s goals, but we still don’t know if and when government must choose public expenditures rather than burdening religion as the means to accomplish its objectives.

The Court‘s attempts to limit its decision are unpersuasive. It argues that other insurance cases, such as claims involving immunizations, might come out differently because they are justified by different compelling interests and may involve a different analysis of less restrictive means. Pointing to different compelling state interests means little. The Court assumed the government had a compelling state interest in providing contraceptive insurance coverage through the employer mandate. Acknowledging that covering other treatments serve different compelling interests will not distinguish other insurance cases from Hobby Lobby. The least restrictive means analysis will be critical in other insurance cases and the Court described this standard as an exceptionally demanding one.

The Court also assures us that the dissent’s concerns that RFRA might require exemptions from anti-discrimination regulations are unfounded. It insists the government has a compelling interest in prohibiting racial discrimination in hiring and federal prohibitions are “precisely tailored” to achieve that goal. This is feeble assurance at best. First, it only addresses racial discrimination in hiring. It says nothing about RFRA claims challenging anti-discrimination laws protecting women, religious minorities, or gays and lesbians or claims challenging prohibitions against discrimination in places of public accommodation. Nor does the Court explain why it believes that laws prohibiting racial discrimination in hiring are sufficiently “precisely tailored” to withstand strict scrutiny review.

The Court could have easily written a narrow opinion explaining why RFRA claims challenging the contraceptive mandate are entirely distinct from RFRA claims challenging civil rights laws. The contraceptive mandate involves payments for insurance coverage—a distinctively fungible benefit that could be equally effectively provided by multiple sources, including the government, insurance companies, and private employers. Anti-discrimination laws are different. Here there is the unavoidable psychological harm of being victimized by discrimination. Also, if a woman is subject to discrimination in hiring or a same-sex couple is denied catering services for their marriage ceremony, the federal government has no available means to provide comparable employment opportunities or catering services in the locality.

Some of the heated reaction to the Hobby Lobby decision might have been avoided if the Court had written a narrow opinion in this case. Unfortunately, it failed to do so.

Alan Brownstein, a nationally recognized constitutional law scholar, teaches courses on constitutional law, law and religion, and torts at UC Davis School of Law.

This piece was originally authored on September 11, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.