Open thread: SCOTUS and Hobby Lobby/Conestoga

posted at 10:01 am on March 25, 2014 by Ed Morrissey

Arguments have already gotten underway at the Supreme Court as we post this, but it’s not too late for a recap. SCOTUSblog has its own roundup, so be sure to trek there if you want the blow-by-blow. (Audio from the arguments will come out on Friday.) We’ve covered the issue for more than two years, and Hot Air readers have a clear idea what our take on the case itself will be.

National Journal’s Sam Baker outlines the three possible directions this could take:

When the Justice Department has lost on the threshold question of corporate rights, it has always lost on the underlying challenge to the contraception mandate. Any time an appeals court decided that a company or its owner could exercise religion, it went on to find that the birth-control mandate at least seems likely to violate that religious freedom. And so the only way the administration has ever won on the mandate itself is to close the door before a court even gets there—which could prove hard to do before the Supreme Court.

The biggest hurdle for the mandate’s challengers is the marquee question of whether they can practice a religion. In one of the cases before the Supreme Court this week, a cabinet-making company called Conestoga challenged the mandate as an affront to the beliefs of its owners, the Hahn family. The 3rd Circuit Court of Appeals, siding with the Justice Department, said the corporation and the people who own it are two different entities.

“Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga,” the court wrote.

Chief Justice John Roberts likes to keep the high court’s rulings as narrow as possible on most big issues. He looks for ways to minimize the Court’s footprint by avoiding the biggest question—which, in this case, would be whether corporations are protected by the First Amendment’s “free exercise” clause.

There’s a reasonably clear way for him to do that here: Avoid the question of whether corporations are people, and focus on whether—in these specific cases—people are their corporations.

Both Hobby Lobby and Conestoga are closely held companies, controlled entirely or almost entirely by their owners. The libertarian Cato Institute suggested in a supporting brief that because these two companies are controlled by their owners, the Court could rule in their favor without setting a broader precedent that corporations in general can practice religion.

CBS frames this as reproductive rights versus religious liberty:

For Christian conservatives, the cases represent the threat of government overreach.

“This case will decide whether a family gives up their religious freedom when they open a family business,” Lori Windham, a senior counsel for the Becket Fund, which is representing Hobby Lobby, told CBS News. “The question here is whether the Green family can be forced to do something that violates their deeply held religious conviction as a consequence of the new health care law.”

Reproductive rights advocates, meanwhile, consider the notion that some businesses could pick and choose which contraception methods to cover “out of touch [and] out of line,” Ilyse Hogue, president of NARAL Pro Choice America, told reporters.

Contraception is “integral with our economic security and our ability to hold jobs for our lifetime,” Hogue said. “We’ve had enough of this idea our reproductive health is somehow separate from our economic well being… Our bodies are not our bosses’ business.”

The two cases, however, have implications that go well beyond the so-called “wars” on women or religion. If Hobby Lobby and Conestoga prevail, it would prompt “a fundamental shift in the understanding of the First Amendment,” David Gans, the civil rights director for the Constitutional Accountability Center, told CBS News.

Both of these miss one particular point, though. For individuals or for corporations, the government can only intrude on constitutionally-protected rights for a compelling state interest. Hobby Lobby/Conestoga can point to the August 2010 CDC study that shows even without forcing employers to pick up the tab for contraception, 99% of sexually active women who wished to avoid pregnancy between 1980 and 2008 used contraception to do so. Access is such a non-issue that the CDC doesn’t even bother to address it. Furthermore, Hobby Lobby already offers coverage for 16 forms of birth control, only refusing to cover those that the owners consider abortifacients rather than contraception.

The Washington Post’s editorial board attempts to make the “compelling interest” case:

One goal was to provide adequate coverage to women. A panel of independent experts — not liberal ideologues in Congress — determined that assuring access to a range of birth control products to all women, not just those who could afford it, would convey major public health benefits. It’s true that some non-compliant plans here and there were grandfathered in — but they will phase out, making the rule comprehensive.

Under U.S. law, corporations get substantial privileges, such as limits on owners’ financial liability. Now, they have been asked to take on responsibilities, such as providing decent health-care coverage, with the aid of massive tax subsidies. Not every American of every creed will be comfortable with reasonable, general rules that extend across the marketplace — requiring vaccinations, say, or prohibiting discrimination against women in the workplace. But it’s not feasible for a corporation to easily opt out of any generally beneficial law that happens to offend its owners. That is a principle vital to maintaining a functional, pluralistic democracy.

