By Dave Andrusko
Following an adverse decision from Supreme Court Justice Sonia Sotomayor, the attorney for Christian-operated business Hobby Lobby says the company will defy the Obama contraceptive mandate which takes effect January 1. The company had asked for an emergency appeal to temporarily stop enforcement of the Health and Human Services mandate.
The company (and its smaller sister operation, Mardel) face fines of up to $1.3 million daily if it disobeys the mandate.
“While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines,” Sotomayor wrote, “they cannot show that an injunction is necessary or appropriate to aid our jurisdiction.”
In English, Sotomayor concluded the company had failed to satisfy the demanding legal standard for blocking the requirement on an emergency basis. However, the companies may still challenge the regulations in the lower courts and are expected to do so.
Sotomayor’s decision is the latest in a series of court rebuffs for the family-owned company.
Last month Judge Joe Heaton of the U.S. District for the Western District of Oklahoma denied the request for a preliminary injunction. “Heaton ruled that while individual members of the family that owns and operates Hobby Lobby have religious rights, the companies the family owns are secular, for-profit enterprises that do not possess the same rights,” Reuters reported.
Last week, the U.S. Court of Appeals in Denver (the10th Circuit) ruled against Hobby Lobby which has grown from one 300-square-foot retail space in 1972 into more than 500 stores in 41 states.
At the time, Kyle Duncan, who is representing Hobby Lobby on behalf of the Becket Fund for Religious Liberty, said, “The Green family is disappointed with this ruling. They simply asked for a temporary halt to the mandate while their appeal goes forward, and now they must seek relief from the United States Supreme Court. The Greens will continue to make their case on appeal that this unconstitutional mandate infringes their right to earn a living while remaining true to their faith.”
The 10th Circuit Court of Appeals also ruled that the company did not prove that the contraception mandate would “substantially burden” its religious freedom, noting once again that Hobby Lobby is not a religious group.
There are over 40 separate lawsuits challenging the Obama mandate. Opponents have had some success.
On December 18, a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate. Last summer, two lower courts had dismissed the Colleges’ cases as premature. However the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.
Two weeks prior to that, on December 4, Federal Judge Brian Cogan ruled that a lawsuit from the Archdiocese of New York against the Obama administration’s HHS mandate may proceed. Judge Cogan also rejected the “premature” argument voiced by the Obama administration.
Facing a backlash of opposition to the HHS mandate after its announcement in February, the Obama administration announced a “safe harbor” –a delay in enforcement–that would prevent the mandate from applying to certain religious employers until August 2013 while the government supposedly “considered” some future “accommodation.”
Cogan wrote, “The First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action.”
“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” said the judge. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”