Court to weigh religious exemption for businesses opposing contraceptive mandate

A federal appeals court is weighing whether for-profit businesses can ask for an exemption from the health care law’s contraceptive mandate based on the owner’s religious views.

Two brothers, Francis and Philip M. Gilardi, in Ohio say the law would require them to violate their Roman Catholic religious beliefs by forcing them to provide contraception for their employees.

During a hearing Tuesday, one judge on the United States Court of Appeals for the District of Columbia Circuit pointed out the Gilardis’ companies, Freshway Foods and Freshway Logistics of Sidney, Ohio, are not religious groups and thus will have no claim to exemption.

"I don't see how the government doesn't prevail," said Judge Harry T. Edwards.

The other two judges on the panel pressed more against Department of Justice lawyer Alisa Klein’s defense of the government’s mandate right.

Judge Janice Rogers Brown asked if the government is requiring the brothers to forgo their constitutional rights. Klein said the Giraldis weren’t making a constitutional claim, but an injunction under the Religious Freedom Restoration Act of 1993, which states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

Brown asked Klein if religious owners of corporations have no right to free exercise of religion.

"There is no substantial burden on shareholders” and it’s the corporation that has to meet the obligation, Klein responded.

An earlier rejection in trial court concluded the Giraldis’ assertion that demanding companies comply with the contraception mandate was not the same as requiring the brothers to do so themselves.

"The Freshway Corporations are engaged in purely commercial conduct and do not exercise religion" under the applicable law, Judge Emmet G. Sullivan wrote.

The Giraldis argued in court filings that corporations often engage in "quintessentially religious acts such as tithing, donating money to charities, and committing to act in accordance with the teachings of a religious faith," as they said their own businesses do.

The brothers say they could face $14.4mn in annual penalties for not complying with the mandate. A separate appeals court has barred the government from enforcing they comply with the requirement until their case is settled.

The law already exempts houses of worship from the contraceptive requirement.

A similar case involving Hobby Lobby may reach the Supreme Court, a move that has the support of the Obama administration. The craft company and a sister organization won a temporary injunction from the contraception mandate after the 10th US Circuit Court of Appeals ruled in their favor.