|On March 25, the US Supreme Court heard oral arguments in the Hobby Lobby and Conestoga Woods challenges to the HHS contraceptives mandate. The Christian owners of these two businesses claim that it is a violation of their religious pro-life convictions, and a violation of the moral standards of their respective companies, to be required to include four of the mandated contraceptive services–the contraceptive drugs and devices they (and many) consider to be abortifacients.The transcript of the argument is available here. The audio is here.A decision in the two cases is not expected until the end of June. Predicting how the court will rule based on how the questioning went is akin to reading tea leaves to predict the future. Still, at least three aspects of the discussion inside the Supreme Court are particularly noteworthy:
Hobby Lobby key arguments
(1) Although many commentators on these cases, and the federal government itself, have said that the big question is whether a corporation or a profit-making entity can have any religious exercise rights at all, this was not the crucial part of the discussion at the Court. This should not be a surprise: an amicus brief authored by church-state authority Douglas Laycock shows that the Religious Freedom Restoration Act (RFRA) was not designed to exclude corporations from its protections.
(2) Some of the questioning–and a great deal of the commentary outside the courtroom–has focused on a supposed slippery slope, a parade of horribles: if the Supreme Court upholds Hobby Lobby’s decision about those four contraceptive methods, then, predictably, various companies will plead religious conscience to strip blood transfusions or vaccinations or other medical procedures out of their insurance plans, or maybe even cynically plead religious conscience to strip out some procedures or drugs that they just object to because of cost.
And yet for a corporation (or person or nonprofit) to have the protection of RFRA gives it no free pass for decisions based on religion! It only makes the company (or person or ministry) eligible for a test in court. A court has to determine whether the company has a sincere religious belief in the matter and that having to bend to the government’s requirement would in truth impose a substantial burden on the company’s religious exercise. And the court has to decide whether the government has, as it claims, a compelling interest in imposing the requirement and also that it has no less restrictive way to achieve its interest. The government might well win–and if the claim is frivolous or the government’s interest heavy (preventing a public health disaster, saving a life), it should win.
On the other hand, if the company wins, then its religious exercise is not part of any “parade of horribles”–no matter how much many others might think the company wrong. Instead, the company’s win is an authentic victory for religious freedom–a fundamental American value that enables us to live together in mutual respect.
(3) When the 84 amicus briefs in the Hobby Lobby case had all been filed near the end of January–most of them supporting Hobby Lobby and Conestoga Woods–the estimable and essential Supreme Court blog, SCOTUSblog, took special note of only a single amicus brief. Which one?–the one filed by church-state scholar Marci Hamilton arguing that RFRA is unconstitutional and that it is a violation of the Establishment Clause of the First Amendment to allow a corporation to deny on religious grounds rights or benefits that its employees otherwise would be able to enjoy. But her novel theory seems to have carried no weight with the justices.
If nothing else, all of this is just a sobering reminder: public debate about justice and the law often has very little relationship with actual constitutional principles or legal analysis.