DOJ Makes The Case For Dismissing Hobby Lobby Suit Against Birth Control Benefit


In a brief filed with the federal district court of Oklahoma, the Department of Justice made the case for denying Hobby Lobby’s request for an injunction blocking the birth control benefit, which the company argued violates its free exercise rights.

Hobby Lobby Stores, Inc. is a for-profit Oklahoma corporation that operates retail craft stores all over the country. The company, along with five of its owners/operators and a for-profit bookstore and educational company headquartered in Oklahoma, are the latest to claim that insurance coverage of contraception (in employee-earned health care benefits) violates the owner’s religious rights. The Hobby Lobby plaintiffs had, prior to the uproar over the mandate, provided health insurance plans that covered contraception and related services. But in response to the controversy Hobby Lobby and the other plaintiffs re-examined its insurance policies, found they covered certain contraceptive services, and then proceeded to exclude those services. They then sued the federal government for allegedly infringing on its religious liberties.

There are a lot of problems with the Hobby Lobby plaintiffs’ theory of the case as detailed by the federal government. To start, the business plaintiffs are all for-profit, secular organizations that provide secular goods and services. They can’t, as the Supreme Court held in United States v. Lee, claim to exercise religion as a means of avoiding complying with laws that regulate commercial activity.

“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.”

As far as the individual plaintiffs are concerned, they can’t jump in and out of the corporation’s legal structure to suddenly impose their personal religious beliefs on the employees of that corporation. As individuals they chose to organize their business as a corporation to provide personal/professional legal distinctions and protections. That principle of legal separation must remain consistent or it is meaningless. This is a fundamental concept of corporate entity law and one that is repeatedly overlooked in the rush to try and opt-out of the contraception mandate.

But what is most apparent in the government’s case against the injunction is the opportunistic nature of the Hobby Lobby plaintiffs’ claims. In one breath they claim that deeply-held religious beliefs underlie day-to-day operations of their for-profit craft stores, while at the same time admitting to not reviewing or monitoring health coverage to ensure it didn’t include those same contraceptive services their religious beliefs now find so objectionable. For a business that is closed on Sundays in religious observance it’s a curious inconsistency.

The plaintiffs responded to the Department of Justice’s arguments in a statement from their attorney. “The government repeats its old line: you give up your religious freedom when you go into business. That’s a startling and disturbing claim for our government to make,” Lori Windham said.

A hearing on the injunction is set for November 1st.

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