                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

                                )
FRANCIS A. GILARDI, JR., et al. )
                                )
               Plaintiffs,      )
                                ) Civil Action No. 13-104(EGS)
          v.                    )
                                )
KATHLEEN SEBELIUS, et al.       )
                                )
               Defendants.      )
                                )

                        MEMORANDUM OPINION

     Plaintiffs Francis A. Gilardi, Jr., Philip M. Gilardi,

Fresh Unlimited, Inc., d/b/a Freshway Foods, and Freshway

Logistics, Inc. filed a complaint on January 24, 2013 seeking

declaratory and injunctive relief against defendants United

States Department of Health and Human Services, Kathleen

Sebelius, United States Department of the Treasury, Timothy F.

Geithner, United States Department of Labor, Hilda L. Solis, and

their successors in office.   Plaintiffs allege several causes of

action.   Count I alleges a violation of the Religious Freedom

Restoration Act, 42 U.S.C. §§ 2000bb, et seq.     Count II alleges

a violation of the First Amendment’s free exercise clause.

Count III alleges a violation of the First Amendment’s free

speech clause.   Finally, Count IV alleges a violation of the

Administrative Procedure Act.
       Pending before the Court is plaintiffs’ motion for a

preliminary injunction.    Plaintiffs seek injunctive relief as to

Count I and allege that certain federal regulations promulgated

under the Patent Protection and Affordable Care Act (“Affordable

Care Act” or “ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010),

violate plaintiffs statutory rights under the Religious Freedom

Restoration Act (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488

(1993) (codified at 42 U.S.C. §§ 2000bb-1).    Upon consideration

of the motion, the opposition and reply thereto, the Amicus

Curiae Brief of the State of Ohio, the entire record, and for

the reasons explained below, plaintiffs’ motion is DENIED.

  I.     BACKGROUND

       Francis A. Gilardi, Jr. and Philip M. Gilardi (collectively

the “Gilardis”), are Ohio residents and “adherents of the

Catholic faith” who “hold to the Catholic Church’s teachings

regarding the immorality of artificial contraceptives,

sterilization, and abortion.”    Compl. ¶ 3.   The Gilardis are the

sole owners of plaintiffs Fresh Unlimited, Inc., d/b/a Freshway

Foods (“Freshway Foods”) and Freshway Logistics, Inc. (“Freshway

Logistics”) (collectively the “Freshway Corporations”), both of

which are Subchapter S corporations and are incorporated under

the laws of the State of Ohio.    The Freshway Corporations are

engaged in the processing, packing, and shipping of produce and

other refrigerated products, Compl. ¶¶ 16-18, and have a total

                                  2
of about 400 employees between the companies, id. ¶¶ 17-18.

The Gilardis each own a 50% share in the Freshway Corporations.

They state that “[a]s the two owners with controlling interests

in the two corporations, they conduct their businesses in a

manner that does not violate their sincerely-held religious

beliefs or moral values, and they wish to continue to do so.”

Compl. ¶ 3.     The Freshway Corporations provide their full-time

employees with a self-insured employee health benefits plan that

provides employees with health insurance and prescription drug

coverage through a third-party administrator and stop-loss

provider.     Compl. ¶ 29.   The plan is to be renewed on April 1,

2013.   Id.

     Plaintiffs’ claims arise out of certain regulations

promulgated in connection with the Affordable Care Act.      The

Affordable Care Act requires that all group health plans and

health insurance issuers that offer non-grandfathered group or

individual health coverage to provide coverage for certain

preventive services without cost-sharing, including, for “women,

such additional preventive care and screenings . . . as provided

for in comprehensive guidelines supported by the Health

Resources and Services Administration [(“HSRA”)].”      42 U.S.C. §

300gg-13(a)(4).     The HSRA, an agency within the Department of

Health and Human Services (“HHS”), commissioned the Institute of

Medicine (“IOM”) to conduct a study on preventive services

                                    3
necessary to women’s health.   On August 1, 2011, HSRA adopted

IOM’s recommendation to include “the full range of Food and Drug

Administration approved contraceptive methods, sterilization

procedures, and patient education and counseling for women with

reproductive capacity.”   See HRSA, Women’s Preventive Services:

Required Health Plan Coverage Guidelines (“HRSA Guidelines”),

available at http://www.hrsa.gov/womensguidelines/ (last visited

Mar. 2, 2013).

