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Hobby Lobby v. Sebelius today (UPDATED 1:30 PM)

And here we are. After years of debate, protest, and litigation about the "HHS mandate" and its levels of exemption, accommodation, or non-accommodation under the Affordable Care Act, Hobby Lobby v. Sebelius and the related Conestoga Wood v. Sebelius are having their day in the Supreme Court.

I confess to feeling patriotic about the whole process. Every branch of government involved, multiple courts from different regions of the country, activist groups from mutliple angles getting involved, and -- to quote Grant Gallicho -- an opportunity for the whole country to actually learn how health insurance works.

Live information about the oral arguments is not that easy to come by, but the excellent SCOTUS Blog will have a transcript shortly thereafter.

So far, it sounds like Justices Sotomayor, Kagan, and Ginsburg are leading the questioning, primarily by asking about all the other types of health care and other laws that a ruling in Hobby Lobby's favor might call into question: vaccinations, blood transfusions, sex discrimination, family leave, child labor, etc. "Everything would be piecemeal," Justice Kagan said.

Ginsburg and Scalia offered conflicting views about the original intent of RFRA, with Ginsburg ironically playing an originalist kind of move back on Scalia. If lawmakers thought RFRA was granting religious rights to corporations, there would never have been such broad support of it, she argued.

Justice Kagan fears "religious objectors coming out of the woodwork."

A second line of questioning seems to be starting now, one raised by previous courts' dissents: that companies aren't being forced to provide health care at all, and they can choose to pay the tax instead to subsidize health coverage.


Until the transcripts come out, it seems like WSJ still has the most complete live blog of the discussion. Highlights include: 

Roberts was trying to tease out opportunity for a narrow ruling for "closely held enterprises" in favor of Hobby Lobby.

Alito made analogies to kosher and halal butcher shops and the limits of government interference with those.

The issue of whether certain contraceptives are abortifacients or not was raised by Kennedy, as a way of asking whether the government can force corporations to pay for abortions. If that reporting is accurate, it's an unusual phrasing, since what's being compelled is insurance, not the act itself (which is one of the key distinctions between this and other free exercise cases).

Alito also raised the question of just how important the conctraception madate could be as a government interest, if so many different groups are exempt from it or have coverage delayed.  The contrast here would be with U.S. v. Lee (1982), the Amish Social Security case, in which their free exercise was found to be burdened and yet overridden by compelling governmental interest in the Social Security program. Yet the Solictor General had ready examples of very important laws that had delayed or uneven implementations (e.g., the ADA).

All in all, it sounds to me like Roberts is leaning toward narrow ruling in favor of Hobby Lobby and Kennedy testing out both sides and not tipping his hand.

But of course, nobody knows...

UPDATE 1:30 PM: Lyle Denniston at SCOTUS Blog has just posted his recap of the oral arguments. As a matter of accuracy about the law, I'm really troubled that the justices (e.g., Kennedy) seem to have used the phrase "paying for abortions," when talking about pooled health insurance premiums. That seems to be a very sloppy way of describing insurance in such an august deliberative setting.


Finally, I can't help noting here what I also did on Twitter:


About the Author

Michael Peppard is associate professor of theology at Fordham University, author of The World's Oldest Church and The Son of God in the Roman World, and on Twitter @MichaelPeppard.



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Mr. Peppard - you state: 

"Surely I'm not the first to note this Supreme Court case about religion & contraception is happening on the feast of the Annunciation."

Suggest that this may be very apropos - the word became flesh;  took on human life.

From an earlier dotCommonweal post:

"Jesus lived single-mindedly. He practiced what he preached, but he always preached in metaphors. From the very beginning, Jesus’s “followers” took those metaphors and made them literal.  Too often people think of Christianity in terms of holding certain theological propositions and behaving according to a particular moral code. Christian belief, especially among my students, often amounts to a divine 401(k) plan. So long as you contribute enough, a few dips in the market won’t jeopardize your chances of heaven. But for Nietzsche (like Holden Caulfield, whom my students invoked), such a view is an example of bad faith or being a phoney. For Nietzsche, “To reduce being a Christian, Christianness to a holding something to be true, to a mere phenomenality of consciousness, means to negate Christianness. In fact there have been no Christians at all.”

"When Christians do things for the sake of the afterlife, when they allow suffering because everything will be reconciled in heaven, when they concern themselves more with theological argument than with living in peace with their neighbors, Nietzsche tells us, they are simply not doing what Jesus did. What children do any of those things? They are misunderstanding Jesus’s metaphors, and they are misunderstanding their own motivations."

Hobby Lobby = literal; I have the truth and will impose on others because of my religious freedom (to hell with others religious freedom).  Not much of the way of Jesus nor the journey of faith - rather, it becomes a legalistic formula.

And the transcript is up online.

Man! Are those guys ever making this hard. If Hobby Lobby can exercise his/her/its religious liberties on this question of his/her/its employees' insurance, what is to keep Hobby Lobby from deciding when his/her/its employees may get pregnant and when they must have abortions?

(HINT: I think that already became the case with Citizens United. I am only asking when SCOTUS will makeit official.)

Tom - in the eyes of the Beckett Fund, the slippery slope is only in one direction.

I don't get what this has to do with the Feast of the Annunciation.

Wonder if anyone is asking a question about taxes, since Medicaid covers birth control pills and is paid for by all taxpayers.  I'm assuming Hobby Lobby and/or its owners pay income taxes.  It seems a broad ruling might open the possibility that anyone not wanting to participate in BC could opt out of income taxes, not to mention employees who might argue that they don't want "their" (pooled) insurance premiums to cover their co-workers family planning.  This could be some mess.

Thanks for this great piece. We're also following the Hobby Lobby case on our blog at

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