The Hobby Lobby Arguments: An Analysis

This week, the Supreme Court heard oral arguments in the consolidated cases of Hobby Lobby and Conestoga Wood which challenged the so-called contraception mandate under Obamacare.  One important point must be mentioned upfront.  First, a contraception mandate- requiring that contraception be covered as part of minimal coverage in a health care policy- is nowhere mentioned in the ACA.  However, the ACA did grant HHS certain powers to promulgate certain regulations regarding minimal standards of coverage.  At issue is the fact that HHS subsequently decided that as part of preventive care, some twenty prescriptions were to be covered.  In these cases, the petitioners do not object to contraception in total, but only to four particular prescriptions which they, for religious purposes, do not view as contraception per se, but as abortificents.  They believe that life begins at conception- the union of a sperm and egg- and that these drugs kill that life; that they do not prevent or guard against conception.  Hence, the liberal media portraying this case as an attack on contraception and on female reproductive rights is patently false.

That being said, I have three main points to make in this article.  The first is the importance of oral argument.  This is the only time we get to publicly see the Supreme Court in action.  As a result, we tend to place too much emphasis on oral arguments.  And it cuts both ways.  For instance, Justice Clarence Thomas is roundly ridiculed in the popular, liberal media because he asks no questions.  They furthermore portray other Justices as “exemplary” because they do ask questions.  However, the fact is that as far as formulating a position on any case, oral argument is the least important.  If we subscribe to the liberal notions, then Scalia, who perhaps asks the most questions, is a constitutional genius and Thomas a dunce.  Clearly, Thomas is no dunce.  Most of the decision-making is based upon the briefs presented by both sides where they initially give their arguments.  Oral argument serves to flesh out those positions and sometimes deals with extreme hypotheticals.

Therefore, most Justices enter oral argument with a decent idea of where they fall on the issues.  That is not say that sometimes minds are not changed.  Most of that persuasion, however, is a result of the opinion-writing process and sometimes internal Court politics.  After oral argument, the Court meets on Friday and they take an initial vote on the case.  If in the majority, the Chief Justice assigns the opinion to someone.  If in the minority, the most senior Justice in the majority assigns the opinion.  The opinions are then circulated and others sign onto the opinion if they agree.  Sometimes they agree in whole and other times in part whereby they can then write a concurring opinion.  Regardless, both a majority and a dissenting opinion are circulated.  Sometimes minds ARE changed as a result of the opinion.  For example, someone may agree that the majority opinion came to the right decision, but that it went too far.  Sometimes they simply change their minds based upon the arguments made in an opinion.  But the fact is that oral arguments, although fun to analyze, are often not indicative of where anyone will eventually land on the case.

The second point, as concerns these cases, is that it is painfully obvious that Kagan, Sotomayor and Ginsburg will side with the government and that Scalia, Alito and probably Thomas will side with the businesses.  One can sort of tell since the female Justices were most critical of the arguments of Hobby Lobby while it was often Scalia who jumped to their defense, and the opposite is true when the government presented their case.  That then leaves Breyer, Kennedy and Roberts.  Breyer was suspiciously quiet when Hobby Lobby presented their case and when the government presented their case, he was certain to preface his first question with the fact it should not indicate how he will decide the case.  For his part, Kennedy questioned whether the Court could and should decide the case based on statutory interpretation of the Religious Freedom Restoration Act (RFRA) rather than reach a constitutional decision.  In other words, could they narrowly tailor this decision so that the concerns expressed by the government could be avoided and those of the businesses could be accommodated.

Which brings me to Roberts- the bane of most conservatives because of his decision in the individual mandate challenge to the ACA.  During argument, the issue again came up twice,  once when Hobby Lobby presented their case and there ensued a disagreement over whether a mandate is a penalty or a tax.  Kagan insisted on the latter with Roberts somewhat humorously validating the tax preference.  The second time was when Kennedy questioned whether the entire ACA is in question and the government said they already won that argument (again, to some laughter).  But, this is not a necessarily a question of taxation versus penalty or Commerce Clause versus Taxing Power Clause.  For that reason, I believe that to divine a decision by Roberts one has to look at his jurisprudence in religion-related cases.  And perhaps the best instance and proof we have that Roberts will eventually side with Hobby Lobby is his opinion in an unanimous case- the O Centro case from 2005 when he ruled that the government could present no compelling interest preventing a religious organization from using certain controlled substances in their practices.  Looking at this sort of in reverse, if the government can express no compelling interest in disallowing a religious organization from violating the Controlled Substances Act, can they express a compelling interest in forcing compliance with an HHS mandate (not a law) that would violate the religious beliefs of an employer?  Since Roberts authored this rather interesting decision in 2005 and it was brought up during oral argument, I am led to believe that he will side with Hobby Lobby especially since he seemed to be most sympathetic to their case when the government presented their side.

The final point of this article is the fact that the government presented some rather strange arguments for their side in this case which may ultimately doom their cause.  For example, if we view the mandate as a tax as the liberal members of the Court insisted, then one would have a de facto surtax on religious beliefs.  As they noted, Hobby Lobby has a choice here: they can drop health care coverage for their employees, take a $2,000 per employee hit in taxes (or penalty), and increase wages thus forcing those employees onto the Obamacare exchange where they can then purchase a policy that covers contraception (and remember: we are talking about four prescriptions of 20 here).  Kagan actually tried to analyze the economics of this decision by the employer and noted that other businesses are making similar choices based on economics, not religion.  There ensued a discussion as to whether the cost would be $26 million or $475 million.  Yet even at the lower $26 million figure, why should any business be forced to make these decisions when the objection is religiously motivated and even the liberals on the Court could not question the religious sincerity of these business owners?