     Several exemptions and safe-harbor provisions excuse

certain employers from providing group health plans that cover

women’s preventive services as defined by HHS regulations.

First, the mandate does not apply to certain “grandfathered”

health plans in which individuals were enrolled on March 23,

2010, the date the ACA was enacted.   75 Fed. Reg. 34538-01 (June

17, 2010).   Second, certain “religious employers” are excluded

from the mandate.   76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R.

§ 147.130(a)(1)(iv)(A); see 78 Fed. Reg. 8456, 8459 (Feb. 6,

2013) (proposing to broaden the August 2011 definition of

religious employer to ensure that “an otherwise exempt employer

plan is not disqualified because the employer’s purposes extend

beyond the inculcation of religious values or because the

employer serves or hires people of different religious faiths”).

Third, a temporary enforcement safe-harbor provision applies to



                                 4
certain non-profit organizations not qualifying for any other

exemption.   77 Fed. Reg. 8725, 8726-77 (Feb. 15, 2012).

     The parties agree that the Freshway Corporations do not

qualify for any of these exemptions.   As secular, for-profit

employers, Freshway Foods and Freshway Logistics do not satisfy

the definition of “religious employer” and are not eligible for

the protection of the safe-harbor.   The grandfathered plans

provision also does not protect the corporations because the

current health insurance plan has undergone material changes

since 2010, including an increase in the cost of doctor visit

co-pays.   See Decl. of Francis A. Gilardi, Jr., ECF No. 21-2, at

¶ 13.

     The Gilardis state that they “have concluded that complying

with the Mandate would require them to violate their religious

beliefs and moral values because the Mandate requires them

and/or the corporations they own and control to arrange for, pay

for, provide, and facilitate contraception methods,

sterilization procedures, and abortion because certain drugs and

devices such as the ‘morning-after pill,’ ‘Plan B,’ and ‘Ella’

come within the Mandate’s . . . definition of ‘Food and Drug

Administration-approved contraceptive methods’ despite their

known abortifacient 1 mechanisms of action.”   Compl. ¶ 5.


1
  Plaintiffs use the word “abortifacient” to refer to drugs such
as Plan B and Ella that they allege cause abortions. See, e.g.,
                                 5
     On February 8, 2013, plaintiffs moved for a preliminary

injunction as to Count I, which alleges a violation of the

Religious Freedom Restoration Act (“RFRA”).      Plaintiffs argue

that they satisfy the standard for a preliminary injunction

because they are likely to succeed on the merits because the

RFRA “substantially burdens” plaintiffs’ free exercise of

religion and defendants cannot establish that the regulations

survive strict scrutiny.     Furthermore, plaintiffs argue, they

will suffer irreparable harm absent a preliminary injunction,

the balance of equities tips in plaintiffs’ favor, and the

public interest favors a preliminary injunction.

  II.   STANDARD OF REVIEW

     A plaintiff seeking a preliminary injunction must establish

(1) a substantial likelihood of success on the merits; (2) that

it is likely to suffer irreparable harm in the absence of

preliminary relief; (3) that the balance of equities tips in its

favor; and (4) that an injunction is in the public interest.

