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Okay -- there will be disagreement here, suffice to say. And, talking about Scalia, Alito's opinion in Hobby Lobby does not make me totally optimistic as to appropriate interest balancing.

I'll just let Heller lie! Thanks for the reply.

Steve Shiffrin

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Thanks for the comment Joe. I appreciate the force of the comment. I would merely note that sincerity is also needed and the religious interest would have to
outweigh the government interest. As to Heller, I find it hard to get past the dissenters joining the originalist bandwagon allowing Scalia to set the terms of the debate (even recognizing he flows in and out of originalism throughout his dreadful opinion.


I am sympathetic with your solution, I guess, but "a serious religious burden on the owners of Hobby Lobby because they were being compelled to engage in activities to which they were morally opposed" is a pretty thin test for "substantial burden."

It would also rise a slew of questions since any number of practices can meet it, even limited to health insurance. I really don't think they each will be treated the same.

But, given we are basically breaking new ground here, I appreciate your careful mechanism. Comparably, I would have sent the Heller handgun case back to the district court to slow things down, applying new doctrine to the case.

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