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Another Contraception Coverage Ruling, A Different Result E-mail
Written by Don Byrd   
Tuesday, 20 November 2012

Initial rulings in contraception mandate lawsuits continue to roll in. I posted yesterday about the Tyndale Publishing opinion released last week. There, a judge issued a preliminary injunction stopping the government from enforcing the mandate against Tyndale because the government is likely unable to demonstrate a compelling government interest in applying the mandate to Tyndale's owners over the substantial burden it creates in forcing a choice between religious observance and compliance with the law. Without addressing the issue of whether the company itself can exercise religion, the judge agreed that Tyndale can file suit on behalf of its owners because, as a closely held corporation, it is the "alter-ego of its owners for religious purposes." 

A decision in a different case, issued yesterday, reached a different result. There, a federal judge in Oklahoma denied a preliminary injunction to Hobby Lobby, a closely held, secular, for-profit business making a similar claim. The judge directly addressed (pdf) the more explosive issue: whether a corporation can exercise rights of religious freedom at all.

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters... which is not the province of a general business corporation....

“Plaintiffs assert that “[i]t is settled law that corporations may exercise religion.” However, the cases they cite... involved religious organizations, not general business corporations. The same reasons behind the court’s conclusion that secular, for-profit corporations do not have First Amendment rights under the Free Exercise Clause support a determination that they are not “persons” for purposes of the RFRA.

In a footnote, the Court noted that the preliminary injunction standard employed by the Tenth Circuit - where Hobby Lobby's suit is being adjudicated - is different than the standard employed in the Tyndale case. And that may indeed account for the difference in outcome here. The bottom line, however, is that the difficult larger issues are being addressed differently by different courts. It will take a while for our federal courts to sort out these complex and difficult issues.

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