Hobby Lobby Counsel 'Cautiously Optimistic' About High Court Win

Image: Hobby Lobby Counsel 'Cautiously Optimistic' About High Court Win David Green, founder and chief executive officer of Hobby Lobby, second from left, walks with his wife Barbara, center, and members of their family as they acknowledge a cheer from demonstrators at the Supreme Court in Washington on March 25.

Thursday, 27 Mar 2014 01:06 PM

By John Gizzi

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One of the attorneys in the Hobby Lobby Supreme Court case said he is "cautiously optimistic" that the high court will eventually strike down the Obamacare requirement that employers provide contraception in their healthcare plans.

In an exclusive interview with Newsmax, Josh Hawley, counsel for the pro-religious freedom Beckett Fund and co-counsel for the Hobby Lobby chain, said he was "encouraged" by the tone of the questions from the justices.

"There seemed to be a genuine concern and skepticism from a majority of the justices about the government's claim that if an owner decides to run a for-profit business, then it forfeits the right to bring suit under the First Amendment," Hawley said.

In a case that is attracting national attention because of its possible impact on freedom of religion as well as Obamacare, the administration is arguing that requiring a business to provide healthcare that includes contraception improves healthcare without placing any burden on the business.

The Green family, Christians who own the Oklahoma-based Hobby Lobby stores, cry "foul!"

Their argument in Hobby Lobby v. Sebelius is that providing certain kinds of contraception would violate their religious beliefs.

"There are 20 legally available forms of contraception and the employers are already paying for 16 of the 20," Hawley said. "But the mandate from the Department of Health and Human Services requires employers to pay for the other four forms that induce abortion.

"Our argument is straightforward: Under the Religious Freedom Restoration Act, the government does not have a compelling reason to make the Green family pay for those four forms of contraception."

Hawley, who is on the legal team for the family-owned store chain with former U.S. Solicitor General Paul Clement, specifically cited seven of the nine justices who voiced skepticism about some aspects of the administration's claims: Chief Justice John Roberts, along with Justices Samuel Alito, Antonin Scalia, Clarence Thomas, Anthony Kennedy, Stephen Breyer, and Elena Kagan.

The Columbia, Mo., attorney also told Newsmax that Justice Kennedy raised the point that if there are other ways to subsidize contraception, such as those outside of healthcare plans, "then what is the government's interest?"

"The other justices appeared intrigued by Kennedy's questioning along these lines," Hawley said.

"It can be very perilous translating questions asked by justices into final decisions," conceded Hawley, a former clerk for Roberts who has witnessed more than 80 oral arguments before the Supreme Court as a clerk and as a litigant. "But at the very least, the tone of these questions is encouraging."

John Gizzi is chief political columnist and White House correspondent for Newsmax.

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