Like all Americans, Oklahoma City billionaire David Green has a constitutional right to exercise his religion. On Thursday, U.S. District Judge Joe Heaton heard arguments on whether that right extends to Hobby Lobby and Mardel, the companies Green founded and runs.
Green, his family and his retail companies have asked the court to block a federal mandate that requires the company to provide its employees with insurance coverage for certain contraception drugs and devices. They filed suit in September in federal court in Oklahoma City.
The mandate takes effect Jan. 1 for self-insured Hobby Lobby, which could be subject to fines of up to $1.3 million per day for failing to comply with the mandate. The requirement is part of the Affordable Care Act, also called Obamacare.
Heaton said the case “obviously does raise some new issues.” He promised to “move promptly” on the matter.
In legal filings, the company claims the morning-after pill, week-after pill and some intrauterine devices are “abortion-causing drugs and devices.”
Green earlier said the mandate puts his family in the position of “being forced to choose between following the laws of the country that we love or maintaining the religious beliefs that have made our business successful and have supported our family and thousands of our employees and their families.”
Heaton said he was not aware of any case law granting corporations the right to free exercise of religion.
“Isn't a religious exercise almost uniquely personal?” Heaton asked.
Kyle Duncan, general counsel for the Beckett Fund for Religious Liberty that represents Hobby Lobby, said a 1964 decision granted The New York Times Co. the right to exercise the First Amendment right of free speech. The Greens' companies, Hobby Lobby and Mardel, exercise religion regularly and openly, Duncan said.
The companies close on Sunday, buy full-page Christian-themed newspaper ads on Christmas and Easter and refuse to use their trucks to haul beer, all of which reduce profits, Duncan said. The firms' stated primary purpose is “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”
Justice Department Attorney Michelle Bennett said the government doesn't question the sincerity of those religious beliefs, but said that a for-profit corporation is a secular entity. The challenged drugs and devices were included in the health care act because medical experts deemed them necessary for women's health and well-being, Bennett said.
Bennett said the drugs and devices prevent a pregnancy from occurring, which does not constitute an abortion under federal law.
Duncan said the actions of the company and its executives are protected by the First Amendment and the Religious Freedom Restoration Act.
“Hobby Lobby is a wonderful company,” Duncan said. “It's a closely held family company run by the Green family. They simply wish to exercise their religion while operating a very successful business.”
Duncan said Hobby Lobby offers coverage for other forms of birth control, and will continue to do so.
“They provide wonderful benefits to their employees, including most contraceptives and preventive services for women,” he said. “All they're asking for is a narrow exemption from the health care law so they don't have to cover drugs that they believe cause abortions.”
Founded in an Oklahoma City garage in 1972, the Green family has grown Hobby Lobby from one retail space into more than 500 stores in 41 states that employ more than 22,000 people.
On Thursday, Oklahoma Insurance Commissioner John D. Doak, a longtime opponent of the Affordable Care Act, pledged his support for Hobby Lobby and the Green family.
“My firm belief is that employers should not be required to provide coverage for items that they object to based on religious positions,” said Doak. “This is regardless of being a for-profit, secular corporation or being a privately-owned business or association.”
Separately, a federal judge in Michigan issued an injunction that halts enforcement of the health care mandate against Weingartz Supply Co. The firm excluded contraception coverage from its employee insurance because it conflicts with the Catholic owner's religious beliefs. The same judge declined to issue an injunction for a nonprofit Catholic organization because its decision to not provide contraception coverage is currently protected from enforcement by a safe harbor provision in the federal law.
All they're asking for is a narrow exemption from the health care law.”