Bush Appointee Rejects Hobby Lobby Arguments Against Birth Control Benefit

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Analysis Contraception

Bush Appointee Rejects Hobby Lobby Arguments Against Birth Control Benefit

Imani Gandy

For the first time, a court has held that the religious rights of corporations and persons are not co-extensive. Individuals may avail themselves of constitutional protections of religious freedoms, but secular corporations may not.

In the case brought by arts and crafts magnate Hobby Lobby against the Department of Health and Human Services (HHS), federal judge (and Bush appointee!) Joe Heaton, in denying the preliminary injunction sought by Hobby Lobby, has issued a stunning and forceful rebuke of the arguments offered by secular corporations seeking to deny health-care benefits to their employees. First, Judge Heaton ruled that secular corporations do not have religious rights that are protected under the Establishment Clause of the First Amendment or the Religious Freedom Restoration Act. Second, Judge Heaton ruled that the birth-control benefit does not represent a substantial burden to individuals’ exercise of religion.

Touting itself as a Christian-owned and -operated corporation, Hobby Lobby challenged the birth control benefit, the provision in the Affordability Care Act which requires that all insurance policies offered by employers cover preventive health-care services for women, including contraception, without co-pay. Hobby Lobby was the first non-Catholic business to lodge a complaint about the birth control benefit.

In quibbling with the benefit, Hobby Lobby and its owners David and Barbara Green made the standard argument being made by religious and secular corporations alike: the ACA requires them either to violate their religious beliefs by providing insurance coverage for what they misleadingly call “abortion-inducing drugs” to their female employees, or risk incurring enormous fines for refusing to offer women a full range of healthcare services, including contraception.

As I wrote in September, Hobby Lobby’s complaint is fraught with allegations about how religiously their for-profit corporation is run:

Roe has collapsed in Texas, and that's just the beginning.

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For example, Hobby Lobby is closed on Sundays. They close their stores at 8 p.m. so Hobby Lobby employees have time to get home to their families before their kids go to bed at 8:30. The Greens pipe only Christian music throughout their stores. They don’t sell any icky Halloween costumes or racy greeting cards. They have an on-call chaplain. The Greens takes out full-page newspaper ads on Christmas, Easter, and Fourth of July (Fourth of July?) to proclaim the glory of the Lord (no really, what is so religious about Fourth of July?). The Greens believe in paying their 13,240 employees who work in 514 stores across 41 states a living wage (apparently, that’s an exclusively Christian concept). The Greens signed a Giving Pledge which requires them to donate money to various charities and ministries (again, apparently being charitable is exclusively a Christian concept.)

Hobby Lobby’s overwrought claims notwithstanding, the court ruled that Hobby Lobby and the Greens were not exempt from operation of the law.

Citing O’Brien v. United States Department of Health and Human Services (which I discussed here), the court in Hobby Lobby found that the birth control benefit is not a substantial burden on either Hobby Lobby’s rights or the Greens’ rights as individuals to practice their religion as they see fit. Notably, the court found it important that Hobby Lobby employs thousands of people “of all faith and no faith,” and noted that the reproductive rights at issue in the case are of constitutional importance:

Hobby Lobby and Mardel employ over 13,500 people and “welcome[]employees of all faiths or no faith.” Complaint, ¶ 51. Many of those employees are likelyto have different religious views. Moreover, the employees’ rights being affected are of constitutional dimension — related to matters of procreation, marriage contraception, and abortion…. In sum, while the meaning and reach of the term “substantial burden” in this context is considerably less than crystal clear, it appears to impose a requirement that the burden on religious exercise be more direct and personal than has been shown here as to the Greens and their management of nationwide general business corporations.

The arguments being made by organizations like Hobby Lobby about the purported burden involved in providing access to contraception in health insurance plans are far-fetched, and the court in Hobby Lobby seems to agree.

Nothing about the birth control benefit requires any employer or employee to commit any sin. Rather, the birth control benefit leaves the commission of the purported sin up to the would-be sinner. Just as an employee could use his or her salary to commit some sin, be it adultery, gambling, or murder, a woman might decide to “commit sin” by using contraception (a characterization with which, for the record, we clearly do not agree), or she might not. That choice has absolutely nothing to do with the employer. And given that Hobby Lobby employs women who may not adhere to the same religious tenets upon which Hobby Lobby claims to have been founded, a woman who chooses to use contraception may not view herself as committing sin at all. It is not appropriate, therefore, for an organization, especially a secular one, to force its religious beliefs upon unwilling women because, ultimately, this is about choice. Organizations like Hobby Lobby seek to divest women of that choice.

The court in Hobby Lobby followed the O’Brien court’s lead in determining that the birth control benefit does not substantially burden religious rights of individuals, and then went one step further by addressing head-on one looming issue in these birth control benefit cases. That issue is this: Does a secular for-profit organization have the right to free exercise of religion? Without delving into the mess created by Citizens United (indeed, the court does not even mention that case) the court answered that question with a resounding no:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is,by its nature, one of those “purely personal” matters … which is not the province of a general business corporation.

The court’s opinion in Hobby Lobby is a significant blow to the craven attempt by corporations and their individual owners to twist the constitutional principles set forth in the First Amendment and RFRA beyond all recognition in an effort to control women’s reproductive choices. For the first time, a court has held that the religious rights of corporations and persons are not coextensive. Individuals may avail themselves of constitutional protections of religious freedoms, but secular corporations may not.

As a bonus in a footnote that should make every pro-choice activist and attorney cheer, the court (again, led by a Bush appointee) affirmed that the right to an abortion is a constitutional and clearly established right:

The matter of a constitutional right to abortion has been highly controversial since the right was discovered among the penumbras of the Due Process Clause some forty years ago. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705 (1973). Nonetheless, the right is now clearly established and necessarily shapes the nature of the rights and interests of plaintiffs’ employees. See Gonzales v. Carhart, 550 U.S. 124(2007);


This case represents a firm rejection of the religious right’s ongoing attempt to deny health-care services to female employees based upon some concocted notion that the birth control benefit forces corporations and the actual living breathing persons who own them to choose between following their convictions and following the law.