Will The Supreme Court Keep Kosher And Halal In The Hobby Lobby/Conestoga Wood Cases?

How many specious hypotheticals, willful misprisions of existing law and recent Court decisions, and frightening parades of horribles can fit inside of 90 minutes of oral argument at the Supreme Court?  A great multiplicity, as we found out last Tuesday, March 25, when the Court heard arguments in the consolidated Hobby Lobby and Conestoga Wood cases.

According to the editorial writers at The Wall Street Journal, “the real purpose of the [so-called contraceptive] mandate was to minister to the secular left and the so-called coalition of the ascendant.”  For the WSJ, “liberal justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn’t it also refuse to pay for blood transfusions or vaccinations?  ‘Could an employer preclude the use of those items as well?’ asked Justice Sonia Sotomayor….Yet no one is ‘precluding anything.  Contraception is cheap, plentiful and covered by most health plans.”   Taking the WSJ editorial board’s assertions (“Obamacare vs. Religious Liberty,” 3/25/14) in turn: they begin by assuming bad faith on the part of the lawmakers and regulators, resorting to slander rather than actual argument; second, the contraceptives involved are not regarded as abortifacients either by federal law or authoritative medical judgment; third, there is no limiting principle in their reasoning–or the reasoning of Paul Clement, the lawyer who argued on behalf of Hobby Lobby and Conestoga Wood–against extending the rights of natural persons to artificial entities for whom life begins at incorporation but “who” enjoy limited liability, not personal accountability before G-d; fourth, there is a significant upfront cost, as Solicitor General Donald Verrilli pointed out in response to an ill-informed question by Justice Scalia, for the IUD, which millions of American women use and which, as Verrilli noted, may be sincerely regarded as causing abortions by the corporate owners–notwithstanding, their sincerity should not control the legal outcome of the case if their beliefs contradict medical opinion.

Justice Kennedy, as often happens, looks like the swing vote here.  He showed concern that the government’s logic could in principle lead to forcing for-profit corporations to pay for abortions–though as Verrilli pointed out, that hypothetical worry is not consistent with any current laws, which force no such thing.  However, Kennedy did also express concern that the rights of employees–the women who rely on birth control coverage as part of their health care plan–could be threatened by a ruling in favor of the corporations.  (The Balkinization blog has several detailed posts on this issue.)

Regarding Justice Alito’s hypothetical (based on a recent law in Denmark) suggesting that the government’s position could lead to kosher and halal slaughterhouses having no legal recourse to defend their free exercise and First Amendment rights, I can only say that although I abhor the false flag attacks on women’s autonomy perpetrated by Justices Alito et al., I will defend to the death their right not to be “stunned or rendered unconscious” before they make their way into the Supreme Court chambers to make their preposterous and tendentious assertions.

The three female justices raised questions that highlighted the real burdens women employees (and there are thousands of women employed by these companies, which though closely held are by no means mom-and-pop operations) would face if the Court were to rule against the government and for Hobby Lobby/Conestoga Wood. It’s likely up to Anthony Kennedy to decide whether such corporate burden-shifting should be allowed in the face of what seems to me a neutral and generally applicable law designed to promote public health.  And whether the purportedly religious arguments for heteronomous control over women should prevail.  The Affordable Care Act may offend some religous consciences but is two or three degrees of separation away, in my opinion, from imposing an unbearable burden on any limited liability for-profit corporation, no matter the personal, sincere beliefs of its owners.

P.S. Spoiler alert: the decision, which will be released in late June, shall, I regret to say–and in spite of Justice Alito’s wariness of philosophical entanglements–uphold the unity of corporate mind and body, and thus vindicate Spinoza’s dictum (hat tip, or apologies if you will, to Michael Della Rocca, Spinoza, ch. 3) that the “order and connection of ideas is the same as the order and connection of things.” The Court will rule that corporate entities (unlike mere natural persons) have the inalienable right to represent, via thoughts and/or ideas, any particular object they so choose.


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