Law prof: Hobby Lobby a boon for lawyers

NEWPORT BEACH, Calif. — The U.S. Supreme Court’s recent ruling in Burwell v. Hobby Lobby won’t be limited only to small, family owned corporations, and will likely lead to a flood of new lawsuits seeking exemptions from laws using religion as a shield, a top constitutional lawyer predicted Friday.

Erwin Chemerinsky, founding dean and distinguished professor of law at the University of California, Irvine, told conferees at the State Bar of Nevada’s annual meeting that the Hobby Lobby ruling couldn’t be limited to the facts and circumstances of only that case — a closely held company run by a single family that objected on religious grounds to insurance coverage mandates for four out of 20 forms of FDA-approved birth control.

The Supreme Court majority ruled the insurance mandate burdened the religious beliefs of the family that controlled the Hobby Lobby corporation, and based on the 1993 Religious Freedom Restoration Act, the mandates couldn’t be enforced.

Everything the majority ruling, written by Justice Samuel Alito, said about closely held corporations could also be applied to larger, publicly traded corporations, Chemerinsky said, although Alito in his ruling called that unlikely.

Moreover, the questions raised in the ruling could open the door to additional claims, Cherminsky said. Why couldn’t Christian Science-owned companies be excused from all health-care coverage mandates? Why couldn’t Christian-owned companies be allowed to legally discriminate against gay and lesbians, by refusing to employ them, for example?

And while justices in the majority declared that there were alternatives to the coverage mandate, including a provision that allows religious non-profits to sign statements saying they object to providing certain contraceptive coverage. In those instances, the insurance carrier would bear the entire cost, and the objecting corporation would not underwrite them.

But the same week the Hobby Lobby decision was released, some of the same justices in the majority granted a request for an injunction sought by Illinois’ Wheaton College, which declined to even sign the objection statement, saying to do so would be equivalent to facilitating the coverage, Chemerinsky said. Part of the reason: Wheaton College enjoyed the liklihood of success on the merits of its claim, or, to put it another way, one of the alternatives the majority embraced in Hobby Lobby is on the verge of being struck down, too.

The bottom line? “There’s no doubt that this case is going to lead to a tremendous amount of litigation,” he said.

Chemerinsky’s comments came at the end of a seminar that traced the history of privacy before the Supreme Court, reviewing key cases and leading up to predictions for the next term. He said he expects justices to accept a gay marriage case from Utah to finally address the issue of whether the already-established fundamental right to marriage applies to same sex couples.

And he said a Texas law that has the effect of severely limiting abortions — it requires physicians who perform the procedure to have admitting privileges at nearby hospitals — will also come before justices. Although there are four conservative votes ready to overturn the seminal Roe v. Wade case, Chemerinsky said he would focus on Justice Anthony Kennedy, who opposes overturning Roe but is amenable to restrictions on abortion rights.

The State Bar of Nevada’s annual meeting continues Saturday, with an address from Attorney General Catherine Cortez Masto, discussing efforts to combat sex trafficking. Stay tuned to SlashPolitics for updates.