Hobby Lobby’s case raises important questions about who can enjoy religious freedom. Right now, some courts recognize the rights of business owners like the Green family (owners of Hobby Lobby), and others do not. Religious freedom is too important to be left to chance. —Kyle Duncan

Hobby Lobby, the national craft store chain owned by a Christian family that sued the Obama administration over the Affordable Care Act's birth control mandate, agrees with the government on one issue: The U.S. Supreme Court should look at its case.

The government in September appealed a 10th Circuit Court ruling that granted Hobby Lobby an injunction against millions of dollars in fines that would have been imposed for not offering contraception coverage under the Affordable Care Act while the case is pending in an Oklahoma federal court.

On Monday, attorneys for Hobby Lobby took the unusual step of agreeing with the government that the high court should grant the appeal and clear up conflicting circuit court decisions on whether people have a right to run their businesses according to their religious beliefs. Typically, a respondent like Hobby Lobby would oppose the appeal of a ruling in its favor.

“Hobby Lobby’s case raises important questions about who can enjoy religious freedom,” Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby, said in a statement. “Right now, some courts recognize the rights of business owners like the Green family (owners of Hobby Lobby), and others do not. Religious freedom is too important to be left to chance."

The Becket Fund said the high court will consider the government's petition and Hobby Lobby's response in November. If the justices decide to take on the case, they would hear arguments and rule on the injunction before the end of June.

Hobby Lobby and its sister store, Christian bookseller Mardel Inc., sued the Obama administration a year ago over the ACA's requirement that employer insurance coverage must include contraceptives at no cost to the employee. The mandate includes several drugs, including the so-called “morning-after” and “week-after” pills, which Hobby Lobby's owners claim are tantamount to abortion and violate their religious belief that life begins at conception.

Hobby Lobby lost its initial request for a reprieve from the mandate and from an estimated $1.3 million in daily fines that would begin to accrue while its case was being tried. But the craft store chain appealed and was granted a preliminary injunction in June.

The case is among 39 filed by for-profit firms claiming the ACA's mandate to cover birth control under employee health care plans violates the owners' rights to practice their religious beliefs. Another 35 lawsuits have been filed by nonprofit organizations, such as religious-affiliated schools and hospitals, making similar claims.

But Hobby Lobby, with 13,000 employees in 41 states, is the largest of the for-profit employers suing the government over the mandate, and its case has been the most closely watched.

The 10th U.S. Circuit Court of Appeals in Denver said Hobby Lobby and Mardel have a legitimate claim that the mandate violates the religious beliefs of its owners under the federal Religious Freedom Restoration Act.

"We hold that Hobby Lobby and Mardel … have established a likelihood of success that their rights … are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm," the judges wrote.

The Supreme Court, in addition to ruling on the injunction, is also being asked to consider the merits of the case, such as whether business owners have religious freedoms protected under federal law.

The government's petition to the Supreme Court argues RFRA was intended to protect the religious freedom of individuals, not corporations or their owners in the way they do business.

The government also pointed out that the 3rd and 6th Circuit Courts agreed, siding with the government in two separate contraception mandate cases, that commercial business owners forfeit religious freedom protections when they incorporate.

"(Business owners) cannot ‘move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms,’  ” the petition stated, quoting the 3rd Circuit Court's ruling against Conestoga Wood Specialities.

The Mennonite owners of Conestoga have also petitioned the Supreme Court for a hearing on its case.

16 comments on this story

Hobby Lobby's response, while parting ways with the government on whether federal law gives corporations religious exercise rights, agrees the Supreme Court needs to settle that question and others involving the contraception mandate and religious freedom.

"These issues need to be settled now by this court," the response stated. "The existing conflict is likely to deepen rapidly, with the same issues pending in some 35 other cases around the country."

Email: mbrown@deseretnews.com

Twitter: @deseretbrown