I've had the following questions about the Zubik oral argument which I'm hoping the list can help with, since the passage of time has not led me to what I assume are obvious answers:
1) Why does everyone on the Court seem so blithely to agree with Paul Clement that for the government to take over a room in the Little Sisters' facility to operate a Title X clinic, even if they paid market price for the room, would of course be impermissible? Couldn't such a government action be seen as a taking for public use with just compensation? Are RFRA and/or RLUIPA thought more generally to protect religiously motivated property owners from what would otherwise be permissible takings? If so, are there cases? And specifically with respect to access to contraception, might it not sometimes be the less restrictive alternative for a government, for example, to use eminent domain to take over space in, for example, a Catholic health care facility, in which medical goods and services which the facility objects to providing might be made available? 2) When Roberts says, "Well, the way constitutional objections work is you might have to change current law," why is the response merely "laughter" rather than the observation that a RFRA objection is not a constitutional objection?
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