On Thursday, Michael McConnell offered his current thoughts on the Hobby Lobby case. His post addresses a range of issues including the question that has been our focus, namely, whether accommodating the religious beliefs of Hobby Lobby’s officers would impermissibly shift burdens onto female employees in violation of Establishment Clause values. Though the burden-shifting argument started at the periphery of this case, it is now a central issue before the Supreme Court. The government emphasized this point in its briefs, and Solicitor General Verrilli raised it during oral argument, responding directly to a number of the Justices’ concerns about the effects that an exemption would have on employees. That Professor McConnell is also concerned with refuting the argument is some indication of how important it has become over the course of this litigation.  

Richard C. Schragger, Micah J. Schwartzman & Nelson Tebbe, Reply to McConnell on Hobby Lobby and the Establishment Clause, Balkinization (March 30, 2014).