Justice Kennedy at Hobby Lobby case nexus, analysts agree
Damian Dovarganes, Associated Press
WASHINGTON — It may all come down to one man's vote. Supreme Court Justice Anthony M. Kennedy appears to be the fulcrum in deciding the Hobby Lobby religious freedom case, analysts agree.
The Supreme Court's other eight justices seemed evenly split after an extended 90 minutes of oral arguments Tuesday over whether a for-profit business has protection under a 1993 bill guaranteeing religious liberty. That leaves Kennedy as the potential swing vote in a decision expected by the end of June.
Hobby Lobby is among 47 for-profit companies that have challenged the Affordable Care Act's provision that their employee health plans must cover certain methods of birth control that violate their religious beliefs.
At the independent SCOTUS Blog, veteran Supreme Court observer Lyle Denniston examined what appear to be twin dilemmas Kennedy is facing: "The Supreme Court, in a one-hour, 28-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support," he wrote.
As an example of the latter, Denniston noted a question Kennedy posed to the administration's lawyer: "As (Solicitor General Donald Verrilli Jr.’s) situation worsened, Justice Kennedy moved in to wonder why it was that Congress would allow a government agency — the Health and Human Services Department — 'the power to decide a First Amendment issue of this consequence . That is for Congress, not for an agency.' Kennedy would repeat that criticism later in the argument."
National Review's Carrie Severino noted this aspect of Kennedy's argument as well: "Justice Kennedy seemed on this point to be siding against the government, particularly because the (birth control mandate) exemptions were created by a regulatory agency rather than Congress itself."
Hobby Lobby was also a target for Kennedy, Newsweek reported, when the justice asked the craft store chain's counsel Paul D. Clement about the impact an exemption would have on its 13,000-person workforce: "Only Kennedy, who, judging from the oral arguments, might be the only swing vote ... considered the employees. 'How would you suggest that we think about the position and the rights of the employees?' he asked."
The potential impact of a pro-Hobby Lobby vote by Kennedy isn't lost on those advocating for women's reproductive rights.
ThinkProgress.org, a left-leaning blog, noted Kennedy's questioning on the abortion aspect of the case. "Your reasoning would permit Congress to force corporations to pay for abortions, Kennedy told Verrilli. This was not the Anthony Kennedy that worried about conservatives imposing their anti-gay 'animus' on others, this was the Anthony Kennedy that views abortion as a grave moral wrong. Shortly after Kennedy made this statement, Justice (Elena) Kagan’s face dropped. It appeared that she’d just figured out that she would be joining a dissenting opinion."
TP blogger Ian Millhiser concluded his report: "As I left the Supreme Court building, I ran into one of the nation’s leading advocates for reproductive justice. We smiled at each other, and then I said 'Kennedy thinks this is an abortion case. The government is going to lose.'" Millhiser wrote. "'That’s right,' she said, shaking her head. 'That’s right.'"
Looking forward, the Pew Research Center Religion and Public Life Project's David Masci notes the Hobby Lobby decision could influence mandate-related lawsuits from non-profits as well, specifically the case brought by the Catholic religious order, Little Sisters of the Poor.
"In creating this standard, if the high court makes it easy for a person or organization to show that the government has 'burdened' their religious liberty, then Little Sisters and other nonprofits are likely to prevail when their cases are decided," Masci wrote. "If, however, the court makes it more difficult to establish this burden, it will be harder for nonprofits to win."
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