Emergency Application to Supreme Court in Hobby Lobby Case

by Ed Whelan

The plaintiff-appellants in the Hobby Lobby case challenging the HHS mandate—the individual members of the Green family and the two closely-held family businesses they own and operate—have filed an emergency application to the Supreme Court for an injunction pending appellate review.

The Supreme Court should promptly grant that application, thereby preserving the status quo while the Greens pursue their appeal. In five of seven cases, the owners of for-profit businesses have obtained injunctive relief against the HHS mandate, and plaintiffs in the other adverse case still have the opportunity to seek an injunction pending appeal from the court of appeals. It would be outrageous to have the Greens and their businesses subjected to millions of dollars in fines merely because they have had the poor luck to draw judges who can’t get the simplest thing right.

The remainder of this post is the introduction from the emergency application that the Becket Fund filed on behalf of the Greens (footnotes and some citations omitted):

In just ten days on January 1, 2013, a regulatory mandate (the “HHS mandate”) promulgated under the Patient Protection and Affordable Care Act will expose Petitioners to draconian fines unless they abandon their religious convictions and provide insurance coverage for abortion-inducing drugs. A two-judge motions panel of the Tenth Circuit Court of Appeals denied Petitioners interim injunctive relief by (1) unilaterally re-writing Petitioners’ undisputed religious beliefs and (2) by deeming the burden on those beliefs—looming fines that could exceed more than a million dollars per day—as “indirect and attenuated.” That conclusion eviscerates RFRA’s broad protection against religious coercion and flies in the face of a half-century of this Court’s free exercise jurisprudence. Extraordinary injunctive relief under the All Writs Act is necessary to prevent immediate and irreparable harm to Petitioners during the appellate process, including any further review by this Court.

Petitioners have been driven to seek such extraordinary relief three days before Christmas because the federal government has refused to acknowledge the sincerely held religious beliefs of Petitioners and similarly situated entities, which prohibit them from engaging in conduct—such as providing insurance coverage—that facilitates access to abortion-inducing drugs. The government has already exempted plans covering tens of millions of other Americans from complying with the mandate. It has already crafted permanent exemptions for certain classes of religious objectors, and granted temporary reprieves to many others. Just last week, a panel of the U.S. Court of Appeals for the D.C. Circuit extracted a “binding commitment” from the Department of Justice “never” to enforce the mandate in its current form against objecting religious colleges. The government quite obviously has no overriding need to impose this mandate immediately. Yet the same government has offered no relief whatsoever to Petitioners and others like them, not even enough time to litigate the case.

The issues posed by Petitioners’ case are already the subject of conflicting decisions by eight federal district and circuit courts, and are also presented by a wider array of pending cases involving religious non-profit organizations. Five business owners have already received interim relief from the mandate; two, including Petitioners, have been denied the same relief and thus face potentially ruinous daily fines while their appeals go forward. The precise issue presented by this case is rapidly percolating through the Courts of Appeals and will come to this Court soon enough. Not soon enough for Petitioners, however. Without interim relief from the mandate’s severe penalties, Petitioners are at grave risk of not being able to complete the appellate process and secure their rights under RFRA.

Only an injunction from this Court can protect Petitioners from irreparable harm—to their religious freedom and to their businesses—while their appeal proceeds. Furthermore, because of the overriding importance of the legal issues presented in this case and because numerous lower courts have already reached conflicting decisions concerning them, Petitioners also ask the Court to grant certiorari before judgment.