One of our regular segments on the Hugh Hewitt Show is one we call the Smart Guys, where two Con Law professors, John Eastman of Chapman University’s Fowler School of Law and Dean Erwin Chemerinsky of the University of California, Irvine Law School, debate legal issues – John from the right, Erwin from the left. This week was the first time since the oral argument in the Hobby Lobby/Conestoga Wood cases last week that the audio has been available. Hugh focused on the questioning by Justices Kennedy and Breyer in particular. What follows is part of that conversation that was very illuminating to us. The full interview will air on Thursday’s program due to the breaking news of yet another horrible shooting on the base of Fort Hood, for which thoughts and prayers are naturally offered.
So after Justice Breyer hinted at the nub of what the real question at stake here is, Justice Kennedy bored down and Dean Chemerinsky had to admit something mainstream media has been feverishly trying to avoid – disclosing that these cases are abortion cases much more than they are about birth control. If the Court rules against Hobby Lobby and Conestoga Wood here, there’s no limit to what the government can mandate closely-held corporations have to do, including providing for the termination of life.
As SCOTUSblog’s Lyle Denniston said to Ed Morrissey filling in for Hugh a week ago, the Court is highly unlikely to want to wade into the very muddy waters of deciding once and for all whether or not corporations have religious rights under the 1st Amendment. And their questioning in oral argument didn’t lead anyone to believe they really wanted to set that precedent and split the 1st Amendment into pieces, with corporations having speech rights but not religious liberty rights. So if the 1st Amendment remains unchanged in the outcome of this decision, the default position is that corporations, especially closely-held corporations as exemplified in these cases, can indeed run their business in keeping with the faith of their ownership and/or stockholders.
The McCutcheon decision today showed the conservative majority on the Court wasn’t about to weaken the speech part of the 1st Amendment, and there’s every possibility that if the decision is crafted narrowly, Justice Breyer might make it a 6-3 decision to keep the Free Exercise Clause intact as well.
This is still a Constitutional republic. We don’t do government agencies dictating through regulation who has to provide and pay for abortions here. At least not yet.