Handicapping the race....

It's not easy bein' green....

I made the mistake of first reading Charlie Pierce on this (well, not first first; I'd read a bit earlier about these appeals, so I wasn't surprised or dismayed the Supremes had taken them).  Better, as always, to go to Scotusblog and find out what's really going on.  Charlie tends to swing before the pitch is even thrown.


First:  there are three cases involved here:  Conestoga Wood Specialties Corp. v. Sebelius; Sebelius v. Hobby Lobby Stores, Inc.; and Autocam Corp. v. Sebelius.

Conestoga involved a RFRA claim and a 1st Amendment (free exercise) claim.  The appellate court rejected both claims:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.
....
Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA. 

The Hobby Lobby case is appealed by the government.   It also presents a RFRA claim on behalf of the corporation and two of the corporate owners (as in the Conestoga case, where individuals and the corporation both asserted a RFRA claim.  In Conestoga the court specifically held that the individuals had no RFRA claim through their ownership of the corporation).  The holding of the appellate court is really on the preliminary injunction which the district court denied; as a holding it is, as you will see, something of a mess:

As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim.

Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim. Three judges (Briscoe, C.J., and Lucero and Matheson, JJ.) disagree and would affirm the district court on this question.

A majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and Mardel's favor and remand with instructions to enter a preliminary injunction, but the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors.[fn1]

One judge (Matheson, J.) reaches the merits of the plaintiffs' constitutional claim under the Free Exercise Clause, concluding that it does not entitle the plaintiffs to preliminary injunctive relief.[fn2]

Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court's denial of the plaintiffs' motion for a [*1122] preliminary injunction and remand with instructions [**4] that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs' motion. 

What that all means is no majority of judges ruled on the substantive law of the case, although a plurality ruled that the injunction should be reviewed on different grounds than the trial court used.  It isn't, in other words, a holding that Hobby Lobby, or its owners, can use RFRA in this case, although the court wants to go that way.

Autocam also involves RFRA claims, for both the corporation and the individual owners.  The court remanded on the issue of individual RFRA claims through the corporation, directing the lower court to dismiss the individual claims.  The Court also rejects the claim that a corporation is a "person" under RFRA.

The connections between these cases is obvious, and most of them cite the others in their rulings.  The Hobby Lobby case stands as the outlier, where the Court indicates it is almost at a majority to give Hobby Lobby RFRA if not 1st Amendment protection.  Which explains why the government appealed the case.

How will the Supremes rule on this?  I dunno.  It could be the Court will, once again, in the name of judicial restraint, cast all restraint to the winds and rule however the hell a majority wants to.  They've pretty much been doing that since Bush v. Gore, and they've pegged the accelerator to the floor more recently, racing straight towards the cliff of stare decisis as if they were Thelma and Louise.  I recognize this.  I still think they had no business deciding Bush v. Gore, especially in a per curiam opinion (that was basically a summary "Because we can, that's why!" piece of reasoning) , and I've lost all confidence the Court will act as it should:  bound by precedent and the legal arguments set out in two of these three opinions (I don't even want to know how the plurality in Hobby Lobby thinks a corporation can have religious protections). 

But there is some conflict between the circuits revealed here:  two say RFRA (and the 1st Amendment, in Conestoga) have no application here; one  strongly implies that it certainly does.  The Court could have accepted these appeals so it could clearly settle the issues across three circuits where it is a live controversy (and thus direct the other circuits accordingly).

Or Pierce could be right, and they are (even the non-Catholics) ultramontane lunatics who want to purify our souls, corporate and individual, and protect our precious money from those dirty, dirty lady parts and how pregnant they can (or cannot) get with them.

But I kinda doubt it; at least until I hear what they say at oral argument.