Justice Sotomayor Denies Hobby Lobby’s Reprieve
Christian-Owned Business Could Face Massive Fines
BY Joan Frawley Desmond
January 13-26, 2013 Issue | Posted 1/7/13 at 12:57 PM
WASHINGTON — Supreme Court Justice Sonia Sotomayor rejected a request that the U.S. government temporarily halt enforcement of the federal abortifacient mandate against the Christian-owned business Hobby Lobby.
The Dec. 26 ruling in the closely watched First Amendment case was a blow to the Green family, owners of the Oklahoma-based retail chain Hobby Lobby, and the latest setback in their ongoing legal challenge to the Health and Human Services’ mandate.
On Sept. 12, the Becket Fund for Religious Liberty, a public interest group, filed a lawsuit on behalf of the family against the federal mandate, alleging that it violated the religious freedom of the plaintiffs, who base their moral opposition to abortion on biblical teachings.
As of Jan. 1, the business could be fined $1.3 million per day if its employee health plan does not provide co-pay-free coverage of the so-called "morning after" and "week after" abortifacient drugs.
In her decision denying the request from Hobby Lobby and a related company, Mardel Inc., Justice Sotomayor ruled that the companies do not meet the legal standard for preventing enforcement of the mandate while their lawsuit is before the courts.
"Applicants do not satisfy the demanding standard for the extraordinary relief they seek," read the ruling.
"First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not ‘indisputably clear,’" the ruling stated.
Justice Sotomayor noted that there was no legal precedent for a Supreme Court ruling that "addressed similar RFRA [Religious Freedom Restoration Act] or free-exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion."
Further, the ruling noted that "lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims" and that a rejection of the petition would not prevent the plaintiffs from continuing "their challenge to the regulations in the lower courts."
Hobby Lobby sought a reprieve from the high court after the 10th Circuit Court, on Dec. 20, rejected a petition for temporary relief from enforcement of the mandate on the grounds that the religious burden to the Green family was "indirect and attenuated."
After Justice Sotomayor’s ruling, the Becket Fund issued a statement noting that the temporary setback was not definitive and that the appeals process would continue.
"Hobby Lobby [and its owners] will continue their appeal before the 10th Circuit. The Supreme Court decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the 10th Circuit," said Kyle Duncan, general counsel for the Becket Fund.
"The company [and owners] will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs."
Hobby Lobby is the largest for-profit employer to challenge the HHS mandate in court, and while it did not obtain temporary protection from potential financial penalties, eight other plaintiffs have been granted that relief while their cases move through the appeals process.
On Dec. 27, U.S. district court judge Lawrence Zatkoff of the Eastern District of Michigan granted an emergency motion by Tom Monaghan, the founder of Domino’s Pizza, for a temporary injunction.
Judge Zatkoff issued his ruling just two weeks after the Thomas More Law Center filed a lawsuit on behalf of Monaghan and the Domino’s Farms Corp., his property management company. Monaghan no longer owns Domino’s Pizza.
Under the Affordable Care Act, for-profit businesses must provide co-pay-free contraception, sterilization and abortion drugs as of an August 2012 deadline or whenever their new health-insurance benefits take effect.
Following approval of the mandate, the U.S. bishops have pressed the White House and Congress to provide conscience protections for objecting for-profit businesses, as well as nonprofit religious employers, though some political and Catholic commentators have questioned the need for "secular" businesses to obtain relief.
"The idea that individual persons have a right to conscientious objection, as against coercive government action like the HHS mandate — though firmly established in both the teaching of the Church and the policy of the conference for generations — has not merely been called into question, but mocked as some kind of novel or marginal theory," acknowledged Archbishop William Lori of Baltimore, the chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, during an address before his brother bishops last June in Atlanta.
But in a variety of public forums and documents, Archbishop Lori has defended the right to conscience of all believers and nonbelievers as a "universal human right, one that flows directly from their inherent dignity as human persons."
Some court rulings in HHS legal challenges have dismissed the allegation that the federal mandate violates the religious freedom of business owners.
U.S. district Judge Joe Heaton, in his decision denying Hobby Lobby relief, noted that "Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s [Affordable Care Act’s] definition of a ‘religious employer.’"
But the Green family believes their well-documented management policies bolster their case.
Founded in an Oklahoma City garage in 1972, Hobby Lobby now has branched out to 41 states, with 22,500 employees in 500 stores.
The Green family was not available for comment. But the Becket Fund’s website reports that David Green, the company’s CEO and founder, and his son, Steve Green, its president, have developed a business model rooted in "biblical principles."
"In honoring those biblical principles in business, the company’s stores are open only 66 hours per week, and they are closed on Sundays to allow employees to spend time with their families," states the Becket Fund’s website.
"Company chaplains" are available to employees, and "Hobby Lobby increased the minimum wage of its full-time employees each year since 2009. As of April 2012, full-time hourly employees start at $13 per hour — more than 80% above the federal minimum wage, and part-time hourly employees make $9 per hour."
In a Dec. 20 statement, the Becket Fund said that the "Green family’s religious convictions prohibit them from providing or paying for the abortion-inducing drugs, the ‘morning after’ and ‘week after’ pills, which would violate their most deeply held religious belief that life begins at conception."
Accordingly, the lawsuit filed by the Becket Fund "acts to preserve its right to carry out its mission free from government coercion."
Since HHS Secretary Kathleen Sebelius formally approved the mandate on Jan. 20, 2012, 42 separate lawsuits have challenged the controversial federal rule.
The Becket Fund represents a growing number of Catholic employers that object to the mandate on religious and moral grounds, including Ave Maria University and the Eternal Word Television Network (EWTN). The Register is a service of EWTN.
Non-Catholic Christian plaintiffs like Hobby Lobby oppose the government’s requirement that they provide abortifacients in their employee health benefits, while Catholic opponents of the mandate also object to the inclusion of contraception and sterilization in the list of co-pay-free "preventive services" authorized under the Affordable Care Act.
The Catechism of the Catholic Church states that "every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible is intrinsically evil" (2370).
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