Hobby Lobby wins appeal on preliminary injunction

posted at 2:41 pm on June 27, 2013 by Ed Morrissey

We haven’t heard much lately on the court fights over the HHS contraception mandate, but this ruling guarantees we’ll be hearing a lot more later.  The 10th Circuit unanimously overturned a district court decision that refused to impose a temporary injunction against enforcement of the mandate on Hobby Lobby, ruling that the plaintiffs met the legal requirements for such relief, at least in part:

A federal appeals court in Denver has reversed a lower court’s decision to deny Hobby Lobby Stores Inc.’s quest for an injunction against part of the Affordable Care Act that requires it to cover the cost of emergency contraceptives for some of its employees.

In a 168-page ruling issued Thursday, the appellate court sent Hobby Lobby case back to a lower court for further review.

The panel of nine appellate court judges who heard arguments in the case in May ruled unanimously that Hobby Lobby and its affiliated Christian bookstore chain Mardel have the right to sue over the Affordable Care Act.

The court split 5-4 on whether to impose the injunction itself, ruling instead to send it back to the district court to rehear the motion.  Four justices felt that Hobby Lobby fully met the legal requirements, while the majority ruled that the private company met enough of the requirements that the lower court should have considered its request.

The ruling comes none too soon for Hobby Lobby.  Starting in four days, the federal government could start levying fines for non-compliance with the mandate amounting to $1.3 million while Hobby Lobby pursues its challenge.  If the lower court doesn’t address this soon, the fines will begin to pile up.  It will be interesting to see whether the lower court takes the unanimous hint and applies the injunction immediately without further debate, or whether the judge will force Hobby Lobby to reargue the motion first.

More importantly, this is a significant win for private-sector business owners on religious liberty grounds.  The appellate court has now ruled that the issue of forcing owners to violate their religious tenets through health-care mandates is at least worthy of review by the judiciary.

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Damn.

Sincerely,
President Mandate

22044 on June 27, 2013 at 2:43 PM

Grant Hobby Lobby their injunction only if they set a rule in their stores that mothers cannot force their male children to come in and stand around bored out of their minds.

MadisonConservative on June 27, 2013 at 2:43 PM

It’s a free country…..as long as you do what we say…….

KMC1 on June 27, 2013 at 2:44 PM

More!

freedomfirst on June 27, 2013 at 2:46 PM

Somehow I don’t have very much confidence in our judiciary…

d1carter on June 27, 2013 at 2:46 PM

Why does the Tenth Circuit hate anti-Christian bigots who need taxpayer money for birth control?

Liam on June 27, 2013 at 2:47 PM

“Get me the IRS!”

-Barry

Ted Torgerson on June 27, 2013 at 2:47 PM

Sweet.

rbj on June 27, 2013 at 2:52 PM

This sounds like the first tidbit of good news I have heard all week.

Thank you for all of your work on this issue, Hobby Lobby!

wren on June 27, 2013 at 2:52 PM

Lots of 5-4 splits lately.Must be going around.

docflash on June 27, 2013 at 2:54 PM

Ultimately Hobby Lobby will lose. The 1st amendment’s religious protections were gutted long ago. The courts will rule that Hobby Lobby is essentially trying to force their religion on their employees and deny their employees their “rights”.

hisfrogness on June 27, 2013 at 2:54 PM

To paraphrase Mark Steyn: The process is the punishment.

gwelf on June 27, 2013 at 2:55 PM

Also goes to show that the 10th Circuit believes that there is a likelihood of success on the merits.

blammm on June 27, 2013 at 2:57 PM

Looks like the triumphant left picked the wrong week to stop sniffing model glue.

derit on June 27, 2013 at 2:58 PM

MadisonConservative on June 27, 2013 at 2:43 PM

Sounds like some maternal issues there, MadCon. Want to talk about it? Come over here and lie down on this couch…… ;)

GWB on June 27, 2013 at 3:00 PM

Yeah baby!

gophergirl on June 27, 2013 at 3:00 PM

Lots of 5-4 splits lately.Must be going around.

docflash on June 27, 2013 at 2:54 PM

The ruling was unanimous. The split was over whether they should simply impose the injunction themselves or whether they should send it back to the lower court.

