When the U.S. Supreme Court hears oral arguments Tuesday on whether two companies can opt out of providing contraceptive care for religious reasons, Willamette law professor Steven Green will be anxiously awaiting the audio.
The professor has never been employed by the cabinet company Conestoga Wood Specialties or the arts and crafts chain known as Hobby Lobby. And Green isn't worried about his access to contraceptive coverage.
What he'll be looking for in the recording is whether his arguments -- filed with the court in an amicus brief -- have had an impact on the anticipated swing vote, Justice Anthony Kennedy.
Hobby Lobby and Conestoga Wood Specialties are arguing that the Affordable Care Act's requirement that they include a range of contraceptive services in employee healthcare plans violates their religious liberties.
President Barack Obama and his administration disagree, so the Supreme Court finds itself tasked with deciding whether corporations are persons that should be protected under the Religious Freedom Restoration Act of 1993, and whether the contraceptive mandate places a "substantial burden" on a company's religious expression.
Green thinks the court is faced with three key questions in the case: Can corporations have a faith? If they can, is this requirement a substantial burden on the exercise of that faith? And if it is a burden, how should that be balanced against the burden of imposing that faith on someone else?
"I actually wanted to write on all three issues, but that would be just replicating to a certain extent what other people were doing," Green said. "The purpose of an amicus brief is to highlight an issue that the parties many not be focusing on."
So Green and his co-author, Brigham Young University Law School professor Frederick Mark Gedicks, picked the third question, thinking it could be a "fail safe for Justice Kennedy."
Kennedy wrote the opinion in the landmark Citizens United case in 2010, which said corporations had a First Amendment right to political speech. Green thinks he's likely to agree that corporations also have the right to religious speech.
Kennedy also might decide that a company's religious speech is burdened by having to provide contraceptive care that goes against its faith, but the justice might be sympathetic to the idea that a female Hobby Lobby employee paying hundreds of dollars for birth control each year is also a significant burden.
"This actually forces the employees to subsidize the religious beliefs of the owners of Hobby Lobby," Green said. "If you are going to accommodate someone's religious practice, someone else shouldn't bear the cost."
We won't know for months how the court will rule on this case, but the New York Times' opinion page has already noticed Green's brief. The paper's editorial board highlighted it as a missing argument in the controversial case.
"It was very rewarding to have that kind of affirmation," Green said. "It was very heartening."
This wasn't Green's first amicus brief with the Supreme Court. He has filed more than 20 in his lifetime.
Before coming to Willamette as a law professor in 2001, Green spent 10 years as legal director for Americans United for Separation of Church and State, a Washington, D.C.-based organization that focuses on First Amendment issues.
Green's filed a number of briefs on what kind of religious exemptions should be given to businesses.
In the mid-1990s, he wrote to the California Supreme Court against a landlord who wanted to refuse to rent to unmarried or homosexual couples because her faith viewed both relationships as sinful.
The California court ruled against the landlord and said renting to these couples didn't place a significant burden on the practice of her religion.
The case is similar to Tuesday's case because Hobby Lobby doesn't know why a female employee uses birth control in the same way that the landlord couldn't be sure an unmarried couple was engaging in premarital sex.
"You can't just start allowing people to opt out of nondiscrimination law," Green said. "You need a compelling interest."
Another potential impact of the Hobby Lobby case is how it could affect proposed laws and ballot initiatives like one in Oregon that would allow businesses to refuse wedding services like photography and flowers to same-sex couples.
Religious institutions are allowed to turn away same-sex couples because they are created to spread a specific faith and don't seek to earn a profit. Hobby Lobby, in asking for an exemption on birth control, is arguing that for-profit corporations should have the same religious protections.
"To me it becomes kind of a blurring of what is a religious intuition that is entitled to special protection," Green said. "I find that part troubling. It has the potential for undermining the uniqueness of houses of worship."
If the Supreme Court decides against Hobby Lobby, Green thinks "it would deflate the argument that these businesses -- even a if they are mom and pop business -- could have a free exercise claim."
astaver@StatesmanJournal.com, (503) 399-6610 or on Twitter @AnnaStaver