Today, the Hobby Lobby arts and crafts store chain won a substantial victory before the 10th Circuit Court of Appeals – just in the nick of time before substantial penalties would have gone into effect starting July 1, 2013.
I had the chance today to talk with Angela Thompson, an attorney at law representing the U.S. Justice Foundation, a non-profit organization based in Ramona, California.
Angela was the first person to tell us about the decision in the Hobby Lobby case and is a sole practitioner in Sacramento, CA, with a background in environmental and land use policy. She has worked on constitutional issues supporting private property rights of individuals.
Her passion for the free exercise of religion in accordance with the U.S. Constitution led her to work on briefs supporting Hobby Lobby. She found the case intriguing and important for the exercise of religious freedom.
“We are very happy with how the court ruled,” Thompson said.
If you’ve been following the case, you know that lawyers representing the Hobby Lobby arts and crafts store chain as well as the federal government presented oral arguments before the 10th Circuit Court of Appeals on May 23,2013, in Denver, Colorado. This appeal was based on denial from a lower court which ruled in favor of the U.S. government.
In the appeal, Hobby Lobby’s lawyers asked the judges to block enforcement of the controversial contraception provision under the 2010 “Obamacare” law that requires employers to pay for coverage of certain drugs as contraceptives, even if they may cause abortions. Today, the 10th Circuit Court overruled the lower District Court.
Had this not happened today, Hobby Lobby would have been forced to pay projected penalties estimated at $1.3 million per day starting on July 1, 2013, the date when the mandate would have taken effect, making penalties enforceable.
“The opinion today is extremely strong in Hobby Lobby’s favor on the issue of substantial burden,” said Thompson.
“The court adopted nearly all of our arguments, which were made by other friends of the court as well, regarding the mandate’s substantially burdensome effect on Hobby Lobby.”
Thompson indicated that there are many cases like Hobby Lobby’s where friend of the court (amicus) briefs are filed. She had a dialogue with the Beckett Fund for Religious Liberty who represented Hobby Lobby as well as the government attorneys representing the Secretary of Health and Human Services Kathleen Sebelius and the Affordable Care Act who allowed her to submit her brief in the case.
Thompson’s work and that of other attorneys representing non-profit organizations helped to advance the theory of substantial burden and support Hobby Lobby’s case.
So, what does “substantial burden” mean?
Simply stated, the question at hand is whether the law imposes a substantial burden on the free exercise of religion.
Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) when George Bush (Sr.) was President. This legislation directs that the Government may not substantially burden a person’s exercise of religion unless the Government satisfies a demanding series of criteria. Even if a law does not single out a religion, it must be narrowly interpreted to advance a compelling government interest.
The contraception mandate has been a big issue for some Catholic employers whose beliefs are codified in Catholic literature with an across the board objection to contraception. Some have been successful in early court battles.
Hobby Lobby is the case of a non-Catholic employer. The Green family who owns the Hobby Lobby chain of stores does not oppose all contraceptive methods, just those that have abortion-causing qualities.
U.S. Senator Marco Rubio introduced the Religious Freedom Restoration Act of 2012 to counter Obama mandated coverage of contraception. It would have reinforced and expanded existing law:
“The Obama Administration’s obsession with forcing mandates on the American people has now reached a new low by violating the conscience rights and religious liberties of our people. Under this President, we have a government that has grown too big, too costly and now even more overbearing by forcing religious entities to abandon their beliefs. This is a common sense bill that simply says the government can’t force religious organizations to abandon the fundamental tenets of their faith because the government says so,” said U.S. Senator Marco Rubio (R-FL)
Read more here.
So, what does this decision mean for the contraception mandate under “Obamacare”?
“Part of the problem with the mandate is it is fraught with exemptions for everything except religion. It’s hard for the government to claim that they have a compelling interest in enforcing the mandate when they’ve made so many exceptions for other reasons but not for religious employers,” said Thompson.
I also asked Thompson if there were ramifications for other parts of the Affordable Care Act, like the employer mandate which small businesses are trying to repeal.
“It’s called a facial challenge when you seek to invalidate a part of the law, like the employer mandate or the contraception mandate. Hobby Lobby has succeeded today on its as-applied challenge, which just deals with the law’s application to Hobby Lobby specifically. A facial challenge may become a more viable option if more companies succeed as Hobby Lobby just did,” said Thompson.
The Hobby Lobby decision supporting religious freedom over government mandates might just help in other battles, like the one being waged by the National Federation of Independent Business and help small businesses fight back the employer mandate.
It takes time, but rulings like this give all of us who believe in the cause of freedom hope.
Read the 10th Circuit Court of Appeal’s Decision here.
View the Beckett Fund for Religious Freedom’s Press Release here.
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