Brothers Gilardi, owners of Freshway Foods and Freshway Logistics in Sidney, OH, objected on religious grounds to being required by Obamacare to provide insurance coverage that includes coverage for “contraceptive methods, sterilization procedures,” and so on. A lower court had sided with the government, but the DC Circuit ruled, muchly but not completely, in favor of the Gilardis.
The majority opinion, written by Judge Janice Rogers Brown, held that the birth control mandate
trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act
She also wrote that the contraceptive mandate forced the Gilardis into 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.
but then she applied this only to the Gilardis themselves. That’s the almost part of the ruling.
Unfortunately, Brown held against the Gilardis as this applies to their businesses (the downside of her ruling):
While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse. The free exercise protection—a core bulwark of freedom—should not be expunged by a label. But for now, we have no basis for concluding a secular organization can exercise religion.
But this makes no sense. If a corporation is person enough to freely engage in political speech (vis., Citizens United), how can it not be person enough to have a conscience from which to speak—and to act?
In a concurring dissent (because he agreed with the majority opinion as it applied to the Gilardis but disagreed with that opinion as it applied to the Gilardis’ businesses), Judge A Raymond Randolph wrote
Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma? If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (atheists, for example) possess them?
More, what is free exercise, if it is not the exercise by entities and individuals not formally…blessed…by government as Official Religious Organizations?
Judge Harry T Edwards’ dissent is even harder to understand. He wrote, in all seriousness, that legislative restrictions may trump religious exercise. How does that work, exactly? It sounds like he’s saying legislative restrictions trump the supreme Law of the Land.
Edwards went on, suggesting
Allowing religious exemptions to for-profit, secular corporations would undermine the universal coverage scheme: if the Gilardis’ companies were exempted from covering contraception, another corporation’s owners might just as well seek a religious exemption from covering certain preventative vaccines. A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.
Well, yeah. And? The vaccines may be entirely sound medicine—indeed, contraception and sterilization are entirely sound medicine, for those whose religious beliefs permit such. It seems, though, that Edwards has both misunderstood the Free Exercise Claus and rejected Chief Justice Howard Taft’s sound advice:
The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant….
Edwards then wrote in all seriousness
The mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages….
That wasn’t the question, though. The question was whether the employer should be required to violate its conscience by offering coverage that covers the contraceptives, not whether the employer should encourage employees to use them.
Then, in the very next sentence, he wrote
[T]he Gilardis remain free to express publicly their disapproval of contraceptive products.
This is just cynical. I can think of no other reason for this claim in this context. If a man publicly expresses his disapproval of a sin and then commits that sin, he’s still a sinner—and a hypocrite, even if pushed into sin by the Federal government.
The DC Circuit opinion can be found here.