DC Appeals Court: Contraception Coverage Mandate Violates Religious Freedom

Written by Don Byrd
The D.C. Court of Appeals yesterday became the latest Circuit to rule on a religious freedom challenge to the contraception coverage mandate in the Affordable Care Act. At issue are the owners of closely-held corporations who object on religious grounds to providing their employees with insurance that includes such coverage. While the law grants exemption to religious organizations, and provides a workaround for institutions affiliated with denominations, there is no exception for the business owner of a secular corporation who merely has strong personal religious beliefs.

A few appeals courts have ruled on this issue, which seems destined for Supreme Court review in the near future. Most recently, the 6th Circuit refused to halt the mandate, agreeing with the government that corporations are not “persons” who can exercise religion according to the Religious Freedom Restoration Act. The 10th Circuit reached the opposite conclusion, finding corporations are persons for religious exercise purposes. That ruling halted the contraception coverage mandate against Hobby Lobby, which argued that the mandate unlawfully forces a choice between following the company’s religious beliefs and suffering substantial government penalty.

How did the DC Circuit come out on Friday? The Court agreed with the plaintiffs that the mandate violates their religious freedom rights, paving the way for the trial court to issue an injunction halting enforcement of the law. However, the DC Circuit agreed with the government that corporations cannot exercise religion under RFRA. From the opinion (pdf):

Beyond… cases involving religious organizations… we glean nothing from the Court’s jurisprudence that suggests other entities may raise a free-exercise challenge.
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When it comes to the free exercise of religion… the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.
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No… corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right. When it comes to corporate entities, only religious organizations are accorded the protections of the Clause. And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history.

So, if corporations cannot exercise religion, why did the Court find the religious freedom of its owners is likely violated and reverse the trial court’s refusal to grant an injunction? Because the individual owners of the corporation here *are* substantially burdened by the mandate on their company, the court ruled, even if the company itself is not.

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.