Sotomayor’s decision illustrates just how difficult that task may turn out to be. Even if the owners of Hobby Lobby eventually prevail in court and their rights are upheld, a vengeful Obama administration determined to make an example of anyone who crosses them could have already destroyed their business. By sinking them under the weight of fines, the government could drive them out of business before any final decision is handed down.
Last year, at a forum on separation of church and state, I asked a panel for four attorneys why, if this mandate we allowed to stand, we could assume that kosher slaughter was safe. The best one of them could muster – after nine full seconds of contemplation and growing nervous laughter from the audience – was that they had “faith” that the system wouldn’t allow it. Pardon me for wanting something more concrete.