Hopeful Hobby Lobby Will Prevail After Supreme Court Arguments

It might seems strange to some that after posting so much the HHS contraception mandate , religious liberty , and the " Hobby Lobby case I have nothing to say yesterday. I wanted to digest the transcript and I hope to have a few posts on it this week.

I am slightly optimistic the Court will rule in  Hobby Lobby's andthe  other parties favor. Still I am little nervous . It seems it will come down to Justice Kennedy though Breyer might be in play on some important issues.

The Government 's case went as I expected. That is the weakest link being the least restrictive means part of the Religious Freedom Restoration Act test . That is can the Government provide all this birth control by some other means without violating those who are bring these RFRA claims. Even Justice Breyer asked about that .

However there were two areas that  I was thrilled the Court got into some detail with one of which might be huge for Justice Kennedy .

For these I recommend a series of post from Law Profs Ann Althouse and Josh Blackman who I think had the best interactions with the SCOTUS oral transcript.

Ann Althouse has a excellent review of yesterday's arguement here .

I dealing with a part of Justice  Kennedy  remarks that I am hoping in part delivers the day in which he said :

Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of —­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

Ann Althouse comments on these remarks at some length :


This is extremely important. The topic finally becomes the role of HHS, which is making the decisions here, not Congress, and Kennedy is disturbed by the agency making some but not other exemptions. This is a problem quite apart from the RFRA claim for an exemption. There is something structurally awry about this lawmaking. Kennedy observes that the agency's exemptions were given "without reference to the policies of RFRA." So "what were the policies that you were implementing?" Churches got exemptions, and businesses with less than 50 employees got exemptions, and then there were the grandfathered plans. How do you argue a compelling interest in no exemptions when the government has made all those exemptions? Roberts badgers Verrilli about how long the grandfathered plans are going to stay grandfathered.

Law Prof Josh Blackman  had a series of post on the oral arguments yesterday.

At his his post The Non-Delegation Doctrine and the First Amendment , Prof Blackman engages more of what Justice Kennedy was thinking on this subject mentioned above :

The aspect lost in the entire Hobby Lobby debate is that Congress did not specify that employers must provide certain types of contraceptives. They required that employers provide “essential care” and delegated to HHS the responsibility for defining what drugs are included.

 HHS then specified that certain products must be provided. Initially only churches were exempt from the mandate, but after an uproar, provided a way for religious organizations, such as the Little Sisters of the Poor, to opt out of the coverage. But this was done as a political compromise. 

HHS did not assert they were required to do so under RFRA, or the First Amendment. As Justice Kennedy noted twice:

 JUSTICE KENNEDY: But you gave this exemption, according to your brief, without reference to the policies of RFRA. What ­­ what were the policies that you were implementing?

 JUSTICE KENNEDY: I still don’t understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA. 

Justice Kennedy raised the non-delegation doctrine in an interesting context–can we let administrative agencies decide the scope of the First Amendment?

 JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of ­­ of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.

I think this is a huge issue the media , that perhaps had gotten used to executive rule making run amok , has missed.

There is something downright screwy how this contraception mandate as well as other things have gone down since the ACA was passed. I thought Roberts would bring it up , but I was very pleased to see it high on the radar of Justice Kennedy himself.

The other area where I am glad Justice Breyer got involved was the whole issue of standing  to even be able to bring a claim that your RFRA or First Amendment rights have been violated .

 See Josh Blackman's post Justices Alito, Kennedy, and Breyer Pose My Hypothetical About Ban on Kosher Slaughter and RFRA .

Those that oppose Hobby Lobby position like to go Corporations have no rights they are not people. I don't think they have thought though this ,and very much intentionally ignore many  small business are in the form of a Limit Liability Corporation. In fact I think it is almost malpractice not to urge your typical small business to take this form .In most states most small business owners just download the form , send in the fee , and poof they are a corporation.

Read the whole post of Josh Blackman to see how this KOSHER hypo is based on some real world religious liberty issues.

Getting back to the issue of even being able to have your day in court , Blackman writes says in part


..Could the government’s position really be that no one–not a single incorporated butcher–could bring suit? I raised this question to a lawyer who litigates in the field of religious liberty, though in Hobby Lobby opposed allowing corporations to state a claim under RFRA and the Free Exercise. I found that he hadn’t considered this hypothetical, and would only say that individual people who eat Kosher could bring suit. But that ignores the issues of the hypothetical as posed.

I was thrilled to see Justice Alito pose just this question to General Alito during oral arguments in Hobby Lobby.

JUSTICE ALITO: What about the implications of saying that no for­ profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­ profit corporation can raise any sort of free exercise claim at all? Let me give you this example. 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 the ­­ what would a corporation that is a kosher or halal slaughterhouse do? They would simply ­­ they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.

And the Solicitor General’s answer confirmed my suspicion. First he hinted at a Church of Lukumi analysis, but this ignored the fact that the law was truly motivated for concerns about animal welfare (which in this case trumps religious liberty).

 GENERAL VERRILLI: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so


JUSTICE KENNEDY: Well, but you’re getting away from the hypothetical. Say ­­ Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church animus to the religion. So hypothetical. 

JUSTICE ALITO: Exactly. 

Verrilli, then said that the individual customers can raise this claim.

 JUSTICE ALITO: Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered. 

GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation ­­ on the corporations, on behalf of customers. So a suit like that could be brought. 

The General then changed the topic and talked about burdens on third parties. But Justice Breyer, getting irate at the General’s dodging of the question, continued the slaughter (rimshot!): 

JUSTICE BREYER: I mean, the point that Justice Alito was making is that ­­ take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have. Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals. I mean, I think that’s the question you’re being asked, and I need to know what your response is to it. 

The General replied around the question, and basically conceded the incorporated butcher could not raise the claim:

GENERAL VERRILLI: Well, I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for ­profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere. 

 The government’s position is loud and clear. If you are incorporated, you have no free exercise rights under the First Amendment or RFRA. Such an absolute position didn’t pan out well in Hosannah-Tabor. I don’t think it will win the day here. And what about churches and non-profits that are incorporated?

 GENERAL VERRILLI: No. No. Religious non­profits get an accommodation in which their employees get the contraception. 

But we are not drawing a line between for­profit and profit. They, again, are only given an exemption by the grace of HHS, and not by the requirements of the First Amendment or RFRA.

Again read  all his post . Blackman think Justice Breyer takes this question very serious so watch out for that.

More later on other themes of the Hobby Lobby oral argument day.