Secondly, we can debate the concept of a mandate not being a mandate, but being a tax until the cows come home.  The fact is that the tax code is often used to steer corporations and individuals into certain actions or behaviors.  In and of itself, that is not such a bad thing.  For example, the tax code’s generous deduction for home mortgage interest steers people towards home ownership.  Whether that is bad or good is left for Congress to decide.  But, home ownership is one thing and a mandate or tax that essentially attempts to force one to abandon or compromise closely held religious beliefs is another story altogether.  And the somewhat liberal flippant response that employers can make a business decision and that they have a “choice” in no way justifies the end result- abandoning or compromising one’s religious beliefs and practices.

Third, the government’s fears, should they not prevail, is based upon the erroneous slippery slope argument which brought up the subject of racial discrimination and Title VII during debate.  The government’s basic argument is that if Hobby Lobby prevails under the RFRA, what is to stop other companies from objecting to federal programs like Social Security or laws that guard against racial discrimination based on purported religious grounds?  As Hobby Lobby pointed out with Social Security, that issue had been rejected by the Court already and that the RFRA in no way implicates Title VII.  And in the one instance where it did- the Hosannah-Tabor case- the Court unanimously fell on the side of religion although, granted, this case and that case are totally different.  This led to a discussion of the sincerity versus closely-held aspect of a religious belief.  The Court has rightfully held that sincerity should never be an issue or questioned, but whether a belief is closely-held can be the subject of inquiry.  And there is no doubt that either Hobby Lobby or Conestoga Wood being pro-life is a closely held belief.

But both these entities are corporations.  Therefore, can a corporation “express” a religious belief?  Again, the government gets into some trouble with their arguments.  In fact, they asserted that a corporation could bring a racial discrimination claim under Title VII and there would be no questioning of the “personhood” status of that corporation.  In fact, they basically asserted that a corporation could have a “race.”  Yet they then make the untenable assertion that a corporation could not express a religious belief.  I may be in the fringe here, but I was under the impression that basic constitutional assertions such as the right to free speech and exercise of religion took priority over federal statutes.  In effect, as Alito and Scalia cornered the government, the government’s belief is that corporations basically surrender constitutional rights by virtue of being a corporation.

And as is true of all basic constitutional rights whether expressed by individuals or corporations, the Court has held that they may sometimes be infringed if there is a compelling government interest.  Here, covering contraception as part of a comprehensive preventive health program some would say is a compelling government interest especially since in its absence a very important third party- females in the workforce- would be excluded.  But that argument only works in the absence of the second aspect of its constitutionality: Did the government use the least restrictive means in achieving the compelling government interest?  Given the fact that the government through the IRS or HHS has granted so many exemptions not only in this area but in a multitude of other areas not even remotely associated with First Amendment rights but more doing with economic hardships, they essentially undercut their own arguments.  In fact, Justice Breyer was the one who probably emphasized this facet of the case the most.  All the government is left with is, “Surely Congress intended this when they wrote the law.”  Unfortunately, a sloppily worded law is no excuse to infringe on one’s First Amendment rights.

Furthermore, as was stated at the beginning, this case objects to coverage of four items which the businesses, for religious purposes, believe to, in effect, cause abortions.  As was noted and conceded by the government, Congress in the ACA specifically precluded elective abortion from mandated coverage minimal standards.  Hobby Lobby does not object to any method that prevents the union of a sperm and egg be that the multitude of birth control pills, condoms, spermicidal foams, etc.  They object to those “contraceptives” that destroy a fertilized egg- an abortificent by any other name.  When the government asserts that these four other items are, in fact, contraceptives, not abortificents, Justice Alito probably destroyed their argument the best when he said that the government was seeking the Supreme Court to come to a decision that substituted a secular solution to an issue debated and unresolved on moral and theological grounds.

If anything, the government’s argument was rife with internal inconsistencies in logic.  An exemption can be granted because it causes a financial hardship, but not when it causes a religious hardship.  A corporation can have a “race,” but can not exercise a religious belief.  Even if it can express a religious belief, it is fine to assess a surtax on that corporation to force compliance with a secular law in the interest of uniformity even when no uniformity is expressed elsewhere.  There is no alternative in this case even though there are alternatives in other areas that do not infringe a constitutional right.  In sum, it is illustrative of this Administration’s animus against religion (unless you are Muslim).  As Kennedy rightfully notes, why was this decision even left to the IRS and HHS and not Congress?  Their argument is that Congress, by their silence, DID intend for the IRS or HHS to make these decisions which totally negates their uniformity argument.  For example, what if in 2016 a Republican wins the White House and their IRS and HHS decide that four “contraceptives” do not need to be covered?  Even in the protracted discussion about grandfathered clauses, the government could not give a firm date other than “surely, sometime in the future.”  “Sometime in the future” could be tomorrow or it could be generations from now.  Under such abstract assertions that will “eventually” rectify a constitutional harm, surely the Constitution must prevail.

In conclusion, if I had to handicap the decision, I would think it to be at least 5-4 in favor of Hobby Lobby and 6-3 at best with Breyer being the sixth vote.  The government’s slippery slope argument seemed to be rebutted at every turn while the alternative slippery slope argument- a secular entity like the IRS or HHS mandating to anyone, corporation or not, that they lay aside their religious beliefs for the good of all and for uniformity in a terribly conceived law- is the far worse option, especially when that option asks one to lay aside admittedly sincere and closely-held religious beliefs.

{Final note: Sorry for the length of this entry, but to do adequate justice, it was necessary.}