The New York Times published an editorial yesterday asserting that the Supreme Court's order in the Wheaton college case last week undercut their own logic in the then-two-days-old Hobby Lobby decision. I think they are wrong. But, you would think the editorial board of the nation's newspaper of record might have given a bit of thought to their complaint. They might have noticed that there is no material difference between the Wheaton College order and the earlier order, given by Associate Justice Sonia Sotomayor on the last day of the year to the Little Sisters of the Poor. In both cases, the order permitted an organization currently challenging the mandate's accommodation to avoid compliance by simply sending a letter to the HHS secretary until the courts figure out whether the accommodation passes constitutional muster. I am not sure why Sotomayor herself did not recognize the similarity: The only difference is time and, perhaps, she has reached the conclusion now, that she had not back in December, that the accommodation is sufficient. But, there is no excuse for the Times. Their editorial reads less like analysis and more like a fundraising email from Emily's List.
