On Friday, a divided D.C. Circuit Court of Appeals ruled against the Obama administration in yet another challenge to the birth control benefit in the Affordable Care Act, finding that two Catholic brothers can individually challenge the law but that their businesses lack standing to do so.
Francis and Philip Gilardi own Freshway Foods, a 400-person secular, for-profit produce company based in Ohio. Devout Catholics, they argued the contraception mandate violated their religious liberties as individuals and the religious exercise rights of their business. A lower court denied their request for an injunction blocking enforcement of the mandate; Friday’s decision reversed that denial, in part, and sent the case back to the lower court for further consideration. The 2-1 majority found that Freshway,
as a secular organization, cannot exercise religion under the Religious Freedom Restoration Act (RFRA) and therefore lacks standing to challenge the mandate. But a different majority of judges found that the Gilardis as individuals could bring a claim under the RFRA.
The majority opinion was authored by Judge Janice Rogers Brown, who is among the most conservative judges on the federal bench. Brown’s opinions demonstrate a history of hostility toward reproductive privacy claims, and this is not her first look at the issue of contraceptive equity. While a justice on the California Supreme Court, Brown was the sole dissent in a decision that found Catholic Charities was in violation of California’s contraception prescriptive equity statute by failing to provide its employees insurance coverage for contraception
. In her dissent, Brown said that if female employees felt discriminated against by Catholic Charities’ refusal to provide insurance coverage for contraception, they should “move to more congenial employment.”
Brown’s opinion Friday demonstrated the same disdain for equality in employment benefits and hinted that just because the court was not going to go so far as to confer First Amendment r
eligious exercise rights to corporations in this opinion, that doesn’t mean they won’t in the future. “But that the Court has never seriously considered such a claim by a secular corporation or other organizational entity is not to say it never will,” Brown wrote.
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Brown also rejected extending Citizens United v. Federal Election Commission so far as to find those rights free exercise rights, an extension adopted by the Tenth Circuit in Hobby Lobby. But the Supreme Court is currently considering taking up the Hobby Lobby case, so the potential for extending Citizens United so far as to find constitutional corporate religious exercise rights remains. “Perhaps Appellant’s constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free exercise rights, will ultimately prevail,” Brown wrote. “But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations the Court has been all but silent.”
But if Brown and her colleagues were unwilling to find explicit corporate religious exercise rights, they seemed willing to imply them by allowing the Gilardi brothers to move forward with their challenge individually, claiming that if “a company is owned and controlled by a few like-minded individuals who share the same religious values and run the company pursuant to those values,” the company then serves as the owners’ proxy or surrogate. This “pass-through” theory, in which corporations are merely vessels by which their owners express their personal beliefs, is just the formula for a religiously conservative libertarian like Brown. “The burden on religious exercise does not occur at the point of contraception purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a health care plan,” wrote Brown. “In other words, the Gilardi
‘s are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.”
If Brown’s distinction between the corporation and its owners sounds meaningless, that’s because it is. Brown characterizes the Obama administration’s argument that free exercise rights are individual freedoms and thus not transferable to corporations as “perplexing and troubling,” despite a history of Supreme Court precedent that clearly states businesses may not use religious liberty claims to shield themselves from civil rights laws. And her reasoning highlights an important undercurrent to the ruling from the D.C. Circuit Court of Appeals: the fight over President Obama’s judicial nominees. Republicans insist the D.C. Circuit vacancies do not need to be filled, but in reality they see blocking nominees to the court as the clearest path to maintaining a conservative edge on the nation’s second most powerful court.
The Gilardi case is one of more than 70 across the country currently pending challenging the contraception mandate. In similar challenges by secular, for-profit businesses, the Third Circuit and the Sixth Circuit previously ruled that a for-profit company cannot exercise religion while the Tenth Circuit, in contrast, held that the rule substantially burdened the religious exercise of craft supply chain Hobby Lobby. The Roberts Court has been asked to review those decisions and is expected to enter into the legal battle as early as this term.