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006).   The purpose of a preliminary injunction “is

merely to preserve the relative positions of the parties until a

trial on the merits can be held.”      Univ. of Tex. v. Camenish,

451 U.S. 390, 395 (1981).     It is “an extraordinary and drastic


Compl. ¶ 5. Plaintiffs do not allege that the regulations will
require them to provide insurance coverage for the medical
procedure of abortion.
                                   6
remedy” and “should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.”   Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997).   In this Circuit, these

four factors have typically been evaluated on a “sliding scale,”

such that if “the movant makes an unusually strong showing on

one of the factors, then it does not necessarily have to make as

strong a showing on another factor.”   Davis v. Pension Benefit

Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009).   The

Circuit has recently stated, without holding, that existing

Supreme Court precedent suggests “that a likelihood of success

is an independent, free-standing requirement for a preliminary

injunction.”   Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.

2011) (citing Winter but finding that preliminary injunction was

not appropriate even under less stringent sliding-scale

analysis).   Because this Court finds that plaintiffs have failed

to establish a likelihood of success, a preliminary injunction

is not appropriate under either standard, and the Court need not

reach the issue raised in Sherley.   See, e.g., In re Akers, ---

B.R. ----, 2012 WL 5419318, at *4 (D.D.C. 2012) (stating that,

“[w]hichever way Winter is read, it is clear that a failure to

show a likelihood of success on the merits alone is sufficient

to defeat a preliminary injunction motion”); Arkansas Dairy Co-

op Ass’n, Inc. v. U.S. Dep’t of Agr., 573 F.3d 815, 832 (D.C.

Cir. 2009) (declining to proceed to review remaining preliminary

                                 7
injunction factors when plaintiff had shown no likelihood of

success on the merits); see Apotex, Inc. v. FDA, 449 F.3d 1249,

1253 (D.C. Cir. 2006) (determining movant was not likely to

succeed on the merits and declining to address the other

factors).

  III. DISCUSSION

  A. Likelihood of Success on the Merits

     The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-

1, provides that “[g]overnment shall not substantially burden a

person’s exercise of religion even if the burden results from a

rule of general applicability, except as provided in subsection

(b) of this section.”   Subsection (b) provides that

“[g]overnment may substantially burden a person’s exercise of

religion only if it demonstrates that application of the burden

to the person is (1) in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.”

     Congress enacted the RFRA in response to the Supreme

Court’s decision in Employment Division, Department of Human

Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the

Court held that the right to free exercise of religion under the

First Amendment does not exempt an individual from a law that is

neutral and of general applicability, and explicitly disavowed

the test used in earlier decisions, which prohibited the

                                 8
government from substantially burdening a plaintiff’s religious

exercise unless the government could show that its action served

a compelling interest and was the least restrictive means to

achieve that interest.    42 U.S.C. § 2000bb.   The purpose of the

RFRA was to “restore the compelling interest test” as set forth

in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.

Yoder, 406 U.S. 205 (1972).    Id.

       The RFRA does not define “substantial burden” but because

the RFRA intends to restore Sherbert v. Verner and Wisconsin v.

Yoder, those cases are instructive in determining the meaning of

“substantial burden.”    In Sherbert, plaintiff’s exercise of her

religion was impermissibly burdened when plaintiff was forced to

choose between following the precepts of her religion” resting

and not working on the Sabbath and forfeiting certain

unemployment benefits as a result, or “abandoning one of the

precepts of her religion in order to accept work.”    374 U.S. at

404.    In Yoder, the “impact of the compulsory [school]

attendance law on respondents’ practice of the Amish religion

[was found to be] not only severe, but inescapable, for the

Wisconsin law affirmatively compels them, under threat of

criminal sanction, to perform acts undeniably at odds with




                                     9
fundamental tenets of their religious beliefs.”       406 U.S. at

218. 2

         Plaintiffs argue that their exercise of religion is

substantially burdened because “they must facilitate, subsidize,

and encourage the use of goods and services that they sincerely

believe are immoral or suffer severe penalties.”       Pls.’ Mot. for

Prelim. Injunction (“Pls.’ Br.”) at 13.       Plaintiffs argue that

the substantial burden imposed on the Freshway Corporations is

the same as that imposed upon the Gilardis because the “beliefs

of the Gilardis extend to, and are reflected in, the actions of

the two corporations.”      Id. at 14.

