HT: Bill Harris. http://www.brookings.edu/blogs/fixgov/posts/2014/06/30-supreme-court-hobby-lobby-decision-response-diiulio

In my view, Justice Anthony Kennedy’s four-page concurring opinion comes closest to accurately calibrating the decision’s rationale and reach. Kennedy avers that the majority opinion “does not have the depth and sweep ascribed to it by the respectful and powerful dissent.” “Free exercise,” he observes, means “more than just freedom of belief.” It extends to “the right” to “establish one’s religious” identity in the “political, civic, and economic life of our larger community” (“establish” was not his most well-chosen word here). The “right of free exercise,” however, must not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” But, in cases in which “religious claims” are more “difficult and expensive to accommodate” than seemed true in this case, look for Kennedy to strike the balance against them.

Arguably, the overarching “religion in the public square” question of our day is this: Which, if any, so-called ministerial exemptions—on health insurance coverage, on hiring, or on other matters— that religious nonprofit organizations enjoy when delivering “worship services” should they retain when they are delivering social services that are funded in whole or in part by government, and/or administered with employees who are paid in whole or in part with tax dollars—all, some, or none? The Hobby Lobby decision does not address that question, but President Obama’s planned executive order disqualifying organizations that discriminate on the basis of sexual orientation from receiving federal contracts, whether or not the order contains any ministerial exemptions, will put that question at the top of the next “religion news” cycles.