Burwell v. Hobby Lobby Stores - Oral Argument - March 25, 2014

Burwell v. Hobby Lobby Stores

Media for Burwell v. Hobby Lobby Stores

Audio Transcription for Opinion Announcement - June 30, 2014 (Part 1) in Burwell v. Hobby Lobby Stores
Audio Transcription for Opinion Announcement - June 30, 2014 (Part 2) in Burwell v. Hobby Lobby Stores

Audio Transcription for Oral Argument - March 25, 2014 in Burwell v. Hobby Lobby Stores

John G. Roberts, Jr.:

We'll hear argument this morning in consolidated cases Number 13-354, Sebelius, Secretary of Health and Human Services v.--

Hobby Lobby Stores; and 13-356, Conestoga Wood Specialties Corporation v. Sebelius.

Mr. Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

When a Federal Government agency compelled employers to provide something as religiously sensitive as contraception, it knew that free exercise in RFRA claims would soon follow.

In particular, the agency itself provided exemptions and accommodations for the religious exercise of a subset--

Sonia Sotomayor:

Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?

For some religions, products made of pork?

Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?

Paul D. Clement:

--Well, Justice Sotomayor, the first step in the analysis would be to ask whether or not there's a substantial burden on religious exercise.

I do think this case is, in a sense, easier than most of the examples that you've brought up because here's one where it's so religiously sensitive, so fraught with religious controversy, that the agency itself provides a certain number of exemptions and accommodations.

So that's one way, I think, that you'd address the first step of the question here.

Elena Kagan:

Well, I mean, just take one of the things that Justice Sotomayor asked about, which is vaccinations, because there are many people who have religious objections to vaccinations.

So suppose an employer does and -- and refuses to fund or wants not to fund vaccinations for her employees, what -- what happens then?

Paul D. Clement:

Well, if we assume we get past the substantial burden step of the analysis, then the next step of the analysis is the compelling interest and least restrictive alternatives analysis.

And every case would have to be analyzed on its own.

I do think in the context of vaccinations, the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity and the like that give the government a particularly compelling interest in trying to maximize the number--

Elena Kagan:

Blood transfusions?

Paul D. Clement:

--Blood transfusions.

Again, each one of these cases, I think would have to be evaluated on its own and apply the compelling interest-least restrictive alternative test and the substantial burdens part of the test.

Elena Kagan:

So really, every medical treatment.

And Justice Sotomayor is quite right that there are quite a number of medical treatments that different religious groups object to.

So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.

Paul D. Clement:

Well -- well, Justice Kagan, nothing could be clearer than when Congress passed RFRA Congress made a judgment that RFRA was going to apply to all manner of Federal statutes.

And I think what the Congress--

Ruth Bader Ginsburg:

Mr. Clement, maybe it seemed clear then, but since RFRA, just as before RFRA, Congress has continued to write into Federal legislation specific religious exemptions for some, but not everybody, for individuals, sometimes religious institutions.

So if it was all that clear that RFRA took care of it all, why did Congress continue after RFRA to pass these laws focusing the exemption on an individual, religious institution?

Those, as I take your argument, all of those laws -- and there are more than half a dozen -- were unnecessary.

Once RFRA was on the books, Congress didn't have to do that any more.

Paul D. Clement:

--Well, Justice Ginsburg, I'm not sure that they were all unnecessary.