“As the government and the [court] majority see it, religious rights are more limited than other kinds of First Amendment rights,” he wrote. “All groups can enjoy secular free expression and rights to assembly, but only ‘religious organizations’ have a right to religious liberty. … Our Constitution recognizes the free exercise of religion as something in addition to other kinds of expression, not because it requires less deference, but arguably because it requires more….

Last week a three-judge panel of the 3rd U.S. Circuit Court of Appeals rejected a Mennonite cabinetmaker’s challenge to the federal health insurance contraceptive mandate, one of the few losses for for-profit companies so far in these religious liberty cases. On Wednesday the cabinetmaker, Conestoga Wood Specialties, appealed the decision, asking a full en banc panel of judges from the 3rd Circuit to hear its case.

The 3rd Circuit’s 2-1 ruling, which said corporations have no inherent religious rights, is in direct conflict with the 10th Circuit’s ruling on Hobby Lobby’s case, which said corporations do have such rights. That conflict between appellate courts increases the likelihood that the U.S. Supreme Court will hear a case on the contraceptive mandate soon.

“We respectfully disagree with that court’s analysis,” the 3rd Circuit wrote about the 10th Circuit’s ruling.

The 10th Circuit in its ruling in favor of Hobby Lobby on this issue cited the Supreme Court’s Citizens United decision, saying that if the court affirmed corporations’ First Amendment rights in terms of political speech it must logically also protect corporations’ First Amendment rights in terms of religiousexercise. The 3rd Circuit in its ruling (download a PDF of the ruling) said the Citizens United decision only applied to free speech, and not to free exercise of religion.

“[W]e are not aware of any case preceding the commencement of litigation about the mandate, in which a for-profit, secular corporation was itself found to have free exercise rights,” the 3rd Circuit wrote.

Even judges ruling in favor of corporations on this issue have acknowledged that the question of for-profit corporations having religious protections under the First Amendment is new and legally untested. But those judges have also pointed out that the federal government has not issued a mandate that raises this question before now.

A federal district court had initially rejected Conestoga’s appeal for a preliminary injunction, so the business is currently complying with the mandate for its 950 employees. The Mennonite company does not object to contraceptives but does object to the abortifacients Plan B and Ella included under the mandate.

Aside from the Citizens United question, lawyers for Conestoga argued that the mandate violates the religious freedom of the individual business owner. The mandate forces these religious individuals—not corporations—to subsidize a drug that goes against their conscience. The 3rd Circuit panel also rejected this reasoning, saying that the corporation is a separate entity from its owners. The court said the mandate doesn’t affect the religious family that owns the business, the Hahns, just the business itself.

Judge Kent Jordan wrote a long, passionate dissent from the 3rd Circuit’s decision, describing “the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.”

“As the government and the [court] majority see it, religious rights are more limited than other kinds of First Amendment rights,” he wrote. “All groups can enjoy secular free expression and rights to assembly, but only ‘religious organizations’ have a right to religious liberty. … Our Constitution recognizes the free exercise of religion as something in addition to other kinds of expression, not because it requires less deference, but arguably because it requires more. At the very least, it stands on an equal footing with the other protections of the First Amendment.”

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