Analysis: If Justice Kennedy writes the Hobby Lobby decision…

Lyle Denniston

Lyle Denniston looks at how Justice Anthony Kennedy could settle the Hobby Lobby case, based on some clues from Tuesday’s Supreme Court arguments.


Later this week, the Supreme Court will meet in private to cast its first votes on how they are to decide the religious rights controversy over the new federal health care law’s birth-control mandate.  One can imagine, based on Tuesday’s lengthy hearing at the court on two cases, now known as the Hobby Lobby cases, that Justice Anthony M. Kennedy will be in the majority and that he might wind up being the author for a majority opinion (assuming a divided court, which seems predictable).  The reasons that one might focus on him are he was the only one of the Justices who showed some sympathy with both sides of the cases, and he often turns out to hold the deciding vote on a split court.

What might Kennedy write?  Some answers actually were suggested by his comments and questions on Tuesday.

First, and maybe of most importance for the meaning of the Constitution, he probably would want to decide the case not based on the First Amendment, but on the protection for religious rights provided in a 1993 federal law, the Religious Freedom Restoration Act.   His very first question was how the court could avoid the tough constitutional question about whether corporations can “exercise” religion in the constitutional sense.

The court never before has given profit-making corporations a constitutional right to an exemption from laws that must be obeyed by everyone in the general public, and Kennedy’s first question suggested that he was not ready to do so in these cases.

Ruling only on the RFRA issue would be fairly easy to do, since that law extends its protection to “persons,” and Kennedy did show some sympathy for the notion that religiously devout owners do have rights and he might well accept that they use a corporation as an entity – as he put it — to “vindicate the religious rights” of the owners.  (On that point, he might well accept the suggestion by Chief Justice John G. Roberts, Jr., that this might be allowed only for corporations that are so tightly held by a small group of owners that they really are not like big, publicly owned companies.)

Kennedy also showed sympathy for religiously devout business owners in two other notable ways: He expressed clear hostility to any notion that the government would have power to order a firm to pay for abortions (a point that also showed some sympathy for owners who believe that access to birth control leads to abortion), and he expressed deep reservations about a government agency having the power to decide which institutions – business or otherwise – are entitled to exemptions from laws in order to protect their religious beliefs.

At the same time, however, Kennedy was not content for the lawyers on Tuesday to be focusing only on the rights of business owners.   He explicitly wanted advice on how the court was to “think about the rights of the employees.”   The workers might not share the religious objections that the company’s owners have to birth control, he said, so he wondered if the workers’ interests were “just trumped” by the owners’ beliefs.  His tone indicated he was not content with that.

But, if Kennedy on the one hand wants to protect the rights of religious devout business owners, and on the other to protect the interests of their female workers, he would face the judicial puzzle of finding a way to do both in these cases.   One possibility is to allow the owners to make a claim under RFRA, but then rule that they have not shown that the “contraceptive mandate” fails the test of RFRA for a valid government action toward a religious person or entity.

That law only forbids government action that imposes a “substantial burden” on the practice of one’s faith, and only if such a burden is not offset by a “compelling” government interest.  The government’s argument for a “compelling interest” in this case is that women workers of child-bearing age very much need access to pregnancy-prevention services.  Kennedy did not say anything that suggested he would reject that argument.

But he did talk about the other side of the RFRA equation: Does the “contraceptive mandate” actually burden the practice of faith by religiously devout business owners?  He joined in a discussion among several Justices over whether the Affordable Care Act (which contains the mandate at issue) gives corporations some choices other than obeying its requirements.  And Kennedy said explicitly that, at least from a financial standpoint, it would be “a wash” if the corporations opted out of providing any health care coverage for their workers, and paid a penalty to the government for doing so – a penalty not much greater, if at all, than what they might spend on providing the contraceptive coverage for their workers.

Then, according to this scenario, the company would have to raise its workers’ wages in order to keep them or stay competitive in the labor market, and the women workers could then use their higher pay to pay for contraceptive materials or services.

Under that kind of a compromise decision, the government would not be mandating the higher wages from a company opting out of health care coverage, but the Court might anticipate that that would be the result.

One impression that Kennedy left very strongly on Tuesday was that, as is often true for him, he would rather the Court not stray too far beyond what it has to decide to get a result in the specific dispute up for decision.   If a decision raises sequel questions, there will be time enough to reach them when they actually arise.  That, of course, was the approach he took last June on the same-sex marriage issue, deciding no more than seemed necessary at the time, but generating a host of follow-up disputes that lower courts confront, in the first instance.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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