By Patricia Zapor • Catholic News Service • Posted November 4, 2013

WASHINGTON (CNS) –The U.S. Circuit Court of Appeals for the District of Columbia ruled Nov. 1 that two Catholic brothers from Ohio were wrongly denied a preliminary injunction exempting them from providing contraceptive coverage in employee health insurance, sending the case back to a lower court.

Their business, however, is not entitled to the same religious rights exemption as the brothers, the court said.

In a 2-1 decision released Nov. 1, the circuit court said Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, were wrongly denied an injunction individually, but that the District Court was right to deny an injunction to their company. In short, the court found that the brothers have rights under the Free Exercise clause of the First Amendment that their for-profit company does not.

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The case, Gilardi v. HHS, is one among many cases challenging the requirement in the Affordable Care Act that most employers must provide coverage for contraceptives in employee health insurance. The Gilardis, who are Catholic, told the court that they have moral objections to artificial birth control and have previously declined to include that in insurance for their 400 employees.

“The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have,” wrote Judge Janice Rogers Brown. “Such an endorsement … 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,” she continued. “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.”

The opinion quoted from an “amicus,” or friend-of-the-court, brief filed by 28 Catholic theologians to discuss the moral grounds on which the Gilardis posed their argument, but the court ultimately concluded that when it comes to the rights of a business, “we have no basis for concluding a secular organization can exercise religion.”

The decision joins at least three other rulings by federal appeals courts on whether for-profit employers can claim protection of religious rights. Two found in favor of the Obama administration, one other found for the Oklahoma-based company that sought an injunction. Those three cases are currently awaiting consideration of their petitions for review by for the Supreme Court.

In a dissent from the majority, Judge Harry T. Edwards asked what would prevent another company seeking a religion-based exemption from a requirement to cover vaccines.

“The mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages,” wrote Edwards, adding that nothing was stopping the Gilardis from publicly voicing their disapproval of using contraceptives.

Francis Manion, attorney for the Gilardis, said they would appeal the part of the ruling that dealt with corporate rights, but he told The Associated Press that the rest was “a big victory, but not total.”