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Religious Freedom Is No Mere Hobby: Shocking Arguments Made By Obama Administration in Largest HHS Mandate Suit Yet


Today in a federal court in Oklahoma City, Becket Fund for Religious Liberty attorneys argued for the religious-liberty protection for David and Barbara Green. The Greens run Hobby Lobby with their children and have had to go to court to defend their religious liberty against the Obama administration’s so-called contraception mandate. Evangelicals, the Greens are opposed to the abortion-inducing drugs included in that mandate, joined with Catholics and other people of faith in business, religious institutions, and faith-based social-service organizations (including schools, hospices, hospitals…) who have gone to court in recent months in response to the coercive mandate.

In response, Barack Obama’s Department of Justice argues, that religious-liberty rights to not extend to the Greens as businessmen. Recall that this is an administration whose posture toward religious liberty was slapped down unanimously earlier this year in the Hosanna-Tabor case involving a Lutheran religious school. And yet the administration continues to work to erode religious liberty. 

“Hobby Lobby is not the first business to sue over the HHS mandate, but it is the largest,” Kyle Duncan, general counsel of the Becket Fund, explains in an interview.  

KATHRYN JEAN LOPEZ: Why is Hobby Lobby suing the Department of Health and Human Services important news?

KYLE DUNCAN: Hobby Lobby is an Oklahoma-based arts and crafts chain founded by David Green and operated by Mr. Green, his wife Barbara, and their children, Steve, Mart, and Darsee. Over 40 years ago, Mr. Green took out a $600 bank loan to start the business in his garage, and has built it into a multi-billion dollar success story, with over 500 stores in 41 states and more than 13,000 full time employees. If this were not extraordinary enough, the Green family considers Hobby Lobby a ministry, and insists on running it in accordance with their evangelical Christian faith. So, for instance, they provide chaplains and spiritual counseling for any employee who wants it; they offer a Christian conciliation program for workplace disputes; they take out hundreds of full-page newspaper ads every Christmas and Easter celebrating the religious meaning of the holidays; they do not carry products inconsistent with their beliefs, like shot glasses and risqué greeting cards and gory Halloween costumes; and, most famously, they close every one of their stores on Sunday, even though they lose millions by doing so.

The Greens do not have a religious objection to contraceptives in general. But they do object to “emergency contraceptives” like the “morning after pill” (Plan B) and the “week after pill” (ella) because those drugs — as the FDA’s own birth control guide explains — can prevent the implantation of a fertilized egg in the womb. For the Greens, like many Christians, that amounts to a chemical abortion. They cannot in good conscience offer those drugs in their health plan because they believe it implicates them in abortion. But the Health and Human Services mandate forces them to cover those drugs for free. If they refuse, they risk fines of about $1.3 million per day. This is an intolerable position, and so the Greens felt they had no other option than filing a lawsuit. The Becket Fund is deeply honored to represent such good, courageous people.

Hobby Lobby is not the first business to sue over the HHS mandate, but it is the largest. When a company this prominent feels compelled to sue its own government, something significant has happened. The lawsuit raises important questions about whether government can force religious believers to give up their faith as a cost of doing business. If government can do that, it would be profoundly disturbing.


LOPEZ: What is the government arguing when it says Hobby Lobby is looking to become a law unto itself? What is the Obama administration arguing here and is it consistent with it posture toward religious liberty?

DUNCAN: The administration’s arguments in this case are shocking. Here’s what they are saying: once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built. Kosher butchers around the country must be shocked to find that they now run “secular” businesses. On this view of the world, even a seller of Bibles is “secular.” Hobby Lobby’s affiliate, Mardel, sells Bibles and other Christian-themed material, but because it makes a profit the government has now declared it “secular.”


The administration’s position here — while astonishing — is actually consistent with its overall view of the place of religion in civil society. After all, this is the administration who argued in the Hosanna-Tabor case last year in the Supreme Court that the religion clauses of the First Amendment offered no special protection to a church’s right to choose its ministers — a position that the Court rejected 9-0. This is the administration which has taken to referring to “freedom of worship” instead of “freedom of religion” — suggesting that religious freedom consists in being free to engage in private rituals and prayers, but not in carrying your religious convictions into public life. And this is the administration who crafted a “religious employer” exemption to the HHS mandate so narrow that a Catholic charity does not qualify for conscience protection if it serves non-Catholic poor people.

As you point out, the administration is trying to justify its rigid stance against religious business owners by saying otherwise they would become a “law unto themselves,” and be able to do all sorts of nasty things to their employees — like force them to attend Bible studies, or fire them if they denied the divinity of Christ. Nonsense. Hobby Lobby isn’t arguing for the right to impose the Greens’ religion on employees, nor for the right to fire employees of different religions. There’s already a federal law that protects employees from religious discrimination and that’s a very good thing. This case is about something entirely different:  it’s about stopping the government from coercing religious business owners. The government wants to fine the Greens if they do not violate their own faith by handing out free abortion drugs, and now it’s saying they don’t even have the right to complain in court about it. 