         As an initial matter, the Court is troubled by plaintiffs’

apparent disregard of the corporate form in this case.

Plaintiffs argue that “requiring the two corporations to provide

group health coverage that the Gilardis consider immoral is the

same as requiring the Gilardis themselves to provide such

immoral coverage.”      Id. at 14.   The Court strongly disagrees.

The Gilardis have chosen to conduct their business through

corporations, with their accompanying rights and benefits and

limited liability.      They cannot simply disregard that same


2
  In a recent case, the government conceded that the Controlled
Substances Act placed a “substantial burden” on the “sincere
exercise of religion” by a religious sect that would be
prohibited from engaging in their traditional communion in which
they used a hallucinogenic tea. Gonzales v. O Centro Espirita
Beneficiente Uniao do Vegetal, 546 U.S. 418, 426 (2006).
                                     10
corporate status when it is advantageous to do so.   In a recent

case dealing with similar issues, Autocam Corp. v. Sebelius, the

court noted that

     [a]s corporate owners, [plaintiffs] quite properly
     enjoy the protections and benefits of the corporate
     form. But the legal separation of the owners from the
     corporate enterprise itself also has implcations at
     the enterprise level. A corporate form brings
     obligations as well as benefits. “When followers of a
     particular sect enter into commercial activities as a
     matter of choice, the limits they accept on their own
     conduct as a matter of conscience and faith are not to
     be superimposed on the statutory schemes which are
     binding on others in that activity.” United States v.
     lee, 455 U.S. 252, 263, n.3 (1982). Whatever the
     ultimate limits of this principle may be, at a minimum
     it means the corporation is not the alter ego of its
     owners for purposes of religious belief and exercise.

No. 12-1096, 2012 WL 6845677, at *7 (W.D. Mich. Dec. 24, 2012)

(denying motion for preliminary injunction on similar facts),

injunction pending appeal denied, No. 12-2673 (6th Cir. Dec. 28,

2013).   Similarly, the court in Conestoga Wood Specialties, Inc.

v. Sebelius stated that

     ‘[I]ncorporation’s basic purpose is to create a
     distinct legal entity, with legal rights, obligations,
     powers, and privileges different from those of the
     natural individuals who created it, who own it, or
     whom it employs.’ Cedric Kushner Promotions, Ltd. v.
     King, 533 U.S. 158, 163 (2001). . . . It would be
     entirely inconsistent to allow [individual plaintiffs]
     to enjoy the benefits of incorporation, while
     simultaneously piercing the corporate veil for the
     limited purpose to challenge these regulations. We
     agree with the Autocam court, which stated that this
     separation between a corporation and its owners “at a
     minimum [ ] means the corporation is not the alter ego
     of its owners for the purposes of religious belief and
     exercise.”

                                11
No. 12-6744, 2013 WL 140110, at *8 (E.D. Pa. Jan. 11, 2013),

injunction pending appeal denied, No. 13-1144 (3d Cir. Jan. 29,

2013).

     The Court agrees with the Autocam and Conestoga courts and

finds that the Gilardis cannot simply impute their views onto

the corporation such that requiring the corporation to provide

preventive services coverage is the same as requiring the

Gilardis personally to provide preventive services coverage.

The Freshway Corporations are legally separate from the

Gilardis.   As such, their religious views, legal and statutory

obligations, and benefits cannot be imputed to each other.

Accordingly, they must be evaluated separately for purposes of

the RFRA.

         1. The Freshway Corporations’ RFRA Claim

     Plaintiffs argue that the substantial burden imposed on the

Freshway Corporations is the same as that imposed upon the

Gilardis because the “beliefs of the Gilardis extend to, and are

reflected in, the actions of the two corporations.”     Pls.’ Br.

at 14.   Plaintiffs contend that “requiring the two corporations

to provide group health coverage that the Gilardis consider

immoral is the same as requiring the Gilardis themselves to

provide such immoral coverage.”    Pls.’ Br. at 13.   Defendants

respond that the coverage regulations do not substantially

burden any exercise of religion because secular, for-profit

                                  12
corporations do not exercise religion.       Defs.’ Opp. to Pls.’

