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August 06, 2013

More on the Hobby Lobby Case

OSV recently published an article by Anamaria Scaperlanda Biddick (yes, I'm the proud dad) on Hobby Lobby's recent victory at the 10th Circuit and then in District Court in its challenge to the HHS mandate. In the article, Kyle Duncan, general counsel at the Becket Fund for Religious Liberty and lead attorney for Hobby Lobby, discusses the significance of the 10th Circuit's en banc decision.

OSV coupled the article with its editorial, which emphasized the irrationality of the administration's provisions.  According to the editorial, Hobby Lobby would face a $26 million annual fine ($2,000 per employee) for dropping health coverage altogether (this figure is much smaller than the cost of insuring its employees) but faces a $475 million fine ($100 per employee per day) for insuring employees but not complying with the HHS contraception coverage mandate. 

Posted by Michael Scaperlanda on August 6, 2013 at 04:59 PM in Scaperlanda, Mike | Permalink


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A great piece by a great writer!

Posted by: Rick Garnett | Aug 6, 2013 10:22:10 PM

Professor Scaperlanda, this is an excellent article that exposes the coercive, punitive, nature of the HHS Mandate, for those who choose not to violate their Faith and/or morals and desire a Health Care Plan that is Life-affirming and Life-sustaining. You should be very proud!

Posted by: Nancy | Aug 7, 2013 9:50:12 AM

So, encouraging gender equality, giving employees equally the individual right to use their own compensation to decide how to address their health needs following their moral and religious needs and advance the preventive health benefits of the specific requirement [pursuant to an independent health study] is particularly important? Sounds reasonable. Helping to decrease abortions by having more access to contraceptives (or "abortions" nearly everyone thinks is much worse -- five day over six weeks or whatever) alone would seem worth a greater fine.

To belabor a point, this for profit business corporation that sells hobby supplies find this a problem, some other might find some other health practice a problem. So, there is a need for a general health benefit, not one with opt outs (and a need to address the needs of the employee) for each particular insured procedure, drug or whatever an employer might oppose you using your own compensation to pay for. Mirror of Justice obviously is particularly concerned about certain things. But, other religious people have other concerns.

The concern for sterilization alone is notable. Note that this is not about "killing babies." No. So, it isn't one of those "abortion exception" things. There can be any number of other things that religious believers can oppose. Some are quite expensive. It is absurd to only protect those who oppose abortion if religious freedom of business corporations are involved.

Or: "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." U.S. v. Lee.

Posted by: Joe | Aug 7, 2013 10:55:25 AM


Please explain what disease these "preventative services" prevent- that includes sterilization. Additionally, please explain how an employer who pays for an employees health insurance that doesn't cover everything that could be desired by the employee is controlling their compensation. Thank you.

Posted by: Anamaria | Aug 7, 2013 1:02:26 PM

Hi Anamaria and Joe,

I work for a private company in the internal customs compliance and logistics field and I consider my employer issued health insurance coverage to be very much a part of my compensation. Especially in this age of deductibles that come with many such plans and I would consider a denial of services to be a control of my compensation.

I have some sympathy for the Greens and their position. But they have chosen to run a private company that is independent of organized religion structure no matter how they try to run their company by Biblical principles. And there's nothing necessarily wrong with that. And I don't pretend to know if these drugs are actually abortificants or not. But if they are allowed to get away with this, this would then open the doors to private actors claiming religious exemptions that would disorder our laws.

Suppose I were a Quaker and I forbade any of my employees from participating in military service (I actually thought of doing this during our invasion of Iraq)? Or supposed I was Amish and didn't pay my Social Security taxes? Or I claimed as a Mormon that I didn't have to report any of my employees who I knew to have multiple spouses? Certainly, there could be reasons to deny religious exemptions in these cases and (despite what Professor Garnett has written) this seems to me to be spirit of Employment Division vs. Smith. And the Hobby Lobby case is threatening that spirit. And you'll forgive me for being cynical enough to doubt that the Becket Fund would rush to the defense of a private employer that tried any of these things.

