UPDATE: Hobby Lobby wins, 5-4. See below for other updates.
Two of the most contentious cases on the Supreme Court’s 2013-14 docket finally get resolved today, after which the justices will take a powder from Washington for three months. Both of them would be tasty enough to command attention all day on their own, and today’s end-of-session dissemination will probably drive commentary for the rest of the week. The announcements start at 10 am ET, so we will follow along with updates to this post with the results, with the potential for deeper analysis later.
By now, everyone’s familiar with Hobby Lobby/Conestoga, and perhaps with Harris v Quinn. Hobby Lobby/Conestoga is the first Supreme Court test for the HHS mandate, which we have covered extensively, but it won’t be the last. This case involves the question of whether the freedom of religious expression for owners of for-profit businesses trump the state interest in providing expanded access to birth control. The latter, Harris, poses the question of whether the state can designate aid recipients as state workers for the purpose of forcibly unionizing them. Both cases have a wide range of outcomes, including the Supreme Court doing nothing much at all. (Gabriel Malor’s primer on the final cases at SCOTUS is particularly helpful.)
Jazz offered his take on the potential outcomes yesterday, and I’ll speculate on Hobby Lobby/Conestoga, at least. The court ruled unanimously last Thursday in McCullen that Massachusetts overreached on state intervention on free speech without considering less intrusive means for satisfying a legitimate state interest, which in that case was public safety. The state interest in expanding contraception access is even less compelling than public safety was in McCullen, and the intrusion far more offensive to First Amendment rights. I’d expect a 6-3 or 7-2 ruling on that basis to strike down the HHS contraception mandate, which would avoid at least in part a decision on the legitimacy of religious expression for business owners. But then again, I am an eternal optimist.
On Harris, I have no prediction to make. I’d like to see the court stop the forced unionization of home health workers (and day care providers) whose only basis for the claim of being a state worker is receiving benefits through safety-net programs, but I’m not completely certain that this court is the one that will make that kind of stand. We’ll see soon enough.
Update: Scenes from the court building:
Er … keep your ovaries and birth practices to yourselves, then.
Update: Justice Sam Alito wrote both opinions, which spells bad news for the White House. First up was Harris, decided 5-4 against the unions. Home care workers cannot be forced into unions. However, at first blush it doesn’t appear that the decision struck down Abood, so it’s still a limited ruling.
#BREAKING: On 5-4 vote, Supreme Court stops short of overturning key 1977 precedent that allows public unions to collect fees
— Reuters U.S. News (@ReutersUS) June 30, 2014
It’s a bit of a mixed bag:
Per @scotusblog, The Court recognizes a category of "partial public employees" that cannot be required to contribute union bargaining fees.
— Gabriel Malor (@gabrielmalor) June 30, 2014
They’re getting money for providing care, but they’re not public employees in the sense that they can be forced into public-employee unions. Full decision here, but we’re waiting for the big case.
Update: Hobby Lobby wins 5-4, but it might be a narrow victory — in the for-profit sector, anyway:
Another narrow victory. "Closely held corporations" (whatever that is) cannot be compelled to provide contraception coverage under RFRA.
— Gabriel Malor (@gabrielmalor) June 30, 2014
That puts a stake through the heart of the HHS contraception mandate when applied to not-for-profit organizations, especially those with religious affiliations. Even on a narrow ownership basis, this ruling all but kills the HHS mandate for anything except for-profit corporations with broad public ownership.
As Hugh Hewitt says, it’s a big victory:
Some friends in MSM and opponents on left will attempt to minimize @HobbyLobbyCase, but it is a huge win for religious liberty and RFRA
— Hugh Hewitt (@hughhewitt) June 30, 2014
Update: Possible dark cloud on the horizon for religious non-profits?
The majority opinion, by holding that the nonprofit accommodation is a less restrictive means for accommodating closely held for-profit business suggests (at least to me) that the non-profits who object to that process (because they don’t want to have to certify that they object to providing contraceptive coverage) are in trouble. Seems unlikely the Court would say that this is a less restrictive means in this case, only to later hold that it is unconstitutional. But that’s a very quick reaction.
As compared to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. If the Court rules against the HHS mandate on the ground that the accommodation is a less restrictive means, there would be no reason for it to express any view on whether the accommodation itself satisfies RFRA. Among other things, that question hasn’t been briefed at all in this case, and it is the subject of pending litigation brought by religious nonprofits. …
In sum (and contrary to what Linda Greenhouse, near the end of her latest onlinecolumn, seems to suppose), a resolution of the Hobby Lobby case on this minimalist ground would not mean that Hobby Lobby and other for-profit challengers would have to accept the accommodation. Nor would such a resolution eliminate the prospect that the Court would have to address, a year or so down the road, the separate arguments that the accommodation does not further any compelling interest and that it is not the least restrictive means of advancing any such interest.
Update: The opinion can be found here.