Hobby Lobby and Conestoga Wood Specialties case arguments


Lyle Denniston has a summary of the oral arguments in today’s contraceptive case and you can also read the transcript here. Denniston seems to have the sense (shared by several other reports I read) that the day did not go well for the government’s case, despite the spirited question by the three women justices of the lawyers for the companies. It will be quite telling if a 6-3 verdict splits along gender lines.

Ian Millhiser also has a good summary in which he says that Justice Kennedy seemed to suggest that if the government wins this case, it might then be able to require company health insurance plans to also cover abortion. The justices also spent considerable time on the issue that Marty Lederman had written about that I summarized earlier today,

One option being bandied about is that the court may try to carve out an exemption from the ACA requirements for ‘small, private, closely-held companies’. But as Jim Newell points out, while Hobby Lobby may be private and closely held’ (whatever that means), it is definitely not small. “It is a corporation with over 500 stores, tens of thousands of employees, and several billion dollars in annual revenue.”

In reading recent court cases, I am coming to the conclusion that the most dangerous religious sympathizer on the court may not be justice Scalia but justice Alito. The seems to be extremely intent on preserving a big role for religion but he does it under the radar while Scalia hogs the attention, which in some ways makes him even more dangerous than Scalia.

Comments

  1. Chiroptera says

    …Justice Kennedy seemed to suggest that if the government wins this case, it might then be able to require company health insurance plans to also cover abortion.

    I would think that if abortion really were such a special issue that needs to be explicitly brought up, then that issue could be argued on its own merits when and if it comes before the Court.

    Whether he realizes it or not, Kennedy seems to be close to admitting that abortion really is just another medical procedure; if it is really relevant in this case, then I think Kennedy should admit that maybe his reaction toward the issue of abortion is wrong and he needs to change it.

  2. doublereed says

    For real? Man. This court sucks.

    And I’ve gotten that impression of Alito as well. Scalia is tries to get much more attention.

  3. says

    I am not at all religious (I’m an agnostic), yet I totally stand with Hobby Lobby in this case. I think this case is about freedom of contract and conscience. Just like a shop owner who does not allow people carrying guns to enter his shop is not treading on anyone’s right to bear arms, just like A&E did not violate Phil Robertson’s right to free speech by firing him for saying anti-gay stuff, Hobby Lobby isn’t violating anyone’s rights by offering a job at some particular terms and not others. Reason is simple: people aren’t entitled to a job at Hobby Lobby. If they don’t like the terms, they can simply reject them and work elsewhere.

    (Yes, I lean libertarian. Yes, employers should be just as free to not cover Viagra.) The good thing is I think Hobby Lobby is going to win!

    I make a more elaborate case here: http://rationaloutlook.wordpress.com/2014/03/24/why-liberals-are-wrong-on-hobby-lobby/

  4. astrosmashley says

    @ 3

    “If they don’t like the terms, they can simply reject them and work elsewhere.”

    1. Where do you draw the line at what counts as a ‘religion’? If I am from a religion that shuns the sons and daughters of Ham, can I deny employment or discretionary health benefits to black people? Will it be as simple as filling out a form that states my religion…that I invented today, and that it forbids me to do X? What constitiues a legitimate religion. Should this exemption also apply to businesses that provide essential services? If not, where does one draw the line? Sould every instance have to come before the courts to decide the ‘legitimacy of the religious exemption and of the religion itself? I thought government wasn’t in the business of denying or granting legitimacy to religions…. So, do you see how messy this thing will be if we allow this?

    This is another line of evidence of the disturbingly evidence-free and childishly ill-thought-out Libertarian ideology

    So to this: “If they don’t like the terms, they can simply reject them and work elsewhere.”I say, : If you aren’t interested in running a business ( a RETAIL business at that) that serves the public, then don’t run a business…

  5. Mano Singham says

    @3,

    Your argument can be turned around, as Marty Lederman pointed out. If Hobby Lobby does not like the law, they can simply avoid providing health insurance altogether.

