Hobby Lobby counsel: ‘The general tenor of the questions was in our favor’

Matt K. Lewis Senior Contributor
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The Supreme Court heard arguments this morning on the controversial Hobby Lobby case, which pits ObamaCare’s contraceptive mandate against religious liberty.

Freedom of religion, it has been noted, is the first freedom of the first phrase of the first amendment. This is to say that it’s a big deal, and certainly not an afterthought. But based on what Joshua Hawley, an associate professor of law at the University of Missouri and a counsel to the Becket Fund for Religious Liberty (which represents Hobby Lobby), told me, the decision appears more likely to hinge on an interpretation of a statute than on Constitutional law.

“There was virtually no discussion of the First Amendment claim,” Hawley said. “It was all based on the Religious Freedom Restoration Act.

“The Greens [Hobby Lobby’s owners] only have an objection to 4 out of the 20 contraceptives that are mandated,” Hawley says. “Almost nobody knows that, but it’s very important to the case. They are providing for 16 out of the 20. It’s just the abortion-inducing drugs or devices that they object to.”

As we learned during the original Affordable Care Act argument, it is dangerous to try to divine what Justices are thinking, based on their line of questioning.

Having said that, after Hawley (who has litigated and clerked at the Supreme Court before) voiced caution about the perils of predictions, he revealed that “the general tenor of the questions were in our favor — and I do think the Justices were, by and large, asking the right questions in this case — and that we had the right answers for them.”

What were those favorable questions? According to Hawley, “Discussion in the courtroom focused on — does the government have another means of delivering to women the contraceptives to which the Green’s object?

In this regard, “the government has ample means to accommodate,” he says. They can “subsidize these drugs or devices directly under Title 10 — or come up with an accommodation in a way that does not make the employer complicit. The government just doesn’t want to do that.” “And traditionally, under strict scrutiny analysis, Hawley continues, “that’s not enough reason to force employers to violate their consciences.”

Matt K. Lewis