In an extensive decision, a divided panel of the U.S. Court of Appeals for the Seventh Circuit has enjoined the enforcement of the HHS contraception mandate against several for-profit corporations as well as the individual owners of those corporations. The majority held that “the corporate plaintiffs are ‘persons’ under RFRA and may invoke the statute’s protection; the contraception mandate substantially burdens the religious-exercise rights of all the plaintiffs; and the government has not carried its burden under strict scrutiny.” Since RFRA does not itself define “person,” the majority reached the conclusion that corporations are “persons” under RFRA by consulting the Dictionary Act and finding that nothing in the text of RFRA indicates that the Dictionary Act definition would be a “poor fit” with the statutory scheme (this is the standard announced in a 1993 Supreme Court case).  In both O Centro and Lukumi Babalu, the Supreme Court enforced the free exercise rights of corporations, so the relevant context did not indicate that the Dictionary Act definition of “person” was inapposite here. The court proceeded through a very thorough analysis of the strict scrutiny inquiry. Judge Rovner dissented.

I’ll use the occasion to update my running tally of where we are now in the circuit courts of appeals with respect to this class of litigation:

• Circuits that have rejected claims in which for-profit corporations are plaintiffs as to the corporations and the individual owners: Third Circuit, Sixth Circuit.
• Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the corporations and the individual owners: Seventh Circuit.
• Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the corporations but not the individual owners: Tenth Circuit.
• Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the individual owners but not the corporations: D.C. Circuit.