How John Roberts Could Rule Against Obamacare's Contraceptive Mandate

During Tuesday's oral argument in Sebelius v. Hobby Lobby Stores, Inc., Chief Justice John Roberts appeared to be highly critical of the Obama administration's argument that for-profit corporations should never be permitted to challenge federal laws on religious grounds. That apparent hostility, argues Sahil Kapur at the liberal outlet Talking Points Memo, does not bode well for supporters of the health care law's contraceptive mandate. What's worse, Kapur writes, "a ruling against it could declare open season on virtually any law that a person or business can mount a religious-based objection to."

But Kapur also sees a silver lining in Roberts' questioning. Roberts "contended that 'closely held' businesses, like Hobby Lobby and Conestoga Wood, who brought the case, could be given that option [of challenging federal laws on religious grounds] without opening the same door for publicly owned companies."

That scenario is definitely possible. But I was surprised to find Kapur characterizing it as a "way out" from a broader pro-corporate ruling. In point of fact, if Roberts does rule in favor of Hobby Lobby on those grounds it would still be a resounding defeat for the federal government, which has refused all along to grant a contraceptive mandate exemption to "closely held" for-profit corporations. Indeed, from the outset, these lawsuits have centered on the fact that Hobby Lobby and Conestoga Wood are each corporate entities that are owned and operated by Christian families. Those are the facts of the case heard by the Supreme Court this week. The legal dispute was never about whether a large, publicly traded corporation should also get to enjoy the free exercise of religion. That, as the chief justice remarked during Tuesday's oral argument, "is a question that we'll have to await another case when a large publicly-traded corporation comes in and says, we have religious principles—the sort of situation I don't think is going to happen."

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  • 110 Lean||

    OT -- It's about time.

    A former Newton County sheriff's deputy who prosecutors said sold marijuana from his marked patrol vehicle while in uniform has been sentenced to five years in federal prison for possessing a firearm during a drug transaction.

  • Notorious G.K.C.||

    I hope Roberts was burned badly so much for upholding Obamacare - look at me, I'm a moderate judicial statesman! - that he won't be bamboozled a second time.

  • Bo Cara Esq.||

    In the orals Roberts seemed against it, except for the line about closely held only.

    It is Kennedy that seemed up for grabs.

  • Tim||

    Roberts is holding the football, now run up and kick it!

  • NL_||

    Kapur writes, "a ruling against it could declare open season on virtually any law that a person or business can mount a religious-based objection to."<<br /
    In other words, it might be harder to force people to do things they really don't want to do. 'Government is another word for things we make you do against your conscience.'

  • GroundTruth||

    If a "religion-based exception" to laws is allowed for religious folks, then what about a soundly reasoned, sincerely held philosophical objection for the non-religious?

    The only way out of that dilemma that I can see (aside from capricious enforcement which starts to look like a violation of the anti-establishment clause) is to move back to small government with a minimalist constitutional outlook, i.e. 'islands of governmental authority in a sea of personal liberty'.

  • Paul.||

    What's gonna be cool... is that if the court rules against allowing a religious exception, that will seriously jump up and bite progressives in the ass at some future date.

  • Notorious G.K.C.||

    What's cool about violating everyone's rights instead of just conservatives'?

  • R C Dean||

    The inevitable unfolding of the Universe is always cool. These fuckers want to strip rights from "other" people, forgetting that

    Me today, you tomorrow.

  • Paul.||

    Eeeexactly.

  • Notorious G.K.C.||

    "what about a soundly reasoned, sincerely held philosophical objection for the non-religious?"

    With the right judge, you might get your philosophy classified as a religion. A religion need not be theistic.

  • Bo Cara Esq.||

    Examples?

  • Notorious G.K.C.||

    Your wish is my command, oh master of the blue horizons

    U.S. v. Seeger

    http://en.wikipedia.org/wiki/U....._v._Seeger

    Welsh v. U.S.

    http://religiousfreedom.lib.vi....._v_us.html

  • Notorious G.K.C.||

    "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others."

    http://caselaw.lp.findlaw.com/.....&invol=488

  • Bo Cara Esq.||

    I have seen cases like that which say that a belief which deals with matters of 'ultimate concern' and 'a place parallel to that taken by God in traditional religious people' can qualify, but I doubt something like libertarianism would qualify. Any examples of such a political philosophy getting such an exemption?

  • Notorious G.K.C.||

    I didn't say *political* philosophy.

  • Notorious G.K.C.||

    Nor did the guy to whom I was replying.

  • Bo Cara Esq.||

    I took that to be what GroundTruth was getting at.

  • Bo Cara Esq.||

    Well, he did not restrict it to philosophies about 'ultimate concern...filling the place taken by God in traditionally religious people' either.

  • Notorious G.K.C.||

    When you assume you make an "ass" out of "u" and "me"

  • Bo Cara Esq.||

    Well, you would be rightly included because you made a similar assumption (that he was talking about philosophies of 'ultimate concern').

    I'd say given we are on a libertarian website and not a 'ultimate concern' website my assumption was a bit more defensible.

  • Notorious G.K.C.||

    I didn't assume all philosophies would count as religious. I said "*With the right judge,* you *might* get your philosophy classified as a religion. A religion *need not* be theistic." [emphasis added]

    Dear Lord, do you have any idea how annoying you can be?

  • Bo Cara Esq.||

    Since I assume you get asked that question quite a bit perhaps you can give me a standard answer?

    Look, I took him to be asking if philosophies like libertarianism would be excluded. This is a libertarian website after all. And the answer is not yours, which only applies to something else, but no, it would not. These laws carve out special treatment for religious people and people who have something-like-a-religion. You like that, or are satisfied with that, thus your obfuscatory response.

