As Sam Baker sees it, “the legal battle over Obamacare’s contraception mandate is essentially tied as it heads into Tuesday’s Supreme Court arguments”:
Both sides have suffered some bad losses in lower courts, and the weaknesses that hurt them before could spell trouble again on Tuesday. The Court has combined two cases on the birth-control mandate – one the government won, and one it lost. Both challenges were filed by for-profit companies that say the mandate violates the religious beliefs of their owners. Five federal appeals courts have heard such challenges, and their rulings are a mess of conflicts. The courts not only disagree with each other, they’re also divided internally. As judges agreed on one question but disagreed on another, the 10th Circuit Court of Appeals cobbled together four different majorities in one ruling against the mandate. (That case, filed by Hobby Lobby, is one of the challenges before the Supreme Court this week.)
In other words, there are good reasons why each side might lose at the Supreme Court.
Tom Donnelly considers the conundrum facing Chief Justice Roberts:
On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution.
First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans – something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice – a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
Beutler says the Hobby Lobby case may expose hypocrisy on the conservative arm of SCOTUS:
If Hobby Lobby et al. manage to successfully pierce the veil, to the end of avoiding the contraception mandate, the court’s ruling, if drawn broadly enough, could be used to expose shareholders to liabilities that incorporation is intended to eliminate. It stands to reason that this contradiction at least partially explains why major corporate trade associations have either remained neutral in this case or actually come down on the side of the government.
It also creates an interesting test for this particular court, which, under the leadership of Chief Justice John Roberts, has been remarkably solicitous of corporate imperatives, but has also been sensitive to those who claim their religious liberties have been threatened or curtailed.
Scott Lemieux adds:
Before tomorrow’s oral arguments, let me note again that people interested in the latest ad hoc legal challenge to the ACA should definitely look at Marty Lederman’s series of posts, helpfully collected here. We’ve already discussed one of his crucial points, namely that there is no contraception “mandate.” Hobby Lobby is not legally required to compensate its employees with health insurance at all. The regulations imposed by the ACA are on insurance plans, not on the corporations per se. What is erroneously described as a “mandate” simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards. As is often the case with specious religious freedom arguments, the corporation wants it both ways, to get the tax benefits without providing the full benefits to employees.
Lowry dissents:
The truth is that the Obama administration wants to bring Hobby Lobby to heel as a matter of principle. In its pinched view of religion, faith should be limited as much as possible to the pews. In its attenuated regard for civil society, it believes government should overawe any person, business, or institution whose beliefs run counter to officially sanctioned attitudes.
Meanwhile, Volokh responds to critics of Religious Freedom Restoration Acts who say that a lot of religious exemption claims don’t have any real support in the Bible:
The American law of religious exemptions is individualistic. The right to a religious exemption belongs to a particular religious believer because of his sincere religious beliefs, whatever they might be. Small denominations are protected, to the same degree as large denominations. The same is true for dissenting groups within denominations. It’s even true for idiosyncratic religious believers. One doesn’t need a note from one’s priest to prevail in a religious exemption case.
Moreover, American courts are constitutionally forbidden from determining what the Bible – or any other religious work – really means. Courts are forbidden from determining whether a belief is reasonable.
Noah Feldman insists the issues go beyond the ACA, religious liberty and contraception:
If all this weren’t enough for you, the fourth issue is arguably more important than the first three: whether corporations are people, too. In Citizens United v. FEC, decided in 2010, the Supreme Court held that free-speech rights should extend to corporations because organizing people to speak more effectively in concert was one of the functions that corporations serve. The case – which as interpreted by the lower courts gave us super-PACs – involved a nonprofit corporation, but it extended to for-profit companies as well. Criticized by Obama in the Supreme Court’s face during a State of the Union address, the decision has been a touchstone for those who would brand the Roberts court as activist and pro-corporation.
The Hobby Lobby case requires the justices to decide if the rule they announced for the free speech clause of the First Amendment applies to the free exercise part of the same amendment. For some liberals, this means an opportunity to reargue Citizens United. For conservatives, it’s an opportunity to depict the rights of corporations in a far more attractive light than corporate political speech. Many sincerely see no difference between a company’s owners and the company itself. Liability should be limited, they believe, but not fundamental free exercise rights.
And finally, Jason Millman suggests Hobby Lobby isn’t necessarily the case to watch today:
At the same time Tuesday morning, the District of Columbia’s Circuit Court of Appeals will consider whether Obamacare allows premium subsidies to flow through federal-run health insurance exchanges. That case has been called “the greatest existential threat” to the survival of the health care law by one of Obamcare’s staunchest supporters. … If we’re just thinking about what these cases could mean for Obamacare’s future, the cases related to federal subsidies are a much bigger deal. Opponents to the law are challenging the IRS interpretation that Congress authorized individuals in states with federal-run exchanges to access premium subsidies.
If the opponents’ challenge is successful – and the law’s supporters say the cases are a real longshot – it would deal a major blow to the law in the 36 states with federal-run exchanges.
The Dish 