Hobby Lobby Court Decision Crafts the Future of the Contraception Mandate Debate

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"Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?”

This quote came from a ruling last week that both shook up and shed light on the ongoing birth control mandate debate. On Thursday, June 27, the United States Court of Appeals for the 10th Circuit in Denver, CO, held that Hobby Lobby stores will not be forced to pay burdensome sums of money (475 million dollars per year) in fines for failure to comply with the federal birth-control mandate.

Hobby Lobby had filed suit challenging the mandate and seeking to have it overturned on the grounds that the birth control requirement violated the religious beliefs of David Green, the  chain’s founder and CEO. In this ruling, the federal court gave the craft-store chain, based in Oklahoma City, a temporary reprieve.  The court held that Hobby Lobby may continue with its case without being exposed to financial penalties in the interim.  The 10thCircuit judges said the lower Oklahoma court erred in not granting Hobby Lobby, and its sister company, Christian booksellers Mardel Inc., an injunction (a stay) while their case still in process.

The ruling is a small (or maybe not so small) victory for those who believe that both faith based organizations and for-profit companies founded on faith-based principles should have the freedom to live out their essential beliefs in their daily operations.  These organizations, whether non-profit or for-profit, offer their clients, customers, and patrons, unique products and services that cannot be separated from the essential faith tenants and principles undergirding these organizations’ operations. 

 There are over 500 Hobby Lobby stores in the U.S.

There are over 500 Hobby Lobby stores in the U.S.

For example, many people choose to seek health-care in a religiously affiliated hospital because they have built a trust relationship with these institutions and they are satisfied with the quality of care and attention they receive.  A Christian health-care facility’s unique position of trust and satisfaction in the community is arguably a direct result of this institution’s living out the faith-based doctrine that is its driving force.  If this hospital were subject to providing contraception to all of its employees against its essential religious beliefs, the hospital would be forced to undermine the very faith that is acting as its driving force, and creating the presence of good in the community.

Likewise, Hobby Lobby is known for strong Christian principles that shape the very fabric and personality of the company, and therefore attract a certain group of customers and employees. On Hobby Lobby’s homepage, the words “In God We Trust” are featured prominently on eye level as the first image a visitor to the site would notice, with “God” in red and “Trust” in blue.  As the site puts it, “the company carries no long-term debt, and pledges to provide exceptional selection, value and service….all Hobby Lobby stores are closed on Sunday.”

Hobby Lobby marries the notion of exceptional, golden-rule customer service and business practices with the notion of respecting the Sabbath, a faith doctrine of its founder.  The fact that Hobby Lobby is willing to remain closed on Sundays, a very profitable day for many retailers, to remain true to the religious beliefs on which it was founded, demonstrates the store’s commitment to putting the faith-based principles that shape this business’ character over making more profit.

Therefore, forcing Hobby Lobby to comply with a mandate to provide contraceptive services to all employees, when such services fly in the face of the founding faith tenants of the company, places the Oklahoma City based chain in an impossible situation. The fact that the federal appeals court found that Hobby Lobby stores have a good case against the federal health care law’s birth control mandate provides some much-needed hope.  Five of eight active judges concurred that Hobby Lobby, a for-profit businesses, had valid arguments for receiving an exemption, stating “Their exercise of religion is substantially burdened.” The judges on the bench of the 10th Circuit Court of Appeals unanimously sent the case back to a lower Oklahoma court.

While Hobby Lobby is the biggest and most recognizable of for-profit companies who have challenged the contraception mandate and sought an exception based on religious reasons, there are over 30 businesses in multiple states that have also brought challenges. Hobby Lobby and Mardel Inc. were granted expedited federal review because the massive fines for not providing employees with the requisite forms of contraception would have started accumulating on July 1.  The 10th Circuit judges cited a 2010 U.S Supreme Court ruling that confirmed that for-profit corporations have political expression rights.  The judges drew a parallel and stated the recognizing rights to political expression would be tantamount to acknowledging for-profit companies’ rights to religious expression.

Hobby Lobby’s religious expression is already apparent in both words and deeds.  From the writing on their (website) wall to their practice of choosing Sabbath observance over profit margins, this chain of over 500 stores doesn't always make the profitable or popular decisions. It makes the decisions that align with its biblical foundations. A customer who really wants to buy fabric glue on Sunday, or shop online for scrapbook materials without being reminded of their Creator, or who wants to spend their dollars at a pro-contraception company, can surely take their business elsewhere.  That is the beauty of principled pluralism, which, according to the Center for Public Justice’s founder James Skillen, “means that governments are required to do justice to society’s nongovernmental organizations as a matter of principle.”

The notion of principled pluralism embraces a diversity of institutions that serve different functions in society and are allowed to thrive, or fail, based on their relationships with individuals and other groups in their community. Why not give Hobby Lobby just such autonomy to thrive or fail based on its products, principles, and practices? If for-profit companies are willing to put their profit margins and public reputations on the line to adhere to their religious tenants, why not let them?  They could learn that they have more support than they ever knew by standing up for their beliefs, and their businesses could flourish. Or, they could learn that their detractors have driven customers away and their financial health could suffer.  Either way, giving for-profit and non-profit faith based entities alike the autonomy to craft their own space in the American marketplace will ensure the continuation of institutions to provided needed goods and services to a diversity of individuals, some kosher, some not.

- Chelsea Langston is an attorney who works at a non-profit consumer organization in Washington, DC.