723 F.3d 1114 (10th Cir. 2013), 12-6294, Hobby Lobby Stores, Inc. v. Sebelius

Docket Nº:12-6294.
Citation:723 F.3d 1114
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:HOBBY LOBBY STORES, INC.; Mardel, Inc.; David Green; Barbara Green; Mart Green; Steve Green; Darsee Lett, Plaintiffs-Appellants, v. Kathleen SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; Hilda Solis, Secretary of the United States
Attorney:S. Kyle Duncan (Luke W. Goodrich, Mark L. Rienzi, Eric S. Baxter, Lori H. Windham, and Ad
Judge Panel:Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, MATHESON, and BACHARACH, Circuit Judges.[*] HARTZ, Circuit Judge, concurring: GORSUCH, joined by KELLY and TYMKOVICH, Circuit Judges, concurring. BACHARACH, J., concurring. BRISCOE, Chief Judge, concurring in part and dissenti...
Case Date:June 27, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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723 F.3d 1114 (10th Cir. 2013)

HOBBY LOBBY STORES, INC.; Mardel, Inc.; David Green; Barbara Green; Mart Green; Steve Green; Darsee Lett, Plaintiffs-Appellants,

v.

Kathleen SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; Hilda Solis, Secretary of the United States Department of Labor; United States Department of Labor; Timothy Geithner, Secretary of the United States Department of Treasury; United States Department of the Treasury, Defendants-Appellees.

Emeritus Professor of Law Charles E. Rice; Professor of Law Bradley P. Jacob; Texas Center for Defense of Life; National Legal Foundation; Liberty, Life and Law Foundation; American Center for Law and Justice; Breast Cancer Prevention Institute; Bioethics Defense Fund; Life Legal Defense Foundation; The Right Reverend W. Thomas Frerking, Osb; Missouri Roundtable for Life; Archdiocese of Oklahoma City; Eagle forum; Sanford C. Coats; Senator Daniel Coats; Senator Thad Cochran; Senator Mike Crapo; Senator Charles Grassley; Senator Orrin G. Hatch, Senator; Senator James M. Inhofe; Senator Mitch McConnell; Senator Pat Roberts; Senator Richard Shelby; Congressman Lamar Smith; Association of Gospel Rescue Missions; Prison Fellowship Ministries; Association of Christian Schools International; National Association of Evangelicals; Ethics & Religious Liberty Commission of the Southern Baptist Convention; Institutional Religious Freedom Alliance; Christian Legal Society; Association of AmericanPhysicians & Surgeons; American Association of Pro-Life Obstetricians and Gynecologists; Christian Medical Association; Catholic Medical Association; National Catholic Bioethics Center; Physicians for Life; National Association of Pro Life Nurses; United States Justice Foundation; Congressman Frank Wolf; State of Oklahoma; Wywatch Family Action, Inc.; The C12 Group; Physicians for Reproductive Health; The American College of Obstetricians and Gynecologists; The American Society for Emergency Contraception; Association of Reproductive Health Professionals; American Society for Reproductive Medicine; Society for Adolescent Health and Medicine; American Medical Women's Association; National Association of Nurse Practitioners in Women's Health; James Trussell; Susan F. Wood; Don Downing; Kathleen Besinque; Americans United for Separation of Church and State; Union for Reform Judaism; Central Conference of American Rabbis; Women of Reform Judaism; Hindu American Foundation; National Women's Law Center; American Association of University Women; American Federation of State, County and Municipal Employees (Afscme); Black Women's Health Imperative; Boulder Now; Colorado Organization for Latina Opportunity and Reproductive Rights (Color); Gender Impacts Policy, a project of the Center of Southwest Culture; Ibis Reproductive Health; Law Students for Reproductive Justice; Mergerwatch; Naral Pro-Choice America; Naral Pro-Choice Colorado; Naral Pro-Choice Wyoming; National Organization for Women Foundation; National Organization for Women-Santa Fe Chapter (Santa Fe Now); National Partnership for Women and Families; New Mexico-National Organization for Women (Nmnow); Planned Parenthood of Arkansas & Eastern Oklahoma, Inc., d/b/a Planned Parenthood of Heartland-Oklahoma; Planned Parenthood Association of Utah; Planned Parenthood of Kansas & Mid-Missouri; Planned Parenthood of the Rocky Mountains, Inc.; Population Connection; Raising Women's Voices For The Health Care We Need; Service Employees International Union; Southwest Women's Law Center; Utah Health Policy Project; Center for Reproductive Rights; American Public Health Association; Guttmacher Institute; National Family Planning & Reproductive Health Association; National Latina Institute for Reproductive Health; National Women's Health Network; R. Alta Charo, Professor; Reproductive Health Technologies Project; American Civil Liberties Union; American Civil Liberties Union of Oklahoma; Anti-Defamation League; Catholics for Choice; Hadassah, the Women's Zionist Organization of America, Inc.; Interfaith Alliance Foundation; National Coalition of American Nuns; National Council of Jewish Women; Religious Coalition for Reproductive Choice; Unitarian Universalist Association; Unitarian Universalist Women's Federation; National Health Law Program; Mexican American Legal Defense and Educational Fund, Inc.; Asian Pacific American Legal Center; Forward Together; National Hispanic Medical Association; Ipas; Sexuality Information and Educational Council of the U.S.; Campaign to End Aids; Hiv Law Project; National Women And Aids Collective; Housing Works, Amici Curiae.

No. 12-6294.

United States Court of Appeals, Tenth Circuit

June 27, 2013

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          S. Kyle Duncan (Luke W. Goodrich, Mark L. Rienzi, Eric S. Baxter, Lori H. Windham, and Adèle Auxier Keim with him on the brief) The Becket Fund for Religious Liberty, Washington, D.C., for Appellants.

          Alisa B. Klein, Appellate Staff Attorney (Stuart F. Delery, Principal Deputy Assistant Attorney General, Sanford C. Coats, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Appellate Staff Attorney, with her on the brief) Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

          Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, MATHESON, and BACHARACH, Circuit Judges.[*]

          TYMKOVICH, Circuit Judge.

          This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs— two companies and their owners who run their businesses to reflect their religious values. The companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. They contend regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the plaintiffs believe

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to be abortifacients, the use of which is contrary to their faith.

         We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

         More specifically, the court rules as follows:

         As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim.

         Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim. Three judges (Briscoe, C.J., and Lucero and Matheson, JJ.) disagree and would affirm the district court on this question.

         A majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and Mardel's favor and remand with instructions to enter a preliminary injunction, but the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors.1

         One judge (Matheson, J.) reaches the merits of the plaintiffs' constitutional claim under the Free Exercise Clause, concluding that it does not entitle the plaintiffs to preliminary injunctive relief.2

          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

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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.

         I. Background & Procedural History

          A. The Plaintiffs

         The plaintiffs in this case are David and Barbara Green, their three children (Steve Green, Mart Green, and Darsee Lett), and the businesses they collectively own and operate: Hobby Lobby Stores, Inc. and Mardel, Inc. David Green is the founder of Hobby Lobby, an arts and...

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