The Supreme Court on Tuesday debated whether for-profit companies with religious objections should have to pay a fine for not covering contraceptives in workers’ insurance plans without a co-pay as required by the Affordable Care Act.
For more than an hour Tuesday morning, justices grilled Paul Clement, the attorney representing two family-owned businesses — an arts-and-crafts chain and a cabinet maker — seeking a religious exemption, and Solicitor General Donald Verrilli, representing the government.
Here are some highlights from the transcript:
On the potential implications of a mandate opt-out:
Justice Elena Kagan: So suppose an employer…refuses to fund or wants not to fund vaccinations for her employees, what — what happens then?
Paul Clement: I do think in the context of vaccinations, the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity and the like that give the government a particularly compelling interest in trying to maximize the number.
Justice Sonia Sotomayor: Does the creation of the exemption relieve me from paying taxes when I have a sincere religious belief that taxes are immoral?
Mr. Clement: I think [United States v. Lee] says that taxes are different and not all exemptions are created equal, because some exemptions undermine the compelling interest.
Justice Kagan: Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws …
Mr. Clement: [T]he parade of horribles that the government offers you ought to sound familiar, because…. Justice O’Connor responded to that in her separate opinion and she said, look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats.
The kosher slaughterhouse hypothetical:
Justice Samuel Alito: According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the — what would a corporation that is a kosher or halal slaughterhouse do? They would simply – they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a [Religious Freedom Restoration Act] claim. They couldn’t raise a First Amendment claim.
Donald Verrilli: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito.
Justice Sotomayor corrects Mr. Clement’s choice of words (with a sly poke at Chief Justice John Roberts, who in 2012 made a pretty big deal about the difference between a tax and a penalty):
Mr. Clement: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false – it’s a false comparison.
Justice Sotomayor: It’s not called a penalty. It’s called a tax.
Justice Roberts: She’s right about that. (Laughter.)
Arguments boiled down:
Mr. Clement: You have a unique situation here where their policy is about a government — a subsidy for a government-preferred health care item, and the question is who pays? The government paying or a third party insurer paying is a perfectly good least restrictive alternative.
Mr. Verrilli: What I’d like to leave the Court with, is what I think is the most important point here, is that if this exemption were granted, it will be the first time under the Free Exercise Clause or under RFRA in which this Court or any court has held that an employer may take may be granted an exemption that extinguishes statutorily guaranteed benefits of fundamental importance.