You know those ubiquitous BuzzFeed quizzes? The ones trying to help you determine what brand of peanut butter or which Game of Thrones character you are? Well it’s hard not to walk out of oral argument this morning in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius without being forced to confront a similar, but perhaps more awkward, question: What kind of contraceptive method are you?
The case, which has been litigated so hard and so often in the media that my next-door neighbor yesterday expressed astonishment that it hasn’t already been decided, raises the question of whether two for-profit corporations—Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga Wood, a cabinet-making company—can be exempt from the requirement under the Affordable Care Act that companies cover a range of 20 contraceptive methods and devices as part of the preventive health package they offer their workers. Hobby Lobby is owned and operated by David and Barbara Green and their three children. They employ 13,000 workers. Hobby Lobby covers the range of most FDA-approved devices, but because they believe Ella, Plan B, and two types of IUDs cause abortions, they don’t want to cover those four. Conestoga is owned by a Mennonite family that objects to covering Ella and Plan B but not the other methods.
Hobby Lobby prevailed with its religious freedom claims in the appeals courts, and Conestoga lost. Both the Religious Freedom Restoration Act (RFRA) and the First Amendment claims were on the table Tuesday, but often in something of a jumble. The cases were consolidated and argued Tuesday morning by Solicitor General Don Verrilli and Paul Clement, who argued the ACA cases before the court almost two years ago, on a spring day in 2012, when it was not—as it was Tuesday—snowing.
One thing that was immediately clear Tuesday morning: There is finally a women’s team at the high court. For most of Clement’s 45-minute argument on behalf of the two religious objectors, the only questions come from the court’s three women, Sonia Sotomayor (the patch: tenacious, hardworking, and unshakable), Elena Kagan (the pill: unobtrusive yet sneakily effective), and Ruth Bader Ginsburg (IUD: deceptively small, monstrously potent, and lasts forever). Sotomayor and Kagan in particular pound Clement about the implications of using the exacting standard of scrutiny set forth under the RFRA to assess every corporate claim that a religious preference is burdened. “Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?” asks Sotomayor. Clement replies that contraception is unlike transfusions and vaccines because it is “so religiously sensitive, so fraught with religious controversy.” Which is, I suspect, code for “sex.”
Kagan responds, “So one religious group could opt out of this and another religious group could opt out of that and nothing would be uniform.” And Ginsburg points out that the reason RFRA passed with such broad, bipartisan support was that Congress took out a proposed amendment that “would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions.” Au contraire, says Clement. RFRA passed broadly because it afforded such broad protections.
Kagan’s not buying it: “Your interpretation of [RFRA] would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard” and allow employer after employer to voice religious objections to sex discrimination laws and minimum wage laws and family leave and child labor laws. All of which would be subject to what she describes as this “unbelievably high test, the compelling interest standard.” Employers will, under that standard, virtually all win.
Justice Samuel Alito (morning-after pill: always in possession of the power of perfect hindsight) interrupts to ask, “In all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded?” Kagan retorts that the reason such cases haven’t been brought is because this kind of test has never been approved by the courts. But, she adds, “if your argument were adopted and there was a strict scrutiny standard ... then you would see religious objectors come out of the woodwork.” She throws in another concern: “And because you say you cannot test the sincerity of religion. I think a court would be, their hands would be bound when faced with all these challenges.”
Clement pivots to explain why corporations can be “persons” under the Dictionary Act and Sotomayor presses him on how “a corporation can exercise religion.” She asks, “Who determines the corporate religion? The majority of shareholders? The corporate officers? Is it 51 percent?”
Clement replies that “this line of questioning goes to a question of sincerity, and if some large corporation asserts some claim that’s going to save them lots of money, I would think that the government in those kind of cases is really going to resist the sincerity piece of the analysis.” Sotomayor replies that courts aren’t supposed to be in the business of testing religious sincerity in the first place.
Sotomayor soon introduces the “it’s not a penalty” argument, as famously urged by professor Martin Lederman. “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?” she says, meaning that employers needn’t provide insurance at all so long as they pay an arguably reasonable penalty/tax to the government. “These employers could choose not to give health insurance and pay not that high a penalty.” In an appeal to Chief Justice John Robert’s Solomonic solution to the health care cases she insists: “It’s not called a penalty. It’s called a tax.”
Roberts laughingly gives it to her: “She’s right about that …”