Posted by: Edward Dougherty | Aug 7, 2013 4:28:22 PM

I see comments like yours all the time, and they frustrate me because it seems to me that you're missing the point and mischaracterizing the issue. Essentially your argument is "a private employer shouldn't have a religious exemption because the employer could claim an exemption from Reasonable-Law-X based on a religious belief" and then you give examples of all kinds of reasonable laws that it would be silly to allow exemptions for. The problem with this argument is that you're conflating the general notion of whether society should recognize religious exemptions in general with particular cases where our society has (reasonably and sensibly) determined that a particular religious exemption shouldn't be recognized in those particular circumstances. The fact that a particular religious exemption shouldn't be recognized in a particular set of circumstances doesn't mean that ALL religious exemptions are invalid.

To illustrate the absurdity of your position that no private employer should have a religious exemption from a law, consider these hypothetical laws:
-suppose a law was passed requiring all employers to provide late-term abortion coverage in their health insurance plans, requiring employers to provide a paid day-off-work for employees to go get their late-term abortion just like many do for jury duty, and requiring employers to either provide free transportation to the clinic or a taxicab reimbursement.
-suppose a law was passed prohibiting employers from quoting the Bible in their advertisements, if they want to advertise to the public.
-suppose a law was passed prohibiting employers from having a crucifix or a religious image in that part of their business that is accessible to the public.
-suppose a law was passed creating a licensing requirement that the applicant must renounce all religious affiliations in order to receive the government license needed to operate his business.

Wouldn't all of these laws unjustly infringe on the employer's religious beliefs? Shouldn't the employer get a religious exemption if that was the law of the land?

Yes, sometimes religious beliefs conflict with the interests of other people who have enacted a particular law. But a modern, enlightened civil society is a society that recognizes the diversity of people's beliefs (including religious beliefs) and that acknowledges *reasonable* accommodations, while also recognizing that not every religious belief can or should be accommodated. Thankfully, our current legal system is actually quite sensible, as it tries to reach a balancing between the laws of society and a person's religious beliefs. If there is a real important and compelling goal behind a law, and the only way that the goal can be achieved is by restricting religious belief, then, yes, it is likely that the law is reasonable and there should be no religious exemption. But if there is no good reason behind a law, or if the purpose of the law can be achieved in a much less restrictive manner, then it is likely that the law is not reasonable and that a truly civil society would recognize a religious exemption.

Is the HHS mandate a reasonable law imposed on all employers or should society accommodate the employers who objects? That's an important discussion to have, but it's not served by erroneous blanket declarations that no private actor should be able to claim a religious exemption.

Posted by: Thales | Aug 7, 2013 8:16:26 PM

Yeah Becket would never represent a Quaker pacifist employer. That's way more outre than defending the practice Santeria witchcraft.

Posted by: Anonymous | Aug 7, 2013 9:15:35 PM

The Amish/SS taxes issue was addressed in U.S. v. Lee. I wouldn't be surprised if the Beckett Fund supported the Amish in such a case. They recently supported private religious marriage ceremonies, including involving same sex couples. This blog selectively focuses on this issue, but the Becket Fund has a more general reach, right or wrong they might be in individual cases.

"Please explain what disease these "preventative services" prevent- that includes sterilization. Additionally, please explain how an employer who pays for an employees health insurance that doesn't cover everything that could be desired by the employee is controlling their compensation. Thank you."

I find this question, which has been posed before, a bit strange. For instance, some women have health problems. A pregnancy is dangerous to their health. Some of these women are married and sex is an important part of their marriage. It is a special "unitive" function. which is explained by Christian doctrine. They wish to have it w/o threatening their health. So, they use contraceptives or perhaps at some point might choose sterilization.

In fact, it is a bit rare for women to have large families these days. In part, this is because of the stress on the body when women have let's say 10 kids. Contraceptives is a means, including for Catholic women, to stop having so many kids. This is news to you? I ask this respectfully.

The employee's health insurance here is "paid" for by their labor. The insurance does not cover "everything desired." Since certain things were found to be particularly useful for preventive health, they were mandated.


The employer is required to compensate an employee in certain minimum ways, including a minimum wage that can be in legal tender (not just a barter system), which the employee can use as s/he wishes. This compensation now includes an insurance component. The employer doesn't get to say that an employee can't use their paycheck for contraceptives & they shouldn't get to say they cannot use their insurance benefit for that purpose. If the employer does, the employer is "controlling" what is supposed to be a personal benefit.

