Reviewing The Legal Arguments In The Contraception Mandate Cases

Unless you've been living under a rock, you know that the Supreme Court will today hear the contraception mandate cases, popularly styled Sebelius v. Hobby Lobby. Politically, these cases hit a bunch of fraught notes on sex, power, religion, and free speech. I covered that, with emphasis on the lies leftists will tell, yesterday. Legally, however, these cases also raise important questions, and I want to cover that today.

As I've written before, these cases won't bring down Obamacare. But they will determine how government will interact with religious individuals for decades to come. Here are the most important legal questions the Supreme Court will have to consider today.

1. Who has religious rights?

This is the "sweet spot" of the contraception mandate cases. For the government to win, they have to convince the Supreme Court of two things. First, it will have to successfully argue that for-profit corporations have no religious rights of their own that are protected under the Religious Freedom Restoration Act ("RFRA", pronounced riff-ra.) Second, the government has to prevail on the theory that the religious rights of owners of for-profit corporations are unprotected by RFRA in the operation of their corporations.

If the government can demonstrate these two things, the case is over without getting into any weighing of the burden on religious liberty and whether the contraception mandate is a "compelling interest," "narrowly tailored," as RFRA requires. As I discuss below, once we get to RFRA's balancing test, all signs point to a win for Hobby Lobby. So let's dig into the

Briefly, the government argues that for-profit businesses cannot exercise religion because, well, because they say so. The government's brief argues that a business is not a "person," and RFRA's language only extends to persons. It also argues that business owners give up religious protections by choosing to enter into commercial activity.

The businesses argue that, while RFRA does refer to persons, the term person is defined by statute to include "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." They also note that many corporations are operated for religious purposes, including the hundreds of non-profit corporations that the Obama administration agreed to exempt from the contraception mandate. And, most notably, Supreme Court precedent has recognized that religious rights are implicated when businesses are forced to comply with laws.

The back-up argument for the businesses (and, I believe the one that will prevail) is that even if Hobby Lobby and Conestoga Wood do not have protected religious rights, their owners obviously do. Suggesting that owners and operators who are forced to act in violation of their religious consciences are simply out of luck because they chose to organize in the corporate form is unlikely to convince a majority of justices because RFRA does not protect (or exempt) certain corporate forms. It protects religious freedom, which is the same for the business owners whether they choose to incorporate as a for-profit or as a non-profit.

2. Does the contraception mandate substantially burden businesses?

This is the first part of RFRA's test for balancing religious freedom against laws. As I said above, once the businesses get over the hurdle of showing they have a protected religious right, it's smooth sailing.

The government argues that the contraception mandate is not a substantial burden because the businesses' (or their owners') religious beliefs are "too attenuated" from the harm they complain of. In plain English, the government thinks that because the businesses object to contraceptives (in Conestoga Wood's case) and abortifacients (in Hobby Lobby's case), and the decision to purchase contraceptives and abortifacients is being made by employees at some later date and place removed from the businesses, the businesses' objection is irrational.

The government simply misstates the businesses' and owners' objection. Yes, for religious reasons they oppose the use of contraception. They also oppose covering it in their health care plans and it is this very coverage that the government is now mandating. That is the burden and it is indisputably substantial, since failure to provide the objectionable coverage will result in crippling fines. The government's attempt to distract the court with claims that the businesses solely object to the use of contraception requires the high court to simply disregard the actual stated objection of the businesses.

3. Does the government have a compelling interest in these businesses providing contraception coverage?

Here again, the facts are all on the businesses' side. As I noted yesterday, the vast majority of employees in the United States had contraception coverage before the mandate, and still do. A relatively tiny number of employees would lack this coverage if the businesses win here. More importantly, the Obama administration already exempted as many as 190 million people from the mandate, by allowing non-profits and those with "grandfathered" plans to continue to operate, in perpetuity, free of the mandate. There is simply no way the government can argue that, after providing millions of exceptions, its interest is compelling. The government has already conclusively demonstrated that it is, at best, an optional interest.

4. What about constitutional protection?

I've suggested throughout this post that the case will turn on the application of RFRA. The reason for that is because RFRA provides more religious protection from federal statute than the First Amendment's free exercise clause. It's possible the Supreme Court could rule on First Amendment grounds, but unlikely. The only way the justices get to the First Amendment question (which, to its credit Conestoga Wood briefed) is if they decide to undo decades of First Amendment jurisprudence in a case where they don't have to. That is why this case is not about constitutional corporate "personhood" a la Citizens United, despite what you may have read in the papers or heard on TV.

I will conclude with a prediction based only on their briefs (and this comes before argument): the businesses will win. There is a key difference between a political argument and a legal argument that the government seems to have forgotten here. To win in politics, you take the other side's worst argument and hammer that. To win in a legal argument, however, you must take the other side's best argument and tear it down. Here, the government's brief doesn't directly address the businesses' arguments, preferring instead to take a rambling trip through concepts like piercing the corporate veil, "attenuation," and ERISA lawsuits. By contrast, the businesses focus directly on the question at issue: does RFRA protect them. It's a telling difference.

posted by Gabriel Malor at 10:59 AM

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