  • Notorious G.K.C.||

    Bo, you've lost your sheep again. Instead of leaving them alone and waiting for them to come home, why don't you go out and look for them?

  • Bo Cara Esq.||

    You would like to mislead, but I am not lost.

  • Notorious G.K.C.||

    No, I said your *sheep* were lost.

  • Bo Cara Esq.||

    Once you get derailed from your propaganda you make little sense, Eddie.

  • Notorious G.K.C.||

    It looks like *someone* needs to be cheered up with a video of a puppy and a baby:

    https://www.youtube.com/watch?v=W3uOVphVwDc

  • 110 Lean||

    Why do you engage it?

  • Bo Cara Esq.||

    Concerns, Miss?

  • SugarFree||

    Why do you engage it?

    Which one?

  • Bo Cara Esq.||

    SF, conservative trolls are always welcome here for a lot of people.

  • Notorious G.K.C.||

    SF, why are you wasting time here when you could be posting on Hentai fora complaining about how tame tentacle porn is?

  • GroundTruth||

    Bingo!

  • gimmeasammich||

    AGW?

  • Paul.||

    Dissenters and heretics to be jailed.

  • Rich||

    "a ruling against it could declare open season on virtually any law that a person or business can mount a religious-based objection to."

    Let 'er rip. Settle the law-vs.-religion conundrum once and for all.

  • R C Dean||

    I'm having a hard time seeing a principled distinction between closely-held corporations and publicly-held corporations. Assuming this is turning on the owners being forced to violate their religious principles, what difference does it make what percentage of ownership you have?

  • Notorious G.K.C.||

    I'd think that if 51% of shareholders share a religious objection to some government policy, they're in the same position as Bob the shopkeeper down the street.

  • Bo Cara Esq.||

    It has to do with how much of a separate entity this corporation is. There should be no mandate, it is immoral and simply a political wedge the administration decided to use. Having said that the entire point of a corporation is to create a separate entity from the owners, so that if it does bad or goes into debt you can say 'that is not me!' To then turn around and say 'well, it IS me when it comes to my religious beliefs' seems like having cake and also eating it.

  • Mickey Rat||

    I don't think it is a valid distinction either, but one of the objections is how does a large number of shareholders decide on a "sincerely held" belief. Though somehow the administration's mandate represents the collective wisdom of the people of the USA in their view.

  • R C Dean||

    So, let's say: "another case when a large publicly-traded corporation comes in and says, we have religious principles".

    If this is setting up as the corporation having to adopt some statement of religious principles, then its unlikely that a publicly traded corporation will do so. Imagine, however, that adopting some vague statement of religious principles, or even tolerance of the religious beliefs of owners/staff such that the corporation will not violate them, gets you a very valuable exemption from some law or other. In that case, I think it could happen.

  • Longtorso, Johnny||

    If companies can't have religious principles, they can't have socially correct beliefs that would cause them to spend $$ on things the left likes.

  • Bo Cara Esq.||

    The legal argument, for what it is worth, is that such beliefs fall under the 'business judgment' of the officers, that is they make money in the long run.

  • Mickey Rat||

    "What's worse, Kapur writes, "a ruling against it could declare open season on virtually any law that a person or business can mount a religious-based objection to."

    And that would be a bad result,...why?

    In my opinion, we need more stumbling blocks to the government micromanagement of our lives. It might just enforce some humility into our legislators and bureaucrats, and that is always a good thing.

  • Bo Cara Esq.||

    I am a Native American whose religion instructs me to perform rituals on land you own, and I ask for an exemption to the trespass laws that would forbid that.

    That kind of thing.

  • Notorious G.K.C.||

    Least restrictive means of achieving a compelling government interest. Next case!

  • Bo Cara Esq.||

    Sorry, that does not solve that case.

    In the first RFRA case to reach the Supreme Court the court found there was a compelling interest in prohibiting a hallucinogen, but that an exemption to it for a small religious group passed. How would that test not reach what I am talking about?

  • Mickey Rat||

    There's an actual conflict of rights there, so no.

  • Bo Cara Esq.||

    In the eyes of the law there is going to be an actual conflict of rights in a lot of these cases. The ACA seems to create a statutory right for anyone employed by a large enough company to have insurance that covers birth control.

  • UnCivilServant||

    constitutional rights trump statuory privileges.

  • UnCivilServant||

    *statutory.

  • Bo Cara Esq.||

    This case is about a statute, RFRA.

  • UnCivilServant||

    Umm, no, this is a statute versus a first amendment right? Did you pay much attention? The ACA tries to create a privilege (as a so-called 'positive right' actually is).

  • Bo Cara Esq.||

    Before you insult someone's paying attention you should pay more attention. This suit is about the RFRA, not the 1st. Its statute vs. statute.

  • Bo Cara Esq.||

    "Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners."

    http://www.scotusblog.com/case.....tores-inc/

  • UnCivilServant||

    In other words, a statute saying "We've been negligent on that whole 'shall make no law' part of the 1st ammentment, so we'll make a law re-certifying the 1st amendment".

    It's not duelling statutes in principle, Bo.

  • Mickey Rat||

    "The ACA seems to create a statutory right for anyone employed by a large enough company to have insurance that covers birth control."

    Which is not a "right".

    The ability to control your property for unauthorized use is a right. religious freedom is a right. What the ACA regulations dictate are not rights.

  • Jordan||

    Roberts "contended that 'closely held' businesses, like Hobby Lobby and Conestoga Wood, who brought the case, could be given that option [of challenging federal laws on religious grounds] without opening the same door for publicly owned companies."

    Just in case anybody had any doubt that Supreme Court rulings had anything at all to do with the Constitution anymore. Even when they're kind of soft of almost right, they're completely wrong. What a clusterfuck.

  • Invisible Finger||

    It's a peniletax.

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