Justice Anthony Kennedy, on whose vote the Hobby Lobby SCOTUS case rests, seems very concerned about the government forcing corporations to cover abortion:
WASHINGTON, DC — Justice Anthony Kennedy thinks gay people are fabulous. All three of the Supreme Court’s most important gay rights decisions were written by Justice Kennedy. So advocates for birth control had a simple task today: convince Kennedy that allowing religious employers to exempt themselves from a federal law expanding birth control access would lead to all kinds of horrible consequences in future cases — including potentially allowing religious business owners to discriminate against gay people.
Kennedy, however, also hates abortion. Although Kennedy cast the key vote in Planned Parenthood v. Casey upholding what he called the “essential holding of Roe v. Wade,” he’s left no doubt that he cast that vote very grudgingly. Casey significantly rolled back the constitutional right to choose an abortion. And Kennedy hasn’t cast a single pro-choice vote in an abortion case in the last 22 years.
So Hobby Lobby and Conestoga Wood, the two companies claiming that they should be exempt from the birth control rules had an ace in their pocket as well. Their path to victory involved convincing Kennedy that their cases are really about abortion — and it looks like Kennedy convinced himself of that point on his own.
It was clear from the get go that the Court’s liberals understood that their best course involved highlighting the dangerous consequences of a victory for Hobby Lobby. Paul Clement, the de facto Solicitor General of the Republican Party who argued the case on Hobby Lobby’s behalf, barely uttered his first sentence before Justice Sonia Sotomayor cut him off to ask what other medical procedures religious employers could refuse to cover in their employee health plans. Justice Elena Kagan quickly joined the party. If Hobby Lobby can deny birth control coverage, Kagan asked, what about employers who object to vaccinations? Or blood transfusions?
When Clement tried to deflect this list, Kagan came armed with an even bigger what. What of religious employers who object to gender equality, or the minimum wage, or family medical leave, or child labor laws? If the Supreme Court agrees with Hobby Lobby’s brief, which argues that laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law,” then there would be few laws corporations could not exempt themselves from following.
Clement’s argument time then took a number of detours, with the Court’s three women dominating the questioning. Justice Kagan pointed out that religious liberty cases have never applied the same strict constitutional rule applied in race cases. Justice Ruth Bader Ginsburg wondered how the federal religious liberty law at issue in this case — the Religious Freedom Restoration Act (RFRA) — could have passed almost unanimously if it lead to the deeply controversial results advocated by Clement. Justice Sotomayor wondered how it is possible for a corporation to exercise religion.
The justices also spent a good amount of time discussing whether Hobby Lobby faces any real burden at all, since they could always simply stop offering health benefits and pay a tax — a position first articulated in a blog post written by Professor Marty Lederman.
At the end of Clement’s first turn at the podium, Kennedy asked the question that will probably give most hope to Team Birth Control. What about the rights of employees who may be hurt by their employer’s decision not to follow the law? For the moment, it appeared that Kennedy was worried about the parade of horribles that could follow a decision for Hobby Lobby.
Indeed, not long after Solicitor General Don Verrilli took the podium to argue the government’s case, it appeared that he may ultimately emerge victorious. Clement spent much of his argument on his heels. The three women on the bench appeared quite confident in their questioning. Kennedy was silent for much of Verilli’s argument.
But then he made a statement that will likely doom the government’s case. “Your reasoning would permit” Congress to force corporations to pay for abortions, Kennedy told Verrilli. This was not the Anthony Kennedy that worried about conservatives imposing their anti-gay “animus” on others, this was the Anthony Kennedy that views abortion as a grave moral wrong. Shortly after Kennedy made this statement, Justice Kagan’s face dropped. It appeared that she’d just figured out that she would be joining a dissenting opinion.
It’s worth noting that Kennedy expressed a different concern than one offered shortly thereafter by Chief Justice John Roberts. Hobby Lobby objects to four forms of contraception on the mistaken ground that these contraceptive methods are actually forms of abortion — a brief filed by numerous medical organizations explains that they are not. Roberts, however, suggested that someone’s mere belief that something is an abortion is enough to trigger an religious exemption to federal law.
This is insane.
Suppose I had the "mere belief" — religiously held — that black people evolved from mud and white people were descendents of Adam and Eve, and had a rightful place in heaven and on Earth? And in my place of employment?
Of course, you don't have to go that far. No Muslim or Jewish employer gets to demand that their employees not get coverage for, say, illnesses resulting from eating pork. No Hindu employer gets to restrict health coverage for people who eat beef or were born to the wrong caste. Why do Christians get a pass?
We have actually addressed this issue before, in 1990, in Employment Division, Oregon Department of Human Resources vs. Smith. In that case, Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct."
That case involved the same question: what happens when one's religious belief runs up against a generally-applicable law?
And the answer was: Tough. Here's what Scalia — yes, Scalia — wrote:
We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted)." We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145(1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Id., at 166-167.
There simply is no reason why abortion is entitled to some special category of religious exemption, where peyote and polygamy were not.
But it looks like this is where the Supreme Court is headed, and as Scalia notes, it will be throwing aside centuries of jurisprudence in doing so (Scalia is likely to be one of the justices contraditing himself).
Very sad. And a very dangerous precedent.