Mot. for Prelim. Injunction (“Defs.’ Br.”) at 11-12.

      As explained above, the Court declines to disregard the

corporate form by imputing the religious beliefs of the Gilardis

to the corporations they own.       Accordingly, the Court must

evaluate whether providing preventive services coverage will

cause a substantial burden on the religious exercise of the

Freshway Corporations.

    (a)   Substantial Burden

      The RFRA states that “[g]overnment shall not substantially

burden a person’s exercise of religion . . . .”       42 U.S.C. §§

2000bb-1(a).    Accordingly, a threshold issue is whether the

Freshway Corporations “exercise” religion.       For the reasons

explained below, the Court finds that they do not. 3

      The Freshway Corporations are secular, for-profit

corporations that are engaged in the processing, packing, and

shipping of produce and other refrigerated products, Compl. ¶¶

16-18, and have a total of about 400 employees between the

companies, id. ¶¶ 17-18.       The complaint states the following

allegations regarding the religious activities of the Freshway

Corporations: Freshway Foods makes annual monetary and/or in-

kind donations, primarily food, to many community non-profit

3
  Because the Court finds that the Freshway Corporations do not
exercise religion, the Court does not reach the question of
whether they are “persons” within the scope of the RFRA.
                                    13
charitable organizations, including the YMCA, Habitat for

Humanity, the American Legion, and Holy Angel’s Soup Kitchen.

Compl. ¶ 28(d).   Freshway Logistics donates a trailer for use by

the local Catholic parish for its annual picnic and uses its

trucks to deliver food donated by Freshway Foods to food banks.

Compl. ¶ 28(e).   During monthly employee appreciation lunches,

the Freshway Corporations provide alternative foods for their

employees to accommodate restrictions posed by their various

religions.   Compl. ¶ 28(f).   They also provide their Muslim

employees with space to pray during breaks, and during Ramadan,

employees are permitted to adjust break periods in order to eat

after sundown in accordance with their religion. Compl. ¶ 28(g).

     Several allegations in the complaint allege the Gilardis’

religious activities taken in connection with the company.      The

complaint states that, for the last ten years “Francis and

Philip Gilardi have affixed to the back of the trucks they own

through a separate company, but which bear the name of Freshway

Foods, a sign stating ‘It’s not a choice, it’s a child,’ as a

way to promote their pro-life views to the public.”    Compl. ¶

28(a).   The Gilardis also drafted a values statement listing

values by which the Freshway Companies would be run.    The

statement lists “Ethics: Honest, Trustworthy and Responsible to:




                                 14
-Each Other; -Our Customers; -Our Vendors.     Non-negotiable –

Supersedes everything.”    Compl. ¶ 28(c). 4

     The Court is not persuaded that it must consider the

Gilardis’ actions in drafting values statements and in affixing

a slogan to their delivery trucks.     Even considering these

actions, however, the court finds that they are insufficient to

establish religious activity taken by the Freshway Corporations.

The statement of values drafted by the Gilardis does not mention

religion at all, and the affixing of a slogan to the back of a

delivery truck is incidental, at most, to the activities of the

corporations.

     That leaves the Court with the stated activities of the

Freshway Corporations.    The corporations’ charitable activities

and accommodations of their employees who practice other

religions, while commendable, do not establish that the Freshway

Corporations themselves “exercise religion.”     Rather, the Court

finds that the Freshway Corporations are engaged in purely

commercial conduct and do not exercise religion under the RFRA.

     The cases cited by plaintiffs do not compel a different

result.   For example, in Tyndale House Publishers, Inc. v.