  6. astrosmashley says

    I’ll also add that if this decision goes the wrong way, it will not stand for long. It’s so clearly unconstitutional that the flood of cases against the ruling would cause ity to be overturned but not until after much wasted time andtaxpayer money… JUST like the cases brought against marriage equality today. They all lose, and rightfully so…

  7. astrosmashley says

    @mano. Wow. right on… I still haven’t entirely grokked how tmuch of a game changer the ACA is going to be in the very near future.

  8. Dunc says

    Employers don’t cover anything. The provide health insurance as part of a compensation package. Trying to restrict what procedures or medicines that insurance covers is equivalent to trying to restrict how employees are allowed to spend their wages. Should Hobby Lobby be allowed to insist that their employees don’t purchase BC with their wages?

    The end of that particular line of reasoning is the truck system.

  9. doublereed says

    @3

    Corporations don’t have freedom of jack shit. People do. And what I so goddamn hate about libertarians is that they want a country that defends the legal rights of corporations before the rights of people. And that’s precisely what this is.

    You talk about the right of freedom of conscience and contract? How about the freedom of privacy, or the freedom of purchase? Does that fuckin’ matter to you at all? Why does Hobby Lobby get to determine how I spend my compensation?

    Not all contracts are legitimate, just like not all health insurance is legitimate. Enough of your Company Town apologetics. You should be ashamed of being such a corporate shill.

  10. Wylann says

    More potential fallout if this decision goes the wrong way:

    I don’t want Scientologists refusing to provide me with psychiatric medication, Jehovah’s Witness nurses refusing to give me blood transfusions, or New Age mystics replacing my prescriptions with homeopathic remedies.

    All of those things become possible if HL wins this case. I’m sure that might change the minds of some of the “religious freedom ” idiots, but not so much libertarian types, since ‘they can just get a job somewhere else’….

  11. Jockaira says

    To me the issue is very simple: Hobby Lobby and Conestoga Wood are companies doing business with the public; they should be required to comply with the law as written by Congress. Additionally they are employers subject to various federal and state laws regulating relations between employers and employees, and as such should be in complete compliance with the related laws.
    .
    Granting exemptions to corporations for religious reasons is dumb; corporations don’t have any belief. If they do and the regulatory requirements are too burdensome, then they should bow out of the business arena and take themselves to a nunnery, or even better, to a monkey house.
    .
    Just as in school prayer and related activities, the officers and stockholders are still free to pray and express their belief in the appropriate venues, their churches and homes. After all, when you go into public it’s usually with your clothes on.
    .
    The idea of granting exemptions to any employer is just plain silly. As the Rabbi Hillel said “…all else is commentary.”

  12. Timothy says

    @12 Jockaira:

    You nailed it:

    “Granting exemptions to corporations for religious reasons is dumb; corporations don’t have any belief. If they do and the regulatory requirements are too burdensome, then they should bow out of the business arena and take themselves to a nunnery, or even better, to a monkey house.”

    I completely agree.

  13. raven says

    Using Chauhan’s nonreasoning, Moslem CEO’s could fire alcohol drinkers and pork eaters, Hindu CEO’s could fire cow eaters, and atheist CEO’s could fire xians.

    Because they can always get jobs elsewhere!!!

    And normal people could fire Looneytarians. Becaue they can always get jobs elsewhere or move to Galt Gulch and live on imaginary principles.

    Hmmm, well maybe there is an upside to the Hobby Lobby position.

  14. doublereed says

    Oh, and on a similar note, people may want to look up Verizon’s First Amendment claim that they have the right to look through everything you do on the internet and they can throttle you however you like. Because Free Speech. They made this argument in public, in a courtroom, by the way.

    I’m sure Chauhan would love that kind of thing. It’s like Lincoln said: “government of the corporations, by the corporations, for the corporations, shall not perish from the earth.” Or something like that.

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