A federal court has rendered an important although partial victory in another case concerning Christian employers who believe the controversial birth control mandate places a substantial burden on the free exercise of their religion.

Francis Manion, senior counsel for the American Center for Law and Justice, is reporting on a panel of the United States Court of Appeals in Washington DC who ruled in favor of a case involving two Ohio brothers, Francis and Philip M. Gilardi, own Freshway Foods and Freshway Logistics of Sidney, Ohio, who challenged the mandate on religious grounds.

"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," writes Manion, who is representing the brothers in court.

"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 the ruling, Judge Janice Rogers Brown, wrote: “. . . 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.”

But Brown also upheld a lower court's dismissal of an injunction for the brothers' companies, writing, "we have no basis for concluding a secular organization can exercise religion."

While pleased with the Court’s recognition that the Mandate burdens the Gilardis’ beliefs, Manion says he intends to file a petition for certiorari (review) by the U.S. Supreme Court "so that there will be no ambiguity about the protection afforded by this decision."

Of the 39 challenges to the law made by for-profit business thus far, 31 have won, five were denied, two were dismissed, and one is still under review.

The American Center for Law and Justice is handling seven challenges to the HHS mandate and believe that one or more of the nearly 40 other challenges to the law currently pending in U.S. courts will soon make it to the Supreme Court.

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