Prof. Michael McConnell was kind enough to pass along some further thoughts about the Zubik v. Burwell supplementary briefing, and I wanted to pass them along in turn. (Note that McConnell co-filed a friend-of-the-court brief in this case on behalf of several former Justice Department officials.) Recall that the question here is what exemptions the plaintiffs are entitled to under the Religious Freedom Restoration Act — a federal statute passed in 1993 — and not on what they should be entitled to under the free exercise clause, or under first principles of religious freedom.

Zubik gets weirder

The government’s position in Zubik v. Burwell, the contraceptive mandate case, just got weirder. It is increasingly difficult to understand why the government has been litigating so long and so hard to force the Little Sisters and other religious organizations to perform acts they regard as contrary to their faith, when it now admits (however grudgingly) that it all was unnecessary.