Lyle Denniston wrote for SCOTUSblog, Argument recap: One hearing, two dramas.
"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."
The conservatives are now arguing that corporations have religious rights. Denniston seemed to have missed this reference, Kagan Throws Scalia's Own Religious Liberty Arguments Back In His Face.
During oral arguments Tuesday about the validity of Obamacare's birth control mandate, Justice Elena Kagan cleverly echoed Justice Antonin Scalia's past warning that religious-based exceptions to neutral laws could lead to "anarchy."
"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," she told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. "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. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."
Kagan's remarks might sound familiar to the legally-trained ear. In a 1990 majority opinion in Employment Division v. Smith, Scalia alluded to the same examples of what might happen if religious entities are permitted to claim exemptions from generally applicable laws. He warned that "[a]ny society adopting such a system would be courting anarchy."
TPM's headline is of course too strong as they mention, "But Congress responded to Scalia's opinion by passing the Religious Freedom Restoration Act in 1993, which sets strict scrutiny standards for any law that substantially burdens a person's exercise of religion. That's the law that endangers the contraceptive mandate -- and it's the basis under which Scalia appeared to lean against the government's position during Tuesday's oral arguments."