Hobby Lobby is heading toward D.C. this year—but it won't be to set up shop for craft-staved Washingtonians. Rather, the evangelical-owned retail craft chain aims to appear before the Supreme Court in 2014.
Days before the Affordable Care Act's health insurance exchanges opened enrollment October 1, the craft-chain giant got an unexpected boost . The government itself appealed to the high court and asked it to hear the case regarding the ACA employer-provided contraception mandate.
That's good news for Hobby Lobby, as well as the plaintiffs in 71 other lawsuits pending against the ACA, says Mark Rienzi, senior legal counsel for The Becket Fund for Religious Liberty.
"When the solicitor general asks a court to take a court in which some federal law has been found invalid, as in the Hobby Lobby case, the court usually takes that," he said. "If they take the case, they're going to have to resolve the religious liberty claim."
According to the government's Hobby Lobby petition, the Supreme Court must decide whether or not a for-profit corporation can "deny its employees the health coverage of contraceptives … based on the religious objections of the corporation's owners."
The move was unusual for the government, which hasn't pushed back in the majority of cases when judges granted injunctions, says Kim Colby, senior counsel for the Christian Legal Society (CLS).
Until the Hobby Lobby case, the government had pushed back only in one particular case, Gilardi v. Sebellius, in order for it to become the "test case for the D.C. Circuit," Religion Clause's Howard Friedman noted earlier this summer.
The government's hopes for Gilardi could be moot now, because Hobby Lobby isn't the only religiously owned company waiting to hear back from the Supreme Court. Conestoga Wood Specialties also petitioned the Supreme Court against the mandate, asking the court to review a separate ruling that failed to grant the Mennonite-owned company relief from the mandate.
And with two open appeals before the Supreme Court, supporters of both sides will be quick to throw their weight behind either case if only one is accepted for review.
Hobby Lobby's owners—as well nearly 40 other for-profit plaintiffs who have filed suit—believe the ACA's requirement to cover the cost abortifacient contraceptives violates their religious freedom. That's an argument also being made by CLS, the National Association of Evangelicals (NAE), and the Southern Baptist Ethics and Religious Liberty Commission (ERLC), all of which have jointly filed friend-of-the-court brief supporting both Hobby Lobby and Conestoga.
"We want the courts to know that this is not an area in which the administration has taken care of the religious organizations," said Kim Colby, legal counsel for CLS. "We're saying … the whole mandate is an unprecedented assault on religious liberty in this country. We want the courts to know that this alleged accommodation is not adequate."
The amicus brief argues that the cases before the Supreme Court are not "about which religious viewpoints regarding contraceptives or abortion are theologically correct, but whether America will remain a pluralistic society that sustains a robust religious liberty for Americans of all faiths."
So far, judges mainly are lining up in favor of religious freedom. According to the Becket Fund for Religious Liberty, which represents Hobby Lobby, "To date, of the 32 for-profit plaintiffs that have obtained rulings touching on the merits of their claims against the mandate, 29 have secured injunctive relief against it."