A two-judge motions panel in the Tenth Circuit today issued an atrocious order denying Hobby Lobby’s motion for an injunction against the HHS mandate pending appeal. The order conflicts with a recent Eighth Circuit order and with Supreme Court precedent.
The Tenth Circuit panel maintains that a person who, for religious reasons, objects to complying with the HHS mandate doesn’t face a substantial burden on his exercise of religion, even though that non-compliance subjects him to massive financial penalties. Specifically, the panel embraces this paragraph from the district court’s ruling:
[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” [Slip op. at 7 (emphasis in original)]
That paragraph is badly confused:
1. The paragraph conflates the exercise of religion at issue—refusing to provide coverage of abortifacients—with the existence of a substantial burden on that exercise. There is no question that a large monetary fine imposes a substantial burden. What the panel is really ruling, without understanding what it is doing, is that an employer’s refusal to provide health insurance coverage for abortifacients cannot be an exercise of religion. There is no precedent for such a ruling.
2. As Judge Reggie B. Walton explained last month in Tyndale House Publishers v. Sebelius, in rejecting this same line of misreasoning: “Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as ‘indirect,’ the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.”
3. The panel’s invocation of a “series of independent decisions” conflicts with longstanding Supreme Court precedent. Three decades ago, in Thomas v. Review Board (1981), the Court held that a state violated the Free Exercise rights of an applicant for unemployment compensation who had refused to participate in the production of armaments. If the Tenth Circuit panel’s approach were valid, the Court would instead have said that the series of independent decisions necessary before the armaments would ever be used meant that there was too indirect and attenuated a relationship between the worker’s job and the activity he condemned.
4. As Thomas makes clear, the only relevant question for purposes of the exercise of religion element is whether the objector is acting from a sincerely held religious conviction. It is not the proper business of the courts to impose their own view on what constitutes improper complicity in immoral conduct.
I’ll also note that it’s a travesty that the panel sat on this matter for a full month. That unwarranted delay severely prejudices Hobby Lobby’s opportunity to seek meaningful Supreme Court review before the mandate operates against it on January 1.