GWB on June 27, 2013 at 3:02 PM

Sounds like some maternal issues there, MadCon. Want to talk about it? Come over here and lie down on this couch…… ;)

GWB on June 27, 2013 at 3:00 PM

No bad touch! NO BAD TOUCH!!

MadisonConservative on June 27, 2013 at 3:03 PM

Imagine the Mexican standoff created by the recent law that will soon require Churches to marry gays against their “tenets,” when the Constitution prevents the State from interfering in the Church.

HopeHeFails on June 27, 2013 at 3:03 PM

Yay! Sad that HL had to fight this thing.

dogsoldier on June 27, 2013 at 3:04 PM

It’s disgusting that its a split decision that the business has the right to being the charges…
The only reason this is good news is that the court found that an individual had the right to appeal a governor order in
Lieu of the Supreme Court finding otherwise yesterday…

But I’ll take what I can get…

Skywise on June 27, 2013 at 3:05 PM

MadisonConservative on June 27, 2013 at 2:43 PM

Methinks you mean Husbands! Not Male children, kids I have seen in HL, love the place!!

Lots of stuff to get into with an inattentive parent ;)

Scrumpy on June 27, 2013 at 3:05 PM

How’s that healthcare/ “tax re-definition” working out for you Mr. Roberts?

Rovin on June 27, 2013 at 3:06 PM

Yay! Sad that HL had to fight this thing.

dogsoldier on June 27, 2013 at 3:04 PM

We all have to fight this.

Thinking of going Amish…

Scrumpy on June 27, 2013 at 3:07 PM

22 May 2013: 4th Circuit Hears Oral Arguments Second Time In Liberty University’s Affordable Care Act Challenge

Last Friday, in the second time the case is before the court, the U.S. 4th Circuit Court of Appeals heard oral arguments in Liberty University, Inc. v. Lew. The case is now a religious freedom challenge to the contraceptive coverage mandate, as well as a broader challenge to the Affordable Care Act. An audio recording of the oral arguments is now available on the 4th Circuit’s website. Politico reports on the oral arguments. Originally the case was filed before the contraceptive coverage mandate was promulgated. The suit then claimed that the ACA more broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. The 4th Circuit dismissed the case, holding that the Anti-Injunction Act barred the lawsuit, and the Supreme Court denied certiorari. Plaintiffs, however asked for a rehearing on the decision to deny review after the Supreme Court in National Federation of Independent Business v. Sebelius held that the Anti-Injunction Act does not bar a challenge to the ACA. The Supreme Court granted the rehearing, vacated it prior denial of certiorari and remanded the case to the 4th Circuit for further consideration in light of the National Federation of Business case.

Generally, the 4th Circuit rules much faster than others.

Resist We Much on June 27, 2013 at 3:07 PM

Imagine the Mexican standoff created by the recent law that will soon require Churches to marry gays against their “tenets,” when the Constitution prevents the State from interfering in the Church.
HopeHeFails on June 27, 2013 at 3:03 PM

Technically it doesn’t. The government already bans churches from political speech.

Skywise on June 27, 2013 at 3:07 PM

Starting in four days, the federal government could start levying fines for non-compliance with the mandate amounting to $1.3 million while Hobby Lobby pursues its challenge.

Simple solution…..

Just fire all their full time employees and hire illegal immigrants. The mandate does not apply to them.

BacaDog on June 27, 2013 at 3:09 PM

We’re from the Government, and thou shalt strangle puppies and like it, no matter what your stupid faith says.

John the Libertarian on June 27, 2013 at 3:09 PM

Simple solution…..

Just fire all their full time employees and hire illegal immigrants. The mandate does not apply to them.

BacaDog on June 27, 2013 at 3:09 PM

Perhaps THIS will wake up the rest of America, when low to middle class have no jobs to go to!

Scrumpy on June 27, 2013 at 3:12 PM

Breaking O/T:

Dzhokhar Tsarnaev indicted on 30 charges for Boston Marathon bombing

Still no word of the investigation or apprehension of suspects in the terrorist attack in Benghazi. (Hint to FBI: Look in the boat)

Rovin on June 27, 2013 at 3:13 PM

Imagine the Mexican standoff created by the recent law that will soon require Churches to marry gays against their “tenets,” when the Constitution prevents the State from interfering in the Church.

