The transcript should be available later today and with it a full recap. In the interim, the Wall Street Journal provided a live blog. The first impressions:
The court’s three female justices, all part of the court’s liberal wing, dominated the questioning during the first half on Monday’s 90 minute oral argument, repeatedly pressing the corporate challengers to the government’s contraception requirements. Mr. Clement said the case before the court on contraception was easier, particularly because the government already has offered exemptions from the contraception requirement for some parties, like non-profit religious groups. [...] Justice Sonia Sotomayor got things started with this: If corporations can object on religious grounds to providing contraception coverage, could they also object to vaccinations or blood transfusions? [...] Clement said every type of objection would have to be analyzed on its own. The government, he suggested, might have a stronger case in other circumstances separate from the contraception question. [Emphasis supplied.]More on the other side.
Clement's answer is quite problematic for him. In Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, decided in 2012, the Supreme Court drew precisely that distinction, holding that:
A church’s selection of its ministers is unlike an individual’s [exercise of religion]. [The] Smith [case] involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Emphasis supplied.]Obviously, Hobby Lobby, a for-profit secular corporation, cannot compare itself to a religious group. Justice Kagan made the strong point that:
Clement’s arguments would take an “uncontroversial law” like the Religious Freedom Restoration Act and turn it into something that would place “the entire U.S. code” under high constitutional scrutiny for possible burdens to corporate religious rights. Companies, she suggested, would be able to object on religious grounds to laws on sex discrimination, minimum wage, family leave and child labor.Indeed, it would put the Court in the business of deciding what religious values are valid and which are not. This would turn the Establishment Clause on its head.
Justice Alito made a rather stupid argument in response, saying, "[i]n all the years since the Religious Freedom Restoration Act was passed, has any litigant attempted to make these types of claims?" Justice Kagan provided the obvious retort: "[I]f Mr. Clement’s position wins the day, then courts could see 'religious objectors come out of the woodwork' to make such claims."
Justice Sotomayor raised an issue our own KagroX mentioned many times:
How are courts, she asked, supposed to know whether a corporation holds a particular religious belief? And what happens to the minority members or shareholders of a corporation who may not share the majority’s belief? How much of a corporation’s business has to be dedicated to religion?On the question of whether Hobby Lobby is being "forced" to provide contraceptive care, Justices Sotomayor and Kagan both offered that Hobby Lobby could choose instead to pay the penalty for not offering insurance (much as people who refuse to purchase insurance could pay the penalty instead of acquiring insurance). Clement, with support from Justice Scalia, responded by saying:
Hobby Lobby would face harms if it didn’t offer health care to its employees. It would to be harder to attract workers, he said, adding that the company believes that providing health care to its employees is important. Justice Scalia offered supporting comments. If Hobby Lobby chooses not to provide health insurance, it’s going to have to raise wages instead, he said.Ironically, many health policy wonks have argued for decoupling of heath insurance from employment for precisely that reason, to raise wages. (I don't believe that will happen on a 1:1 basis.)
To tie this assertion to the argument, Clement is implicitly arguing that such a requirement would be a "substantial burden" on Hobby Lobby's exercise of religion.
Demonstrating the importance of diversity on the Court, Justice Kagan responds to Clement's concerns for Hobby Lobby with concern for Hobby Lobby's female employees:
Congress, she said, made a determination that health plans must include a range of preventative-care coverage for women. When employers seek to deny that coverage on religious grounds, women are “quite tangibly harmed.”Hobby Lobby wants to engage in a war on women. Good for Justice Kagan for saying so.
In a potential key moment, as reported by WSJ, Justice Kennedy asked Clement:
[H]ow the court should take into account the religious rights of employees, which may differ from the religious views of their employer. He asked: Under the challengers’ arguments, do employer rights trump those of workers? Among other things, Mr. Clement suggested the government could step in to subsidize contraception coverage for women who work at companies that don’t provide it, just as the government is doing in cases involving objections by religious nonprofits. [Emphasis supplied.]Kennedy gets to a key point: The health insurance rights belongs to the employees, not the employers. They are created by federal law. Surely the religious views of the employers cannot determine the applicability of federal rights belonging to the employees.
Alito finishes up by arguing, through a rhetorical question to Clement, "whether there weren’t a range of alternative ways to accommodate women who want access to contraceptives that their employer doesn’t want to provide." Of course this is true for just about everything the government does. It's what Republicans call "socialism."
Solicitor General Verilli was faced with hostile questioning from the usual suspects, the extreme conservative wing. WSJ reports that:
Mr. Verrilli hewed to the argument, though, that Congress didn’t intend, and courts never had applied, religious exemptions that operated to the detriment of third parties, like the Hobby Lobby employees. He repeatedly turned to U.S. v. Lee, a 1982 case where the Supreme Court unanimously held that Amish employers and employees could not opt out of Social Security despite their religious belief in self-reliance.In its wrap-up, the WSJ speculates:
Chief Justice John Roberts suggested he was thinking of a narrow ruling allowing closely held companies like Hobby Lobby Stores Inc. to claim a religious exemption, while leaving aside more-complicated ownership structures of publicly traded corporations to another day — a position that Justice Stephen Breyer indicated he might, or might not, be open to.It would not be surprising for Roberts to come up with a half-cocked, illogical "compromise." Obviously none of the women on the Court would ever agree to this. I seriously doubt Breyer would either.
But would Roberts and Kennedy brazen out some two-vote opinion that carries the result? I would not put it past them. To be clear, there is nothing in law or logic that supports the cock up "compromise." It makes no sense. there is nothing in the law that distinguishes between closely held and public traded corporations. And certainly nothing in RFRA.
While it may be jumping a bit far to speculate based just on oral argument, it looks like the typical divide will hold with Justice Kennedy (and possibly Chief Justice Roberts) holding the balance. Clearly the four justices (Ginsburg, Breyer, Sotomayor and Kagan, not incidentally all of the women on the Court) not in the extreme conservative wing will rule against Hobby Lobby. But what will Kennedy do? The one reported question about the rights of employees was encouraging.
But it demonstrates yet again that the Supreme Court is nothing more than politics clothed in black robes. This is an easy case. Hobby Lobby's argument is absurd. The ramifications of accepting it could be monumental. But the extreme partisan conservatives will do anything to hit at President Obama, damn the consequences.