Sebelius, the court noted the “unique” structure of the


4
  The complaint also alleges that the Gilardis “strongly support
financially and otherwise their Catholic parish, schools, and
seminary.” Compl. ¶ 28(b). The complaint does not allege any
connection between this activity and the Freshway Corporations.
                                  15
plaintiff corporation, which was formed to publish religious

books and Bibles and was owned in large part by a non-profit

religious entity.    No. 12-1635, 2012 U.S. Dist. LEXIS 163965, at

*24 n.10.    In deciding whether Tyndale’s owners had standing to

assert a free exercise claim on Tyndale’s behalf—a different

issue than the issue currently before this Court—the court held

that “when the beliefs of a closely-held corporation and its

owners are inseparable, the corporation should be deemed the

alter ego of its owners for religious purposes.”     Id. at *25.

In this case, two large produce distribution companies are owned

by two people who are members of the Catholic faith.      The

religious beliefs of the Gildardis cannot fairly be said to be

“inseparable” from the religious beliefs of the Freshway

Corporations.    Indeed, on the record before the Court, there is

nothing to suggest that the corporations have any religious

beliefs.    Accordingly, the Court finds Tyndale to be

distinguishable from this case.

     Plaintiffs also argue that the religious beliefs of the

Gilardis should be taken into account because “corporations do

not run themselves or comply with legal mandates except through

human agency.”    Pls.’ Reply in Supp. of Mot. for Prelim.

Injunction (“Pls.’ Reply”) at 11.      They further contend, citing

the recent decision of Korte v. United States Department of

Health and Human Services, that the Gilardis would have to

                                  16
operate the companies in a manner that they believe to be

immoral in order to comply with the preventive services

requirement.   Id. at 11 (citing No. 12-3841, 2012 U.S. App.

LEXIS 26734, at *9 (7th Cir. Dec. 28, 2012)).    In Korte, the

district court denied injunctive relief on an RFRA claim to a

secular, for-profit construction company that challenged the

preventive services coverage requirement.    No. 12-1072, 2012 WL

6553996 (S.D. Ill. Dec. 14, 2012).    In that case, the district

court found that any burden on the individual owners’ religious

beliefs caused by the corporation’s coverage of contraceptive

services was “too distant to constitute a substantial burden.”

Id. at *10.    The Seventh Circuit granted an injunction pending

appeal.   2012 U.S. App. LEXIS 26734, at *9.   The Seventh Circuit

held that the corporate form was not dispositive of the

individual plaintiffs’ claim because in order for the company to

comply with the mandate, the individual plaintiffs would be

required to violate their religious beliefs.    Id.   For the

reasons stated above, the Court finds that the corporate form is

dispositive in this case and should not be disregarded.     In this

respect, the court relies on several recent decisions.     See

Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291

(W.D. Okla. 2012) (distinguishing between the “purely personal”

matter of religious exercise by a corporation’s owners and the

actions of a corporation), injunction pending appeal denied, No.

                                 17
12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012); Conestoga,

No. 12-6744, 2013 WL 140110, at *10 (E.D. Pa. Jan. 11, 2013)

(treating corporation and its owners separate for purposes of

RFRA and finding that the secular, for-profit corporation did

not exercise religion); see also Conestoga, No. 13-1144, slip.

op. at 3 (3d. Cir. Jan. 29, 2013) (adopting district court’s

reasoning that plaintiff corporation did not exercise religion

under RFRA).   To the extent that Korte suggests a different

result, the Court declines to follow it.

     The Court declines to reach the question of whether any

secular, for-profit corporation can exercise religion.   Cf.

Hobby Lobby Stores, 870 F. Supp. 2d at 1291 (holding that

plaintiff corporations lacked standing to pursue an RFRA claim

and stating that “[g]eneral business corporations do not,

separate and apart from the actions or belief systems of their

individual owners or employees, exercise religion.   They do not

pray, worship, observe sacraments or take other religiously-

motivated actions separate and apart from the intention and

direction of their individual actors.”); Briscoe v. Sebelius,

No. 13-285, 2013 U.S. Dist. LEXIS 26911, at *15 (D. Colo. Feb.