If the goal was “assuring access,” then the CDC’s study should say mission accomplished. Thus, there is no compelling government interest in forcing businesses to provide birth control for free, no more than there is for forcing them to provide food, groceries, or heating oil for free for their personal use, either. Businesses are free to do so if they wish now, but they should be free to choose not to do so if their values oppose it.

Will the Supreme Court agree? I suspect they will, since the lack of compelling state interest is the quickest and cleanest hack through the Gordian knot of the RFRA, First Amendment, and corporate personhood this mandate creates. But that’s what we’ll see today, and what we’ll find out some time in June.

Update: Be sure to read Gabriel Malor’s political and legal briefs at AoSHQ. Here’s his conclusion in the latter:

The government simply misstates the businesses’ and owners’ objection. Yes, for religious reasons they oppose the use of contraception. They also oppose covering it in their health care plans and it is this very coverage that the government is now mandating. That is the burden and it is indisputably substantial, since failure to provide the objectionable coverage will result in crippling fines. The government’s attempt to distract the court with claims that the businesses solely object to the use of contraception requires the high court to simply disregard the actual stated objection of the businesses. …

I will conclude with a prediction based only on their briefs (and this comes before argument): the businesses will win. There is a key difference between a political argument and a legal argument that the government seems to have forgotten here. To win in politics, you take the other side’s worst arguments and hammer that. To win in a legal argument, however, you must take the other side’s best arguments and tear that down. Here, the government’s brief doesn’t directly address the businesses’ arguments, preferring instead to take a rambling trip through concepts like piercing the corporate veil, “attenuation,” and ERISA lawsuits. By contrast, the businesses focus directly on the question at issue: does RFRA protect them. It’s a telling difference.

There’s a lot more, so be sure to read it all.

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You can’t have it both ways.

gwelf on March 25, 2014 at 3:38 PM

That’s what the fingers in the ears are for.

Axeman on March 25, 2014 at 4:06 PM

A corporation’s expression is the expression of the people who work for it and lead it. The law recognizes this reality when it holds corporations liable for the acts of the individuals who work for it, so long as those individuals act within the scope of their employment.

When you allow an organization to speak, people speak. When you censor an organization, you censor people.

–So a company has 50 employees. 10 are Catholic, 10 are Baptist, 5 are Jewish, 8 are mainline Christian, 2 are Muslim and the rest are atheists or agnostics. It has 5 stockholders, 2 of which are Catholics and 3 of which are Muslim. It has 8 officers, 2 of which are Catholic, 2 of which are mainline Christian and the rest are mainline Christian.

Which person(s) views are those of the company?

(And now I have to get back to conference with verbie.)

jim56 on March 25, 2014 at 3:31 PM

gwelf demolished your quaint worldview better than I ever could. But let me add some other thoughts.

1. The Democratic National Committee is also a corporation (DNC Services Corporation).

2. PBS and NPR are also a corporation (CPB)

Which persons’ views are the views of those corporations?

And better still, in the case of the first example I cite, why aren’t those in that corporation allowed to dissent from the official beliefs of that corporation? You might want to ask Joe Lieberman about that!

Thanks for playing!

Del Dolemonte on March 25, 2014 at 5:00 PM

A new tack:

Let me get this straight: Pelosi says we have to pass it to find out what’s in it, but religious oppression couldn’t possibly be in it because it was just too well thought out?

How does this encounter-based experiential learning about the world that is Obamacare square with the broken-record repetition of “Whatever it is, it’s the law.”

You realize that poisonous plants, trees and animals can lie in undiscovered country, don’t you?

How (TF) is Obamacare so perfect that every touch of the Republicans will wilt it, if your EXPERTS didn’t even know what they were freaking PASSING!!

You guys are freaking zealots!

Axeman on March 25, 2014 at 5:26 PM

Which persons’ views are the views of those corporations?

Del Dolemonte on March 25, 2014 at 5:00 PM

Poor jim56 might regret asking such a silly question, and it might take him a while to figure out a completely new argument that won’t immediately force him into a corner. He’s probably a newbie that still needs to lean that he can’t bring his minor league game into Hot Air.

blink on March 25, 2014 at 5:12 PM

For a palate cleanser, check out this howler from the Romney/O’bama/Russia thread:

Don’t know why people try and talk sense into Antifederalist. Just tell him mom’s dinner is ready and he’ll come out of her basement…freshly cleaned pajamas for him too.

bfinstock79 on March 25, 2014 at 5:18 PM

Hot Airheads talk sense into me? In order to do that someone would have to try to engage in an intelligent discussion. They would have to do things like bring facts to the table. What’s typical in Hot Air “discussions” is that snark routinely masquerades as intelligence. Instead of actually having an intelligent and honest debate, people like to throw out insults, just as you did.

