Welcome to DU! The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards. Join the community: Create a free account Support DU (and get rid of ads!): Become a Star Member All Forums Issue Forums Culture Forums Alliance Forums Region Forums Support Forums Help & Search

elleng

(130,130 posts)
Wed Apr 2, 2014, 11:44 PM Apr 2014

Early Warning by Linda Greenhouse

Someone at the Supreme Court got an assignment last week: start drafting a majority opinion to answer the question whether a for-profit company can claim a religious exemption from the federal requirement to include particular products in any employee insurance plan. That’s Hobby Lobby, of course (along with its companion case, Conestoga Wood Specialties.) Did the way I just described it, without mentioning birth control, make a difference to the valence of the case?

The products at issue, as everyone knows, are the contraceptives that the two corporations’ owners object to covering under their employee health plans. But once launched, one of dozens of such attacks on the Affordable Care Act’s contraception mandate, the case was never going to be so narrowly confined, as last week’s argument made clear. How about vaccinations? Justice Sonia Sotomayor wanted to know. How about blood transfusions? Justice Elena Kagan observed: “So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal and nothing would be uniform.” Indeed.

Naturally, I’d like to know which justice got the majority-opinion assignment. To know the identity of any one of eight potential authors would be to know the outcome, although not necessarily the breadth or rationale of the eventual opinion. The exception, of course, is a ninth justice, Anthony M. Kennedy. To learn that he received the assignment would amount to being condemned to breath-holding until June. To be able predict the outcome, it would be vital to know what Justice Kennedy thinks the case is about.

During the argument, he asked Donald B. Verrilli Jr., the solicitor general, whether under the government’s theory of the case, a for-profit corporation “could be forced in principle to pay for abortions.” The logic of the government’s position required Mr. Verrilli to say yes — while pointing out that “in fact, the law is the opposite.” That exchange led some supporters of contraception coverage to shudder: “Watch out, Kennedy thinks the case is about abortion.” I don’t think that’s a necessary or even accurate reading. It was a question that someone needed to ask, as the solicitor general surely expected.

But no one sought to discuss the question that was almost surely on the justices’ minds, Justice Kennedy’s in particular: how the Hobby Lobby case relates to gay rights. By an exquisite coincidence of timing, the court, at the exact moment it begins to sort out the Hobby Lobby case, also has before it a case illustrating how readily a claim of religious conscience can, if upheld, become a license for discrimination against gay men and lesbians. This second case is Elane Photography v. Willock, which I wrote about a month ago.

http://www.nytimes.com/2014/04/03/opinion/early-warning.html?hp&rref=opinion

1 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies
Early Warning by Linda Greenhouse (Original Post) elleng Apr 2014 OP
, blkmusclmachine Apr 2014 #1
Latest Discussions»Issue Forums»Editorials & Other Articles»Early Warning by Linda Gr...