Tuesday, November 26, 2013
Some of us are celebrating the unusual confluence of Thanksgiving and Hanukkah this season. The first night of Hanukkah is the night before Thanksgiving, requiring me to make sweet potato latkes to satisfy the sacred requirements of both holidays. It also raises once-in-a-lifetime questions like, "Can you recycle latke oil to deep-fry a turkey?" And "Can you really use pumpkin to fill jelly donuts (sufganyot)?"
The Supreme Court has gotten into the holiday spirit as well, handing the health law, constitutional law, and law and religion scholars a lovely present in the form of granted cert. petitions in the Hobby Lobby and Conestoga Woods challenges to the ACA's mandate for coverage of contraceptive devices and drugs. Although there were several other cases pending cert., these two cases will give the court the opportunity to opine on both the constitutional free exercise rights of for-profit corporations, and whether for-profit corporations are "persons" under RFRA.
Unlike the marathon oral arguments scheduled for the NFIB v. Sebelius last year,the Court has only allotted the standard one hour for consolidated arguments on these cases. This may be an indication that the Court does not intend to reach any of the subsidiary questions that would be raised by a holding that for-profit corporations do have religious exercise rights, or by holding that for profits are "people" under RFRA. Or it may mean nothing at all. We shall see. Should be another suspenseful June. Happy holidays!