By Benjamin G Davis. Associate Professor of Law, University of Toledo College of Law
So assuming the current Executive actually worries about the sincere religious beliefs of shareholders, managers, and employees of any entity with corporate form who have sincere religious objections to their employer having a health plan that only due to a government exemption for THEIR sincere religious beliefs would include contraception, here is an idea for regulations implementing Hobby Lobby.
Include in the exemption process a section that says something like “exemption will be granted, unless there are persons who assert sincere religious beliefs which counter the sincere religious beliefs for which the exemption has been sought. In such case, no exemption will be provided pending the resolution of those disputes by a court of competent jurisdiction.”
Here the Executive avoids establishment clause concerns and the religious fight is in the courts who had the wisdom to start this up.
Some would say that the exemption should be granted and the battle be about removing it. But, by treating both under the general rule without the exemption the government respects all compelling interests and takes an even-handed approach that is the same for everyone, pending what the court announces.
Just a thought.