I don't think that the importance of this case can be overstated. I'm linking to several articles below that aptly discuss the implications of this case for the religious community and for constitutional freedoms at large. My goal today is to flesh out a few guesses regarding how the Supreme Court will decide this case.
I'm no constitutional scholar and these are merely guesses, but hopefully this exercise will help us to view the case from multiple vantage points, thereby creating a more robust understanding of the issue.
Disclaimer- While we can postulate about the outcome of the Sebelius v. Hobby Lobby case, it is important to remember that the Supreme Court often has a mind of its own. One notable example is their objection to the government leveling a fine for not having health insurance and then suggesting that calling it a tax would be acceptable. That makes complete sense.
Option #1: An Obama Administration Victory
The Supreme Court could very well side with the Justice Department and argue that since the ACA (Affordable Care Act) is not specifically targeting religious organizations, the law is valid and Hobby Lobby must provide the same level of health insurance to its employees as any other for-profit business operating in the United States.
I am skeptical about the likelihood of this outcome for one major reason: the Court already made this statement in the case Employment Division v. Smith (1990) - You can read a summary of this case here. The Supreme Court doesn't revisit cases that they agree with. If a previous decision applies to a new case, the Court will let the precedent speak for itself and they will refuse to hear the case. An easy victory for the Justice Department in the Hobby Lobby case is unlikely because it would require the Court to say or decide nothing new, and that is not the purpose of the Supreme Court.
The Court could also hand over a win to the Obama administration by taking a stand on reproductive health and argue that contraception is a public health "necessity." However, I find this option unlikely since even with the sweeping decision of Roe v. Wade the Court argued a right to "privacy" and made no specific statements on women's reproductive health.
Option #2- A Victory for Hobby Lobby
One option here would be for the Supreme Court to roll back its decision in Employment Division v. Smith. As I wrote in an earlier post, the Smith case greatly curtailed religious liberty in that it gave the government broad powers to create law without having to consider the implications that law would have on citizen's ability to freely practice their religion. As long as a law was not intended to restrict liberty, the law was valid. The Court could roll back the decision in Smith and return to the more restrictive approach that was in place prior to 1990. This more restrictive approach put heavy burdens on the government to ensure that the laws passed by Congress do not interfere with the free practice of religion.
I think that this is a possibility, and we may see glimmers of this in the final ruling, but I am not optimistic that this ruling is going to radically alter the constitutional landscape for religious liberty. One major reason I am skeptical about this outcome is because a reversal would require all 4 conservative votes and one swing vote (Kennedy) and that would mean that Antonin Scalia would reverse his original ruling that he wrote in Smith. While Scalia may be willing to alter or clarify his earlier ruling, I find a full-scale reversal unlikely.
Option #3- A Renewed Discussion of Citizens United
In 2010, the Supreme Court issued a highly controversial decision known as Citizens United. Prior to 2010, corporations were prohibited from using their private funds to create and air any communication that was intended to influence elections 60 days prior to the election.
Citizens United is a conservative political organization who filed a grievance with the FEC in 2004
because they argued that Michael Moore's film, Fahrenheit 9/11, violated this prohibition as it was advertised and released in the weeks leading up to the 2004 presidential election. The FEC disagreed with this claim and in 2008, Citizens United created a documentary about Hilary Clinton and attempted to air advertisements for the documentary on national television and broadcast the entire film on DirectTV. They were barred from doing this and subsequently filed suit in federal court.
I think that we may see aspects of this argument crop up here, and my expectation is that it will be used by the Hobby Lobby camp. While this decision was certainly divisive, it was strongly supported by not only the 4 conservative justices, but the opinion was written by Kennedy, who went even further in his opinion that Chief Justice Roberts originally intended.
A Supreme Court Cop-Out
As riveting as a landmark Supreme Court ruling would be, the reality is that most decisions handed down are fairly limited in scope. While it might seem like the Court could make its life easier by making a sweeping statement that clearly defines how the government should interact with religious liberty, that's not actually the purpose of the Court. The Court is to hear cases about specific events and specific laws and they are to comment on that law. Most cases that are brought before the Court are limited in scope because the situation is specific and particular. Some of the most controversial rulings are when the Court steps outside of the parameters of the case to make broad statements. This isn't to say that there aren't times when broad rulings are necessary. However, it is in our best interest as Americans to have a restrained Court that operates on a case-by-case basis instead of using cases to further some ideological goal.
All of that to say, the Court could narrowly rule in the case, which means that they could limit the ruling to a particular type of corporation or take issue with a small section of the ACA (they could even suggest a re-wording that would be constitutional).
Final Thoughts
Based on yesterday's hearings and on the information that I discussed above, my guess, my very hesitant guess, is that the Court will side with Hobby Lobby, but will do so in a limited fashion. Were the issue at stake blood transfusions or hip replacement, I think that the Court would be less likely to side with Hobby Lobby. Abortion, however, is not just any medical procedure and I think that the nature of the government mandate, along with the enormous fines imposed for non-compliance, place an undue burden on a corporation that, according to Citizens United, has religious protections under the First Amendment.
Obviously this is just a guess and there is a plethora of routes and opinions the Court can take on this particular issue. Please feel free to disagree or offer new thoughts/ideas about this case!
Sources and Recommended Reading
Hobby Lobby Contraceptive Case Goes Before Supreme Court- NPR
Religious Liberty is America's First Freedom- Rick Warren for The Washington Post
Obama Administration Suffers A Drubbing in Hobby Lobby Arguments- Forbes
Supreme Court Women Raise Questions on Contraception Coverage- Time
