Hobby Lobby lawyer encouraged by latest hearing

Denver, Colo., May 24, 2013 / 16:04 pm

The lawyer representing Hobby Lobby and its Christian owners in a lawsuit challenging the federal contraception mandate is heartened following the case's hearing before a federal appeals court.

"We were encouraged by it; we were able to make our points forcefully, and we felt the judges heard what were were saying," Kyle Duncan, general counsel with The Becket Fund for Religious Liberty, told CNA May 24.

The arts and crafts retailer is one of well over 100 plaintiffs challenging a mandate issued by the Department of Health and Human Services requiring that employers provide insurance coverage for contraception, including abortion-inducing drugs and sterilizations.

On May 23, Duncan argued Hobby Lobby's case before the full eight-member panel of the 10th Circuit Court of Appeals. Such cases are usually heard by only three judges of an appellate court.

"The mere fact we were standing there before the entire 10th Circuit Court of Appeals is encouraging in and of itself... it's a really extraordinary thing," he explained.

Duncan said it is a "fair inference" to believe the court granted a hearing with the full panel because "they wanted to bring all the resource of the court to bear, to make sure that everyone understood – including the Supreme Court – that they were giving this very careful consideration."

Hobby Lobby is a for-profit business run by the the Green family, who are Christians and who exercise their faith through their business. They object to providing "earmarked gift certificates" for emergency contraceptives, which can induce abortions within the first week after sexual intercourse.

Both the Greens themselves, and Hobby Lobby, have brought the suit against the HHS secretary, and the oral arguments made May 23 focused on the Greens' 'standing,' or right to bring the suit.

They argue that their first amendment right to free exercise of religion is "substantially burdened" by the contraception mandate, as are their rights under the 1993 Religious Freedom Restoration Act.

Nearly 200 plaintiffs have filed lawsuits across the country, challenging the mandate on grounds of religious liberty.

The Greens run their business through a trust, by which they "bound themselves to have religious goals" in the corporation's work.

Much of the arguments focused on the exercise of religion in the public and commercial spheres, and when a judge asked if you can have it "both ways" – having both religious and commercial interests – Duncan replied that "it's not having it 'both ways,' it's 'both/and,'" and that religious goals are not inconsistent with business goals.

The Religious Freedom Restoration Act requires that the government have a "compelling interest" in restricting religious liberty, because it is regarded as so important and fundamental in American law.

Duncan argued that the government does not have a "compelling interest" in forcing Hobby Lobby to give its employees coverage for abortifacient drugs because "it has already granted exemptions from that portion of the mandate to many religious employers."

"If the government really believed" that every woman must have insurance coverage for contraceptives, Duncan told CNA, then "it would make the mandate across the board – it would apply to everybody.

"And it doesn't apply to everybody. There are tens of millions of people who are exempted from this."

During the arguments, Duncan explained to the court that Hobby Lobby's coverage of emergency contraceptives is not "indispensable" precisely because the HHS department has already exempted the employers of 87 million people from providing that very coverage.

The federal government has exempted churches from being subject to the mandate, as well as providing an "accommodation" to certain non-profit religious employers.

The federal government's lawyer, Alisa Klein, responded in the oral arguments that religious exercise under the Religious Freedom Restoration Act should be applied to "churches and spiritual leaders, as a paradigm" and that only "some types of entities" have free exercise of religion.

Extending such rights to for-profit businesses and their owners would "go towards" establishing a national church and would allow churches to "extend their influence" and "branch into for-profit entities," according to Klein.

She characterized the Greens' claims as pitting their rights against the rights of their employees, saying that employees would be harmed if their employer did not pay for their emergency contraception.

Duncan told CNA that "the idea that Hobby Lobby is oppressing its employees or denying them a significant amount of benefits really doesn't measure up to the facts. Let's remember, Hobby Lobby provides generous wages well above the minimum wage, and  generous benefits to its employees."

"Hobby Lobby isn't violating the rights of its employees. Its employees are perfectly free to buy and use these drugs, even to use the generous wages Hobby Lobby gave them, to buy the drugs, so we think the government has the rights question really quite backwards," he said.

He noted that the coverage the Greens refuse to pay for is "a very very small number of drugs," within its "otherwise extraordinarily generous comprehensive health benefits."

One of the judges made a similar point during the oral arguments, emphasizing the importance of religious liberty.

When Klein had acknowledged that the corporation provides wide-ranging insurance benefits to its employees, the judged asked her rhetorically, "So if you add an objectionable mandate to a lot (of mandates) that are okay, it's not a burden?"

Duncan noted that among the judges, there were some both friendly and hostile to both sides, but that "it's not easy" and can even be "dangerous" to "try and predict the outcome of oral arguments."

While speaking to reporters outside the court room following the arguments, he said the court's decision will likely be handed down sometime in July.

"We'll just have to wait and see," he reflected.