HopeHeFails on June 27, 2013 at 3:03 PM

If this happens, the Gang of 8 may not like the backlash they get from the Mexican people. Not only from the Catholic Church which most Mexicans attend, but there are many Baptist Mexican Churches also. They may not like this Freedom “from” Religion.

These Dems & R’s don’t really understand the Mexican people.

bluefox on June 27, 2013 at 3:13 PM

No bad touch! NO BAD TOUCH!!

MadisonConservative on June 27, 2013 at 3:03 PM

Ahem. SCOTUS just ruled there is no such thing as bad touch.

Nutstuyu on June 27, 2013 at 3:13 PM

The ruling was unanimous. The split was over whether they should simply impose the injunction themselves or whether they should send it back to the lower court.

GWB on June 27, 2013 at 3:02 PM

That’s correct, plus in injunction cases it’s only in rare cases that appellate courts impose the injunction themselves. The common practice is to remand the case to the trial judge as he still has jurisdiction as to the trial on the merits and the injunction will remain in effect until the trial is completed and often beyond then. With a 9-0 decision as to the validity of the injunction itself, there’s really no way the trial judge is going to not issue it.

TXUS on June 27, 2013 at 3:14 PM

Thinking of going Amish…

Scrumpy on June 27, 2013 at 3:07 PM

Regular Mennonite works too.

Nutstuyu on June 27, 2013 at 3:15 PM

With a 9-0 decision as to the validity of the injunction itself, there’s really no way the trial judge is going to not issue it.

TXUS on June 27, 2013 at 3:14 PM

Haven’t met too many federal judges have you?

Nutstuyu on June 27, 2013 at 3:16 PM

These Dems & R’s don’t really understand the Mexican people.

bluefox on June 27, 2013 at 3:13 PM

Because the racist Congress is still using English when they should be using Spanish.

Nutstuyu on June 27, 2013 at 3:17 PM

finally, some good news… badly needed!

Sachiko on June 27, 2013 at 3:18 PM

Good deal.

Now, don’t worry. Sauerkraut will be by soon to derail the thread while attacked all us “stoopid Christianists”.

kingsjester on June 27, 2013 at 3:19 PM

Nutstuyu on June 27, 2013 at 3:15 PM

Yeah there is that too.

Hmmmm, but a guarantee tho is going muslim. /

Scrumpy on June 27, 2013 at 3:19 PM

kingsjester on June 27, 2013 at 3:19 PM

Grrr. Don’t conjure him, KJ!

22044 on June 27, 2013 at 3:20 PM

Sounds like some maternal issues there, MadCon. Want to talk about it? Come over here and lie down on this couch…… ;)

GWB on June 27, 2013 at 3:00 PM

Hot Gas – your preferred online therapist. Results guaranteed, or your money back.

22044 on June 27, 2013 at 3:22 PM

Good on them. Doesn’t matter tho, SCJ Kennedy has already branded us all as bigots and homophobes.

Kissmygrits on June 27, 2013 at 3:22 PM

More importantly, this is a significant win for private-sector business owners on religious liberty grounds.

It’s not just religious liberties they are going after. It’s all of them.

iurockhead on June 27, 2013 at 3:25 PM

Yay! Sad that HL had to fight this thing.

dogsoldier on June 27, 2013 at 3:04 PM

I totally agree. They had little recourse since this Administration, Supreme Court and Congress make laws & mandates that are Unconstitutional.

Happy for HL and this may give needed hope for other businesses.

…”for them that honour me I will honour…”
1st Samuel 2:30b

bluefox on June 27, 2013 at 3:27 PM

Ahem. SCOTUS just ruled there is no such thing as bad touch.

Nutstuyu on June 27, 2013 at 3:13 PM

lol. 100 internets to you.

cptacek on June 27, 2013 at 3:27 PM

bluefox on June 27, 2013 at 3:13 PM

Because the racist Congress is still using English when they should be using Spanish.

