CHICAGO—Lawyers for two Roman Catholic-owned companies in Illinois and Indiana argued before the 7th Circuit Court of Appeals Wednesday that a law forcing them to include birth control in their employees’ benefits would violate their First Amendment rights.
But in an unexpected twist during a hearing on the merits of a preliminary injunction, the lawyer for the U.S. government argued that accommodating the business owners’ religious beliefs could violate the First Amendment as well.
Edward L. White III, a lawyer representing Korte & Luitjohan Contractors in the Downstate city of Highland, said the fines imposed for ignoring the contraception mandate would impose a substantial burden on the southern Illinois construction company and therefore violate the U.S. Constitution.
“The mandate is depriving my clients of the free exercise of their Catholic faith,” said White, a lawyer for the American Center for Law & Justice based in Ann Arbor, Mich.
“The company is an extension of their beliefs as the two people who control the company,” he told the court.
But Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.
“At bottom, the concern is about establishing religion,” Klein said.
Judge Diane Sykes said the question before the court is not whether the mandate violates religious beliefs, but whether acting on those beliefs imposes a significant burden on a business owner.
“We are not competent to answer religious questions,” she said.
About 60 businesses, half of them for-profit and most of them Catholic-owned, have sued the Obama administration over a health-care mandate that requires employers to provide health benefits, including contraception, some sterilization procedures and the morning-after pill.
In February, the Obama administration proposed a rule that attempted to address the First Amendment concerns expressed by non-profits. But the rule did not offer to shield for-profit businesses with more than 50 employees. They still must comply, even if they object on religious grounds.
The 10th Circuit Court of Appeals in Denver will hear arguments on behalf of the evangelical Christian owners of craft supplier Hobby Lobby on Thursday.
Lawyers for the business owners have relied heavily on the 1993 Religious Freedom Restoration Act, a law that allowed exemptions from certain rules, as long as those exceptions don’t harm the welfare of society.
Klein argued that the scope of that act doesn’t apply in this case.
Sykes frequently interrupted Klein’s arguments, leading spectators in the packed courtroom to conclude at least one judge had already made up her mind.
“Corporations have been held to be rights-bearing persons for purposes of all kinds of constitutional rights,” she told Klein. “What’s different about this?”
Lorie Chaiten, director of the Reproductive Rights Project for the American Civil Liberties Union of Illinois, which filed an amicus brief in the case, said that because the same three judges granted the preliminary injunction preventing the government from fining companies that don’t comply with the mandate, their line of questioning came as no surprise. She agreed with the government’s caution regarding fostering or enabling religious practice. .
“Government tries to achieve the appropriate balance of accommodating religion where it’s appropriate,” she said, “where the Supreme Court has said they can go vs. going so far that they’re in fact fostering, advancing and doing things that would run afoul of the establishment clause.”
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Grote Industries, a Catholic-owned manufacturer of vehicle safety and lighting systems in Madison, Ind., made similar arguments before the 7th Circuit on Wednesday, adding that the distinction between a company and its owner or controlling shareholders exists for “some purposes, but not moral purposes.”
“No doubt here the Grote family is being forced to choose,” lawyer Matthew Bowman argued. If they choose to disobey the mandate, they “forfeit the benefits of doing business at all according to their morality.”
