WASHINGTON — The D.C. Circuit Court recently delivered another defeat for the Obama administration’s Health and Human Services’ contraceptive mandate. And in doing so, it set out substantive arguments that the Supreme Court would do well to adopt if it agrees to hear one or more cases challenging the federal mandate, authorized under the Affordable Care Act.

In Gilardi v. Department of Health and Human Services, two brothers, Frank and Phil Gilardi — faithful Catholics and owners of Freshway Foods in Ohio — filed suit to prevent application of the mandate for them, arguing that it violated their rights, as protected under the Religious Freedom Restoration Act (RFRA).

The lower court rejected this claim for two reasons. First, the lower court found that the Gilardis’ companies could not themselves assert First Amendment rights to free exercise of religion. Second, the lower court found that the Gilardis’ own freedom of religion would not be "substantially burdened."

These are the two core questions that the Supreme Court will have to address if and when it considers the HHS mandate, and the circuit court opinion — written by Judge Janice Rogers Brown, an appointee of President George W. Bush — provides the constitutional and statutory arguments, should the Supreme Court decide to invalidate the HHS mandate.

As to the first point, Judge Brown’s opinion canvassed the available arguments and found that the law was not clear enough explicitly to grant religious-exercise rights to secular corporations. However, Judge Brown’s decision did not foreclose the possibility in the future, and she certainly was not of the view — as some other courts have been — that such corporations could never themselves exercise religious rights.

Indeed, the D.C. circuit court refuted the central government argument on this issue, holding that "if the government is correct, the price of incorporation is not only the loss of RFRA’s statutory free-exercise right, but the constitutional one as well."

The government argued before the circuit court that if people choose to incorporate, they cannot assert their individual religious liberty through the corporate form, and because corporations do not have religious-liberty rights on their own, the right essentially disappears. The court disagreed.

Instead, Judge Brown’s opinion concluded that "we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses." In other words, the fact that individuals act through corporations does not invalidate religious-liberty claims either under RFRA or the Constitution.

The court then turned to the Gilardis’ own religious beliefs and found that the HHS mandate substantially burdens their free-exercise rights under RFRA. Stated the court, "We disagree with the government’s foundational premise. The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a health-care plan."

That is to say, the court moved the focus of the argument from the employee’s choice as to whether to use contraception under an insurance plan to the problem faced by the employer: that the HHS mandate forces the business owner to provide something that violates his religious beliefs.

The court went on to note that the real issue was that "the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties."

That choice was almost the very definition of being substantially burdened, the court found, drawing on Founding Fathers such as Thomas Jefferson, who wrote that the right to free exercise "prohibits the government from ‘compel[ling] a man to furnish contributions of money for the propagation of opinions which he disbelieves.’"

Throughout the HHS mandate controversy, the government has claimed that the mandate is vindicating important government interests that trump the rights of religious believers. The government thus asserts that the mandate is in compliance with the Religious Freedom Restoration Act.

Yet Judge Brown’s ruling held that the government was not able to prove that the law had secured the provision of the contested services in the least restrictive way possible, in a manner that would minimize the burden on the religious business owner.

Indeed, the ruling concluded that the state had failed to demonstrate its "compelling" interest in providing co-pay-free contraception and other services. In sum, the government had no compelling interest that justified the imposition on the Gilardis.

The government’s assertions that the HHS mandate’s purpose was "safeguarding the public health," preserving "autonomy" or serving "gender equality" were found by the court to be either too vague or contradictory in the face of the statutory and constitutional protections of religious liberty.

Likewise, other court rulings in HHS mandate cases have noted the absurdity of the government’s claim to be protecting compelling government interests yet allowing millions of Americans to be exempted from the mandate. Judge Brown’s ruling in Gilardi makes the same point but goes on to note that the government failed to address any of the alternative means to address the goals sought by the mandate, some of which had been proposed by the Gilardis themselves. If there were such alternative means that served the mandate’s goals yet did not burden religious liberty as much, then the mandate would fail the constitutional test.

In light of the government’s failure to address possible ways to effectuate the mandate’s purposes, the court concluded it had no basis to agree with the government that the HHS mandate was the only way to achieve the government’s interests in the least restrictive manner.

Gilardi is an important decision and a strong explanation of the weaknesses of the government’s constitutional and logical arguments supporting the HHS mandate.


Gerald J. Russello is editor of the

University Bookman.