The court could skirt that issue by finding that the individuals who own the businesses have the right to object. But the justices still would have to decide whether the birth control requirement impinges on religious freedom, and if so, whether the government makes a persuasive case that the policy is important and has been put in place in the least objectionable way possible.
Kennedy showed some interest in the argument that the companies could simply decide not to offer any health insurance to their workers and instead pay a tax of $2,000 per employee. That route might allow the court to sidestep some thorny questions in the case.
Clement objected that businesses would find themselves at a competitive disadvantage in a situation where other employers were offering insurance.
But when Kennedy asked Clement to assume that the company would come out the same financially, Clement acknowledged that the government might have a strong case.
Conservative justices pressed Solicitor General Donald Verrilli Jr. over the administration's argument that for-profit corporations have no claim to religious expression. "If you say they can't even get their day in court, you're saying something pretty, pretty strong," Justice Samuel Alito said.
Some of the nearly 50 businesses that have sued over covering contraceptives object to paying for all forms of birth control. But the companies involved in this case are willing to cover most methods of contraception, as long as they can exclude drugs or devices that the government says may work after an egg has been fertilized.
The largest company among them is Hobby Lobby Stores Inc., an Oklahoma City-based chain of more than 600 crafts stores in 41 states with more than 15,000 fulltime employees. The company is owned by the Green family, evangelical Christians who say they run their business on biblical principles. The Greens also own the Mardel chain of Christian bookstores.
The other company is Conestoga Wood Specialties Corp. of East Earl, Pa. The business is owned by the Hahns, a family of Mennonite Christians, and employs 950 people in making wood cabinets.
Members of both families were at the court Tuesday.
The justices made a couple of humorous references to their epic consideration of the health care law in 2012, which also pitted Clement against Verrilli.
When Clement persisted in calling the $2,000-per-employee tax a penalty, Sotomayor jumped in to insist that it's a tax.
"She's right about that," Roberts said, recalling his opinion upholding the law's centerpiece that individuals must be insured or pay a tax.
A decision is expected by late June.
Follow Mark Sherman on Twitter: https://twitter.com/shermancourt
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