Defending the requirement, the government argued that RFRA should not apply to for-profit corporations at all. That very idea, to the majority, was too monstrous to be entertained. Millions of small-business owners use the corporate form: The government "would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” The Greens could simply choose not to offer their employees health-insurance at all; it could instead pay the government a tax of $2,000 per employee (which is not much more—if more at all—than the cost of health insurance), permitting the employees to buy insurance on ACA exchanges. But that would grieve the owners’ hearts too: “the Hahns and the Greens and their companies have religious reasons for providing health-insurance coverage for their employees.” The government also argued that the contraceptive choices of the employees can’t be considered a burden on the beliefs of the employers—they represent individual choices by the women involved. This would “in effect tell the plaintiffs that their beliefs are flawed.”

Now, of course, thousands of employees—all women—have an interest in making contraceptive choices without interference by the Greens and the Hahns. This is not the pain of being told their “beliefs are flawed”; these are interests based in the need for equal pay for women, freedom of individual conscience, and their physical health and that of their families. The majority made no mention at all of those interests. The opinion rather noted that the government defended the program using “very broad terms, such as promoting ‘public health’ and ‘gender equality.’” It noted the argument that the program ensures “that all women have access to all FDA-approved contraceptives without cost” and grudgingly assumed that this interest was compelling.

But, the majority said, if the government is so all-fired hot to give female employees these choices, why can’t the government just pay for the contraceptives? Why, in other words, shouldn’t female employees pay for their contraception twice, first with their labor and second with tax dollars, in order to spare the Greens and the Hahns even a moment’s discomfort? Or—and here’s the meat of the opinion—why doesn’t the government just offer to all “closely held” corporations the same accommodation it has already offered to religious non-profits? Under that accommodation, these organizations can certify that they oppose providing contraceptive services, and the organizations’ insurance companies must then provide them to the worker without additional cost.

(The “let the taxpayers pay” suggestion was too much for Justice Anthony Kennedy to stomach; he concurred separately to say, first, that despite Alito’s stilted language, the majority really does “assume that [the mandate] furthers a legitimate and compelling interest in the health of female employees,” and, second, that the idea of compelling the government to fund contraception seemed a bit excessive to him.)