Wednesday, March 26, 2014

Hobby Lobby Prognosticating

The noise of the gavel still echoes from yesterday’s arguments in the Hobby Lobby and Conestoga Woods cases before the U.S. Supreme Court.  People have been reporting and speculating on where the court may land when it comes to the application of RFRA on for-profit corporations, which is always a dicey proposition.  And although my Final Four bracket should be an indicator of my inability to prognosticate about what we will see in June, I believe the court tipped its hand just enough to give a glimpse into what could be a majority opinion. 

During the questioning, the obvious block of the three liberal female justices became apparent.  They dominated the questioning during the first half of the argument, repeatedly pressing the challengers to the HHS Mandate.  They struggled more with how RFRA could be applied uniformly, given the various objections that could be raised under a religious test, as well as whether it was advisable to give corporations the ability to discriminate on a variety of things, including wages, gender, family leave and child labor. 

The conservative judges  seemed less concerned about giving an exemption to religious employers, as they recognized that the Obama Administration did something similar for non-profit religious groups.  However, one of the most encouraging exchanges happened near the end of the argument when both Chief Justice Roberts and Justice Kennedy seemed to understand that without an exemption, this type of law could easily force religious employers to pay for abortions down the road.

And it was Chief Justice Roberts who suggested a narrow ruling allowing closely held companies like Hobby Lobby to claim a religious exemption, while leaving aside more-complicated corporations.  Even Justice Breyer suggested later he might be open to that type of resolution. 

So from my observations, the court will rule in favor of the plaintiffs in this case, but I also expect that their ruling will be limited enough that the cheering will be dampened.  (The High Court rarely gives one side everything they desire, and complicates their decisions with lofty thoughts and confusing tests.)  The ruling will likely include a test by which some companies will be able to qualify for the religious exemption.  However, if history is any example, the ability of the lower courts to interpret or apply the test will be varied and confused, ultimately needing another pass at some later date. 

But who knows, really?  My March Madness bracket has Michigan State going all the way.  And whether basketball or court prognosticating, I might be “mad” to try and guess either one with any certainty.