A federal appeals court ruling on Friday increased the chances that the Supreme Court in its coming term will need to settle whether secular, for-profit corporations must provide contraceptive coverage to employees despite the owners’ religious objections.
A divided panel of the U.S. Court of Appeals for the 3rd Circuit ruled that a Pennsylvania cabinet-making company owned by a Mennonite family must comply with the contraceptive mandate contained in the Affordable Care Act.
The majority said it “respectfully disagrees” with judges in the U.S. Court of Appeals for the 10th Circuit in Denver, who recently narrowly found just the opposite. A split in interpreting federal statutes is usually an invitation for the Supreme Court to resolve the issue.
This one is novel: The justices have never said whether a secular corporation is protected by the Constitution or federal statute from complying with a law because of religious objections from its owners.
The 3rd Circuit majority noted that the court has numerous times — most recently in Citizens United v. Federal Election Commission — found that corporations have free speech rights. But it said there was a “total absence of caselaw” to support the argument that corporations are protected by the Constitution’s guarantee of free exercise of religion.
“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” wrote Circuit Judge Robert E. Cowen, who was joined by Circuit Judge Thomas I. Vanaskie.
Cowen said it did not seem plausible that an entity “created to make money could exercise such an inherently ‘human’ right.”
Circuit Judge Kent A. Jordan said in a dissent twice as long as the majority opinion that if there is a lack of case law establishing a corporation’s religious rights, “that is in all probability because there has never before been a government policy that could be perceived as intruding on religious liberty as aggressively as the mandate.”
The mandate requires companies with 50 or more employees to provide insurance that covers federally approved birth control measures. Conestoga Wood Specialties Company, which has 950 employees, is owned by the Hahn family, who say their Mennonite religion teaches that life begins at conception. They particularly object to having to cover the “morning-after” and “week-after” pills.
The lawsuit is among more than 60 filed across the country objecting to the contraceptive mandate. Some are filed by companies such as Conestoga and others by nonprofit groups and organizations with religious connections.
In a decision by the entire 10th Circuit, the closely divided judges ruled that the chain store Hobby Lobby was likely protected by the Constitution and the Religious Freedom Restoration Act from having to provide contraceptive coverage that violated the owners’ religious beliefs.
“It looks like we’re heading for a Supreme Court review,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is active in opposing the contraceptive mandate.
Marcia Greenberger of the National Women’s Law Center, which supports the law, agreed, and noted that other appeals courts will likely soon be deciding other cases on the issue.