DENVER — A panel of eight judges at the U.S. 10th Circuit Court of Appeals on Thursday wrestled with whether Hobby Lobby Stores Inc. — a secular, for profit corporation — has the right to the same religious freedoms guaranteed to individuals under the U.S. Constitution.
The judges heard oral arguments in a Denver courtroom on Hobby Lobby's challenge to part of the Affordable Care Act that requires the company to cover the cost of emergency contraceptives for its employees. The company and its owners, CEO David Green and four family members, believe that some types of contraception, including the “morning-after pill,” are forms of abortion that conflict with the family's Christian beliefs.
From the beginning of the nearly two-hour hearing, the judges peppered attorneys arguing on behalf of Hobby Lobby and the federal government with dozens of questions regarding whether Hobby Lobby's status as a for-profit corporation blocked the company from claiming protection from the health care law under First Amendment rights to religious freedom.
Resting her hand on her chin and wearing a frown, Chief Judge Mary Beck Briscoe asked several question expressing skepticism of whether Hobby Lobby, a closely held private company, and the Greens, have the right to sue the federal government over their religious objections to part of the Affordable Care Act.
Briscoe asked whether Hobby Lobby as a corporation could have constitutionally protected religious freedoms.
“Do you have any authority that a for-profit corporation can exercise religion? How does that work?” she asked Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which is representing Hobby Lobby in the case.
Duncan argued that just as groups of people can together claim the right to free exercise of religion, so can a corporation.
The Green family has run the company according to the tenants of their Christian faith for the past 40 years, he said.
“Yes, this is a corporation. But it is also a ministry to further the religious purposes of the family,” Duncan said.
Alisa Klein, a Justice Department attorney representing the federal government, argued that the idea that corporations are separate from their shareholders is bedrock of American corporate law.
She argued that if the court grants Hobby Lobby the same rights of religious freedom as individuals, it would harm its employees' rights to access preventive health measures guaranteed to millions of workers under the Affordable Care Act.
“If you make an exemption for the employer it is at the detriment of the employees,” Klein said.
Hobby Lobby's case is one of several legal challenges to the Affordable Care Act's mandate on emergency contraceptives pending in federal court, but the first of its kind to be heard by a full slate of appellate court judges instead of the usual board of three judges.
The company hopes to have a ruling from the court on the matter before July 1 that will exempt the company from the health care law while its court case is pending.
The company says it will be subject to fines of up to $1.3 million each day it fails to provide emergency contraceptive coverage for employees, beginning in July, if does not comply with the law. Hobby Lobby has about 13,000 employees at more than 500 stores in the United States.
Duncan said he was encouraged by the questions the judges asked during the hearing.
“We expected these questions, and I think we answered them,” Duncan said after the hearing.