When Chief Justice John Roberts cast the crucial vote in 2012 to
uphold the Patient Protection and Affordable Care Act, he justified
his decision as an
act of judicial deference to the elected branches of
government. Judging by today’s
oral arguments in Sebelius v. Hobby Lobby Stores Inc.,
which centered on Obamacare’s mandate requiring most employers to
provide birth control coverage to their employees, the chief
justice is unlikely to repeat that deferential performance.
According to the Obama administration, for-profit corporations
should never be permitted to raise religious objections to federal
regulations. That includes Hobby Lobby, an arts-and-crafts retailer
owned and operated by a family of evangelical Christians who object
to providing access to four methods of contraception they deem
equivalent to abortion.
Yet when Solicitor General Donald Verrilli attempted to make his
case this morning, Roberts wasted little time in attacking the
government’s blanket standard. “Every court of appeal to have
looked at the situation have held that corporations can
bring racial discrimination claims as corporations,” Robertts
told Verrilli. “Does the government have a position on whether
corporations have a race?” Roberts asked. Verrilli conceded that
“corporations can bring those claims.” So why should we view this
case differently, Roberts’ questioning plainly asked.
Liberal Justice Elena Kagan appeared to agree that the
government’s stance on for-profit corporations lacked a firm legal
footing. You may be able to argue that a specific entity such as
Hobby Lobby should not prevail on the merits, Kagan told Verrilli,
but “I’m not sure I understand it as a threshold claim that
this—that the claim is not recognizable at all.”
To make matters worse for the government, Justice Stephen
Breyer, another member of the Court’s liberal wing, also seemed
dubious. Building on a hypothetical scenario posed by Justice
Samuel Alito, who asked about the religious liberties of “kosher
and halal” slaughterhouse corporations, Breyer added, “take five
Jewish or Muslim butchers, and what you’re saying to them is if
they choose to work under the corporate form,” they have to abandon
the Free Exercise Clause as a legal tool. “Looked at that way,”
Breyer said, “I don’t think it matters whether they call themselves
a corporation or whether they call themselves individuals.”
But the justices appeared more closely divided along ideological
lines when it came to the second part of the case, which asks
whether the contraceptive mandate violates federal law by placing a
substantial burden on Hobby Lobby’s exercise of religion. Here the
deciding vote is likely in the hands of Justice Anthony Kennedy,
whose own questioning this morning revealed a certain degree of
sympathy for each side. “The employee may not agree with the
religious —religious beliefs of the employer,” Kennedy observed at
one point. “Does the religious beliefs just trump? Is that the way
it works?”
Yet later in the proceedings Kennedy appeared equally concerned
with the religious conscience of the employer. “Under your view,”
Kennedy told the solicitor general, a for-profit corporation “could
be forced to pay for abortions…your reasoning would permit
that.”
If Kennedy holds to that latter view of the case, the
contraceptive mandate may be in trouble.
A ruling in Sebelius v. Hobby Lobby is expected by
June.
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