I read Kennedy's concurrence, and the opinion is somewhat strange--but perhaps in a good way. Basically, assuming that closely held corporations have religious interests (just assume that for purposes here) and assuming that the regulations substantially burden that interest (again, just assume) and assuming that the federal government has a compelling state interest to provide cost-free contraceptive coverage (which all 9 Justices seem to accept), then the legal question for the Court to determine becomes whether the regulations implementing that interest was narrowly tailored to further the interest. I will argue that Kennedy’s view of what would qualify as a narrowly tailored alternative should ultimately protect women’s access to cost-free contraceptive coverage. Meet me below the orange squiggly for my analysis.
Although the dissent argues against the majority opinion on other issues, the dissent eventually makes its argument regarding whether the federal government has a more narrowly tailored alternative to promote its interest. The dissent determined that the regulations were narrowly tailored because the federal government had no other means available to provide cost-free coverage to employees through their employer-based insurance coverage.
The majority opinion acknowledges that the opinion of the Court is dependent on the conclusion that a more narrowly tailored alternative was available. The Court, however, is a little vague on what would be the more narrowly tailored alterative. Principally, the Court suggests that Congress could provide direct contraceptive coverage to women separate from their employer coverage. The dissent accurately (in my view) points out that the requirement of a narrowly tailored alternative cannot be a requirement to develop a separate independent program at separate cost to the government. The majority opinion does not really offer a reasonable answer to this objection (other than to merely assert that the opinion should be viewed as having narrow applicability), but Kennedy does provide an answer to this objection (by intentionally misreading the majority opinion).
Kennedy’s answer to the dissent in his concurrence is that a program already exists for non-profit entities in which they can certify their religious objection, and the insurance company will provide cost-free contraceptive coverage to the employees. Kennedy seems to argue that because an alternative already exists that allows others (i.e., non-profit entities) to protect their religious objections, this alternative must be extended to closely held corporations to provide a narrowly tailored alternative that promotes the governmental interest without burdening the religious adherent. If this alternative had never been developed in the regulations for non-profit entities, perhaps Kennedy rules the other way.
What makes Kennedy’s opinion somewhat strange is that he writes as if the dissent simply failed to read the majority opinion closely. He acts as though the majority opinion relied on the extension of this already existing program for non-profit entities to closely held corporations. But the majority opinion does not rely on this reasoning—Kennedy is misrepresenting the text of the majority opinion (I believe intentionally). In fact, the reference in the majority opinion to this reasoning regarding the existing program for non-profit entities is almost a throw-away analysis in the majority opinion. And the majority opinion immediately follows up this discussion with a statement that such an alternative might not even be a permissible alternative because it might burden a religious interest (the Court does not decide that issue in this opinion). So the majority opinion cannot rely on this alternative because the alternative must be permissible for the alternative to qualify as an alternative at all. If the Court leaves this question open, then the answer to this question must not be required for the resolution of the case. Thus, contrary to Kennedy’s characterization of the majority opinion, the majority opinion must be based principally on the “narrowly tailored” alternative put forth that the federal government could pay for and directly provide the contraceptive coverage (which the dissent accurately attacks).
Kennedy’s concurrence basically ignores the alternative of having the government directly provide the coverage. Kennedy states that the Court does not impose a burden on government to create a new program because an existing program already exists. But, as noted above, the majority opinion refused to rule whether this program itself is permissible. I believe that the majority opinion might have added the reference to the existing program for non-profit entities only in order to get Kennedy’s vote. Kennedy pretends that the central argument of the majority opinion on this issue is focused on this alternative. It is not. So Kennedy may be signaling that he voted as his did only because given this particular set of circumstances, the government already had a program for non-profit entities that easily could be extended to closely held corporations. Kennedy’s concurrence does not really hold up if this alternative will be struck down as itself violating religious interests.
If Kennedy really believes the ruling relies on the existence of a program that has already been developed that could be extended to cover closely held corporations (as opposed to requiring the creation of a new program directly administered by the government), then Hobby Lobby won a pyrrhic victory. HHS presumably will amend the regulations to extend the certification process already covering non-profits entities to add closely held corporations. If Hobby Lobby wants to avoid certain contraceptive coverage for its employees, Hobby Lobby will be required to certify its objections, and the insurance company will provide separate coverage to the employees at no cost. From a policy point of view, I think most liberals would find this compromise acceptable.
The 4 most conservative Justices (Alito, Roberts, Scalia and Thomas) seem to be ready to require the federal government to provide the coverage itself separate from the employer in order for the method to be narrowly tailored to further the governmental interest (although the majority opinion does not directly rule on this issue). A case raising that legal question will likely be decided in the next term when religious entities challenge the certification process as applied to them. These non-profit religious organizations seem to argue that the mere act of certification forces them to participate in the process of obtaining contraceptive coverage and therefore interferes with their religious interests. If that point of view prevails, then contraceptive rights are in danger because Congress (at least this Congress) is unlikely to pass a law separately providing contraceptive coverage on a cost-free basis to all women. But if I am right about Kennedy's position and if my interpretation of his position prevails in the eventual case next term (on a presumed 5-4 vote with Kennedy voting with the 4 liberal Justices), then the ability of women to receive cost-free contraceptive coverage will have been preserved.