Justices Ginsburg, Sotomayor and Kagan come out swinging against Hobby Lobby corporate religion claim

A Hobby Lobby win would mean “everything would be piecemeal; nothing would be uniform," according to Kagan

Published March 25, 2014 8:15PM (EDT)

                                                       (AP/Pablo Martinez Monsivais)
(AP/Pablo Martinez Monsivais)

Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg dominated much of the questioning at the start of Tuesday's oral arguments in Sebelius v. Hobby Lobby Stores, Inc., suggesting that at least three of the court's nine justices are dubious of the company's claim that corporations can have religious faith and that providing employees with contraceptive coverage is a violation of its "religious liberty" under the Religious Freedom Restoration Act (RFRA).

As Brent Kendall reports in the Wall Street Journal, Hobby Lobby attorney Paul Clement had barely opened his mouth to speak before Sotomayor jumped in to ask about the consequences of corporate religion. If corporations could claim a religious objection to providing contraception coverage, she asked, couldn't they also object to vaccinations or blood transfusions? Kagan picked up the thread on corporate religion, noting that there are a number of other medical treatments that are not considered legitimate under certain religious doctrine, and asked if corporations should be able to object to covering those as well. Empowering corporations to do this would mean, “Everything would be piecemeal; nothing would be uniform," according to Kagan.

Kagan also grilled Clement on Hobby Lobby's claim under RFRA, an “uncontroversial law" that Hobby Lobby is attempting to use it to disrupt “the entire U.S. code.” Ginsburg noted here that RFRA passed in 1993 with overwhelming bipartisan support, and that to use the measure to endow corporations with religious rights "seems strange."

But as Ian Millhiser noted at ThinkProgress, the news from the court isn't all rosy. For one thing, Justice Anthony Kennedy seems to believe this is a case about abortion. Millhiser points out that Kennedy does not seem to think -- as Hobby Lobby (incorrectly) does -- that emergency contraception is an abortion-inducing drug. Instead, he seemed interested in the possibility that a future law may compel Hobby Lobby to pay for abortion:

[Kennedy] did not weigh in on the question of whether non-abortions can count as abortion -- indeed, he seemed to understand the difference between birth control and abortion. Nevertheless, he looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions -- just as he once gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli. In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing -- even if that law would never make it through Congress.

But Kennedy also asked about the consequences for employees if an employer is empowered to impose its religion on them, and seemed interested in the question of the rights of employees versus the rights of an employer -- a small but potentially hopeful indicator that, at the very least, the outcome of the case is far from settled.

For more of Salon's analysis on the case see herehere and here.

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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