The Supreme Court heard arguments in the dual Obamacare contraceptive cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius yesterday, and the upshot is that prospects are looking rather grim for the government’s case. As we’ve discussed here before, both suits involve each corporation’s religious objections to the law mandating coverage for emergency contraception.
On one hand, the case seems cut and dry. As Justices Sotomayor, Kagan and Ginsberg argued yesterday, if the door is opened to religious objections to the law, it would allow corporations to freely discriminate against women and minorities, as is authorized in the Bible. Hell, a particularly radical corporation could interpret pro-slavery passages in the Bible to ignore the 13th Amendment on religious grounds.
This is an extremely salient point, and kind of an open and shut case. The Bible is loaded with metaphors, allegory, archaic laws (see Leviticus) and multiple disputed translations. There’s an extraordinarily massive opening for anyone — not just corporations — to cite religious freedom as an excuse to ignore a wide variety of laws. Hobby Lobby could use a decision in its favor to refuse service to everyone from LGBT customers to Jewish people (the whole killing Christ thing) to anyone wearing garments made of two different cloths. As Justice Kagan noted, Hobby Lobby could also refuse to offer insurance coverage for a variety of other medical treatments — blood transfusions, vaccinations and so forth.
It was on these points that the liberal-leaning justices evidently had Paul Clement, the attorney arguing for Hobby Lobby, totally kerfuffled. To top it all off, one of the justices noted that Hobby Lobby could simply refuse to offer any coverage at all and accept the tax penalty.
But then the proceedings took a dangerous turn.
We’ve always known that these cases would likely come down to five-to-four decisions with Justice Anthony Kennedy as the predictable swing vote. As I wrote a while back, the government’s case essentially rests with Kennedy, which is why it was so alarming to read that Kennedy appeared to accept the “contraception is abortion” line of reasoning, which is the centerpiece of the Hobby Lobby case.