In Hobby Lobby Case, Kennedy Looks Like the Swing Vote

Demonstrators at Supreme Court
Justices examine the claim that Obamacare's contraception mandate violates the religious freedom of business owners Chip Somodevilla/Getty

WASHINGTON, D.C.—The snow was already coming down as protesters gathered outside the Supreme Court Tuesday morning to support their position in two blockbuster cases concerning coverage of contraception in the Affordable Care Act.

On one side are those who believe corporations with religious objections should get an exemption from the law's mandate for coverage of contraception. The cases, Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, were brought by two corporations whose owners object to certain forms of contraception on religious grounds and believe providing coverage for them violates their free exercise of religion under the Religious Freedom Restoration Act (RFRA).

On the other side is the government, supported by women's reproductive rights groups, which argues that religious employers have no right to take away birth control that women are entitled to by law.

Braving the cold at the rally, organized by Planned Parenthood and dozens of other women's rights and abortion rights groups, bundled-up protesters held a large rainbow sign that read, "Bigotry disguised as 'Religious Liberty' is still Bigotry." Many signs said contraception was not the "boss's business." Those who support Hobby Lobby and Conestoga showed up too, but in smaller numbers, with signs reading, "Religious Freedom: Everyone's Business."

Inside the court, U.S. Solicitor General Donald Verrilli defended the law against star attorney Paul Clement, who is representing Hobby Lobby and Conestoga. The face-off was a replay from two years ago when the two did battle over the constitutionality of the health care law.

The legal issues at play require the court to decide whether the corporations or their owners can assert religious liberty claims under the RFRA. If so, the court must decide if the government is imposing a "substantial burden" on the company. If the court decides there is a significant burden, it must then decide if the government has a "compelling interest" to impose this burden.

Not surprisingly, the four liberal justices appeared critical of Clement's assertion that corporations could claim exemptions from the law on religious grounds. If a company could decide not to provide contraception coverage, asked Justice Sonia Sotomayor, could it also decide not to cover blood transfusions or vaccinations on religious grounds? Justice Elena Kagan went even further, asking about employers bucking federal minimum wage laws or child labor laws.

Kagan said that if the Supreme Court adopted Hobby Lobby's and Conestoga's arguments, the courts' "hands would be bound" in future challenges to federal laws on religious grounds.

It's an argument many scholars and liberal groups have made about these cases: that it would open up a whole new world of corporate exemptions to federal laws.

Clement objected to the idea that he was arguing for corporations to start taking a potentially endless number of exemptions from federal laws, saying that each claim would have to be taken separately and that in other cases the government's compelling interest might override the religious objections. In the case of contraception coverage, Clement argued that the government's interest in providing a full range of contraceptive services is not compelling enough.

The liberal justices raised a second argument, questioning whether the government's rule was a burden on objecting corporations since there is no requirement to provide insurance at all. Obamacare requires that large employers either provide coverage, which must include a full range of contraceptives, or pay a tax to help the government shoulder the burden of providing coverage.

"There's a choice here, it's not even a penalty," said Kagan to Clement. "It's a tax. So why is there a substantial burden at all?"

It's an argument (which Newsweek detailed last week) that at least one of the conservative justices, Anthony Kennedy, appears to find interesting. The tax itself is significantly less than the cost of providing insurance, but a company might feel obliged to raise wages if it stops providing insurance. Clement argues that the tax option imposes a financial burden on Hobby Lobby and Conestoga.

"Assume hypothetically that it's a wash," said Kennedy, referring to the cost of providing insurance versus paying the tax. "Then what would your case be?"

Kennedy is generally considered the court's swing vote, and both Clement and Verrilli are trying to win him over. But Kennedy may not have been the target of the tax conversation. In all likelihood, Kagan and Sotomayor, who raised the issue, were making a point to Chief Justice John Roberts, who was the pivotal fifth vote upholding the individual mandate two years ago, when he argued it is a tax that is constitutional under Congress' taxation powers.

Roberts didn't appear to latch on to the idea during oral arguments, and we'll have to wait until the court rules to see if he will use this argument to uphold the health care law a second time.

When it was Verrilli's turn to speak, he concentrated on the rights of the employees, who would lose health coverage if their employers were granted exemptions from the coverage requirement. That's how he opened and closed his 45 minutes before the justices. My opponents "leave third-party employees entirely out of the equation," he said.

Religious freedom, Verrilli argued, was not meant to allow employers to deny their employees rights guaranteed to them by Congress, such as medical coverage under Obamacare.

After the liberal justices took up the first half of the arguments attacking Clement's position, the conservative justices took aim at Verrilli's. The court's conservative wing showed little sympathy for the government's position, arguing that the government could find another way to cover contraception that doesn't burden religious companies.

They also questioned whether the government had a compelling interest in making sure women receive coverage for all contraceptive services, given that existing health care plans grandfather in the new requirements over time. Wouldn't a compelling interest be implemented immediately rather than over the years?

Verrilli argued that many compelling interests, such as provisions of the Americans With Disabilities Act that prohibit discrimination against the disabled, were implemented over a few years. But his protestations did not seem to win over the conservative justices.

Only Kennedy, who, judging from the oral arguments, might be the only swing vote in these cases, considered the employees. "How would you suggest that we think about the position and the rights of the employees?" he asked Clement.

But liberals who want the court to uphold the contraception mandate should not take Kennedy for granted. Take, for instance, Kennedy's question near the end of Verrilli's argument, when he asked the solicitor general whether, according to his logic, the government could require corporations to pay for abortions.

Verrilli had to concede that the logic of his argument would not give a for-profit corporation an exemption from a law requiring that it pay for abortions.

Chief Justice Roberts chimed in, forcing Verrilli to spell out that position unequivocally.

"There is no law like that on the books," Verrilli said.

"There is no law on the books that does what?" the chief justice inquired.

"That makes a requirement of the kind that Justice Kennedy hypothesized," Verrilli responded, trying hard to avoid the trap Roberts and Kennedy had set for him.

"Well, flesh it out a little more. What—there is no law on the books that does what?" Roberts said, insisting.

"That requires for-profit corporations to provide abortions," Verrilli finally said.

It was not the note he wanted to end on.