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Did Hobby Lobby do well at Supreme Court oral argument?

Did Hobby Lobby do well at Supreme Court oral argument?

“The general tenor of questions were in our favor…”

The Supreme Court heard oral arguments yesterday in the Hobby Lobby HHS mandate case.

After oral arguments had concluded, a member of Hobby Lobby’s counsel told the Daily Caller, “the general tenor of the questions [from the justices] were in our favor.”

Life News reported a similar atmosphere.

The questions from members of the Supreme Court and the tenor of the oral arguments today in the Hobby Lobby and Conestoga Wood cases against the HHS mandate give observers reason to hope the high court will overturn the controversial Obamacare provision.

In court today former United States Solicitor General Paul Clement argued on behalf of Hobby Lobby and Conestoga Wood, two family businesses whose cases were consolidated before the court. Clement argued that Hobby Lobby and Conestoga are protected under the Religious Freedom Restoration Act, and that nothing in the law excludes these family businesses and their owners from religious freedom protections.

“No one should be forced to give up their constitutionally protected civil rights just to open a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This case demonstrates in no uncertain terms that the government’s efforts to strip this family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment.”

While much of the popular debate centered on Hobby Lobby’s first amendment rights, the vast majority of legal inquiry yesterday focused on the 1993 federal Religious Freedom Restoration Act.

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 the Daily Caller notes,  it’s not easy — or necessarily wise — to predict how the Justices will rule based on their line of questioning during oral argument.

Recall CNN legal analyst Jeffery Toobin’s musings following the Obamacare oral argument phase.

“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”

Take every prediction with a grain of salt, especially those made in response to oral arguments.

The Supreme Court is slated to rule on the case before the term concludes this June.


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NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL, No. 11–393 was as much a political decision as a legal decision. Chief Justice Roberts faced a left wing lynch mob.

If anything Obama Care (aka the “Patient Protection and Affordable Care Act”) is even less popular than it was two years ago. These two cases build on Citizens United vs FEC.

The Court may now feel it has the political power to chip away at Obama Care.

    Subotai Bahadur in reply to sequester. | March 26, 2014 at 12:48 pm

    Whatever “evidence” that was in the hands of NSA at the time of the original decision is still there. Plus any additional “evidence” that they have either collected or created.

casualobserver | March 26, 2014 at 7:41 am

If you read other coverage (like Time Mag), you’d think the women on the court are strongly against any exemption based on their questioning. You’d also think the case is about exempting companies from providing ANY contraception through an insurance policy.

So the position the left is preparing to take is getting clear, as they always need an angle from which to divide. Here, they seem to be planning (hoping?) to do it along gender lines, using the women on the court as a starting point. And continuing the “women’s rights” meme in general.

So much distortion.

    The Female Justices think Hobby Lobby should just pay the Jizya – The Tax for being Christian or Jewish – just like in the Islamic countries.

      Sanddog in reply to Musson. | March 26, 2014 at 2:41 pm

      That was pretty much Kagan’s position in her questioning. She didn’t see what the big deal was when Hobby Lobby could just drop all insurance and pay a fine to the US Government for exercising their freedom of religion.


    dorsaighost in reply to casualobserver. | March 26, 2014 at 6:24 pm

    what women on the court ? they may be females but its a stretch to call them women … puppets maybe …

I predict the supreme court will make something up to get the outcome they desire. It is what they do.

what gets me is hobby lobby is trying to stay out of womans private parts and are getting blamed for messing with their private parts.
only to a liberal does not paying for/supplying something mean interfering with something.

    Lefties have neither logic nor morality as a foundation for their actions.

    Radegunda in reply to dmacleo. | March 26, 2014 at 11:46 am

    The Democrat mantra is that HL is preventing women from “making their own choices” regarding contraception — by saying “we’ll pay for [i.e. put in a cost-sharing system] these but not those methods [which are not even contraception strictly speaking].” The fact that women can choose to purchase other options is irrelevant in Dem-thought. It’s oppressive to make them pay for something they want!

    Meanwhile, the Dems are happily telling people: “Sure, you can keep your doctor; you’ll just have to pay a lot more now. The choice is yours!”

    And: “Of course you’ll be covered for all preexisting conditions. But you shouldn’t expect your government-designed policy to pay for the actual treatment you want (or need) — the treatment you were getting under the substandard policy we just abolished.”

    Voyager in reply to dmacleo. | March 26, 2014 at 10:31 pm

    They want our validation of their beliefs, and they think that this will get it.

A legitimate government would not promote a population control protocol, including contraception and murder/abortion. In fact, in the preamble of our Constitution, the government’s mandate is made patently clear: “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”.

What part of “posterity” do they not understand?

There is also the part about liberty, which requires women and men capable of self-moderating, responsible behavior. Not to mention that progressive dissociation of risk is a principal cause of corruption.

    Radegunda in reply to n.n. | March 26, 2014 at 11:51 am

    Meanwhile, the Democrats (and the WSJ/open-borders Republicans) insist that we really need to keep importing more and more people, as long as they’re from less-developed parts of the world, especially if they’re not of European extraction.

    Bingo. This is indeed a very good argument and I agree, even though I am not an American.

    Contraception is an individual choice and payment for contraception should come out of the pocket of the individual who requires the same. It should not be an expense covered by health insurance AND it should not be a requirement that it is covered in a health insurance package provided by an employer.

    The government has no right to interfere in the religious beliefs of individuals and this aspect of Obamacare is an interference that goes against your First Amendment.

The oral arguments are just a circus show.

The justices have already done their research and made up their minds. Any questions they ask now are just window dressing.

I hope the SC does not split hairs. They are there to be the judiciary of America not all other countries.

I also hope none of them will be victims of extortion.

If only there were some way a company could provide for the birth control and other needs of their employees by providing some sort of token that could be exchanged for these goods and services. It would have to be universal, able to be accepted in any store or company across the U.S. as well as some overseas transactions. We could call it a ‘salary’ and the employee could then take these tokens, called ‘money’ out and ‘spend’ them on whatever they want.

What a revolutionary idea!

    Radegunda in reply to georgfelis. | March 26, 2014 at 11:54 am

    If you follow the Democrat argument on contraceptive coverage, you’d have to conclude that every person who is buying insurance directly, straight from the bank account, is being “denied” health care.

Freddie Sykes | March 26, 2014 at 4:04 pm

Hobby Lobby was voluntarily providing health insurance before the PPACA. Now Obamacare has deemed that coverage inadequate. Hobby Lobby is left with the option of no longer offering health insurance and paying a tax that is less than the cost of the benefits or violating their personal beliefs.

Justices Sotomayor and Kagan seem to support this option. How is losing their employer subsidized benefits and being forced into policies from the exchanges or facing taxes in the best interest of the employees?

In my country you pay for your own prescriptions. There is a scheme called PBS which means that scripts on the list get covered for the difference between the mandated co-payment which is now close to $40 and the real price. There are lots of medications not covered. Health funds are not allowed to cover any script that is not on the list but less than the co-payment. They are only allowed to refund the difference between the cost of the script and the co-payment.

The point I am making is that the person wanting the script is responsible for paying for the script, not the insurance company or the employer.

BTW we have fewer employer funded schemes.

Henry Hawkins | March 26, 2014 at 4:13 pm

6/3 for Hobby Lobby

US v Castleman opinion came down today. A misdemeanor DV conviction is now a crime of violence no matter how slight the contact was. This costs most of the convicts their Second Amendment rights even if they never used a firearm in a criminal or threatening manner.

At this rate, they won’t need to repeal the Second Amendment.