Snapshots From The Supreme Court: Justices Ponder Limits Of Religious Expression In Birth Control Case

Do for-profit corporations exercise religion? What constitutes a religious enterprise? What did Congress intend when it passed the Religious Freedom Restoration Act (RFRA) in 1993?

These and many other questions were batted about this morning as the U.S. Supreme Court heard oral arguments in the pivotal combined case of Sebelius vs. Hobby Lobby and Conestoga Wood Specialties vs. Sebelius.   

I was fortunate to sit in the press gallery during the argument, and it seemed skepticism abounded on both sides.

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan did not appear to support the primary claim of Hobby Lobby and Conestoga Wood: that secular, for-profit corporations should have a “religious freedom” right to be exempted from offering no-cost birth control to their employees in their employer-provided insurance plans.

“How does a corporation exercise religion?” Sotomayor asked. “[H]ow do we determine when a corporation has that belief? Who says it? Is it the majority of shareholders? What happens to the minority?”

All fair questions, and if Hobby Lobby and Conestoga Wood were honest, they would admit there is no easy answer to any of them.

But the attorney arguing on behalf of the two corporations, former U.S. Solicitor General Paul Clement, said “sincerity of belief” would be a key test in determining whether or not a corporation has a right to exercise religion.

That response raised an issue that Sotomayor called “dangerous.”

“That’s the most dangerous piece,” she said. “That’s the one we’ve resisted in all our exercise jurisprudence, to measure the depth of someone’s religious beliefs.”

But Clement had an answer for that, too.

“You can test sincerity,” he posited.

He then gave a far-fetched example of someone who was busted for marijuana possession, but claimed he belonged to “the church of marijuana” and had a “religious liberty” right to smoke pot. It’s silly, but if Hobby Lobby and Conestoga Wood succeed, who is to say that defense would not work in the future?

Later, Kagan noted correctly that Hobby Lobby and Conestoga Wood are not actually being forced to pay for birth control. Instead, any corporation has the option not to offer any health insurance, which would then trigger an annual tax of $2,000 per employee. The money raised would be used toward insurance coverage for those employees, and at about $26 million per year, would probably cost Hobby Lobby about the same amount as health insurance, Kagan said.

And that’s when Clement went off the rails. He said just as Hobby Lobby and Conestoga Wood object to paying for birth control, their religious conscience also dictates that they must directly provide health insurance. Simply opting out of offering insurance would be as offensive, Clement suggested, as providing contraceptives.

Kagan and Ginsburg were clearly flabbergasted by that argument, which neither corporation had previously offered.

“The provision of health care is not a religious tenet,” Ginsburg said.

As for the other justices, Antonin Scalia and Samuel A. Alito appeared firmly in Hobby Lobby’s camp, fully accepting the idea that First Amendment rights extend to corporations even at the expense of scores of individuals.

“Well, what is it about a for-profit corporation that is inconsistent with a free-exercise claim?” Alito asked.

Said Scalia to U.S. Solicitor General Donald Verrilli: “If – if [Congress] wanted you to balance – balance the interest of the religious objector against the interest of other individuals [who are affected by the objector’s policies], they – they made no reference to that in RFRA at all.”  

Then there was Justice Anthony M. Kennedy, who is typically the swing vote in church-state matters. He didn’t tip his hand today but asked some thoughtful questions.

“How do you suggest we think about the rights of the employees?” he asked Clement – a key question in this matter.      

Outside the court, hundreds of people fought frigid temperatures and steady, wet snow to voice their opinions on the case. Americans United has been an outspoken advocate for the rights of all Americans to access birth control without religious interference, and much of our staff was there to show support by speaking at rallies and holding signs. AU Executive Director Barry W. Lynn attended the argument and spoke to the media afterwards.

Hobby Lobby/Conestoga Wood supporters were far fewer, and, based on their signs attacking abortion and Obamacare, some of them seemed confused as to what the case is about. 

Others seemed to think it was a dress-up ball (or perhaps Halloween). Members of the American Society for Tradition, Family and Property – a group of far-right Catholic men who pine for the Dark Ages – circulated through the crowd wearing red capes. One man in a kilt even played the bagpipes for them. (It’s unclear what role bagpipes play in a protest of the birth control mandate.)

It’s difficult to say how this case will turn out, but the importance of its outcome cannot be overstated. If corporations gain the right to be exempted from one law on religious grounds, there is no telling how many other statutes religious fundamentalists will seek to ignore in the future – all in the name of conscience.

The court has a difficult task at hand with many issues to consider. We won’t likely know how this shakes out until June, but we will eagerly await the outcome of this case. With so much at stake, this decision will likely have wide ramifications for a very long time.