Court: If You Like Your Constitution, You Can Keep It
Posted 06:47 PM ET
First Amendment: A federal court has ruled that the ObamaCare contraception mandate violates the guarantee of free exercise of religion and forces some to choose between their religious conscience and bankruptcy.
The Supreme Court's decision in June 2012 that ObamaCare was constitutional because its fines for not complying with its mandates made the law a tax within Congress' authority to impose did not end the constitutional or court challenges to this attempt at redistribution of health and wealth.
On Friday, the D.C. Circuit Court of Appeals ruled in Gilardi v. HHS that ObamaCare's contraception mandate violates the constitutional rights of plaintiffs Francis and Philip Gilardi, two Catholic brothers who own Freshway Foods and Fresh Unlimited.
The two companies plus Freshway Logistics provide health insurance for their 400 employees through a third-party administrator. The court ruled that they face the choice of violating their religious beliefs in providing insurance to their employees or closing up shop.
In the belief ObamaCare's contraception mandate violates their rights under the Religious Freedom Restoration Act (RFRA) and the free exercise clause of the First Amendment, the Gilardis filed a lawsuit against the government in January.
The D.C. appeals court agreed with them. The mandate, according to Judge Janice Rogers, writing for a divided three-judge panel, "trammels the right of free exercise" and would force the plaintiffs to choose between bankruptcy and violating their religious beliefs.
"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," Rogers said.
She also noted the contradiction between Obama-Care's previously ruled constitutionality and the provisions of the RFRA, which Congress passed. At least with that law, most of those who voted on it actually read it, and it was not written behind closed doors.
"This time," Brown wrote, "we are not confronted with a question of constitutional authority. Instead, we must determine whether the contraceptive mandate imposed by the Act trammels the right of free exercise — a right that lies at the core of our constitutional liberties — as protected by the Religious Freedom Restoration Act."
The D.C. court thinks it does, and we agree. So do scores of Catholic and non-Catholic institutions and businesses who argue either that the way they run their private businesses is an extension of their faith or that a church, something the federal government seeks to redefine, is not something that happens one hour a week on a Sunday but 24/7 through the hospitals, schools, soup kitchens and charities they may operate. They argue that acting out their faith through their works should not be illegal.
Brown dismissed the government's claim that this infringement on religious liberty was necessary to protect the reproductive rights of women. "It is clear," she said, "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."
The Gilardi brothers don't want to restrict anyone's reproductive rights or deny the Sandra Flukes of the world access to contraceptives. They simply don't want to be compelled to pay for them in violation of their religious beliefs under penalty of law.
Like the plaintiffs in Hobby Lobby v. Sebelius, who also object on moral grounds to sterilization and abortion, the Gilardi brothers just want to run their business in a way that conforms to their religious convictions.
So far most courts have agreed. Of nearly 40 challenges, only a handful have upheld the government's requirement that employer health plans provide free birth control.
We suspect the Supreme Court will eventually have to sort this out, and hopefully it will realize there is no asterisk after the First Amendment.