Hello from Arlington! There might be snow on the ground, but it is indeed late March — and that means that the Supreme Court has finally heard oral arguments for Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius! On March 25, as a snowstorm raged on in Washington, D.C. and both pro-choice and religious groups rallied on the Court’s famed steps, the Nine allotted 90 minutes (instead of the usual 60 minutes) for the arguments of both cases. I’m here to brief you about what happened during the oral argument, so let’s get started!
As I discussed in my preview of the two cases and my column about the Court’s recent dealings in women’s reproductive health, at stake in both Hobby Lobby and Conestoga is something that’s bigger than access to birth control or the Affordable Care Act (ACA). While the owners of both Hobby Lobby and Conestoga Wood Specialties brought their cases to the Court because they did not want to provide their employees with birth control coverage under the ACA, Hobby Lobby and Conestoga actually hinge upon one main point: whether companies (i.e. non-person for-profit entities owned by a family, individual or group) have religious freedom under the First Amendment’s Establishment Clause.
So, just as with Citizens United v. Federal Election Commission in 2010, the stakes are high for everyone in this country, not just the people who care about women’s reproductive health. If the Supreme Court rules in favor of Hobby Lobby and Conestoga Wood Specialties, it is possible that owners of any type of for-profit businesses will be able to use their business’ newfound “religious freedom” as an excuse to impose their personal beliefs, filtered through the façade of their company, upon their employees. “What if a New Age spiritualist only wanted their employee health plan to cover homeopathic medicine, or a Jehovah’s Witness CEO sought to make employees pay for their own blood transfusions” because of the beliefs held by New Age spiritualists and Jehovah’s Witnesses, RH Reality Check’s Katherine Cross asks.
Or what if the problem spread wider than just healthcare coverage? If for-profit businesses are granted religious freedom, will that religious freedom be used to allow businesses to discriminate against certain groups often targeted by religious groups, such as the LGBTQ community? Both Katherine Cross’ article and another RH Reality Check feature by Jessica Mason Pieklo explain how religious freedom is now being used to create discriminatory, anti-LGBTQ bills in certain states across America, and how the decisions in Hobby Lobby and Conestoga might open up the floodgates for for-profit businesses to turn away LGBTQ employees or patrons.
But let’s go even further with our “businesses are granted First Amendment religious freedom” argument — before the Civil Rights Act of 1964, the rallying cry of religious freedom was used to justify institutionalized racism in the Jim Crow South, as explained at ThinkProgress by Ian Millhiser. And, as Jay Michaelson reports, “In 1965, restaurateur and politician Lester Maddox said that to obey the 1964 Civil Rights Act, and allow African Americans to eat at his restaurant, would be ‘a sin against God.’” The federal government took Maddox and his racist Pickrick Restaurant to court in Willis v. Pickrick Restaurant (1964), wherein the U.S. District Court Northern District of Georgia ruled that Maddox had to desegregate his restaurant within twenty days (from Freedom on Film). Then, in a backlash against the Civil Rights Act of 1964 and the District Court’s decision, Maddox was elected governor of Georgia from 1971 until 1975. To bring this hypothetical into a modern-day context, Michaelson argues, “a fast-food chain (like Chick-fil-A which, like Hobby Lobby, is owned by conservative Christians) could forbid entry to Jews, African Americans or anyone else they wanted to, as long as the corporation asserted a conscience claim.” I don’t know about you, but I don’t want businesses to be able to dictate what types of health insurance coverage their employees can receive or whom their employees and patrons can be based solely on the beliefs of their owners.
We won’t know until June whether the Court decides to grant this dangerous religious freedom to all for-profit businesses. We can, however, make speculations based on how the oral argument proceeded. Unfortunately, as SCOTUSblog’s Lyle Denniston reports, “The ultimate outcome… will depend on how Justice Kennedy makes up his mind” because “there was very little doubt where the other eight Justices would wind up: split four to four.” And it seems that Justice Kennedy enjoyed his position as Perennial Swing Vote more than usual during the Hobby Lobby and Conestoga oral argument, supporting both sides of the two cases. At one point, he “worried over the plight of female workers, and he suggested that their interests could be protected with little cost to their employers.” But then Justice Kennedy “worried over the plight of corporations owned by families opposed to abortion and he implied that forcing them to pay for it would be wrong.” Therefore, the fate of these cases lies in the hands of a man who has many times before been the swing vote in a case, and his unpredictability makes me nervous.
More predictable were the responses of Justices Sotomayor and Kagan, who pointed out, as I did above, that “if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable” (from SCOTUSblog). Chief Justice Roberts and Justices Alito were similarly unsurprising in their challenge of the ACA’s far-reaching contraceptive mandate, questioning “the need for the contraceptive mandate in this context [of businesses with religious owners providing birth control coverage to their employees].” Justice Alito also took a stand for religious freedom, saying, “According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane… Now, suppose Congress enacted something like that here. What would a corporation that is a kosher or halal slaughterhouse do? They would simply have no recourse whatsoever” (from a different SCOTUSblog report by Mark Walsh). Aside from his critique of the ACA’s contraceptive mandate, though, it is unclear how Chief Justice Roberts felt about the religious freedom argument, since he “suggested it was part of the ‘religious commitment’ of the Hobby Lobby owners ‘to provide health care for its employees.’”
Might Lyle Denniston be incorrect, then, in predicting that the Nine will split four (Chief Justice Roberts and Justices Scalia, Thomas and Alito) to four (Justices Ginsburg, Breyer, Sotomayor and Kagan) with Justice Kennedy in his swing vote position? It is true that Chief Justice Roberts voted to uphold the ACA in National Federation of Independent Business v. Sebelius, but he also was part of the majority that decided Citizens United v. FEC and created the idea that “businesses are people, too” in terms of campaign spending and free speech. Justice Kennedy was a part of that Citizens United majority, and he was the author of the decision, so he might rule in favor of the corporations in Hobby Lobby and Conestoga. On the other hand, he voted with the majority in Planned Parenthood v. Casey, which upheld the seminal abortion case Roe v. Wade, which might mean he would vote with the liberal justices. But that possibility seems increasingly less plausible because, as Ian Millhiser of ThinkProgress explains, Justice Kennedy “hasn’t cast a single pro-choice vote in an abortion case in the last 22 years.”
As everything stands after the oral argument, it seems that the for-profit businesses will be the winners in Hobby Lobby and Conestoga. But I’ll leave you to make that decision for yourself—check out various accounts of the oral argument at ThinkProgress, Politico, the Wall Street Journal, New Republic, the New York Times and any of SCOTUSblog’s three different sources (here, here and here). Happy reading, and may the religious freedom odds be ever in your business’ favor… or not.