I have a solution to the Hobby Lobby case with which no one will agree. I have previously argued that the government action at issue imposed 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. Moreover, the government instead could have treated closely held business corporations whose ultimate owners unanimously objected on religious grounds the same way that religious corporations are treated. In that case, women would be fully insured for contraceptive devices. On the other hand, less restrictive alternatives ordinarily cannot be implemented immediately and I am told that administrative changes in regulations cannot be applied retroactively.
So it has been in Hobby Lobby. As I understand it, the change in the regulations have not yet been implemented, and when they are they will not be applied retroactively. See (here). As a matter of political reality then, there is no less restrictive alternative in the short term and no less restrictive alternative for women in the interim before the regulations are implemented.
My solution to Hobby Lobby therefore is that the Court should have remanded for a determination as to how long it would reasonably take to pass and implement the new administrative regulation or regulations. Under this approach Hobby Lobby would have been ordered to provide insurance for the period necessary to provide the less restrictive government alternative because women’s access to contraceptives is a compelling state interest. If the government did not provide the less restrictive alternative in the time provided, Hobby Lobby would no longer have to provide insurance. Given the importance of the interest and the character of the alternative, it is likely the government would provide the alternative as it is on the verge of doing.
There will not be long lines of people supporting this. Aside from those who believe that business corporations should have no religion rights even if closely held, those who think there is no serious religious burden, and those who, on the other hand, think that Hobby Lobby’s religion rights should not be interfered with in any way, there will be those who think courts should not look at the political feasibility of the less restrictive alternative into account. I do not think courts should so look when the government has willfully violated the law, but anyone who thinks the government deliberately violated the Religious Freedom Restoration Act is drinking ideological kool-aid. In addition, there may be many cases where the imponderables are beyond judicial ken. But the notion that courts should never consider the politics of the less restrictive alternative is sure to lead to injustice – as it has in Hobby Lobby.