Open thread: SCOTUS and Hobby Lobby/Conestoga

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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