... James Taranto has a good discussion of it.
Any such claim is baseless. The legal basis of the Hobby Lobby and Conestoga cases is entirely distinct from that of Smith, although the cases are related. In 1993, Congress responded to the Smith ruling by enacting the Religious Freedom Restoration Act, which, as Kapur writes, "says any law that 'substantially burden[s]' a person's exercise of religion must demonstrate a 'compelling governmental interest' and employ the 'least restrictive means' of furthering that interest." Kapur acknowledges that "that's the basis under which Hobby Lobby and Conestoga Wood . . . are suing for relief from the birth control rule."
And that," he continues, "might offer Scalia an escape hatch":
Experts say he could conceivably decide that the First Amendment doesn't protect a religious person's entity's [sic] to an exemption from the law but that RFRA suffices to let Hobby Lobby and certain others off the hook from the birth control rule.
Actually, that is a very unlikely outcome. Judges tend to avoid making unnecessary pronouncements about constitutional questions, so the inquiry will begin with the question of whether the mandate violates the plaintiffs' rights under the RFRA statute. If the answer is yes, that is where the inquiry will end--with no determination about what the First Amendment requires.
The "escape hatch" language suggests that the RFRA question is a contrivance Scalia will use to mask his supposed religious favoritism. That is preposterous in light of the 2006 case of Gonzales v. O Centro Espirita Beneficente União do Vegetal, a case with a fact pattern similar to that in Smith:
A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction.
The plaintiffs prevailed in an 8-0 decision by Chief Justice John Roberts, which Scalia joined without comment (Justice Samuel Alito had not yet been seated when the case was argued). So Scalia has already applied RFRA to vindicate the rights of a hallucinogen-using minority sect. There would be no contradiction in holding that the statute also protects mainstream religious believers to whose moral views the current administration is hostile.//
I have to admit that at the time of a recent discussion with Jeff Bishop, I hadn't understood that that RFRA was a reaction to the Smith decision, and I'd never heard of the Gonzales decision.
Even Jove nods.
But it looks that I was "righter" than I thought.