In Colorado on Friday, U.S. District Court Judge John Kane, a Carter appointee, granted a preliminary injunction on behalf of Hercules Industries, halting the government’s ability to enforce its anti-conscience mandate against the company while the lawsuit challenging the mandate continues in court.
Hercules is a family-owned, for-profit company whose self-insured health plan for its 265 employees does not cover abortion-inducing drugs, sterilization, and contraception. It sued the Obama Administration to protect its right to continue to administer its health plan in a way that comports with the family’s religious faith. The injunction is the first-ever ordered against the mandate.
Judge Kane’s decision identified two key portions of the company’s articles of incorporation reflecting the role of religion in its corporate governance—a statement that its primary purposes were to be achieved by “following appropriate religious, ethical or moral standards” and another that directed its board to prioritize those “religious, ethical or moral standards” at the expense of profitability.
Hercules’s health insurance plan was not “grandfathered” from the conscience-crushing requirements of the mandate. Judge Kane noted that unless the injunction was issued, Hercules would be required to include no-cost coverage for contraception in its plan by November 1 or face monetary penalties.
As Judge Kane acknowledged, granting a preliminary injunction is “an extraordinary remedy,” concluding that the harm to the government of non-enforcement “pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights” to operate their business consistent with their convictions. Judge Kane concluded that the government’s interests in enforcing the mandate were undercut by the numerous exceptions to the mandate that the Administration created for other entities. “These interests are countered, and indeed, outweighed, by the public interest in the free exercise of religion,” he stated.
Judge Kane concluded that the company’s claims under the Religious Freedom Restoration Act of 1993 (RFRA) provided adequate grounds for ruling in favor of their requested injunction. Under RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless it can demonstrate that doing so “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The Administration, according to Judge Kane, argued that “as a for-profit, secular employer, Hercules cannot engage in an exercise of religion.” In other words, the company owners forfeited their right to religious liberty as soon as they sought to earn a living by running a corporation. Under that logic, if the government decided to require any business that served or prepared food to offer pork, kosher or halal butchers would be forced to forgo their most deeply held religious convictions in order to stay in business. Accepting the government’s position would effectively push religion out of every sphere of public life and restrict the free exercise rights of adherents to live out their faiths in their day-to-day lives. The plaintiffs presented a strong argument that RFRA’s religious liberty guarantee is not limited to individuals alone acting within their houses of worship.
Judge Kane concluded that the case presented novel issues of first impression and that the question of whether a corporation can exercise religion merited “more deliberate investigation.”
The court held that the government had failed to establish, at least at this preliminary stage of the proceedings, that it had a compelling interest in applying the mandate to these plaintiffs (since it had granted exemptions to so many other, non-religiously affiliated employers) and that there were no feasible less-restrictive alternatives. (The government could provide free birth control directly, as it has through other programs.)
It is worth noting that while the court concluded that the “balance of equities tip strongly in favor of injunctive relief in this case,” the case is in its early stages and will proceed to a trial on the merits. Nonetheless, religious liberty has prevailed in round one of the fight against the conscience-crushing mandate.