Things may be looking up for the First Amendment and religious freedom at the High Court.
According to Politico, a majority of the Justices hearing oral arguments today in the Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. v. Sebelius cases “seemed particularly doubtful” of the Obama Administration’s claim that “for-profit companies have no religious rights under federal law.” Both for-profit companies challenged the Obamacare contraceptive mandate, arguing that the federal government cannot force the owners of such companies to violate their sincerely-held religious beliefs in order to provide birth control to their employees.
In particular, some of the Justices – like us here at Citizens United – didn’t quite understand why the Obama Administration could not allow for-profit companies to opt-out of the contraception mandate, as it had for churches and religious non-profits.
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For example, Politico notes that Justice Kennedy, typically the swing-vote “decider” in controversial Supreme Court cases, questioned the government’s argument that for-profit companies had no religious rights under the U.S. Constitution or Federal law. Kennedy told U.S. Solicitor General Donald Verrilli, the administration’s attorney, that ‘“Under your [the government’s] view a for-profit corporation…could be faced in principle to pay for abortions? [. . .] Your reasoning would permit that.”’
Kennedy’s question is especially important because, as Chief Justice John Roberts mentioned during the arguments, both Hobby Lobby and Conestoga Wood Specialties Corp. view several types of birth control that they would be forced to offer under the mandate as abortion-inducing.
Unsurprisingly, the Administration quickly dismissed the Court’s push-back on that issue. Although the government respected the owners’ beliefs that certain birth control methods caused abortion, Verrilli said, federal and state law disagree with their analysis.
But not all the Justices appeared to side with religious liberty this morning. Elena Kagan, Obama’s 2010 nominee to the Court, asserted that allowing for profit-companies to opt-out of the mandate would clear the way for companies to justify opting-out of complying with child labor, sex discrimination, and/or minimum wage laws on religious grounds.
Paul Clement, a former Republican Solicitor General and the companies’ lawyer, replied that simply would not happen. While the government clearly has the needed “compelling interest” to enforce the laws Kagan mentioned, Clement and his clients vehemently disagreed that the Administration has a strong enough “compelling interest” in promoting preventive healthcare – through encouraging planned pregnancies – to justify violating religious freedom rights.
The final decision on the case should come out later this year. More than 100 businesses and employers have sued over the contraceptive mandate. And for institutions like the University of Notre Dame, who lost its court battle and is being forced to provide birth control or face steep fines for refusing, the decision can’t come quickly enough.