27, 2013) (“Secular, for-profit corporations neither exercise

nor practice religion.”).   Rather, under the facts of this case,

the Freshway Corporations do not exercise religion and therefore



                                18
cannot succeed on the merits of a claim that the regulations

substantially burden their exercise of religion.

       2. The Gilardis’ RFRA Claim

     The Gilardis allege that the regulations create a

substantial burden on the Gilardis’ exercise of religion because

the regulations require them to “facilitate, subsidize, and

encourage the use of goods and services that they sincerely

believe are immoral or suffer severe penalties.    It is this

forced subsidization, and not the manner in which the employee

may spend their own money or conduct their personal lives, to

which plaintiffs object.”   Pls.’ Br. at 13.

     With respect to the Gilardis, defendants argue that the

regulations do not create a substantial burden because they only

apply to the corporations, not their owners.   Defs.’ Br. at 18.

Defendants also argue that even if the regulations did create a

burden on the Gilardis’ exercise of their religion, that burden

is too attenuated and indirect to be substantial.    Id. at 23.

       (a)   Substantial Burden

     As an initial matter, the Court declines to follow several

recent cases suggesting that a plaintiff can meet his burden of

establishing that a law creates a “substantial burden” upon his

exercise of religion simply because he claims it to be so.      See

Monaghan v. Sebelius, No. 12-15488, 2012 U.S. Dist. LEXIS

182857, at *10-11 (E.D. Mich. Dec. 30, 2012) (stating that

                                  19
because Monaghan claimed that “taking steps to have [the

company] provide contraception coverage violates his beliefs as

a Catholic,” the court “will assume that abiding by the mandate

would substantially burden Monaghan’s adherence to the Catholic

Church’s teachings); Legatus v. Sebelius, No. 12-12061, 2012

U.S. Dist. LEXIS 156144, at *20 (E.D. Mich. Oct. 31, 2012)

(stating that plaintiff shows a substantial burden simply by

saying so).   The Court agrees with the reasoning of the court in

Conestoga, in stating that “[w]hile we wholeheartedly agree that

‘courts are not arbiters of scriptural interpretation,’” the

RFRA still imposes the requirement on courts to determine

“whether the burden a law imposes on a plaintiff’s stated

religious belief is ‘substantial.’”   Conestoga, 2013 WL 140110,

at *12 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

450 U.S. 707, 718 (1981)).   Determining whether the impact of

the regulation on plaintiffs’ religious exercise is

“substantial” thus necessarily requires an understanding of the

nature of the religious exercise.    Otherwise, as the Conestoga

court noted, “[i]f every plaintiff were permitted to

unilaterally determine that a law burdened their religious

beliefs, and courts were required to assume that such burden was

substantial, simply because the plaintiff claimed it was the

case, then the standard expressed by Congress under the RFRA

would convert to an ‘any burden’ standard.”   Id. at *13 (citing

                                20
Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007)); see

Autocam, 2012 WL 6845677, at *7 (stating that if a court cannot

look beyond plaintiffs’ assertion of religious belief, every

governmental regulation would be subject to a “private veto”).

Accordingly, the Court finds that it is necessary to determine

the nature of plaintiffs’ religious exercise in order to

determine whether it has been “substantially burdened.”

     Here, plaintiffs have made several arguments regarding the

nature of their religious exercise.    The Gilardis “hold to the

teachings of the Catholic Church regarding the sanctity of human

life from conception to natural death.    They sincerely believe

that actions intended to terminate an innocent human life by

abortion are gravely sinful.”    Compl. ¶ 25.   The Gilardis “also

sincerely believe in the Catholic Church’s teaching regarding

the immorality of artificial means of contraception and

sterilization.”   Id. ¶ 26.   The Gilardis state that they “have

concluded that complying with the Mandate would require them to

violate their religious beliefs and moral values because the

Mandate requires them and/or the corporations they own and

control to arrange for, pay for, provide, and facilitate

contraception methods, sterilization procedures, and abortion

because certain drugs and devices [come within the scope of the

HRSA guidelines] despite their known abortifacient mechanisms of

action.”   Id. ¶ 5.   “Plaintiffs cannot arrange for, pay for,

                                 21
provide, or facilitate employee health plan coverage for

contraceptives, sterilization, abortion, or related education

and counseling without violating their sincerely-held religious

beliefs and moral values.”   Id. ¶ 32.

