Dave Helling: Hobby Lobby case shows Supreme Court justices, like umpires, can miss calls

07/10/2014 3:28 PM

07/10/2014 3:44 PM

During his confirmation hearings to become the nation’s chief justice, John Roberts compared his role to that of an umpire.

“It’s my job to call balls and strikes and not to pitch or bat,” he said.

That seems like a pretty good analogy for what we expect from judges.

Anyone who has played baseball understands that consistency is more important for umpires than strict adherence to the rules. If a pitch 3 inches off the plate is called a strike, that’s acceptable, as long as the same pitch is a strike for the whole game, and for both sides.

If players have to guess how umpires will interpret the rules, the game will quickly fall apart.

Recently, the Supreme Court said corporations providing health insurance for workers can deny some coverage despite what the Affordable Care Act requires.

You may think that decision is a fastball at the belt — or a knuckleball over the backstop. From the cheap seats, though, it’s hard to understand how the court’s Hobby Lobby call can be consistently applied in other cases to come.

Supporters of the decision note it was specifically limited to “closely held” corporations, not companies with lots of stockholders. Exxon or Apple, they said, would be “unlikely” to use a religious exemption to adjust employee benefits.

If you follow the logic of the decision, though, such challenges are not only likely but inevitable. Publicly held corporations must act in the best interests of their stockholders. How long will it be before a stockholder demands that a company save money by claiming a religious exemption to a federal law?

Perhaps that seems ridiculous — no company, you’d think, would seek a religious exemption to paying a minimum wage or to avoid anti-discrimination laws. But the court specifically said a corporation’s religious sincerity cannot be questioned by a judge, surely a loophole big enough for most CEOs and stockholders to ponder.

The majority appeared to sense this problem. “Our decision in these cases is concerned solely with the contraceptive mandate,” it wrote.

That suggests the court believes contraception is the only religious concern that legally matters, a stunning argument for five men to make.

In the Hobby Lobby case, Roberts and four colleagues decided a fastball down the middle is a strike — but only for this batter, in this inning, facing this pitcher. Next time, it might be a ball.

That’s a tough place for an umpire to be. And it invites the boos that are surely coming as other judges step up to the plate.

To reach Dave Helling, call 816-234-4656 or send email to dhelling@kcstar.com.

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