Ilya Shapiro offers his take on the case’s day in court:
While Solicitor General Don Verrilli gamely pressed the plight of the “third parties” who would lose out if the challengers get an exemption – employees whose contraceptives wouldn’t be paid by their employer – there didn’t seem to be a majority on the Court who saw it that way. Justice after justice probed such issues as whether the government’s interest here was really that compelling given all the exemptions it had already granted (to small employers, religious nonprofits, and grandfathered plans) and whether there was no other way to achieve the same goal. And those are probably the points on which this case will ultimately turn: (1) the contraceptive mandate was not one of the Obamacare requirements that became mandatory as of January 1 (or whenever the administration stops illegally delaying them), and (2) the government could’ve ensured the provision of the contraceptive mandates a different way (e.g., new tax credits or existing public health programs). Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines, at least five justices seemed to recognize that religious-liberty claims are meant to be adjudicated on a case-by-case basis – maybe six, given Justice Breyer’s lukewarm and infrequent interjections.
Dahlia Lithwick fears the contraception mandate is “doomed”:
The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today. Nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.
But as Jeffrey Toobin notes, “there was little doubt where the Court’s three female Justices stood”:
After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first 32 questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (11), and Elena Kagan (13). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:
I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package. …
There is no such thing as a women’s position on this case or on any other issue. But there is such a thing as women’s voices, and with this case, especially, it was important that they be heard. On this day at the Supreme Court, they were.
Brian Beutler expects bad things to happen if Hobby Lobby wins:
Hobby Lobby’s owners have many options if they genuinely don’t want to offer their employees health insurance that covers contraception. They could stop sponsoring insurance for their employees altogether, though this would require giving up one of those lucrative tax preferences, and possibly paying a steep tax penalty. They could lobby to eliminate the employer mandate or the contraception mandate by statute. They could ask Congress for a limited exemption that would apply to companies, on the condition that they advertise the missing benefit to prospective employees, or push for the creation of a much smaller, subordinate penalty for companies that provide all guaranteed benefits except for contraception. That’s just for starters.
But if they obtain an exemption from the court on religious grounds, even one drawn very narrowly, the unintended consequences could reach much further than the relatively narrow dispute over contraception, significantly altering the balance of competing liberties and private interests in secular spaces, and be very difficult to reverse.
But Sam Kleiner thinks a ruling in favor of Hobby Lobby may not be a big deal after all:
At oral arguments today, Roberts may have “appeared to tip his hand,” as the Wall Street Journal’s Jess Bravin put it. While the government claimed that allowing Hobby Lobby to exempt itself from laws based on a religious claim would have far-reaching implications, Chief Justice Roberts in his questions appeared to be searching for a way to distinguish this case from claims that could be brought by a larger publicly traded company. We could, he noted, “simply say that it’s in this type of Chapter S Corporation that is closely held. Whether it applies in the other situations is—is a question that we’ll have to await another case when a large publicly traded corporation comes in and says, we have religious principles, the sort of situation, I don’t think, is going to happen.”
Guessing about decisions based on questions from the Supreme Court is a risky exercise, but we shouldn’t be surprised if the opinion comes out as a narrow victory for Hobby Lobby that tries to curtail the scope of its ruling to not included publicly traded companies. The decision certainly would be problematic; it would entangle the Supreme Court in having to determine which religious convictions are genuine enough from a corporation to warrant exemptions to laws. However, it would not be the kind of far-reaching assertion of corporate rights that liberals are dreading.
Meanwhile, Patrick Deneen argues provocatively that even if Hobby Lobby wins, Christianity has still lost:
Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The Hobby Lobby near us—on Grape Road in nearby Mishawaka – is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. … It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy.