Justices Sotomayor, Kagan suggest Hobby Lobby drop insurance for employees, pay tax instead

Both of President Barack Obama’s Supreme Court appointees proposed that if the Affordable Care Act’s contraception mandate violates an employer’s religious beliefs, it might be better not to offer health insurance and allow employees to fend for themselves.

Tuesday’s oral arguments in the Hobby Lobby case focused on whether Obamacare’s contraception mandate violates the First Amendment’s freedom of religion, according to CNS News

Paul Clement, attorney for Hobby Lobby and Conestoga Wood Specialties, argued that employers with deep religious convictions were left with an unsavory choice — to offer coverage for contraceptives, against their beliefs, or pay an exorbitant penalty for excluding it.

“But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?” Justice Sonia Sotomayor asked, according to CNS News. “Those employers could choose not to give health insurance and pay not that high a penalty, not that high a tax.”

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Clement said Hobby Lobby’s penalty would amount to $500 million a year. Justice Elena Kagan cut in, saying:

No, I don’t think that that’s the same thing, Mr. Clement. There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby would choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2,000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees. So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice.

Other businesses were dropping coverage for employees to avoid paying for an Obamacare plan, Kagan said, but such a tactic undermines the Affordable Care Act’s entire purpose — to assure that more Americans are covered.

“I thought that part of the religious commitment of the owners was to provide health care for its employees,” Chief Justice John Roberts said.

“Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange,” Sotomayor responded.

Hobby Lobby already pays more than 15,000 full-time employees nearly twice the federal minimum wage. It also provides health insurance, dental coverage and a retirement savings plan, according to The Associated Press.

A decision is expected this summer, CNS reported.

Fox News host Greta Van Susteren discussed the oral arguments “On the Record.”

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316 thoughts on “Justices Sotomayor, Kagan suggest Hobby Lobby drop insurance for employees, pay tax instead

  1. The Right Fight says:

    It’s as if the government mandated the display of the official Presidential Photo in every business, but allowed businesses to pay a “patriotism tax” instead of displaying Obama’s photo.

    But Obama’s picture includes a DEM campaign logo, so a non-DEM claims it is really partisan propaganda and objects to the loss of speech that is guaranteed to be free from government control.

    These two Supreme Court Justices would, I presume, then claim that the non-DEMs were free to opt out of the DEM propaganda by simply paying the tax.

    And their justification, using their current logic, would be based on the relative cost of the photo vs the tax.

    The non-DEM’s complaint about a First Amendment violation would be dismissed by those Justices as irrelevant … simply because the plaintiff has a choice of PAYMENT for the loss of a constitutional right.

    HUH ???

    ANY infringement of a constitutional right remains a violation, and the fact that a payment could be MINIMIZED by exercising options is completely irrelevant.

    Such is the logic of Obama’s SCOTUS-appointed Justices.

    You get what you vote for, America.

  2. The Right Fight says:

    Here is a link to the 10th Circuit Court’s decision …


    It does a good job of explaining the legal foundation for Hobby Lobby’s claim of exemption, as a corporation, for religious belief.

  3. bluetune says:

    So did Scalia………..

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