On a day full of bluster both in and outside the Supreme Court, Hobby Lobby and its super-lawyer Paul Clement had the better of the argument over Obamacare’s contraceptive mandate. While Solicitor General Don Verrilli gamely pressed the plight of the “third-parties” who would lose out if the challengers get an exemption – employees whose contraceptives wouldn’t be paid by their employer – there didn’t seem to be a majority on the Court who saw it that way. Justice after justice probed such issues as whether the government’s interest here was really that compelling given all the exemptions it had already granted (to small employers, religious nonprofits, and grandfathered plans) and whether there was no other way to achieve the same goal. And those are probably the points on which this case will ultimately turn: (1) the contraceptive mandate was not one of the Obamacare requirements that became mandatory as of January 1 (or whenever the administration stops illegally delaying them), and (2) the government could’ve ensured the provision of the contraceptive mandates a different way (e.g., new tax credits or existing public health programs). Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines, at least five justices seemed to recognize that religious-liberty claims are meant to be adjudicated on a case-by-case basis – maybe six given Justice Breyer’s lukewarm and infrequent interjections.
The government fared even worse on its position that for-profit corporations can’t assert religious-exercise interests in the first place. Even Justice Kagan recognized that under certain circumstances, for-profit enterprises may engage in religious activity. While Cato’s amicus brief argued that this “standing” issue is purely academic anyway – the individual corporate owners feel the mandate/fines regardless of who is exercising religion or bringing lawsuits – I count seven votes for getting past this threshold issue.
As I left the argument, I had a bit of spring in my step, even as the snowstorm that greeted me lacked any spring whatsoever. The Court is likely to stop this callous, arbitrary, and needless bending of the will of a small religious minority to the federal grindstone. But alas that’s just this case; the more that the government expands and takes over areas properly left to civil society, the more clashes of conscience will result. Today it’s religious belief, tomorrow something else, but all these liberty-destroying mandates come with the collectivized territory.