Belle and I are on vacation, with intermittent internet. But sea and sun are lovely.

Crooked Timber needs a Hobby Lobby thread, since everyone’s got one. (But don’t expect to hear from me in comments. Wi-fi could die any minute.) You will not be surprised to hear I am sympathetic to Ginsburg’s much-quoted ‘startling breadth’ assessment. Here’s my semi-original question, bouncing off this assessment, via the dissent’s footnote 1.

“The Court insists it has held none of these [startlingly broad] things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).”

So: Hobby Lobby wins because Obamacare is not compliant with RFRA because of a less restrictive route not taken. But it could turn out that this less restrictive approach is itself not compliant with RFRA, i.e. is not a route after all. (Cases concerning this are still pending, as I understand it.) What if the Supremes decide this is so (as they are expressly reserving the right to do)? Could it turn out that there is no ‘least restrictive’ RFRA option, due to a sort of judicial uncertainty principle, arising out of the order in which the cases are taken up? That is, the court is really now saying, not that there is a less restrictive option, but that they are not yet sure there is NOT a less restrictive option? Either the cat will be dead when they open the box of their own pending decision about the accommodations for religious nonprofits, or it won’t be. But, until we open the box, there isn’t a legal fact of the matter. But surely there is no chance that they will decide in favor of the plaintiffs in pending religious nonprofit cases and thereby retroactively falsify the basis for their decision in favor of Hobby Lobby?

Or possibly I’m jetlagged.