Nutstuyu on June 27, 2013 at 3:17 PM

I doubt if that would help this Congress:-)

bluefox on June 27, 2013 at 3:38 PM

Haven’t met too many federal judges have you?

Nutstuyu on June 27, 2013 at 3:16 PM

More than I ever wanted to, and that includes some on the SCOTUS. The fact is, even liberal hack federal trial judges won’t risk the ire of their appellate court, given what that court can do with a lot of other decisions he makes. They can make life miserable on a rogue trial judge in so many ways you can’t count them.

TXUS on June 27, 2013 at 3:38 PM

More than I ever wanted to, and that includes some on the SCOTUS. The fact is, even liberal hack federal trial judges won’t risk the ire of their appellate court, given what that court can do with a lot of other decisions he makes. They can make life miserable on a rogue trial judge in so many ways you can’t count them.

TXUS on June 27, 2013 at 3:38 PM

oooh, do tell at least some of them :)

cptacek on June 27, 2013 at 3:39 PM

Well, that’s good, but after yesterday I would not count on Tony Kennedy and the 4 Libs ruling that anybody can express religious disapproval in the marketplace of commerce or ideas.

senor on June 27, 2013 at 3:48 PM

“The court split 5-4 on whether to impose the injunction itself, ruling instead to send it back to the district court to rehear the motion. Four justices felt that Hobby Lobby fully met the legal requirements, while the majority ruled that the private company met enough of the requirements

This is big. One of the “legal requirements” for a preliminary injunctions is that the plaintiff show a “substantial probability of success on the merits.” This is why if you can win the PI there is a 90% chance you will win on the merits. In a case like this where the essential facts are not substantially in dispute and the matter is almost entirely one of legal issues that percentage becomes almost 100% probability you will have won the entire case if you win a preliminary injunction. Here, 4 justices on the appellate level have already decided that Hobby Lobby has won the case. The majority wanted to stall for time by sending it back down before committing themselves. The only thing sending it down to the district court will accomplish is that the 10th Circuit will have the benefit of the trial judge’s written opinion of law to consider when drafting their opinion and committing themselves to a decision on the merits. If the trial judge reads the tea leaves correctly here he will make the proper ruling and won’t suffer the embarrassment of reversal on appeal.

tommyboy on June 27, 2013 at 4:06 PM

More importantly, this is a significant win for private-sector business owners on religious liberty grounds. The appellate court has now ruled that the issue of forcing owners to violate their religious tenets through health-care mandates is at least worthy of review by the judiciary.

That is a truly sad little paragraph. It used to be understood that laws couldn’t violate religious freedom. Now we’ve got the government trying to tell us that religious freedom is limited to actual worship.

Ponder that in the insane demand for unnatural marriage. How much deference will be shown a private person who says he won’t offer services to homosexuals who decide they want to get “married” because of his religious convictions?

The answer is pretty obvious.

There Goes the Neighborhood on June 27, 2013 at 4:22 PM

The Obamassiah and Her Highness of Health Care hardest hit.

GarandFan on June 27, 2013 at 4:33 PM

Imagine the Mexican standoff created by the recent law that will soon require Churches to marry gays against their “tenets,” when the Constitution prevents the State from interfering in the Church.
HopeHeFails on June 27, 2013 at 3:03 PM

Technically it doesn’t. The government already bans churches from political speech.

Skywise on June 27, 2013 at 3:07 PM

No, it does not. Religious institutions can take stances on political issues. What they cannot do is endorse candidates.

I’m writing a lengthy post on this issue currently, which should be up on my blog in a couple of hours.

Also, there is no constitutional right to a religious ceremony FOR ANYONE and there is a very, very, very long line of caselaw where the Supreme Court has ruled that the government cannot interfere or intervene in the internal matters of a religious organisation or religious doctrine.

Resist We Much on June 27, 2013 at 4:34 PM

Never fear. Anthony Kennedy will channel his inner Roland Freisler and put them out of business.

Rixon on June 27, 2013 at 5:11 PM

Well, too bad no one on the 10th Circuit will ever get to SCOTUS. Too much common sense.

2ndMAW68 on June 27, 2013 at 5:17 PM

Also, there is no constitutional right to a religious ceremony FOR ANYONE and there is a very, very, very long line of caselaw where the Supreme Court has ruled that the government cannot interfere or intervene in the internal matters of a religious organisation or religious doctrine.

