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Obama Nominee Bacharach is Swing Vote in Hobby Lobby Case

by Chris Casteel Published: June 28, 2013

Robert E. Bacharach, whose nomination by President Barack Obama to the 10th Circuit Court of Appeals was the subject of long delays by Republican senators, helped conservative judges on the court get a majority to keep Hobby Lobby’s lawsuit alive against the health care reform law.
Bacharach, of Oklahoma City, joined four Republican appointees in key parts of the 5-3 majority decision, while three other Democratic appointees would have upheld the U.S. district court’s ruling against Hobby Lobby and Mardel Inc., an affiliated Christian bookstore.
Bacharach was confirmed in February, more than a year after he was first nominated to the appeals court, which is a step below the U.S. Supreme Court.
Hobby Lobby and Mardel claim the health care reform law would force them to provide contraception coverage that could violate their religious beliefs.
Four Republican appointees would have ordered the district judge in Oklahoma City to issue an injunction barring the U.S. government from enforcing the contraceptive coverage requirement for Hobby Lobby.
Bacharach did not join that part, and it failed to get a majority of judges, so the case will go back to the district court to evaluate whether an injunction meets the legal tests.
Writing separately in the case, Bacharach said he would deny “standing” in the case to the individual members of the Green family who brought the lawsuit since they are separate from the corporations they run.
“In my view, the Greens’ injury stemming from the Affordable Care Act is
purely derivative of the corporations’ injury,” Bacharach wrote.
“The mandate does not require
anything of the Greens; the obligation falls solely on the corporations.
“In oral argument, the Greens argue that they incurred a direct injury from
their duty to implement the contraceptive mandate for Hobby Lobby and Mardel.
“But the Greens are implementing these decisions as officers and directors of the
corporations, not as individuals acting in their personal capacities.
“The Greens must subordinate their own religious beliefs to fulfill their
fiduciary duties under Oklahoma law as officers and directors of Hobby Lobby
and Mardel.”

by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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