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Another suit over Obamacare contraception mandate to be appealed to Supreme Court

Published: Monday, Nov. 4 2013 7:29 p.m. MST

The U.S. Supreme Court will receive another request this week to clear up confusing claims that corporations have religious freedom rights and that the Obamacare contraception mandate is violating them.

Alex Brandon, AP

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The U.S. Supreme Court will receive another request this week to clear up confusing claims that corporations have religious freedom rights and that the Obamacare contraception mandate is violating them.

Headlines Friday generally trumpeted a victory for religious liberty in a D.C. Circuit Court of Appeals ruling that the mandate "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," according to an Associated Press report.

But the court also found those rights belong to individuals — not to the businesses that they run.

In this case, the individuals are Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio. They say the mandate to provide contraceptive coverage would force them to violate their Roman Catholic beliefs and moral values by providing contraceptives such as the morning-after pill for their employees.

And appeals Judge Janice Rogers Brown agrees, writing that 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.”

But Brown upheld the lower court's dismissal of an injunction for the brothers' companies, writing, "we have no basis for concluding a secular organization can exercise religion," according to AP.

While the ruling sent the case back to the district court that denied the Gilardis a reprieve from the "Hobson's choice" while the case was pending, their attorneys at the American Center for Law and Justice wanted more than a partial victory.

"We are obviously pleased with the court’s recognition that the mandate burdens the Gilardis’ beliefs. At the same time, we believe we need to ask the Supreme Court to decide the question left unanswered so that there will be no ambiguity about the protection afforded by this decision," attorney Francis Manion wrote on the ACLJ website Friday. "Therefore, we intend to file a petition for certiorari with the Supreme Court next week."

Their petition will be the latest filed with the high court over the contraception mandate. And it's not just religious business owners who want some clarification from the court on whether they can exercise their faith through their companies.

The government filed a petition in October after it lost an appeal in a case involving the national craft store chain Hobby Lobby, whose Christian owners say the mandate's requirement to provide abortifacients under their employee health plan violates their religious beliefs. In an unusual move, Hobby Lobby filed a response also seeking a hearing before the high court.

In three other similar cases, the religious owners of companies lost their appeals when the circuit courts ruled business owners forfeit their religious rights when they incorporate. Two of them, Conestoga Wood and Autocam, have filed petitions with the Supreme Court. And more than 30 other contraception mandate cases are at different stages.

"These issues need to be settled now by this court," the Hobby Lobby response stated. "The existing conflict is likely to deepen rapidly, with the same issues pending in some 35 other cases around the country."

Email: mbrown@deseretnews.com

Twitter: @deseretbrown

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