Analysis: Hobby Lobby case -- Matters of principle or “alleged religious beliefs”?
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Published: 26-Oct-2012

OKLAHOMA CITY -- Hobby Lobby’s legal challenge to the “ObamaCare” mandate for insurance coverage of “preventive services” – including abortion-causing drugs -- will be heard in federal court here on November 1.

Founded by a prominent Evangelical Christian family based in the Sooner State, the Greens, the arts and crafts supply company has garnered some criticism for the suit, but a great deal of praise in this, their home town. 

Lawyers for the U.S. government argue any business must provide mandated health insurance coverage under the Affordable Care Act (ACA) even if that violates the religious beliefs of owners. The Greens say what’s at stake is the ability of Americans to earn a living, create jobs and still maintain religious principles – in this case, a belief in the sanctity of human life after conception. 

Noting the Green family’s stance, conservative analyst Tina Korbe Dzurisin called a populist response to the mandate  “impressive.” Last weekend, thousands of Americans in 145 cities rallied in opposition to the HHS mandate. Among the largest crowds was Saturday’s gathering at Daley Plaza in Chcago, President Obama’s adopted home town. 

Ryan Kiesel of the American Civil Liberties Union, Oklahoma chapter, told CapitolBeatOK the U.S. government will succeed in its defense of the ACA provisions, including the “HHS” (Health and Human Services) mandate requiring the coverage.

He said, “For decades courts have held that religious liberty does not grant secular employers a license to discriminate against their employees or customers. Whether that discrimination is based on race or gender, courts have routinely held that claims of religious liberty by the owners or managers of a company are no justification.”

In mandating coverage of “preventative medicine with no co-pay,” Kiesel believes, Congress was “taking steps to address the inequity felt by women in the workplace. If Hobby Lobby were a church, this would be a different story altogether. However, as a private, for-profit company they do not have the right to impose their beliefs upon their employees.”

Defending Hobby Lobby in the court of public opinion is Dzurisin, policy impact director for the Oklahoma Council of Public Affairs, a free market “think tank” in Oklahoma City. She told CapitolBeatOK, “This is a company that has 13,000 employees, and pays its workers well, running the business in keeping with Biblical principles. They have a sincere objection to the ObamaCare mandate to provide employees with insurance that covers abortifacients, and it seems inconceivable that public policy could be fashioned to force them against their core beliefs.”

She continued, pointing out political implications: “It’s very unfortunate that the issue hasn’t come up more in the debates and in the back and forth of the campaign. ObamaCare has always been the president’s Achilles Heel, his weakest point with voters here.

“Mike Frank of the Heritage Foundation pointed out something interesting – that this is the first time in American history you’ve had large crowds of citizens lobbying against an entitlement. Americans want to choose for themselves on these issues.”

Dzurisin says the Hobby Lobby litigation reaches issues that were not resolved in this summer’s Supreme Court proceedings, including the law’s limits – if any. “In the end, the only limit to a law like this is our willingness to say ‘no’ to obeying it. If it is not repealed or struck down in the courts, I guess those of us who object will just have to ‘comply’ with the law by paying the penalty – or ‘tax’ – for disobeying the mandate. This, in turn, erodes the rule of law, which is so important to the success of the American experiment and the durability of the American way of life.”

The company filed briefs in September, and the Obama administration responded this week. Representing Hobby Lobby, the Becket Fund for Religious Liberty, a Washington, D.C.-based group – will counter the response early next week, in advance of a November 1 hearing before U.S. District Judge Joe Heaton. 

Lori Windham, one of the trio of Becket lawyers working the case, asserts the HHS mandate violates the First Amendment’s protections for believers, and laws such as the Religious Freedom Restoration Act. The law cannot pass judicial “strict scrutiny” because it does not advance a compelling state interest, she said. There are less restrictive means to advance “preventive services” – including the fact that contraceptive services are widely available on a voluntary basis, without violating conscience. 

The company wants an injunction barring enforcement. Summarizing the case, Windham said, “The government’s position is in essence that you forfeit your right to run a business according to religious beliefs when you enter the marketplace. That’s what’s at stake, can a person earn a living, create jobs and still maintain religious belief and practice.”

In sharp contrast, federal lawyers argue Hobby Lobby is unlikely to prevail on the merits, and that the firm is secular, not religious. The brief filed this past week claims the Greens seek to “impose their personal religious beliefs on the corporate entity’s employees.” A ruling in the company’s favor, government lawyers say, “would permit for-profit, secular corporations and their owners to become laws unto themselves.”

The Justice Department brief, authorized by Attorney General Eric Holder, emphasizes that the company formerly allowed “preventive services” within employee health insurance plans, dismissing the “alleged religious beliefs” of the company’s owners. 

Although Hobby Lobby’s stance is popular with many here, a group of pastors in late September delivered petitions to the firm’s city headquarters, calling on the chain and to drop the lawsuit – and saying petition signers won’t shop at its stores until the suit is over.

This week, David Green, leader of Hobby Lobby in this generation, declined CapitolBeatOK’s request for an interview, with his spokesman saying he is limiting comments to those made in September.  He has insisted the company has endured “by God’s grace and provision.” Green said, “The conflict for me is that our family is being forced to choose between following the laws of the country that we love, or maintaining the religious beliefs that have made our business successful.” 

With the final exchange of briefs coming as early as Monday, the stage is set for Thursday’s proceedings.

The stakes are high. The Becket Fund’s Windham noted that there are now 37 active legal challenges to the law on grounds of religious liberty. Over 110 individuals are involved, representing hospitals, universities, businesses, schools and other citizens and groups – but the first of those religious liberty lawsuits to start through the federal judicial system is Hobby Lobby’s. 

You may contact Patrick B. McGuigan at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.


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