In its attempt to avoid having to choose between their religious scruples and either (1) paying about $475 million more taxes annually, or (2) paying about $26 million more in taxes and dropping employee health insurance benefits, Hobby Lobby got some help from an unlikely source.
The help came from a Jehovah’s Witness whose employer ran both a foundry and a factory. He was untroubled working for the foundry that produced sheet metal, but had religious scruples about working in the factory that produced turrets for military tanks. Accordingly he quit his factory job. The SCOTUS then had to weigh whether the denial of his unemployment benefits flowed from an improper burden on his religious rights. The JW wasn’t articulate about why there was such a difference between producing steel that might be used for military purposes and working on what was obviously a turret. It might have been tempting for the SCOTUS to decide on its own reasoning that there wasn’t a substantial difference between the two kinds of jobs. But that’s not what it did because “it is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Such was the Court’s reasoning in Thomas v. Review Board of the Indiana Employment Security Division .
But now let’s come back to the most recent Hobby Lobby case. The government questioned the soundness of Hobby Lobby’s religious objection to providing health benefits for abortifacients, arguing “[a]n employee’s decision to use her health coverage to pay for a particular item or service cannot properly be attributed to her employer,” and “the insurance coverage at issue is just another form of non-wage compensation—supposedly the equivalent of money—and therefore should not present problems. . .” A dissent agreed with this line of reasoning, opining that “neither an employer, nor its officers and directors, by choosing to comply with the contraceptive-coverage regulation, become a party to, or otherwise encourage, an individual employee’s decision to use a particular drug or device.”
But The United States Court of Appeals for the Tenth Circuit took a deferential approach:
Such reasoning cannot be squared with the Supreme Court’s holding in [the JW case]. The Supreme Court emphasized that when the plaintiff drew a moral line between foundry and factory work, it was not the Court’s prerogative to determine whether the line he drew “was an unreasonable one.” [citing the JW case] Just so here: Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable.
This case reminds us that protection for one kind of religious belief is often protection for another. If other circuits follow this analysis, this is very good news for employers with religious objections to the HHS Mandate. Moreover, the Tenth Circuit held that Hobby Lobby can be protected by the Religious Freedom Restoration Act notwithstanding that it is a for-profit corporation.
But there will be more litigation for Hobby Lobby, as this court concluded:
We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.