It boils down to whether SCOTUS says that a corporation can exercise religion

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Argument recap: One hearing, two dramas
By Lyle Denniston, March 25, 2014

The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.

So went the argument in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.  The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second.

But the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind.  There was very little doubt where the other eight Justices would wind up:  split four to four.

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Justice Kennedy Thinks Hobby Lobby Is An Abortion Case — That’s Bad News For Birth Control
By Ian Millhiser, March 25, 2014

Justice Anthony Kennedy thinks gay people are fabulous. All three of the Supreme Court’s most important gay rights decisions were written by Justice Kennedy. So advocates for birth control had a simple task today: convince Kennedy that allowing religious employers to exempt themselves from a federal law expanding birth control access would lead to all kinds of horrible consequences in future cases — including potentially allowing religious business owners to discriminate against gay people.

Kennedy, however, also hates abortion. Although Kennedy cast the key vote in Planned Parenthood v. Casey upholding what he called the “essential holding of Roe v. Wade,” he’s left no doubt that he cast that vote very grudgingly. Casey significantly rolled back the constitutional right to choose an abortion. And Kennedy hasn’t cast a single pro-choice vote in an abortion case in the last 22 years.

So Hobby Lobby and Conestoga Wood, the two companies claiming that they should be exempt from the birth control rules had an ace in their pocket as well. Their path to victory involved convincing Kennedy that their cases are really about abortion — and it looks like Kennedy convinced himself of that point on his own.

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Supreme Court’s 3 women question religious argument against birth control

Justices Ginsburg, Sotomayor and Kagan, part of liberal minority, skeptical of corporate religious rights

By Liz Goodwin, March 25, 2014

The Supreme Court’s three women closely questioned the argument Tuesday that employers may opt out of providing contraception because it violates their religious beliefs.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — all part of the court’s minority liberal wing — expressed deep skepticism as to whether Oklahoma-based crafts chain Hobby Lobby has religious rights as a corporation, and whether its owners may opt out of providing some forms of birth control to employees because of it.

“How does a corporation exercise religion?” Sotomayor asked Paul Clement, Hobby Lobby’s lawyer in the case. She raised a spectre: Could for-profit corporations seek to get out of a host of federal statutes, such as those guaranteeing a minimum wage and forbidding discrimination, by claiming they violate their religious beliefs?

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