Howard Friedman blogs about two recent cases where district courts considered contraceptive mandate challenges where the plaintiffs were “for-profit” entities.

First, Gilardi v. Sebelius (D. D.C)

The court concluded that plaintiffs failed to show a likelihood of success on the merits of their claim under the Religious Freedom Restoration Act.

The court refused to impute the owners’ religious views onto their corporations, holding that it must evaluate the claims of the owners and the businesses separately.  Declining to decide whether a for-profit business could ever exercise religion, the court held that in this case the charitable activities and other actions pointed to by plaintiffs do not establish that these companies exercise religion, so the contraceptive coverage mandate cannot impose a substantial burden on them.  Moving to claims by the individual owners, the court held that a substantial burden is not shown merely by plaintiffs claiming that it is such. Here the owners have not shown a substantial burden because they are not required to personally support, endorse or engage in pro-abortion or pro-contraception activity; only the corporations are.

Second, Briscoe v. Sebelius (D. Co.)

Rejecting plaintiffs’ claim under the Religious Freedom Restoration Act, the court held that “secular, for-profit corporations neither exercise nor practice religion.” It went on to reject the claim that the mandate imposes a substantial burden on the business owner’s practice of religion:

Briscoe claims a substantial burden based on what his companies must do, rather than what he himself must do. The AHCA’s mandate does not prevent Briscoe from personally exercising his religion….  [A]ny burden Briscoe claims on his ability to exercise his religion based on his companies’ compliance with the AHCA mandate, is slight and attenuated. Further, Briscoe’s argument implicitly requests that I disregard the distinction between a corporation and its officers and owners. Briscoe cannot use corporate status to shield himself from liability and at the same use it as a sword to assert an RFRA claim.