Bush Appointed Judge Rules Against Obama Administration’s Guarantee of Access To Birth Control

Judge Robert Cleland, a George H.W. Bush appointee and former Republican candidate for Michigan Attorney General, held yesterday that a private, for-profit outdoor power equipment company can ignore new rules requiring most employer-provided health plans to offer contraceptive coverage to women because the new rules conflict with the company’s owner’s religious beliefs.

There’s a lot to not like about Judge Cleland’s opinion, which often relies on cursory reasoning or fails to apply the correct legal standard. The plaintiffs, for example, sought what is known as a “preliminary injunction” which means that they wanted their client to be held immune from following the law until the court has sufficient time to fully consider the case. Under binding Supreme Court precedent, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Yet Judge Cleland never determines that this is the case. At one point, he says that it “remains uncertain” how to resolve a key prong of this case. At another point, he outright states that “[n]either Plaintiffs nor the Government have shown a strong likelihood of success on the merits.” For this reason, an appeals court should reverse Cleland’s order solely because he failed to apply the correct legal standard.

Cleland’s order also places him at odds with another opinion written by a different George H.W. Bush-appointed judge, which held that conservative Catholic bosses do not have a legal right to “force [their] religious practices upon others.” And it conflicts with a California Supreme Court decision upholding a similar birth control law. Five of the justices who joined that California opinion were Republicans.

The most unfortunate part of Cleland’s opinion, however, is his holding that a for-profit company can claim the same immunity from the law as an actual human being:

Weingartz Supply Co. is a secular, for-profit company that sells outdoor power equipment. Weingartz Supply Co. asserts, without contradiction, that it is a “family owned and operated business,” led by Daniel Weingartz as its president.

Neither the Supreme Court nor the Sixth Circuit has held that a for-profit corporation can assert its own rights under the Free Exercise Clause. The text of RFRA extends its protections only to individuals, not corporations. However, at least one Circuit has held that “a corporation has standing to assert the free exercise rights of its owners” when that corporation is closely held and “‘merely the instrument through and by which [the plaintiffs] exercise their religious beliefs.’” Further, the Supreme Court has famously recognized that First Amendment free-speech protection extends directly to corporations. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) It appears to the court that, although it is first impression for this Circuit, a strong case for standing, at least on a Stormans pass-through instrumentality theory, is sustainable.

Weingartz Supply Co. was founded as a family business and remains a closely held family corporation. Accordingly, the court need not, and does not, decide whether Weingartz Supply Co., as a for-profit business, has an independant First Amendment right to free exercise of religion. For the purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as “his company.”

It is one thing to say that the Catholic Church itself cannot be required to act contrary to its doctrine, which is why the church itself is already exempt from the birth control rules. Cleland’s opinion, however, holds that a power equipment sales company can enjoy identical rights to an actual religious entity, solely because it is owned by someone who believes their religious views should be imposed on others.