Today the Supreme Court heard oral argument in the Hobby Lobby case challenging Obamacare’s requirement that employers provide their employees with health insurance coverage for contraceptives. Hobby Lobby, Mardel, and Conestoga Wood—whose owners say the contraceptive mandate would force them to act against their religious beliefs—brought suit under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The government insisted that, as for-profit corporations, these plaintiffs cannot assert religious rights. PLF filed an amicus brief arguing that people don’t lose their rights when they choose to associate together in the form of a corporation.
In one of the most high profile cases since the High Court upheld Obamacare as a “tax” two years ago, the same attorneys who argued that case met again to argue about Obamacare once more. Just as before, Solicitor General Donald Verrilli represented the government and former Solicitor General Paul Clement represented the plaintiffs. This was not lost on those present, and Obamacare jokes ensued. When Justice Kennedy asked whether the Court had to consider the constitutionality of the whole act, General Verrilli responded, “Well, I think it has been examined, your Honor, in my recollection.” In another light moment, Justice Sotomayor noted that the fine that employers must pay if they do not provide health insurance is “not called a penalty. It’s a called a tax,” to which Chief Justice Roberts responded “She’s right about that.”
But overall the mood was more serious, with each wing of the Court reciting a parade of horribles that would occur if the other side got its way. Justices Sotomayor and Kagan questioned whether, if corporations could challenge the contraception mandate, they would flood the courts with challenges to other requirements, like compulsory vaccinations, or insurance coverage for blood transfusions. The two Justices also asked whether it would be possible or proper for the Court to determine whether a corporation was genuinely asserting a religious belief, or merely pretending—especially in the case of large corporations with diverse shareholders. Paul Clement noted that there hadn’t been any such onslaught of litigation to date by either for-profit or non-profit corporations—even though the government conceded that non-profit corporations can assert violations of religious rights. He further expressed confidence that in any future cases the Court could separate any non-believing “sheep” from the practicing “goats”—and noted that nobody doubted the sincerity of the plaintiffs’ beliefs in this case. But he also alluded to the fact that the First Amendment and RFRA—not convenience—should dictate whether corporations can bring suit. Chief Justice Roberts indicated he was amenable to a narrow holding limited to the facts of this case—which concern a small, closed corporation—in order to avoid these problems.
Justice Kagan and Sotomayor also questioned how burdensome the employee mandate is, given that employers can simply pay a fine and stop providing health insurance altogether if they don’t want to provide coverage for contraception. Mr. Clement responded that doing so would subject Hobby Lobby to $26 million in fines, force them to raise wages to compensate for the lost benefits, and require them to violate their religious belief that they should provide health insurance for their employees.
Justice Kennedy—the closely watched “swing vote” on the Court— asked how to square the employer’s religious liberty with that of the employees. Clement noted that even if an employer doesn’t subsidize an employee’s contraceptives, she’s still free to get them herself. Refusing to pay doesn’t deny someone access—and at any rate, the government could subsidize the contraceptives directly rather than foist the requirement on religious employers. General Verrilli noted that Clement’s proposed alternative would impose “a very open-ended increase on the cost of government.” But just because the government doesn’t want to pay doesn’t mean it can force employers to pay when doing so would violate their religious beliefs.
Mr. Clement brought up the fact that the government had exempted a whole host of insurance plans that were to be “grandfathered” in for purely administrative convenience. He argued that if the government’s interest in the contraceptive mandate was so compelling, it would not have exempted so many employers from the requirement. He quipped, “I don’t think anybody would think that Congress would pass a Title VII that said, ‘Hey, as long as you have a preexisting discriminatory policy, you’re allowed to keep it.’ That doesn’t seem like it would be consistent.” In other words, exempting people from the law undermines the government’s purported interest in having everyone comply.
But neither was Solicitor General Donald Verrilli able to escape tough questions. He began his argument with a Justice Jackson quote that Chief Justice Roberts was quick to point out contradicted the clear wording of the RFRA—the statute at issue.
Justice Alito noted that Denmark had recently prohibited kosher and halal slaughter methods on the rationale that they are inhumane, and questioned whether a corporate kosher or halal slaughterhouse could challenge the law if it existed in the United States. General Verrilli’s responded that if you choose to enter the for-profit sphere, you agree to abide by the rules that govern it—even if they violate your religious beliefs. In other words, check your First Amendment rights at the corporate office door.
As PLF argues in its brief, for-profit corporations often exercise religious rights. For-profit corporations further their religious beliefs they sell kosher hot dogs, print bible verses on their shopping bags, or donate money to churches. A world where corporations are denied the ability to assert rights merely because they are corporations is a world in which the government can say that a corporate publisher can’t publish, or worse, New York Times can’t publish, because the government doesn’t like what it says. Officials could raid and plunder a corporation without reproach, or outlaw disfavored religious practices in corporations. Protecting the rights of corporations protects the rights of the people who make up the corporation. Whether the Court will agree is up in the air, but we expect to find out this June.