"The Strongest Single Argument" is the Narrowest Argument Needed to Win, not the Broadest

Lots of action from the New York Times in the past couple of days. Kevin and Rick have already described Linda Greenhouse's column about the Hobby Lobby and Little Sisters of the Poor cases and her comments about McCullen v. Coakley. The column says what it says, but at least it contains reasons that one can evaluate and then accept or reject.

This editorial, on the other hand, doesn't even give the reader that. The Times finds meritorious Marci Hamilton's argument that the Court should strike down the Religious Freedom Restoration Act as a violation of the Establishment Clause. Though it does not predict that "the Court will go that far," it does seem to believe that the Court ought to. And it further seems to think that the amicus brief authored by Fred Gedicks arguing that the Establishment Clause forbids any accommodation that imposes "signficant burdens" on identifiable third parties makes plausible claims. Even more than that, however, it asserts that these Establishment Clause claims are "the strongest single argument" against the plaintiffs in these cases.

Now, I think the argument is mistaken, and have given reasons in places that the Times neither cites nor acknowledges. But even if I agreed with the argument, I would not believe that it represents "the strongest single argument" against the plaintiffs. That honor quite obviously goes to the government's evaluation of the RFRA claim itself. And the government has devoted nearly all of its briefing to developing that argument--an argument that depends on interest balancing under RFRA, not on a creative, aggressive, maximalist approach to constitutional interpretation. "The strongest single argument" from the government's side is the narrowest argument it needs to win, not the broadest. It is the argument that RFRA does not require these accommodations. That argument may not win, or it may, but it should come as no surprise that the actual litigants are focusing on it.