From Oral Arguments Onwards: Hobby Lobby and Conestoga Wood
Following oral argument on Tuesday morning in Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, eyes are now turning to the end of June when the Supreme Court is likely to issue its ruling. Although much of the deliberating and deciding goes on behind closed doors, oral argument is an important opportunity to gauge what the justices are considering when looking at the case.
SCOTUSblog.com offers the most comprehensive coverage of all Supreme Court goings-on, and in their reporting, recounted the questions the justices asked the lawyers. Lyle Denniston sets the scene, writing “The Supreme Court, in a one-hour, 28-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.” (On many cases, but particularly the ones in the public spotlight, Justice Kennedy is the deciding vote between the liberal wing of the Court: Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan; and the conservative wing: Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.) Paul Clement, from the Becket Fund for Religious Liberty, represented Hobby Lobby and its owners, the Green family, and Conestoga and its owners, the Hahn Family. Solicitor General Don Verilli represented the government.
The Reform Jewish community played a key role in passing the Religious Freedom Restoration Act (RFRA) and we look to interpretations and comments on RFRA with particular interest. Dahlia Lithwick of Slate offered her analysis of oral argument, and highlighted one of the responses Justice Kagan gave Clement, saying,
Your interpretation of [RFRA] would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard’ and allow employer after employer to voice religious objections to sex discrimination laws and minimum wage laws and family leave and child labor laws. All of which would be subject to what she describes as this ‘unbelievably high test, the compelling interest standard.’ Employers will, under that standard, virtually all win.
Another interesting point to consider, especially because the Court seemed divided along its typical lines, is what Cornell Law School Professor Michael Dorf highlights in a SCOTUSblog symposium piece on the contraception mandate. Professor Dorf writes about RFRA’s constitutionality as applied to the federal government, and hones in on Justice Scalia’s opinion in Employment Division v. Smith (the decision he authored that led to RFRA). How Justice Scalia will reconcile his previous opinion with the position he seemed to take in oral argument will be an interesting nuance to look out for. Jess Bravin of The Wall Street Journal also notes this particular issue in his article, which goes further in depth into the history of religious exemptions in legal precedence pre-Smith.
If the Court determines that corporations are entitled to religious rights, we can hypothesize how the justices will draw their lines for what constitutes a “substantial burden” on religious liberty. As with many high-profile cases, Justice Kennedy is likely to be the deciding vote.
It is hard to predict what a decision could look like. It could ascribe some religious exercise rights to corporations–or not. From oral argument, it appears that the Court might have accepted the principle that corporations could have some Free Exercise rights (read more analysis about this particular point at The Washington Post). The New York Times’ Adam Liptak writes about the implications this case could have beyond the scope of contraceptive coverage on health care plans. This piece by Nina Tottenberg of NPR underlines the important components of these cases, which combined help explain why the questions before the Court are so complicated and possibly far-reaching.
We will be watching this case closely, so be sure to check back here for updates.