Lyle Denniston has his usual thorough recap of Tuesday’s oral argument in the Hobby Lobby case, which challenges the contraception mandate in the Affordable Care Act. I’m sure you’ll be shocked to hear that the case is likely to come down to how Justice Kennedy votes.
The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.
So went the argument in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second.
But the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four.
This is very rare, only happening on days that end in ‘Y.’
The hearing could not have been a pleasant experience for two experienced advocates — Washington attorney and former U.S. Solicitor General Paul D. Clement, and current Solicitor General Donald B. Verrilli, Jr., making a return engagement from their encounter two years ago when the Affordable Care Act first came up for review in the Court — when each won something.
In the end, what made trouble for each of them Tuesday was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs?
Clement was badgered throughout his time at the lectern, especially by Justices Elena Kagan and Sonia Sotomayor, who suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.
Early in the argument, Justice Kennedy asked non-committally how the Court could avoid the constitutional issue of the mandate’s impact on the right to freely exercise religion. Clement said it would be easy, and relying only on a federal law, the Religious Freedom Restoration Act, would clearly favor a corporate exemption to the mandate.
I suspect that is how the case will come out, with a ruling in favor of Hobby Lobby based solely on RFRA, not the Free Exercise Clause. I also wouldn’t be surprised if there ended up being a plurality ruling, perhaps with Kennedy and Roberts looking for a narrower decision that only some would join.
Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have.
Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. That did not satisfy Breyer, who wanted to know “how this case fits into the broader spectrum” of how courts and government accommodate religion.
Now that’s a great idea. Birth control should be free for everyone, always, paid for by the government. That’s a better solution than making companies put it in their insurance policies (for the obvious reason that only some people have insurance paid for by their employers).