There are just two cases left to be decided in this session of the US Supreme Court and we should have both rulings tomorrow. Since many of you fall into roughly the same category of geekdom when it comes to government and public policy as many other citizens do about baseball, I’m sure you’re waiting with bated breath. Harris vs Quinn will be a big one, no doubt, since it has the potential to deal a severe blow to unions and their ability to pick the pockets of those who choose not to be members, but the one we’ve been covering here with the most intensity is Hobby Lobby.
Regular readers already know what’s at stake, (and if you don’t, you can see much of the history of it with these links) but how will the court decide this one? Will owners of a private business retain the same rights of religious freedom or does ObamaCare override all of that?
Attorney Doug Mataconis predicts that it will go Hobby Lobby’s way, but probably in a limited fashion.
In light of how the oral argument went, the expectation from most legal analysts is that tomorrow’s decision will result in a ruling in favor of Hobby Lobby and Conestoga under the Religious Freedom Restoration Act. The unanswered question at this point is how wide or narrow that ruling might be, because the implications of a ruling that provides private entities with a basis to assert the religious preferences of their owners could be quite far reaching…
Beyond birth control, there are countless other areas where a broadly expansive ruling on the RFRA’s application to this situation would have a big impact. In the employer-employee context, it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same. Outside of that relationship, such a ruling would have an obvious impact on the issues that have arisen in recent years surrounding same-sex marriage and the question of whether certain businesses — such as wedding photographers and bakers — should have a right to refuse to provide service to same-sex wedding ceremonies notwithstanding any applicable law banning discrimination based on sexual orientation. Depending on how broadly the Court rules tomorrow, there would seem to me to be a strong argument in favor of such vendors being able to exempt themselves from generally applicable laws such as anti-discrimination laws. Indeed, in anticipation of this decision several states have already made moves to strenthen their own versions of the RFRA to give protection to businesses in these types of situations. In those states, obviously, it wouldn’t matter what the Supreme Court decides.
Given the recent history of this particular court, I think that’s a fairly safe bet. The Justices haven’t tended to make sweeping, precedent shifting calls on hotly contested social debates which would hold the potential to seriously alter how things operate across the entire national spectrum. More often, they have made narrowly defined decisions which essentially impact just the litigants in question or a limited class of operatives in very similar circumstance. And that’s when they choose to hear the case at all. In many others they have either punted entirely or kicked the case for a lack of standing by those bringing it without judging the underlying case on its merits.
It seems likely that this one will go the same way, with Hobby Lobby prevailing but not opening the door to some wholesale platform for individuals or businesses (outside of charitable organizations and churches) to reject all manner of federal law based on their religious convictions. I also don’t expect to see them return this one unanimously, as they almost miraculously did in 12 of the last 16. Expect most, if not all of the four liberal justices to go against Hobby Lobby. I’d be pleasantly surprised to be proven wrong on this one, but it seems doubtful.