I hope this was helpful.

Posted by: Joe | Aug 8, 2013 11:55:06 AM

Yes, Thales, the problem then becomes to look at the proper lines. But, that isn't being done around here a lot. People make a claim for "religious liberty," but don't do much other line drawing. And, when they start, they make some specious claims, e.g., talking about "four dollar" costs. But, cost isn't really what many are really concerned about. Abortions can cost a lot of money so that would be covered in some cases. But, cost isn't really what people are concerned about much of the time.

The options also aren't very helpful. First, we have a late term abortion option laden with special things (we don't require taxi service usually for health insurance coverage) to make it look particularly silly. But, as it is in some cases, if the late term abortion is necessary to protect health, it very well might be sensible. Then, we have a list of blatant 1A violations involving quoting the Bible or something. It's not the same thing.

Posted by: Joe | Aug 8, 2013 12:51:29 PM

Hi Thales,

Actually, I would agree with you that it is reasonable and sensible for society to limit religious freedom in the case of a Quaker who would own a private company. It's also reasonable as in the case of the Amish (thanks, Joe, for the reference to US Vs. Lee as I was unaware of that case) to have their religious objections come behind the uniform taxing authority of the state.

That's my point regarding Hobby Lobby. The Greens may be Christians but their company is not religiously affiliated with any organized religion. They have chosen to run their business in the secular marketplace and to become millionaires from it. And good on them-I'm all in favor of people becoming millionaires (actually, I try every day to become one myself). But when you operate such a company, you are then subjecting yourself to government regulation. Some of them you like, some of them you don't like. I didn't like our company losing employees who were reservists going to fight in a war that I objected to on Just War grounds. And I would suggest to you that was a bigger burden on us than the HHS mandate is on a company like Hobby Lobby (we're a lot smaller). By the way, I wouldn't consider the objections that Quakers and I would have had to the invasion of Iraq as "silly". Such actions may be as intrinsic an evil for them as abortificants are for you.

And the HHS mandate is a similar regulation for Hobby Lobby that they have to put up with. Whatever the merits or faults of the ACA, it is not a religiously grounded piece of legislation and it isn't aimed specifically at religious bodies (although I have far more sympathy for religiously affiliated organizations objecting to the HHS mandate than I do the Hobby Lobbys of our country). It's generally applicable legislation as upheld in Smith and I know that RFRA applies at the federal level with the strict scrutiny test. And it would seem to my layman's point of view that private business should (contra Professor Garnett in his earlier post) that the impetus should be on Hobby Lobby to show why they should be exempted from this general applicable law.

As for the instances of your laws, late term abortions are already illegal in many places (including my home state of Michigan) so that's moot (although Right to Life back here is organizing a petition drive to make us buy separate riders for abortion coverage in our plans). As for your other examples, they are moot because Hobby Lobby again is not a religiously affiliated employer-they wouldn't have to deny any religious affiliations because there is no formal affiliation, And as for allowing employees to display religious symbols or to include religious references in advertising, that's not affecting employee's compensation directly like the HHS mandate exemption as requested by Hobby Lobby. And yes, I would consider health insurance to be a part of an employee's compensation as stated far more eloquently by Joe than I ever could.

Basically, Thales, what I read in your (well written, I might add) post is that your and the Green's religious sensibilities are more worthy of recognition than mine or others. And I think that's why the bar for private companies has to be far higher than for religiously affiliated organizations. To allow such exemptions would open a Pandora's Box for private companies to escape regulation. And I try not to make hyperbolic statements but that's what I think we're headed for if Hobby Lobby's request is allowed.

Like I said, I'm a layman on legal issues but this is just based on my experience in private business for almost 20 years.

Posted by: Edward Dougherty | Aug 8, 2013 1:50:01 PM

Joe, It is news to me that pregnancy is a disease, yes. I understand some pregnancies are dangerous to women's health, but that isn't really what we're talking about. We are talking about viewing pregnancy as something inevitable without medical intervention and an illness, neither of which is true.

Furthermore, if employer-paid contraception or sterilization or abortifacients is so important to someone, they can either pay for it themselves or work for an employer willing to pay for it. Why should an employer have to pay for that, when they find it morally wrong? It is not the same as generally compensation. They are the ones actually paying for it, not providing money for someone else to pay for it.

