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."