Compelling Interest Test in Hobby Lobby

 Notice that strict scrutiny under RFRA (like strict scrutiny under the First Amendment) does not allow the government to assert a compelling interest in broad terms, such as public health or protecting access to contraceptives. The focus must be more particularized, whether there is a compelling interest in the particular case, in forcing religious employers such as Hobby Lobby to provide contraceptive and abortafacient coverage for their employees. Here is how Justice Alito explained it in Hobby Lobby:

 

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” This requires us to “loo[k] beyond broadly formulated interests” and to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.

Keep this doctrine in mind whenever applying strict scrutiny.