(Bloomberg) — Every few years a U.S. Supreme Court case comes along that seems magically to involve every important issue of the day.
Hobby Lobby v. Sebelius, which will be argued tomorrow, does the trifecta one better: It involves the Affordable Care Act (ACA), religious liberty, contraception and the question of whether a corporation is a person with fundamental rights. It would be the professor’s all-time dream question for a final exam in constitutional law — except that even the best students couldn’t possibly have time to address all the issues.
In deference to its complexity, the Supreme Court has decided to give the lawyers, Paul Clement and Don Verrilli, an extra 15 minutes each. Clement served as solicitor general for George W. Bush, and Verrilli has the job now. They argued the ACA case against each other. Giving these two extra time is like telling Ali and Frazier that they can fight 18 rounds. It will be fun to watch, but a challenge for the fighters to stay alive.
To make sense of the complexity of the case, you need a scorecard, so here it is, broken down by the four crucial issues in play.
Start with the Affordable Care Act itself, as applied by the Obama administration through regulations it has enacted. The law requires companies with more than 50 employees to provide health-care coverage that includes contraception. If the employer balks, it pays a hefty penalty. Hobby Lobby, the privately held hobby shop chain that is the petitioner in one of the two companion cases that will be argued, says it would have to pay $1.3 million a day in fines if it didn’t comply.
The ACA itself is silent about religious organizations. But the Obama administration has enacted regulations that exempt them from compliance with the contraceptive mandate. The claims of organizations formed for specific religious purposes — and therefore organized as tax-exempt nonprofits — are not before the court. It is also not legally relevant that the ACA is President Barack Obama’s legacy legislation or that it remains wildly unpopular among many business owners and other concerned capitalists. But the fact that the ACA is a partisan touchstone cannot be kept out of the politics of the case — especially for Chief Justice John Roberts, who incurred the wrath of conservatives by casting the deciding vote in writing the opinion upholding the individual mandate component of the law two years ago come June.
The second crucial issue is religious liberty, primarily as provided for by a federal statute, the Religious Freedom Restoration Act. Before 1990, Hobby Lobby would have claimed an exemption pursuant to the clause of the Constitution guaranteeing the free exercise of religion. But in that year, the court issued an epochal decision called Employment Division v. Smith. Justice Antonin Scalia wrote the opinion, which held that if a law is neutral and generally applicable, rather than intentionally targeting religion, an individual is not entitled to a free exercise exemption even if his religious practice is substantially burdened by the law.