Tuesday, July 30, 2013

Third Circuit Rejects Corporate Free Exercise Under the First Amendment

A Pennsylvania for-profit corporation sought an injunction, arguing that Obamacare regulations infringed upon its First Amendment right to the free exercise of religion (also raising an issue under the Religious Freedom Restoration Act (RFRA)). The regulations in question "require group health plans and health insurance issuers to provide coverage for contraceptives."

On Friday, the Third Circuit issued its opinion in Conestoga Wood Specialties Corp. v. Sec. of U.S. H.H.S., concluding: "[F]or-profit, secular corporations cannot engage in religious exercise." This creates a circuit split with the Tenth Circuit (a messy splintered en banc opinion remanding to the district court - but generally recognizing that corporations can exercise religion under the RFRA).

Will this circuit split lead to SCOTUS? We'll see. How would SCOTUS decide the issue? Well, we know the high court has already recognized that corporations have First Amendment rights in Citizens United. And we know that SCOTUS has recognized a ministerial exception under the ADA in Hosanna-Tabor (recognizing organizational free exercise rights under the First Amendment). So, I have to think the smart money is on SCOTUS recognizing a corporate First Amendment free exercise right (or at least a statutory right under the RFRA). We'll see though.

Image: Third Circuit seal used in commentary on Third Circuit decision. Not official use.