There’s a flaw in the legal argument at the heart of the Hobby Lobby decision, and it took only three days for it to spring into full view. In a strongly worded dissent yesterday, Justice Sonia Sotomayor attacked the court’s conservative majority for granting an injunction preventing a Christian college from having to sign forms telling its insurance carrier it has religious objections to the Obama administration’s contraception mandate.

Dissents to Supreme Court orders are rare, and a 17-page dissent to a curt, four-paragraph order is extraordinary. But Sotomayor is on to something: The Hobby Lobby decision, which was based upon a federal law that grants sweeping protections to religious persons and corporations — far in excess of what the Supreme Court considers the constitutional minimum — itself pushes the law a bit farther than many legal scholars are comfortable with. No one disputes the sincerity of the religious beliefs of the trustees of Wheaton College, or the evangelical owners of Hobby Lobby. And courts have long declined to inquire too closely into what precisely constitutes a religious belief. What the majority did in Hobby Lobby, however, was to allow the plaintiff also to determine what  constitutes a “substantial burden” upon it.

The Green family that controls the Hobby Lobby craft-stores chain may sincerely believe that life begins at conception and therefore any form of contraception that can cause a fertilized egg to die is murder, said Brian Leiter, a professor at the University of Chicago Law School and author of Why Tolerate Religion?, which examines religion’s preferential treatment under U.S. law.

“But the Greens aren’t being asked to take the morning-after pill. They’re not even being asked to pay for the morning-after pill,” Leiter said. Hobby Lobby is only required to pay premium dollars that might be used for that purpose. And when the connection between government-ordered action and the result is that attenuated, he said, it’s the job of the court, not the plaintiff, to determine whether it’s a “substantial burden” under the Religious Freedom Restoration Act. The law requires the government to accommodate religious beliefs unless there is no other way to accomplish its goals.

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