According to Lyle Denison, reporting for SCOTUSBlog.com, the justices who heard arguments in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius were essentially worried about the "slippery slope" on both sides.
For instance, when former U.S. Solicitor General Paul D. Clement, the attorney representing Hobby Lobby and Conestoga, was presenting his arguments, he was peppered with questions from Justices Elena Kagan and Sonia Sotomayor. They suggested that if corporations can be exempt from having to provide birth-control services for their female employees, what would stop them from requesting exemptions from vaccinations and blood transfusions and other medical procedures they deem objectionable from a religious point of view.
When Solicitor General Donald B. Verrilli, Jr., who is representing the government in the cases, took his turn at the lectern, Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr. disputed most of his claims.
Justice Anthony M. Kennedy wondered if we allowed the government to mandate birth control, what would stop it from one day mandating abortion coverage.
The arguments presented by Clement yesterday were almost exclusively based on the Religious Freedom Restoration Act which was passed during the Clinton Administration and allows the government to "substantially burden" a person's exercise of religion only if it demonstrates that application of the burden to the person is 1) to further a compelling governmental interest, and 2) if it is the least restrictive means of doing so.
Pundits on both sides of the issue have their doubts about whether the government can prove not only that forcing people to pay for birth control is a "compelling government interest" but that the controversial mandate is the "least restrictive means" of doing so.
In fact, Justice Stephen Breyer, asked whether a less restrictive way of providing the coverage would be to simply make the government pay for the coverage.
It seemed obvious that the liberal members of the court, Justices Ginsberg, Kagan and Sotomayor seemed to favor the government's argument and Justices Roberts, Scalia and Alito were leaning toward Hobby Lobby. Because Justice Clarence Thomas usually rules with the conservative wing of the court, and Justice Stephen G. Breyer with the liberal wing, that leaves Justice Anthony M. Kennedy to be the possible swing voter in these cases.
As Denison describes, Kennedy appeared worried about certain points in both sides of the argument: first, that the interests female workers might not be protected; and second, that forcing a corporation to pay for contraceptives means the government could also force them to pay for abortions, which would clearly be wrong.
" . . . the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four," Denison speculates.
The outcome of this case is significant because should the court rule that providing this coverage does not substantially burden for-profit businesses' free exercise of religion, it could make it much more difficult to show that the mandate substantially burdens non-profit religious institutions.
A decision is expected by the end of the Court's current term which is June of this year.
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