When claims for RFRA exemptions from the contraceptive mandate first popped up, I thought that the issues they raised were, on the whole, humdrum. That’s not to say that the cases were easy. But they did involve, or so I believed, largely settled principles. The difficulty was in accommodating those principles to each other on these facts. So as the debate progressed, I was most interested in how both sides described their run-of-the-mill legal dispute in apocalyptic terms, as either a fight for the very principle of religious liberty or a battle against religious tyranny. In an earlier unpublished essay, I argued that each side seemed committed to understanding the dispute, not in the “retail” terms of free exercise disputes, but as jurisdictional conflicts more akin to arguments about the “wholesale” line between the proper scope of church and state. The Supreme Court’s majority opinion in Hobby Lobby – whatever one thinks of the result – was admirably low-key in focusing on the mundane question of whether the original contraceptive mandate was the least restrictive means to achieve a compelling government interest. But that hasn’t stopped the combatants from continuing to wax epically and balefully, and continuing to tussle even in the narrower space left by the Court’s opinion.
Three things might be going on.