Congress Joins Retailer’s Protest to Obamacare

(CN) - Eleven members of Congress are among those who urged the 10th Circuit to exempt a family-owned retailer from the contraception mandate in health care reform.

Hobby Lobby, the Christian-themed retailer Mardel and five members of the Green family that founded the Oklahoma City-based crafts retailer sued the government in September.

They alleged that a provision of the Patient Protection and Affordable Care Act unfairly forces religious-minded business owners, such as themselves, to violate their faith under threat of millions of dollars in fines.

In rejecting their demands for an injunction several months ago, U.S. District Judge Joe Heaton in Oklahoma City found that the retailers are not "persons," under the Religious Freedom Restoration Act (RFRA).

The U.S. Supreme Court declined to hear an emergency appeal, and the case proceeded to the Denver-based federal appeals court. On Tuesday, the 10th Circuit received an amicus brief on their behalf from Sens. Orrin Hatch, Daniel Coats, Thad Cochran, Mike Crapo, Charles Grassley, James Inhofe, Mitch McConnell, Pat Roberts and Richard Shelby, as well as Reps. Lamar Smith and Frank Wolf.

"Congress plainly wrote RFRA to include corporations," the 29-page brief states.

The congressmen argued that Obama administration has "created a three-tier categorization of religiously objecting employers and have subjected plaintiffs to third-class treatment in the lowest tier."

"This contravenes the design of RFRA," they added. "Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances."

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, says the brief "leaves no doubt" that Congress intended to protect the religious freedoms of those like Hobby Lobby and the Greens against the mandate.

"While any brief by sitting members of Congress is significant, this one comes from members who originally supported the federal civil rights law - the Religious Freedom Restoration Act of 1993 - which is at the heart of the mandate challenges," Duncan said in a statement.

In a separate brief, Oklahoma Attorney General Scott Pruitt said religious faith is "more than a mere belief" and that Judge Heaton recognized the Greens' faith as more than a "mere intellectual exercise."

"Operation of the Green Family's corporations in a manner consistent with the Green Family's religious faith is no less worthy of respect and protection than is the religious faith practiced by church members through a church also organized as a corporation under Oklahoma General Corporation Act," the 31-page brief states. "In short, if any corporations organized under the Oklahoma General Corporation Act are deserving of religious liberty, these corporations are."

Pruitt says the mandate "substantially burdens" the religious faith of citizens who are otherwise fully protected by the Constitution and state laws.

"Any regulation that requires an employer to violate their lawful religious beliefs and practices goes directly against the ideals that our Founding Fathers set in place to protect Americans from an overbearing and intrusive government," Pruitt said in a statement. "It conflicts with the most basic elements of freedom provided to all Americans to practice their lawful religion wherever, whenever and however they choose."

Other briefs in support of Hobby Lobby were filed by the Archdiocese of Oklahoma City, the Liberty, Life and Law Foundation, The United States Justice Foundation, WyWatch Familiy Action Inc., the American Center for Law & Justice and the Association of American Physicians & Surgeons, among others.

In January, a Texas state legislator proposed giving tax breaks to employers who face fines by the federal government if they refuse to comply with the mandate, including Hobby Lobby.

House Bill 649, by state Rep. Jonathan Stickland, R-Bedford, would indemnify employers from all state taxes if they invoke religious reasons.

"It is simply appalling that any business owner should have to choose between violating their religious convictions and watching their business be strangled by the strong arm of federal mandates and taxation," Strickland said at the time.

If passed, the bill would require a business to provide employees with a health insurance plan, must refuse to cover emergency contraception under Obamacare, must have been fined after Jan. 1, 2013, for failure to comply and must have paid the fine.

Follow @davejourno

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