Cover Story

Conscience at the court

"Conscience at the court" Continued...

Issue: "What price conscience?," April 19, 2014

Attorney for Hobby Lobby Lori Windham steps away from a press conference at the Supreme Court.
Larry Downing/Reuters/Landov
Attorney for Hobby Lobby Lori Windham steps away from a press conference at the Supreme Court.
“It surprised me how little the corporations issue came up,” said Becket Fund for Religious Liberty attorney Lori Windham, who handled Hobby Lobby’s case in the lower courts. The court went straight to debating the merits of the case. Was the mandate a substantial burden on the businesses? Did the government have a compelling interest? Did it use the least restrictive means of accomplishing that interest?

Religious freedom lawyers were mostly optimistic after the arguments, but some have chosen to remain pessimistic until they see a decision. The optimists noted that most of the justices, including liberal Justice Stephen Breyer, posed critical questions to the government. Breyer, though he said his question reflected “no point of view,” questioned whether the contraceptive mandate was really the “least restrictive means” the government could use to get contraceptives to women without imposing on religious beliefs. Couldn’t the government just provide the contraceptives itself? he asked. The government has argued that contraceptive coverage is cost-neutral because of the savings it generates.

Justice Anthony Kennedy, considered the true swing vote in this case, questioned the government’s argument that for-profit companies can’t challenge a mandate on religious grounds: Would that require companies to pay for abortions?

Verrilli responded, “There is no law like that on the books.” Chief Justice John Roberts asked, “There is no law on the books that does what?” Verrilli: “That makes a requirement of the kind that Justice Kennedy hypothesized.” Roberts: “Flesh it out a little more. There is no law on the books that does what?” Verrilli: “That requires for-profit corporations to provide abortions.”

Roberts pounced: “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.” Verrilli answered that federal and state laws don’t consider the drugs at issue to be abortifacients.

Alito took a swing at Verrilli next, with the example of the Danish law against kosher and halal slaughterhouses. Both Breyer and Kennedy joined Alito’s colloquy, and asked Verrilli to explain how the contraceptive mandate was different. Breyer: “Take five Jewish or Muslim butchers. What you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the freedom of exercise clause that you’d otherwise have.”

The pessimistic religious freedom lawyers noted that Kennedy and the three female liberal justices posed hard questions to Clement too, mostly about the rights of the employees working at Hobby Lobby and Conestoga who may not share the owners’ beliefs. Justices Elena Kagan and Sonia Sotomayor emphasized that Hobby Lobby and Conestoga had a choice to drop insurance altogether and pay a tax that would amount to about the price of coverage. Some pessimistic religious freedom lawyers were also concerned that the court may throw nonprofits under the bus by ruling in Hobby Lobby’s favor, but accepting the government’s so-called “accommodation” to nonprofits for the mandate and applying it to for-profits. The accommodation asks nonprofits to certify a third party administrator to provide contraceptives and abortifacients to their employees.

Nonprofits currently in court say the accommodation does not satisfy their conscience objections. Clement in the arguments suggested that the accommodation might be a workable alternative for Hobby Lobby and Conestoga, though he also suggested the government pay for the drugs itself. Before the oral arguments, the government and the two businesses had never discussed the possibility of applying the nonprofit accommodation to for-profits, so it would be strange if the court turned to that as a solution without further discussion.

Eighteen months after Hobby Lobby filed its case, the day after the Supreme Court arguments, Lori Windham returned to the Becket Fund’s offices on the Georgetown waterfront. Windham was wearing more makeup than she would prefer for the battery of post-argument press interviews, and had polished off a Diet Coke. Her desk was organized.

With the arguments behind her, Windham checked in with her other clients. Even if Hobby Lobby and Conestoga win, 47 nonprofit cases against the mandate are still pending in lower courts, with Becket handling many of them. Windham initially thought one of the nonprofit cases would go to the Supreme Court first, but with the lag in the federal government releasing its final rules for nonprofits, those cases have moved more slowly. She was not one of the lawyers predicting a 6-3 win in the Hobby Lobby case, remembering the tough questions posed to Clement: “You don’t know what’s going to happen. ... Now we play the waiting game.”

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