Ed Kilgore: The Central Flaw in Hobby Lobby’s Suit: "To hear many conservatives and even some liberals, the suit brought by the for-profit company Hobby Lobby seeking relief from the contraception coverage mandate of the Affordable Care Act represents a last line of defense by religious believers (of a certain type, to be sure) against the aggressive secularist agenda of the Obama administration.
Buying into that idea has always required some mental gymnastics. The coverage mandate does not require that employers supply employees with contraceptives. It simply requires that if they provide health insurance it must include coverage for certain preventive procedures, devices and medications, including contraceptives. The employee chooses whether or not to avail herself of this coverage, and no reasonable person would hold the employer morally responsible for that choice, any more than if the employee used her wages to purchase the very same contraceptives, which—lest we forget—are not only legal but are constitutionally protected as legal.
But as legal scholar Garrett Epps explains at The Atlantic, ignoring the distinction between directly providing versus indirectly “facilitating” access... violates a string of Supreme Court decisions... designed to protect religious institutions from claims by nonbelievers that indirect government support for religious activities violates the Establishment Clause.
The Court has repeatedly declared this “facilitate” argument categorically false. Most recently, it did so by proclaiming that an objector to how someone else uses his or her wages has suffered no injury and thus can’t even bring a lawsuit... in cases that concern... the promise, in the First Amendment’s Establishment Clause, that no taxpayer will be forced to pay tax money into the coffers of a religious organization.... It’s a pretty powerful strand of precedent. Even public benefits flowing directly to religion, the Court has repeatedly held, do not violate the religious rights of citizens—if they flow because of private decisions by other citizens.... If the Court cares for consistency, that logic is another nail in the Hobby Lobby coffin.
That is true unless, of course, the Court treats the private decisions of women about what to do with their earned employment benefits and their bodies are somehow not worthy of judicial notice.