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U.S. Constitution Title: Gilardi v DHHS, DC Cir 13-5069 (1 Nov 2013), OPINION, upholds Ohio challenge to Obamacare birth control mandate Gilardi v DHHS, DC Cir 13-5069 (1 Nov 2013), OPINION, upholds Ohio challenge to Obamacare birth control mandate [Footnotes omitted] [At 8-9] At the time of the Framing, a great debate raged on the precise formulation of what we now know as the Free Exercise Clause. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1480–85 (1990). The earliest drafts from the House of Representatives focused on the protection of conscience, rather than the “exercise of religion.” See id. at 1482; see also 1 ANNALS OF CONGRESS 729 (1789) (noting a later amendment to change the Clause’s prototype to read: “no religion shall be established by law, nor shall the equal rights of conscience be infringed”). And as the debates went on, strong concerns arose that the rights of religious sects would not be “well secured under the . . . Constitution.” 1 ANNALS OF CONGRESS 730 (remarks of Daniel Carroll, Aug. 15, 1789). To address these concerns and others, the House continued to tinker and toil; once the dust had settled, it eventually proposed a constitutional amendment barring Congress from “prevent[ing] the free exercise” of religion and “infring[ing] the rights of conscience.” 1 id. at 766. But the Senate had different ideas, and in the end, it was the free exercise of religion—standing alone—that was sent to the states for ratification. See McConnell, supra, at 1488; see also LOUIS FISHER, RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS 56 (2002). [At 10] That is not to say the Court views organizations as constitutional outliers—indeed, its jurisprudence reflects the foundational principle that religious bodies—representing a communion of faith and a community of believers—are entitled to the shield of the Free Exercise Clause. The Court has heard free-exercise challenges from religious entities and religious organizations. [At 18-20] The only dispute touches on the characterization of the burden. The burden is too remote and too attenuated, the government says, as it arises only when an employee purchases a contraceptive or uses contraceptive services. 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 healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties. See Thomas, 450 U.S. at 717–18; Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”); Kaemmerling, 553 F.3d at 678. The Framers of the Constitution clearly embraced the philosophical insight that government coercion of moral agency is odious. Penalties are impertinent, according to Locke, if they are used to compel men “to quit the light of their own reason, and oppose the dictates of their own consciences.” JOHN LOCKE, A LETTER CONCERNING TOLERATION 13–14 (J. Brook ed., 1792) (1689). Madison described conscience as “the most sacred of all property,” James Madison, Property, NAT’L GAZETTE, Mar. 29, 1792, at 174, reprinted in JAMES MADISON’S “ADVICE TO MY COUNTRY” 25, 83–84 (David B. Mattern ed., 1997), and placed the freedom of conscience prior to and superior to all other natural rights. Religion, he wrote, is “the duty which we owe to our Creator . . . being under the direction of reason and conviction only, not of violence or compulsion,” 1 MADISON PAPERS 174 (1962), “precedent” to “the claims of Civil Society,” JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785); see also United States v. Macintosh, 283 U.S. 605, 633–34 (1931) (Hughes, C.J., dissenting) (“[I]n the forum of conscience, duty to a moral power higher than the state has always been maintained. . . . The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”). From thence sprang the idea that the right to free exercise necessarily prohibits the government from “compel[ling] a man to furnish contributions of money for the propagation of opinions which he disbelieves.” THOMAS JEFFERSON, THE VIRGINIA ACT FOR ESTABLISHING RELIGIOUS FREEDOM (1786). And that prohibition has plainly manifested itself throughout the years as an integral component of the freeexercise guarantee. Justice Brennan, writing for the Court in Sherbert v. Verner, 374 U.S. 398 (1963), put it well: “Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals because they hold religious views abhorrent to the authorities.” Id. at 402 (citations omitted). The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employerprovided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” See id. 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. See Thomas, 450 U.S. at 718. [At 25-26] The government’s invocation of a “woman’s compelling interest in autonomy” is even less robust. The wording is telling. It implies autonomy is not the state’s interest to assert. Nevertheless, the government, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972), claims the mandate protects a woman’s ability to decide “whether to bear or beget a child.” See id. at 453. Our difficulty in accepting the government’s rationale stems from looking at the Eisenstadt quote in its entirety: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matter so fundamentally affecting a person as the decision to bear or beget a child.” Id. (emphasis added). Regardless of what this observation means for us today, it is clear the government has failed to demonstrate how such a right—whether described as noninterference, privacy, or autonomy—can extend to the compelled subsidization of a woman’s procreative practices. Again, our searching examination is impossible unless the government describes its purposes with precision. As with Mead, simply invoking Eisenstadt is not enough. [At 28-30] Let us assume, however, the government has a compelling interest. Even then, we cannot see how the mandate is “the least restrictive means of furthering that . . . interest.” See 42 U.S.C. § 2000bb-1. It suffers from two flaws that cannot be overcome. First, there are viable alternatives—presented by the Gilardis and others—that would achieve the substantive goals of the mandate while being sufficiently accommodative of religious exercise. See Appellants’ Br. at 61; see also Conestoga Wood, 724 F.3d at 414–15 (Jordan, J., dissenting). The government could defeat these alternatives by proving they would “present an administrative problem of such magnitude, or . . . afford the exempted class so great a competitive advantage, that such a requirement would . . . render[] the entire statutory scheme unworkable.” Sherbert, 374 U.S. at 408–09. But it has made no such case; for all we know, a broader religious exemption would have so little impact on so small a group of employees that the argument cannot be made. Moreover, the mandate is self-defeating. When a government regulation “fail[s] to prohibit nonreligious conduct that endangers [its asserted] interests in a similar or greater degree” than the regulated conduct, it is underinclusive by design. See Lukumi, 508 U.S. at 543. And that underinclusiveness can suggest an inability to meet the narrow-tailoring requirement, as it raises serious questions about the efficacy and asserted interests served by the regulation. In this case, small businesses, businesses with grandfathered plans (albeit temporarily), and an array of other employers are exempt either from the mandate itself or from the entire scheme of the Affordable Care Act. Therefore, the mandate is unquestionably underinclusive. See Hobby Lobby, 723 F.3d at 1143; see also Conestoga Wood, 724 F.3d at 414 (Jordan, J., dissenting) (“It cannot legitimately be said to vindicate a compelling governmental interest because the government has already exempted from its reach grandfathered plans, employers with under 50 employees, and what it defines as ‘religious employers’, thus voluntarily allowing millions upon millions of people—by some estimates 190 million—to be covered by insurance plans that do not satisfy the supposedly vital interest of providing the public with free contraceptives.” (internal citations omitted)). [At 32] We conclude the district court erred in denying a preliminary injunction for the Gilardis on the grounds that their case was unlikely to succeed on the merits; therefore, we reverse the district court’s denial of a preliminary injunction for the individual owners. Because the court premised its decision entirely on a question of law, we must remand for consideration of the other preliminary-injunction factors. See Chaplaincy of Full Gospel Churches, 454 F.3d at 304. We affirm the district court’s denial of a preliminary injunction with respect to the Freshway companies. So ordered.
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#1. To: A K A Stone (#0)
Ping. I believe you will find this of interest. The Gilardi companies are located in Sidney, Ohio
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