Edward, I agree with you about the war on Iraq, but an employee leaving your company to go fight in it is quite different from you having to pay them directly for fighting in it- that would be the parallel to Hobby Lobby. There you would be able to file a religious objection claim. (Of course, there is the question of taxes, that both support war and contraception and sometimes abortion overseas, and I don't know how to answer that- but that is still different from what Hobby Lobby has to do).

Posted by: Anamaria | Aug 8, 2013 6:22:44 PM

You misunderstand the purpose of my comment. My examples are *supposed* to look silly (though I don't think travel reimbursement for abortions is too unfathomable, since travel reimbursement is often an employment benefit for a variety of reasons and some argue that easy access to abortion is a constitutional right... but set that aside, since I tried to think up outrageous examples that we'd all agree were outrageous demands on the employer). My examples are *supposed* to be blatant violations of the 1st Amendment. That's exactly my point: to illustrate that there could be laws of general applicability that *do* violate religious freedom and that the person subject to that law does have a legitimate claim to a religious exemption. Edward was making the erroneous blanket statement that a private employer shouldn't be able to claim a religious exemption as a matter of general principle, regardless of the particular law. I was illustrating that there could be particular laws that unjustly infringe on the religious freedom of private employers.

Likewise, you're missing the point of my comment. You're saying that if you're a private employer, then you forfeit any claim to religious freedom and you have to accept every law that applies to you. I'm saying that's wrong as matter of general principle because there are some extreme laws that I hope we could both agree would go too far and would violate a private employer's religious freedom. Now you can argue that particular law X (like the HHS mandate) is not a violation of the religious freedom of a private employer and so there shouldn't be an exemption *in that particular case*. But that's far different from saying that *no* laws will ever violate religious freedom of private employers, and so there should *never* be exemptions (which is what your position amounts to).

Like Joe, you're not understanding the reason I gave those examples. I'm not saying that those laws exist, or that they are not "moot" or whatever. I'm saying that supposing, hypothetically, the law was on the books in an alternate United States, that that particular law would be an unjust law violating religious freedom.

You're misunderstanding my use of the term "religious affiliation." I don't mean that Hobby Lobby or an employer is a "religiously-affiliated" employer. I mean that a private person, like Edward Dougherty or Hobby Lobby's Mr Green, has a personal private religious affiliation (i.e., they are Christian). I'm imagining a scenario where the government passes a generally applicable law saying, for example, "if you want to have a license to have business X, or if you want to have a license to practice medicine, you have to personally renounce Christianity." Yes, it's an extreme example, but laws like that weren't unknown a few hundred years ago and they were perhaps one of the reasons why the Founders wrote the 1st Amendment. (Consider that some people today argue that there should be a legal requirement that if you want to be licensed as a doctor or nurse, you have to be willing to do abortions. What do you think if a law like that was passed?)

Posted by: Thales | Aug 8, 2013 9:54:35 PM

Hi Anamaria,

Actually, having an employee who's also in the military involves more than just my taxes supporting the military. When you have such an employee who leaves for military duty, you have to continue paying their insurance (and for their families) and you also have to hold the same job for them when they return. Now, I certainly don't object to any of this on its face but it was a lot harder for a smaller company like us than it would have been for a Hobby Lobby. And this was all for a war that was led by a commmnader in chief who shredded the Just War doctrines that I believe in. And I do believe that my religious burden was greater than Hobby Lobby's considering that their employees may never actually use the substances that are in their insurance policies. But I also knew (and expected) that we didn't have a legal recourse to that burden. We just did the best we could and I almost had to get new teeth after gnashing them every time I would hear President Bush's voice or see his image on TV.

I also don't have any hard evidence for this but I would take an educated guess that if you went into any private workplace in America today and asked the employees if they considered their health insurance to be part of their compensation, you'd find many of those employees answer in the affirmative.

Posted by: Edward Dougherty | Aug 9, 2013 11:23:35 AM

"Joe, It is news to me that pregnancy is a disease, yes. I understand some pregnancies are dangerous to women's health, but that isn't really what we're talking about. We are talking about viewing pregnancy as something inevitable without medical intervention and an illness, neither of which is true."

