So to uphold the Hobby Lobby claims, the Court’s majority will have to find its way around Lee. There are two ways they could do that, both of them bad.

Let’s start, though, with the argument most people have focused on during the run-up to the contraceptive-mandate cases—that being for-profit corporations, the challengers cannot assert a “free exercise” claim at all. It’s a strong argument, but one that takes more subtlety to assert than most published comments seem to display.

That’s because it is routine to say that free exercise is an individual right, and that “corporations are not people.” But in this context, the argument is flawed at the outset. Free exercise is actually primarily a group right, extended to religious bodies, in corporate form or other wise. The term “free exercise” in fact originally referred to a right held only by groups. It dates back at least to the 17th Century, and is defined by the Oxford English Dictionary as “the right or permission to celebrate the observances (of a religion)”—that is, a privilege granted by monarchs to specific faiths to hold their services in public.

Religion, Emile Durkheim wrote, is primarily a set of “beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.” Most religious “exercise” can’t be done alone. One of the earliest—and most embarrassing—cases brought under the Free Exercise Clause was entitled Late Corporation of the Presiding Bishop v. United States, which upheld an Act of Congress dissolving the Mormon Church and seizing all its property ($3,000,000 in 1887 dollars). The Mormons argued that punishing their church for polygamous beliefs violated the First Amendment, but the Court ridiculed the idea. “No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief,” the justices briskly reasoned, “but their thinking so did not make it so.”

Can anyone imagine this case coming out the same way in 2014, on the grounds that a corporation has no religious rights? Or that the Jehovah’s Witnesses’ parent company, The Watchtower Bible & Tract Society of Pennsylvania, Inc., has no rights except the individual rights of its members?

The important distinction here, of course, is that Hobby Lobby and the other challengers are for-profit corporations. The Mormon Church, like a lot of religious bodies, is a religious corporation. And despite the disinformation floating around about the Little Sisters of the Poor case, religious corporations have a very firm exemption to the contraceptive mandate. Would the Court want to rewrite the statute—and possibly make corporate law into a teeming mess of exemptions and inquisitions?

There’s a way out, of course; and that is to rely on precedents like Lee and say that the “for profit issue” doesn’t need to be decided, because in any case the government’s interest in uniform application of the mandate trumps whatever burden it may place on any secular employer, corporation or not. If Congress disagrees, it knows how to write a limited exemption to the mandate, the way it did for Edwin Lee. That would be the best all around; the Tenth Circuit opinion upholding Hobby Lobby’s claims is such a wretched piece of work that a sane justice might not want to touch it, much less affirm it.