Federal Judge Blocks Pro-Contraception Rules, But In Very Narrow Order

On Friday, Colorado federal Judge John Kane issued an order allowing a heating an air conditioning company to ignore federal rules protecting women’s access to birth control because the company’s owners are conservative Catholics. Judge Kane, however, relied on a very odd rule that does not exist in most of the country to hand down this decision. So while it would be disturbing if Kane’s injunction were finalized after several more rounds of litigation, the contraception-fearing employer in this case still has a number of hurdles to clear before that could happen.

Kane issued what is known as a “preliminary injunction” on Friday, which is an extraordinary order permitting a judge to temporarily suspend a law before they have time to fully consider the merits of a case. According to the Supreme Court, a judge cannot issue such an extraordinary order unless the plaintiff “establish[s] that he is likely to succeed on the merits” when the case receives a full trial. As Judge Kane explains, however, the Tenth Circuit (the federal appeals court that presides over Colorado and five other states) has refused to follow the Supreme Court’s rule in such cases. In the Tenth Circuit, a plaintiff can temporarily suspend a law merely by “showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” In other words, while a judge is not supposed to issue this kind of order unless they are pretty convinced the plaintiff is going to win, Judge Kane issued his order after merely determining that this case is kinda hard.

Because of this relaxed standard, Kane gives a hat tip to the hardest question in this case, but spends no time discussing the correct answer to this question:

The government argues that as a for-profit, secular employer, Hercules cannot engage in an exercise of religion. Accordingly, the argument concludes, the preventive care coverage mandate cannot burden Hercules’ free exercise of religion. Plaintiffs counter, arguing that there exists no law forbidding a corporation from operating according to religious principles.

These arguments pose difficult questions of first impression. Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to “pierce the veil” and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis? These questions merit more deliberate investigation.

There is a fairly strong legal argument that a twenty year old federal law would allow a religious organization, such as the Catholic church, to ignore a federal birth control law — although one of the most Republican courts in the country rejected a very similar argument just eight years ago. Judge Kane’s case, however, does not involve a church. It doesn’t even involve a Catholic-affiliated charity. This case involves whether a for-profit heating and air conditioning company can claim its religious beliefs are being tread upon.

It’s bizarre enough that five Supreme Court justices cannot tell the difference between a corporation and a person. For the plaintiffs to win this case, a judge will have to hold that a corporation can be Catholic.