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A Lawyer’s Best Friend: The Supreme Court


Love ‘em or hate ‘em, you have to hand it to the U.S. Supreme Court: every year at this time, it throws lawyers years of potential new cases to litigate!

The Supremes have this – habit? tradition? – of waiting until their last session or two to drop their most momentous decisions. Since the court, like that “other” all-mighty deliverer of laws we’re commanded to follow, works in “mysterious ways,” no one is sure why the Supes do this: for dramatic effect, or because they’re procrastinators? Maybe they’re trying to wear each other down, or have concluded that the controversy they invariably stir up makes it a propitious time to get out of Dodge.

This year was certainly no exception, with the court weighing in on cases affecting unions and the religious liberty of corporations, which just sounds odd.

The latter, of course, was the Hobby Lobby 5-4 squeaker, allowing HL, a “family-owned” corporation, to opt out of offering contraceptives to its employees through the Affordable Care Act, due to the religious convictions of its owners, who oppose abortion.

Those who favor the court’s decision tend to emphasize the birth control and abortion aspects, while those who oppose it usually focus on its “reproductive health” consequences.

Within minutes of its rendering, however, many commentators were pointing out that several areas of the decision were “open to interpretation.”

“Open to interpretation” is code for “More work for lawyers!”

In actuality, the court didn’t rule on the First Amendment’s freedom of religion clause. It passed judgment on the intent of the Religious Freedom Restoration Act of 1993. That’s a big distinction, but one that’s likely to be lost in the aftermath.

There is so-oooo much fuzziness regarding what was actually decided: What constitutes a “closely held” corporation; how is a “sincere” religious belief determined, and by who; who speaks for the convictions of the corporation; and Obamacare aside, what if said religious belief calls for discrimination against blacks, gays and/or women?

Endless variations and permutations of these questions will be debated and litigated for years to come, with the outcomes certain to have a profound – and unsettling – effect on society. Hobby Lobby, for its part, stated that it didn’t object to covering contraception per se, only anything to do regarding abortion. However, Eden Farms, the organic foods company, has already filed a lawsuit because the founder’s religious convictions make him opposed to anything that gets in the way of procreation.

In other words: More work for lawyers.

There will be fights over where the line is drawn in regard to a “closely held” corporation, and whether having one company granted that status and another being denied confers an unfair competitive advantage to the former. Social and religious activists will no doubt call for boycotts of certain corporations that deny coverage to women, and lawsuits will be filed against the organizers. Challengers will question the “sincerity” of a corporation’s religious convictions by looking at their investments and other policies (this has already happened with Hobby Lobby). There will likely be lawsuits stemming from Unintended Consequences of the decision that we can’t even see from here. It was two years ago at this time, after all, that the court ruled in favor of the Affordable Care Act – also by 5-4 – and that led directly to this year’s Hobby Lobby ruling, which no one foresaw at the time.

If the court had ruled the other way – against Hobby Lobby – things would’ve been much simpler. Everybody would have to comply with the law, or else. Surely the Supreme Court justices must have been aware of what a proverbial can of worms it was unleashing. If you didn’t know better, that the court was an august body filled with serious-minded jurists committed to applying the United States Constitution to all things before it, you’d almost think that Chief Justice John Roberts and company’s real agenda was making sure the nation’s lawyer class stayed busy and well-fed.

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