You all should thank me. My presence here raises the IQ of this forum by at least 75 points.

antifederalist on March 25, 2014 at 5:24 PM


Del Dolemonte on March 25, 2014 at 6:02 PM

A panel of independent experts — not liberal ideologues in Congress — determined that assuring access to a range of birth control products to all women, not just those who could afford it, would convey major public health benefits.

LOL. Love this part of the Post’s rationalization. A “panel of independent experts” — oooooooh, how impressive! We’re so much cooler with fascism so long as it’s being dictated to us by “experts.” Especially the totally unbiased and non-ideological type of “experts” who sign on to work with Democratic politicians fashioning big-government health insurance schemes.

AZCoyote on March 25, 2014 at 6:07 PM

Who can tell me when an actual decision is expected ?
Admittedly I did not read everything here .. just checking in on it all.

pambi on March 25, 2014 at 7:02 PM

This Jimbo guy is not real bright.

CW on March 25, 2014 at 7:11 PM

Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines

workingclass artist on March 25, 2014 at 1:50 PM

If a company wanted to purchase health insurance plans for their employees that excluded blood transfusions and vaccines, then I assume the employees would simply pay out of pocket for those items. This means that employees would consider such possible out of pocket costs when considering (and, after employment, reevaluating) their employer’s compensation package with respect to competing compensation that they have a right to pursue.

blink on March 25, 2014 at 2:01 PM

The list of horribles Sotomayer used is bogus.

Gabe Malor wrote a good post on it and Ed linked it in his post.

workingclass artist on March 25, 2014 at 8:19 PM

It seemed the ladies of the court were trying to turn the arguments into something other than what was being argued before the court. This is a religious liberties case, not some discussion about what corporations can do. The court has alot of precedence they would have to ignore if they were to over turn the lower court’s decision. At one point, I believe it was Kagan, tried to suggest that if Hobby Lobby didn’t like it they could just drop insurance altogether and then acted like she didn’t believe that would have its own huge costs to the company. I really believe this will end up being a 6-3 or 7-2, maybe 8-1 decision. The government clearly did nothing to refute the findings of the lower courtt, only tried to change the subject.

To this point, nobody has been able show any kind of harm that not forcing a company to pay for contraception would have upon women. The left keeps saying that, but then they can’t back it up, especially since contraception is now basically free to obtain in America.

Ellis on March 25, 2014 at 10:02 PM

Contraception is “integral with our economic security and our ability to hold jobs for our lifetime,” Hogue said. “We’ve had enough of this idea our reproductive health is somehow separate from our economic well being… Our bodies are not our bosses’ business.”

I agree, her body is not the business of her boss. That being the case, why should he be required by law to provide insurance to take care of her body?

Hobby Lobby offers contraception in their health care program, so the “economic security” is there. What is economic security, I sure would like to get some of that where I work. Is that like being tenured?

Ibanez Lotus on March 25, 2014 at 10:12 PM

Protesters say a company shouldn’t be able to make decisions on what coverage to offer employees. The thing is before ObamaCare they did that all the time. Ironic. Most group plans did not cover birth control nor ED drugs.

Dasher on March 25, 2014 at 10:14 PM

Made me laugh.

BTW, you never responded

Nope…I never did.

verbaluce on June 24, 2013 at 1:43 PM


Bmore on March 25, 2014 at 10:40 PM

Just as I was leaving, this little gem. Spelling.

Murphy9 on March 25, 2014 at 3:33 PM

I knew I smelled something.

Who next? Roger Waters/The Wall/Jailbreak?

kingsjester on March 25, 2014 at 3:52 PM

Made me laugh yet again. ; )

Bmore on March 25, 2014 at 10:51 PM

Prediction…Hobby Lobby loses in a 7-2 vote.

Doomsday on March 26, 2014 at 9:33 AM

Heh. Insurance coverage for birth control. I thought insurance was for things that didn’t work.
Prediction: Corporations=People…Hobby Lobby and Religious Freedom in USA win 7-2.

trl on March 26, 2014 at 11:57 AM

John Roberts has clearly demonstrated his wife’s invitations to swanky Liberal DC parties\soirees are more important than the Constitution.

Don’t be optimistic and you won’t be disappointed.

E9RET on March 26, 2014 at 12:45 PM