LOPEZ: What did Hobby Lobby’s deliberations look like? How did they get to the point of suing? How soon does the HHS mandate hit for them?

DUNCAN: The Greens are not happy about the fact that they have had to sue their own government. But they had no choice. The government has consistently refused to even discuss the rights of religious business owners to be exempted from the mandate. The government has issued waivers and exemptions and delays to millions of people for a variety of reasons, but it has turned a blind eye to religious people who are simply trying to make a living.

The mandate will hit Hobby Lobby in about two months — on January 1, 2013. At that point, it will face the choice of dropping employee health insurance altogether (and paying about $26 million a year in penalties), or continuing its current plan (which will expose it to about $1.3 million in fines per day). So it is not hard to imagine why the Greens felt they had no choice but to go to court. The Becket Fund is asking for an immediate injunction.


LOPEZ: There’s no talk of any compromise on the HHS mandate that helps Hobby Lobby, is there?

DUNCAN: None whatsoever. The government has said that it would consider issuing some sort of “accommodation” for certain non-exempt religious organizations before August 2013. That doesn’t obligate the government to do anything, of course. But even that non-binding promise completely excludes religious business owners. Their rights have never been on the administration’s radar.


LOPEZ: Hobby Lobby aren’t the only non-Catholics suing the government over this mandate, are they?

DUNCAN: No, there are numerous non-Catholic plaintiffs.  Evangelical schools like Wheaton College, Colorado Christian University, Louisiana College, Geneva College, Houston Baptist University, and East Texas Baptist University, for example. And there are other non-Catholic businesses, such as the well-known evangelical publishing company, Tyndale House. The litigation against the mandate is by no means a “Catholic-only issue.” It’s an assault on the religious freedom of people of all faiths. Even those religious denominations who have no problem with any form of contraception should be deeply concerned. If the mandate stands, then it will open the door to all manner of conscience violations.


LOPEZ: Should employers have the right to deny their employees the full range of health insurance coverage? The administration argues they shouldn’t have that right. Might they have a point?

DUNCAN: Hobby Lobby’s employees love Hobby Lobby, because the company provides them with gainful employment, excellent wages, generous benefits, and a wonderful place to work. The idea that Hobby Lobby is “denying” their employees “the full range of health coverage” is ludicrous. A government bureaucrat simply decided that abortion-inducing drugs should be offered for free in all employer health insurance. If a Hobby Lobby employee wants to use such drugs, no one — certainly not the Green family — will do a thing to stop them. There is no shortage of contraceptives in America today, and the government already spends billions a year to make sure they are accessible to anyone who wants them. All the Greens want is not to be forced to pay for abortion drugs.


LOPEZ: Do you expect more businesses to sue? Where does a business go if it feels the need to sue?

DUNCAN: More and more businesses are suing, and we expect to see the number rise — especially as the mandate begins hitting more and more business owners and they realize what is at stake. The courageous businesses who have already sued — Hobby Lobby, of course, but also other businesses like Hercules Industries, Weingartz Supply Company, O’Brien Industrial, and Tyndale House — will encourage others to do the same. If a business owner is interested in finding out more, go to the Becket Fund website — — to see an interactive map and information on all the cases. As far as the Becket Fund is concerned, we are delighted to see as many credible lawsuits as possible, because it dispels the false idea that there is some sort of “separation” between religion and business.


LOPEZ: So as of right now as we approach November 2012, what’s the state of religious liberty in the United States? If you look around, people still are going in and out of places of worship. A cardinal prayed at two conventions. Can religious liberty really be under threat? What can Americans do about it?

DUNCAN: Americans should never take for granted the immense blessing that we can worship freely. This is a great country, and our religious freedom is one of the best reasons to say that. Too often, however, we forget the tragic fact that millions of believers around the world do not enjoy even that basic freedom. Americans should be a beacon for them, demonstrating that a genuine, robust, and public religious freedom is perfectly compatible with — indeed, indispensable to — a free society.

But America ceases to be a beacon for others when its government denies religious freedom to its own people. Do not misunderstand. The HHS mandate is not equivalent to the grotesque abuses we see too often in other parts of the world — laws punishing religious conversion with death, to name a horrible example. But using the regulatory power of the government to coerce believers into violating their own faith is a subtle way of eroding the place of religion and religious believers in civic life. Americans — whose nation was founded on the revolutionary idea that our rights come from our Creator and not from our government — should not stand for it.