Appeals Court Rules for the Gilardis but Leaves Key Questions Unresolved

Today, the United States Court of Appeals in Washington, D.C. granted an important, although partial, victory in one of our seven cases challenging the so-called HHS Mandate. I argued the case last month and reported on the argument here.

In today’s decision, a majority of the Court agreed with our argument that the HHS Mandate places a substantial burden on the free exercise of religion of the Gilardis in trying to run their business in accordance with their religious beliefs. But the Court declined to go further and also hold that the Gilardis’ companies, as such, also have free exercise claims that they can assert in court.

In today’s decision, Judge Janice Rogers Brown, writing for the Court, said: “. . . the burden becomes substantial because 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.”

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. Therefore, we intend to file a petition for certiorari with the Supreme Court next week.

The Gilardi case is one of 7 challenges to the HHS Mandate that we are currently litigating. Just last week, I argued the case of Frank O’Brien and O’Brien Industrial Holdings, LLC at the U.S. Court of Appeals for the 8th Circuit. It seems clear that one or more of the nearly 40 challenges that have been filed by business owners will soon make it to the Supreme Court.