It means the Green’s live to fight another day. In a plurality the case was remanded to the district course for further determination on the merits as to whether or not the Green’s should have an injunction while the matter is decided. Now, the district court is strongly encouraged to rule that an injunction is proper and then hear the case – but not ordered to do so.
What you posted is the hypothetical holding of a single Circuit Judge dissenting in part and concurring in part. The case has four written opinions. The holding of the majority is:
“Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court’s denial of the plaintiffs’ motion for a preliminary injunction and remand with instructions that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs’ motion.”
The entire ruling is here:
http://www.ca10.uscourts.gov/opinions/12/12-6294.pdfThe basic reasoning of the holding is this:
1. STANDING
a. The Green’s have standing because they own several trusts and those trusts hold for the corporate entities Hobby Lobby and Mardel.
b. Hobby Lobby and Mardel are “faith based companies” who have a for-profit religious mission.
c. The Green’s have sincere religious beliefs that pass through to their trusts and then on to the companies owned by their trusts.
d. Individuals have a right to exercise religion, individuals can form organizations, religious organizations have a right to exercise religion. Therefore, for-profit organization are people who can exercise religion.
2. BURDEN ON RELIGION
a. The Green’s believe some forms of birth control = abortion.
b. ObamaCare forces large for-profit business to offer those forms of birth control to their employees.
c. Forcing a for-profit company to offer birth control violates the beliefs of the people who own the trusts which own the companies – because forcing them to buy insurance coverage including birth control is not simply a matter of compensation.
d. The religious beliefs of those owners trumps the governments interest (having already decided standing).
e. The interest of the employees to not have the non-religious employer force the owners religion on them is not relevant because employees can buy their own insurance.
The majority does raise a good point which I previously over looked: a kosher butcher operates a for-profit business that necessarily serves a religious function. That person/entity would certainly have standing to challenge a law making kosher butchering practices illegal. The law stops the principle activity of the business on religious grounds and I think it must face additional scrutiny to succeed (e.g., if the government could prove Kosher Butchers poses a substantial health risk to the general public or somehow violates other peoples civil rights).
But I think that is a relatively narrow exception and it certainly doesn’t apply to retailers whose principle activity is to sell crap to the public. No matter how religious the owners are, the corporations principle activity is to generate profit by selling merchandise to the public and Obamacare does not hinder that function. The largest difference between Hobby Lobby and Jo-Anne Fabric is that the people who control the trusts which owns Hobby Lobby are more religious. Therefore, they should have leave to disregard laws that dictate the operation of the business with which they disagree. Mardel may have a better claim – but the law does nothing to stop or hinder the principle business activity of Mardel either.
The issues start with standing. The Green’s are prevented from making a personal claim because Obamacare does not make them do anything. It is directing Hobby Lobby to do something. Even ignoring the trust ownership (which they do entirely), the Green’s lack standing under the Shareholder Standing Rule. If a corporation and its shareholders have a common interest, the corporation is the proper actor as naming the individuals is redundant. The ruling starts by ignoring the corporate distinction and continues throughout.
A corporation, even a family corporation is a separate and distinct legal entity. Try suing Hobby Lobby, they will make sure to point that out to you if you name the Green’s personally. Even though they wholly own and totally direct the operations of Hobby Lobby, the Green family is not Hobby Lobby. A corporation is a separate legal entity, one that has “no conscience, no beliefs, no feelings, no thoughts, and no desires.” Citizens United, 130 S. Ct. at 972. The Court is imparting the beliefs of the owners to the separate and distinct entity – which is improper under 413 years of English and American Corporate law.
Free exercise jurisprudence has always drawn a distinction between institutions whose principle activity is religious, and everyone else. For profit corporations have NEVER been held to have free-exercise rights before. Not in the 140 years of the Free Exercise clause nor in the 20 years of the RFRA. Not Congress, the Supreme Court, or the State of Oklahoma has ever legislatively or judicially granted religious rights to for-profit corporations and the logic in the 10th Circuit’s decision advocating such is flawed. The dissent rightfully calls this a “radical revision of 1st Amendment Law and the law of corporations.”
In addition to the standing issue , the lack of evidence, and the lack of precedent – the massive gaps in logic will prove to be fatal. The term “faith based company” has never been used in any precedent setting environment (statue, appellate court, etc.). A company has never before been held to have religious beliefs – as pointed out above the Supreme Court has specifically said they do not have beliefs. The leap in logic from “individuals can have religion and churches can have religion” to “for-profit corporations should too” is embarrassing. Not to mention wholly distorting the intent, history, and jurisprudence of the RFRA – which, according to the legislative history, was never meant to expand the free exercise clause .
Even the holding finds flaws within itself –
How does the Federal Government judge which corporations hold sincere religious beliefs and thus stop for-profit entities from choosing the most profitable “belief.” Where is the line for corporations forcing their religious beliefs upon their employees? If “person” in the entirety of Federal Law refers to individuals and corporations, how do we reconcile hundreds of incongruent laws? If a new class of companies called “faith based company” is now created, are those companies exempt from any law the owners object to on religious grounds or must each be litigated? Can the government regulate the behavior of “faith based companies” and still avoid “entanglement” with religion? Can a church convert to a “faith based company” and distribute dividends to its founders?
The Free Exercise Clause and the RFRA are both designed and have always been held to protect the free exercise of religion by individuals and non-profit organizations. This is clear by history, jurisprudence, and context. Corporations are separate and distinct legal entities who do not have religious beliefs. To impart the religious beliefs of owners unto their for-profit endeavors and by extension their employees without sound logic (which, I would argue, would exist for the kosher butcher) is in error. For-profit corporations should not be allowed to disregard laws they do not like because of the owners' religious beliefs nor should owners of a for-profit corporation be able to force their religious beliefs on their employees.
