DAVID FRENCH, ACLJ
Late Friday afternoon, the Seventh Circuit granted an emergency injunction against the HHS mandate — preventing its enforcement against an Illinois business and its owners. My colleagues at the ACLJ represent Korte & Luitjohan Contractors, Inc., a family-owned, full-service construction contractor. The company is located in Highland, Ill., and employs about 90 workers.
The brief opinion is worth a read in its entirety, but two parts stand out. First, the court disagreed with the Tenth Circuit’s recent decision rejecting Hobby Lobby’s request for a similar injunction. In a key paragraph the court stated:
The government also argues that any burden on religious exercise is minimal and attenuated, relying on a recent decision by the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, No. 12‐6294 (10th Cir. Dec. 20, 2012). Hobby Lobby, like this case, involves a claim for injunctive and declaratory relief against the mandate brought by a secular, for‐profit employer. On an interlocutory appeal from the district court’s denial of a preliminary injunction, the Tenth Circuit denied an injunction pending appeal, noting that “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s’] religion.” Id. at 7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012)). With respect, we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.
This is exactly right. The mandated coverage exists — regardless of the actions or activities of the individual employees — and it is the mandate that violates the religious liberty of the employer.
Second, the court distinguished Justice Sotomayor’s recent decision not to grant Hobby Lobby emergency relief, rightly noting that Justice Sotomayor applied a much different standard:
But the “demanding standard” for issuance of an extraordinary writ by the Supreme Court . . . differs significantly from the standard applicable to a motion for a stay or injunction pending appeal in this court. As Justice Sotomayor noted, the entitlement to relief must be “‘indisputably clear.’”
As we begin the new year, we at the ACLJ are exceedingly thankful that each of our for-profit clients has now obtained an injunction against the mandate. Their most fundamental rights to religious liberty enjoy the protection of federal court, at least for now. There is much work left to be done, and a Supreme Court battle looms in 2013.
Editor’s Note: This article was previously published at ACLJ.org and National Review Online.
David French is a Senior Counsel for the ACLJ. A Kentucky native, David is a 1994 graduate (cum laude) of Harvard Law School in Cambridge, Massachusetts and a 1991 graduate (summa cum laude, valedictorian) of Lipscomb University in Nashville, Tennessee. David has been a commercial litigation partner for a large law firm, taught at Cornell Law School, served as president of the Foundation for Individual Rights in Education (FIRE), and currently serves as a Senior Counsel at the American Center for Law and Justice. He is the author of multiple books, including A Season for Justice: Defending the Rights of the Christian Home, Church, and School and the upcoming Home and Away: The Story of Family in a Time of War.
Used with the permission of the American Center for Law and Justice.