First, Justices Sotomayor and Kagan double-team lawyer Paul Clement, pressuring him about all the various medical treatments — in addition to the contraceptives at issue in this case — that might require individual analysis about whether there is a substantial burden on religion and, if so, whether the government needs to impose it to serve a compelling interest.
Clement says that "nothing could be clearer" than that this is exactly the approach Congress opted to require when it passed the Religious Freedom Restoration Act.
He's right about that! You may think this individualized analysis is clumsy and hard to believe, but Congress passed RFRA, and that is what it says. Kagan and Sotomayor are making arguments that would have been appropriate in Congress, but here, in the Court, to my ear, it only underscores that the courts are stuck with a statute that forces them to do the kind of detailed religious exemptions work that they had interpreted out of the Free Exercise Clause in the Smith case which Congress trumped with RFRA.
Justice Ginsburg says:
[M]aybe it seemed clear then, but since RFRA, just as before RFRA, Congress has continued to write into Federal legislation specific religious exemptions for some, but not everybody, for individuals, sometimes religious institutions. So if it was all that clear that RFRA took care of it all, why did Congress continue after RFRA to pass these laws focusing the exemption on an individual, religious institution?Isn't that a funny question?! It's obvious to me that Congress doesn't change the meaning of the general statute — which sets up a system of judge-administered exemptions — by writing specific exemptions into other statutes. Congress is serving the interests of various constituent groups each time it legislates, and giving statutory exemptions is a way to spare religious people the additional burden of having to fight in court to relieve their burdens. It only shows more congressional enthusiasm for religious exemptions, not any reason to see erosion of the RFRA routine.
Clement says that Congress may be providing "a belt and suspenders."
ADDED: I'm skipping ahead to page 18 of the transcript, where Sotomayor asks Clement how a court is supposed to determine when a a corporation has a religious belief? "Who says it? The majority of shareholders? The corporate officers?" Clement says to use "the same basic way you approach other questions of corporate intent or corporate motivation." He suggests that "if some large corporation asserts some claim that's going to save them lots of money," then the courts should be able to say the asserted religious belief lacks "sincerity." The case law has said the courts can properly judge the sincerity of religious beliefs — not the truth of the beliefs but the sincerity — and Justice Sotomayor calls the sincerity issue "dangerous," but then she immediately shifts to the issue of the court's role in assessing whether the burden on religion is substantial. Not long after that Clement concedes that "most of these sincerity questions" end up merged into the questions of substantial burden.
Justice Kagan comes in to minimize the cost of withdrawing from providing insurance coverage to employees. It's only $26 million a year ($2000 per employee), but Clement keeps citing the figure $475 million, which refers to the penalty paid for providing coverage that fails to include the objected-to items. Chief Justice Roberts says: "I thought that part of the religious commitment of the owners was to provide health care for its employees." So that's key! Hobby Lobby — for religious reasons — doesn't like the option of offering no health insurance, and in order to keep providing it, it must pay this atrocious penalty. Kagan is saying, why not drop out of insurance as part of the pay package? It would be much cheaper. But the question is whether Hobby Lobby has a choice.
Clement calls the $26 million a penalty, and Sotomayor corrects him: "It's not called a penalty. It's called a tax." Roberts, who saved the ACA back in 2012 by calling the insurance mandate a "tax," says "She's right about that." And the transcript notes "Laughter." Clement resists the hilarity. He thinks that here "it certainly feels punitive."
Kagan pushes him: Why doesn't Hobby Lobby pay the $26 million tax/penalty and then also raise the employee wages so they can buy their own insurance? That would get out from under the religious burden. She points to an old case (Braunfeld) where a Jewish shopkeeper wanted an exemption from a Sunday closing law because his religion required him to be closed on Saturday. The shopkeeper lost because the law didn't force him to be open on his Sabbath day. He just got stuck being closed on 2 days a week, while Sunday Sabbath people were only closed one day a week. He didn't have to violate his religion. He just lost money. This is a good point, and there's some confusing back and forth at this point with Justice Scalia and then Justice Kennedy jumping in.
The $2000 per employee goes to the government and the company has also to come up with additional salary payments so that employees can buy their own health insurance, but Kennedy wants it to be a "hypothetical" in which the money spent is deemed "a wash." Clement bobbles but tries to assert that there would still be a substantial burden. He struggles to recenter the inquiry onto whether the government has a compelling interest and whether Congress has an "alternative way" to alleviate the burden. "[A]ll we're really talking about is who's going to pay for a subsidy that the government prefers." If there's a compelling interest and the government must use the least restrictive alternative, why doesn't the government directly subsidize contraceptives?
I'm only half way through the argument, but I'm tired now. I'll get to the Solicitor General's argument later.
ADDED: Having gotten a good night's sleep, I made my way through the rest of the argument: here.