As I say in the piece, Harry Edwards’s dissent in the Freshway case is very good. He does a particularly good job of clearly laying out why whether the contraceptive mandate can satisfy a strict scrutiny standard is beside the point because it doesn’t place anything remotely resembling a substantial burden on the free exercise of religion:
There are three reasons why the Mandate does not substantially burden the Gilardis’ “exercise of religion.” First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products.
Because the Mandate does not require the Gilardis to personally engage in conduct prohibited by their religious beliefs, this case differs from every case in which the Court has found a substantial burden on religious exercise.
Checkmate — these arguments should be dispositive. In theory, these arguments should also be attractive to Scalia, given his preference for clear rules and his much-maligned but wise opinion in Smith. Unfortunately, the “principle” Scalia uses to decide cases dealing with the Affordable Care Act seems to be “Broccoli Cornhusker Kickback Obama stole my car keys!”
And with both Janice Rogers Brown and Priscilla Owen stretching the law into unrecognizable form to read the most recent platform of the Texas Republican Party into the relevant legal text, it’s worth noting once again that the “Gang of 14” deal involved Senate Democrats getting rolled about as badly as it’s possible to be rolled, which didn’t stop Republicans from being outraged about it.