Resist We Much on June 27, 2013 at 4:34 PM

Well, until yesterday there was no constitutional right for gay marriage. And what’s to stop a state from refusing to recognize normal marriages to couples moving there from a state that does not recognize homosexual marriage?

And what’s to stop the president from just stepping in and issuing a decree? I think you presume too much that we are operating under a normal system of checks, balances and true law and order that is faithful to our Constitution and nearly 1,000 years of legal tradition.

That ship has sailed a long time ago. Sadly.

Rixon on June 27, 2013 at 5:18 PM

Finally, something to smile about.

pambi on June 27, 2013 at 5:32 PM

How much has Hobby Lobby spent in legal fees already to fight the Big Gov Monster?

Buy Danish on June 27, 2013 at 5:41 PM

Ultimately Hobby Lobby will lose. The 1st amendment’s religious protections were gutted long ago…..

hisfrogness on June 27, 2013 at 2:54 PM

That is just incorrect. The SCOTUS has been extremely friendly to “free exercise” cases, and more friendly to religion in general than most people know. Read “It’s Ok To Say “God”: Prelude to a Constitutional Renaissance”. Its a study of SCOTUS religion clause cases that’s written for the layman.

And if you don’t believe the current court can judge fairly for the Christian Church, read about Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

tgharris on June 27, 2013 at 5:44 PM

Well, until yesterday there was no constitutional right for gay marriage.
Rixon on June 27, 2013 at 5:18 PM

There still isn’t a constitutional right to “gay marriage”. You need to read more about the effects of yesterday’s rulings.

tgharris on June 27, 2013 at 5:50 PM

thanks for sharing the news… I’ve wondered what’s been going on with the Hobby Lobbby/HHS thing and have heard nothing for months…

shinty on June 27, 2013 at 6:58 PM

Ultimately Hobby Lobby will lose.

…you could argue they’ve already lost just by having to endure the government’s attack and legal payments…

shinty on June 27, 2013 at 7:02 PM

Imagine the Mexican standoff created by the recent law that will soon require Churches to marry gays against their “tenets,” when the Constitution prevents the State from interfering in the Church.
HopeHeFails on June 27, 2013 at 3:03 PM

Technically it doesn’t. The government already bans churches from political speech.

Skywise on June 27, 2013 at 3:07 PM

No, it does not. Religious institutions can take stances on political issues. What they cannot do is endorse candidates.

I’m writing a lengthy post on this issue currently, which should be up on my blog in a couple of hours.

Also, there is no constitutional right to a religious ceremony FOR ANYONE and there is a very, very, very long line of caselaw where the Supreme Court has ruled that the government cannot interfere or intervene in the internal matters of a religious organisation or religious doctrine.

Resist We Much on June 27, 2013 at 4:34 PM

Historically, there have been very strong protections. And we’ve seen a couple cases where SCOTUS was nearly unanimous in rejecting some new Obama overreach. Hosannah v. Tabor, for example, as you’ve mentioned many times.

But it’s still true that they are trying to circumscribe those protections as quickly as possible. The Obama overreaches I’ve mentioned, for example, were near-unanimous precisely because most administrations would not have even been tried to ignore the issues of religious freedom.

This latest is typical. The Obama administration essentially took the attitude that there were no religious exemptions from these laws because the laws were not aimed at churches. Individuals, then, had no “free exercise of religion.”

That’s almost exactly the view taken by the late Soviet government: rhetorically, you had full freedom of religion. But that only meant that you could go to church. You could not share your faith. You could not teach your faith to your children. You could not give someone a Bible.

We’re moving in exactly that direction now. Institutionally, we will have full free exercise of religion. Individually, the fact that a regulation requires you to violate a religious belief will be irrelevant.

Hobby Lobby had to create a lawsuit just to get this far. If the owner was motivated solely by the desire to make money. he would already have fallen in line. From a business perspective, it doesn’t make sense to challenge a federal regulation by lawsuit, because the lawsuit will easily cost more than compliance would have.

There Goes the Neighborhood on June 27, 2013 at 8:00 PM