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To Be Continued: Why Hobby Lobby Didn't End the Legal Fight Over Obamacare's Contraception Mandate

1:35 PM, Jul 1, 2014 • By JOHN MCCORMACK
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Yuval Levin writes that Justice Kennedy appears in his "peculiar 4-page opinion" to be "going out of his way to say that he thinks the mandate advances a compelling government interest and that the accommodation might be the least burdensome way to advance it." But Windham says she's encouraged by Kennedy's concurrence, in which he wrote that the government cannot provide different protections for different classes of religious believers.

"RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers — burdening one while accommodating the other — when it may treat both equally by offering both of them the same accommodation,” Kennedy wrote. That logic would seem to spell trouble for the government, which has provided a full exemption for houses of worship but only the "accommodation" for religiously-affiliated charities like the Little Sisters of the Poor. (It will be especially difficult for the government to defend the accommodation in the Little Sisters case because the nuns' non-profit receives health benefits through Christian Brothers, another Catholic non-profit organization.) 

And if the Court rules that non-profits like Little Sisters of the Poor and the Catholic television network EWTN may get a full exemption, Windham expects for-profit corporations like Hobby Lobby to receive the same treatment. "It's hard for me to imagine that the Court would allow different types of protection for different types of people," she said.

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