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En Banc Rehearing for Hobby Lobby Obamacare Challenge

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By William Peacock, Esq. on April 05, 2013 3:47 PM

This could get ugly.

In the days before Christmas, Holly Lobby was given neither 2 turtle doves, nor 11 pipers piping. Instead, the self-described "evangelical Christian" owners were given something far less desirable: a rejection of their request for an injunction against enforcement of the Affordable Care Act's birth control provisions.

The craft store conglomerate owners take issue with the requirement to provide the "morning after" and "week after" pills, which per their beliefs, are tantamount to providing abortions.

Unfortunately for them, the lower court ruled that there is an exception in the Religious Freedom Restoration Act (RFRA) for secular for-profit businesses and that enforcement of the Obamacare mandates would not substantially burden their exercise of religion.

Though the mandate took effect on January 1, Hobby Lobby found a loophole. By shifting their plan dates, they were able to avoid fines for a few months. However, once their time runs out, they will face up to $1.3 million in fines per day.

In late February, 11 Republican Congressman, led by Sen. Orrin Hatch of Utah, submitted an amicus brief in support of the chain's challenge of the mandate. Their brief incorporates SCOTUS's definition of corporations as people, as well as the legislative intent of those who passed the RFRA (including the eleven Congressmen behind the amicus brief).

The brief argues that the RFRA was intended to apply a "single, religion-protective principle for evaluating all actions of the federal government that substantially burden the exercise of religion." Instead of a single principle, however, the lower court carved out the aforementioned exception for secular for-profit businesses.

In other words: Christian-owned businesses have the same rights under the RFRA as Christian people.

Something they, or the counsel for Hobby Lobby said must've struck a nerve. The Tenth Circuit just granted an en banc rehearing of the case - which according to one legal commentator, Ian Millhiser, argues is "an ominous sign for women workers."

He makes a few good points. En banc hearings are often granted when the majority disagrees with the three person panel's ruling. Furthermore, 6 of the 10 active judges are Republican appointees (though one Republican appointee is recused).

The question before the Tenth Circuit is almost certainly going to involve the reach of the RFRA. While Sen. Hatch et. al. argue that it broadly protects corporations and people's religious freedoms, Millhiser argues that it merely restored the rule of United States v. Lee, which prohibited employers from "impos[ing] the employer's religious faith on the employees."

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