“But it isn’t a belief that we think is reflected in federal or state law or our traditions of where that line is drawn. ... And I do think that that is what makes this a difficult case,” Verrelli said.
But Kennedy also put Hobby Lobby’s lawyer on the spot when the justice joined the inquiry by liberal justices about whether the company could avoid paying for contraceptives by dropping its health insurance.
Justices Elena Kagan and Sonia Sotomayor told Clement that Hobby Lobby had a choice in whether to offer health insurance and that the company could actually save money by paying the $2,000 per employee tax rather than providing health insurance.
Kennedy asked Clement what Hobby Lobby’s case would be if dropping the insurance and paying the tax turned out to be a financial “wash.”
Clement stumbled somewhat but said dropping the insurance would also be a burden on Hobby Lobby as it tried to compete with other companies.
Kennedy also asked Clement whether Hobby Lobby and similar companies were seeking an exemption that would would put their employees in a disadvantageous situation.
“The employee may not agree with these ... religious beliefs of the employer,” Kennedy said. “(Do) the religious beliefs just trump? Is that the way it works?”
Clement said the question in this case could be resolved by the government paying for the contraception.
“This is not about access to the contraception,” he said. “It’s about who’s going to pay for the government’s preferred subsidy. And I think in that context, there are ample alternative ways to address any burdens on third parties.”
Appeals courts split
Outside the court on a windy, snowy morning, demonstrators supporting Hobby Lobby and others supporting the contraception mandate in the Affordable Care Act marched and chanted. Some of the same groups demonstrating on opposite sides had been united when the Religious Freedom Restoration Act was approved.
But this case, which involves abortion, contraception and Obamacare, is far more political than the one that prompted the 1993 act — peyote use by the Native American Church.
The 10th U.S. Circuit Court of Appeals in Denver sided last year with Hobby Lobby and Mardel, a Christian book store chain also owned by the Greens, ruling that the government had burdened the companies’ free exercise of religion with the mandate.
A federal appeals court in Philadelphia ruled the opposite way in a similar case involving Conestoga Wood Specialties, a furniture maker based in Pennsylvania that is owned by Mennonite Christians.
The U.S. Supreme Court on Tuesday combined the Hobby Lobby and Conestoga cases and the arguments related to both.
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Hobby Lobby’s arguments
The company’s arguments include that corporations, not just individuals, are protected by the Religious Freedom Restoration Act. Also, the company argues that the contraception mandate is a burden on Hobby Lobby’s free exercise of religion because it requires the closely held corporation to violate its religious beliefs by offering health insurance that covers four types of contraception that could prevent a fertilized egg from implanting in the womb.