Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation
It is well known that the Obama Administration has taken up the Supreme Court’s invitation to ensure full contraception coverage without cost sharing for the employees of Hobby Lobby and similar companies with religious objections. What is less commonly appreciated is that Hobby Lobby’s own employees almost certainly are not receiving that coverage—right now. Consequentially, federal law is accommodating religious objectors to the contraception mandate by shifting that burden to third-party employees in violation of the Establishment Clause, at least at the moment. But not every religious accommodation shifts significant costs to third parties. A second case before the Court proves that point: Holt v. Hobbs involves an accommodation of belief that is perfectly constitutional, as we will explain.