The Third Circuit has split from the Tenth Circuit on the novel question of whether the Supreme Court's extension of First Amendment protections to corporations includes religious freedom when it ruled on one of several politically-charged challenges to the contraceptive requirement of Obamacare brought around the country.

The U.S. Court of Appeals for the Third Circuit ruled that Conestoga Wood Specialties, a cabinet company owned by a Mennonite family, is a corporation, separate and distinct from the people who own it, which means that it can't engage in the patently human exercise of religion. The appeals court upheld the district court's denial of an injunction from the enforcement of the law that requires Conestoga to provide insurance for its 950 workers, including the female contraceptives Plan B and ella.

It was a split opinion from the three-judge panel, with Judge Kent A. Jordan writing a fervent dissent twice the length of the majority's opinion.

Referring to the U.S. Supreme Court's landmark decision granting First Amendment protection to corporations in Citizens United v. Federal Election Commission, which was based on decades of case law, Senior Judge Robert E. Cowen said, "Citizens United is thus grounded in the notion that the court has a long history of protecting corporations' rights to free speech."

He then framed the question posed to the Third Circuit this way: "We must consider the history of the free exercise clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not."

Cowen was joined by Judge Thomas I. Vanaskie.

Citizens United didn't distinguish between the several freedoms protected by the First Amendment when it ruled, Cowen said, looking then to further Supreme Court precedent asserting that corporations, which exist only in the realm of the law, can claim certain constitutional guarantees but not others, some of which are considered "purely personal."

After discussing the decades of case law to support the extension of the right to free speech to corporations in Citizens United, Cowen noted the dearth of case law to support a corporation's claim to freely practice religion.

"Such a total absence of case law takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations," Cowen said.

He quoted U.S. District Judge Mitchell Goldberg's opinion from the Eastern District of Pennsylvania, saying, "Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely 'human' rights provided by the Constitution."

"We do not see how a for-profit 'artificial being, invisible, intangible, and existing only in contemplation of law,' that was created to make money could exercise such an inherently 'human' right," Cowen said.

He also rejected Conestoga's argument that religious organizations have been afforded rights to freely practice religion. Cowen distinguished the current suit, from a secular, for-profit corporation, from cases involving churches and other inherently religious organizations.

Cowen also rejected the argument that the framers of the Constitution intended for the First Amendment to be applied with equal force to all its elements by stringing it together with semi-colons.

"We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly," Cowen said. "In fact, historically, each clause has been interpreted separately."

The Third Circuit also declined to adopt the "passed through" theory created in the Ninth Circuit that would carry the rights of the owners of the corporation through to be considered by the court.

"The 'passed through' doctrine fails to acknowledge that, by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation," Cowen said.

For the same reasons, the majority rejected Conestoga's claims under the Religious Freedom Restoration Act.

Jordan, in his fervent and lengthy dissent, noted that a majority of federal courts have been presented with similar requests for an injunction of the mandate, and said, "I join that consensus, and note also the recent en banc decision of the United States Court of Appeals for the Tenth Circuit holding that two for-profit companies had 'established [that] they are likely to succeed on their RFRA claim' and that the mandate threatened them with irreparable harm."

The Tenth Circuit issued its opinion in Hobby Lobby v. Sebelius last month, holding that the for-profit companies owned by religious people bringing the suit had standing. It reversed the district court's holding.

The stark difference between the two appeals courts has "teed up a circuit split as clean as you could want it," said Kyle Duncan, of the Becket Fund for Religious Liberty in Washington, D.C., who represented Hobby Lobby in the Tenth Circuit.

The Department of Justice has asked for a stay of proceedings in that case until October 5 in order to consider a writ of certiorari, which he expects will be filed, Duncan said.

Decisions are also expected to issue soon from the Sixth and Seventh circuits that could deepen the split, Duncan said.

Charles Proctor III of Proctor Lindsay & Dixon in Chadds Ford, Pa., represented Conestoga and plans to petition the Third Circuit for rehearing en banc, he said, explaining that going that route rather than filing a writ of certiorari could be a faster way to an injunction and could ensure a smoother ride to the Supreme Court since they will have exhausted all of their other possible means for relief.

Alisa B. Klein of the U.S. Department of Justice argued on behalf of the government in front of the Third Circuit. The DOJ didn't respond to a request for comment.

(Copies of the 96-page opinion in Conestoga Wood Specialties v. Sebelius, PICS No. 13-2243, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)