Hobby Lobby and the Obama administration finally appeared before the Supreme Court on Tuesday morning to present their arguments over Obamacare’s contraception mandate to the nine justices. The oral argument is the justices’ only opportunity to interrogate each side, and, as a result, their questions can give a peek into their priorities.
The discussion between the justices and each sides’ lawyer was wide ranging, but the justices’ questions generally fell into three broad areas of inquiry: the potential for a slippery slope, the rights of corporations, and the effect of the sprawling law’s structure.
Recent Stories in Issues
Sliding down the slippery slope?
One key thing the justices wanted to know was how far each side’s argument would extend.
Hobby Lobby’s owners are arguing that Obamacare’s mandate to provide four kinds of contraception violates their Christian faith, and as a result they want an exemption from the requirement on the basis of their religion.
Two liberal justices, Elena Kagan and Sonia Sotomayor, wanted to know how broadly Hobby Lobby’s claim extended.
"Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusions [and] vaccines?" Sotomayor asked Paul Clement, Hobby Lobby’s representative before the Court, at the very beginning of his argument.
Kagan fleshed out a potential implication. "One religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform," she said.
Clement answered that each appeal for an exemption would have to be decided on a case-by-case basis.
While the liberal judges were concerned about the chaos coming from an overly broad exemption, Justice Anthony Kennedy—the likely swing vote in the case—expressed a different concern about the implication of the government’s position.
The Obama administration was arguing that for-profit corporations cannot make religious claims because they are making a financial profit. Kennedy then asked how far this position would extend.
"Under your view, a [for-]profit corporation could be forced—in principle, there are some statutes on the books now which would prevent it, but—could be forced in principle to pay for abortions," Kennedy said, wondering whether the government would agree.
The Obama administration’s lawyer did.
The rights of corporations vs. the rights of individuals
Justice Ruth Bader Ginsburg raised the issue of whether corporations can have the right to express a religion. The Religious Freedom Restoration Act, the 1993 law that protected people’s ability to express their religion when that expression is outlawed, was passed by Congress almost unanimously, and Ginsburg argued that it would not have received such overwhelming support had it extended the protection beyond individuals to for-profit corporations.
Sotomayor seemed to second Ginsburg’s concern over the rights of corporations. "How does a corporation exercise religion?" Sotomayor asked.
This question seemed to be limited to the liberal justices, though. Justice Samuel Alito asked Clement whether a corporation had ever been denied a religion-based exemption only because it was for-profit, and Clement confirmed that no case existed—a point that Chief Justice John Roberts returned to later.
Neither the justices nor the lawyers mentioned the Citizens United case, which established that corporations have free-speech rights. That case is a clear parallel to the current case, as it established that corporations can have some of the same rights as individual people.
Kennedy brought up a different, but related issue: the relative importance of the rights of Hobby Lobby’s employees. Obamacare creates a new right for employees to have free access to contraceptives, and Hobby Lobby’s exemption, if allowed, would nullify the employees' new right.
"The employee may not agree with these religious…beliefs of the employer," Kennedy said. "Does the religious belief just trump? Is that the way it works?"
Obamacare’s convoluted structure
The justices spent a considerable amount of time digging into the implications of the law’s structure.
In order for a law to trump an individual’s religious belief under the Religious Freedom Restoration Act, the law has to fulfill a compelling government interest by the least restrictive means possible. The Obama administration is claiming that universal access to free contraception is a compelling government interest.
The conservatives saw a weakness here, though, and asked many questions about whether the law’s numerous exemptions to this goal—including grandfathered insurance plans and exemptions for religious non-profit groups—demonstrate that no compelling interest actually exists.
The justices also discussed whether there might be a way to fulfill the law’s goals in a way that does not force people to violate their consciences. Perhaps the government could simply pay for the contraception directly, Justice Stephen Breyer said.
Several liberal justices wondered whether Hobby Lobby actually faced a burden on its religion at all. It could just stop buying insurance for its employees, pay the tax for not providing insurance, and ultimately save money, they argued.
The discussion touched on the Court’s controversial 2010 ruling on Obamacare’s individual mandate, where the Court, led by Chief Justice Roberts, ruled that the penalty for not buying insurance was actually a tax. Clement repeatedly referred to the tax as a "penalty"—a characterization that Sotomayor objected to.
"It’s not called a penalty," Sotomayor said. "It’s called a tax."
"She’s right about that," quipped Roberts, to laughter in the courtroom.