Basically, pregnancy has various health related concerns and for some, it is important to their health to avoid pregnancy. So, preventing pregnancy is a matter of preventive health. Health insurance would factor in there. Pregnancy overall is a health matter and insurance is involved in pregnancy care. Things that are "inevitable," like getting old, are also health matters in certain ways. So, other than confusing the matter, what is the point here exactly?

"Furthermore, if employer-paid contraception or sterilization or abortifacients is so important to someone, they can either pay for it themselves or work for an employer willing to pay for it."

People have the ability to use their compensation the way they wish, including following their own personal religious beliefs. We don't say "if you really want to donate to a church a portion of your salary, you can work some place that will not fire you for doing so."

"Why should an employer have to pay for that, when they find it morally wrong? It is not the same as generally compensation. They are the ones actually paying for it, not providing money for someone else to pay for it."

The employer "pays" for the general compensation. The employee is earning the compensation in both cases -- insurance is part of the compensation. It is not handed out for "free" -- you have to work for it as much as other compensation.


Thales, the original comment gave some examples of the "claiming religious exemptions" the person was concerned about. They were not akin to your examples, so I stick to my original comment.

Posted by: Joe | Aug 10, 2013 1:03:33 PM

Again, that's my point: they are *not* supposed to be akin my examples. My examples are *supposed* to be different from the others. My examples are intended to illustrate the fact that it is possible for a law of general applicability to violate the religious freedom of a private employer and that religious exemptions for private employers can be warranted in some situations.

Posted by: Thales | Aug 13, 2013 11:18:36 PM

"My examples are intended to illustrate the fact that it is possible for a law of general applicability to violate the religious freedom of a private employer and that religious exemptions for private employers can be warranted in some situations."

The examples (other than the exaggerated late term abortion one) concerned laws against "quoting the Bible" or "having a crucifix or a religious image" or "renounce all religious affiliations." How exactly is a law about quoting a specific religious book a "law of general applicability"? How is a law about a specific religious symbol? Or a law that targets "religious" affiliations?

Again, he cited things like laws involving military service. Your examples are just not comparable.

Posted by: Joe | Aug 14, 2013 10:09:55 PM


"exaggerated late term abortion one": Again, my examples are supposed to be exaggerated. That's the point. I've giving examples of "exaggerated" generally applicable laws so that we can all agree that it is theoretically possible for a generally applicable law to infringe on religious freedom. That's my only goal here in this conversation. So, a law requiring all private employers to cover late-term abortion in their health insurance plans is an "exaggerated" version of the current law requiring private employers to cover contraception in their health insurance plans, and I hope we can agree that this late-term abortion law violates religious freedom. (That doesn't logically mean that the contraception law violates religious freedom, because in the contraception case, it might be a lesser or non-existent infringement compared to the late-term abortion law, it might be a justifiable infringement considering very compelling benefits to society, etc. All I'm trying to establish here it is possible for a law that generally applies to all private employers to violate religious freedom.)

We must be using different definitions of "generally applicable." When I use the phrase, I mean "applies to all persons, generally, without singling any one out." All of my examples apply to *all employers* regardless of their personal religious beliefs, and my examples don't target the private practice of religion. Instead, my examples go to the actions in running a business that serves the public. In other words, if you want to be a private employer, you have to provide X to your workers or your customers (whether it be contraception insurance, or late-term abortion insurance, or an environment free from religious coercion). And if you don't want to provide X (which is a legal requirement in order for you to conduct your business), then you have the option of not being a private employer. With that definition, all of my examples are laws that generally apply to all people wanting to be a private employer, regardless of their religious affiliations.

Consider the "not having a religious image in the area of the business that serves the public" example. Some might not think that it is too far-fetched. We currently have laws prohibiting some versions of the 10 Commandments from being displayed in public buildings because (in part) it causes emotional distress in members of the public and creates an oppressive environment of religious coercion. Why couldn't someone argue that there should be a law that applies to all employers, regardless of the employer's personal beliefs, that prohibits the 10 Commandments in any public area of a business that serves the public and employs members of the public, as a condition for doing business in the public in order to prevent emotional distress in members of the public and creating an oppressive environment of religious coercion?

Posted by: Thales | Aug 16, 2013 2:54:46 AM

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