     Having set forth the nature of the Gilardis’ religious

exercise, the Court must next determine whether the requirement

that the Freshway Corporations comply with the regulations

constitutes a “substantial burden” on the Gilardis’ exercise of

religion.   The Court finds that it does not.

     The regulations do not compel the Gilardis to personally

“arrange for, pay for, provide or facilitate” health coverage.

See Hobby Lobby, 870 F. Supp. 2d at 1294 (“The mandate in

question applies only to Hobby Lobby and Marden, not to its

officers or owners.”).   The regulations do not require the

Gilardis to “personally support, endorse, or engage in pro-

abortion or pro-contraception activity.”   Briscoe, 2013 U.S.

Dist. LEXIS 26911, at *16.   Rather, the regulations are imposed

on the Freshway Corporations.   For the reasons explained above,

the Court declines to disregard the corporate form.

Specifically, the Court finds that the Freshway Corporations are

not the alter egos of the Gilardis for the limited purpose of

asserting the Gilardis’ religious beliefs. 5    The Gilardis remain


5
  Plaintiffs have not requested, nor does the Court understand
their argument to be, that the Court find that the Freshway
                                22
free to personally oppose contraception and, indeed, even the

regulations that are the subject of this lawsuit.       Accordingly,

the Court finds that the regulations do not impose a substantial

burden on the Gilardis’ exercise of religion.

     The plaintiffs argue that “indirectness” is not a barrier

to finding a substantial burden.       Pls.’ Br. at 13 (citing

Thomas, 450 U.S. at 718).    Plaintiffs argue that Thomas

established that the impact of a “substantial burden” need not

be direct.   Pls.’ Reply at 11.   Plaintiffs misread Thomas.     In

that case, the Supreme Court held that Indiana’s denial of

unemployment compensation benefits to claimant, who quit his job

because his religious beliefs forbade participation in the

production of armaments, violated his First Amendment right to

free exercise of religion.    In that case, however, the burden of

the denial of benefits rested with the person exercising his

religion, not a separate person or corporate entity, as is the

case here.   The compulsion was indirect, rather than the burden,

as in this case.   See Conestoga, 2013 WL 140110, at *14 n.15

(distinguishing Thomas).    The Court therefore finds Thomas to be

distinguishable.

     The Court also does not find the fact that the health

insurance provided by the Freshway Corporations is through a



Corporations are the alter egos of the Gilardis for all
purposes.
                                  23
“self-insurance” mechanism compels a different result.   Compare

Tyndale, 2012 U.S. Dist. LEXIS 163965, at *42-43 (finding that a

self-insured plan differed materially from a group policy

because in a self-insurance scheme the plaintiff “directly pays

for the services used by its plan participants, thereby removing

one of the ‘degrees’ of separation that the court deemed

relevant in O’Brien”) with Briscoe, 2013 U.S. Dist. LEXIS 26911,

at *15 (denying injunctive relief under RFRA for plaintiff

corporation that provided self-insured plan) and Grote

Industries, LLC v. Sebelius, No. 12-134, 2012 WL 6725905, at *7

(S.D. Ind. Dec. 27, 2012) (same), injunction granted pending

appeal, No. 13-1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013).

The Court finds that self-insurance, as is the case here, is not

dispositive.   The Freshway Corporations are providing the

insurance, not the Gilardis.   Accordingly, the Court finds that

the Gilardis have failed to demonstrate a likelihood of success

in establishing a “substantial burden” on their exercise of

religion.

  IV.   CONCLUSION

     For all of the foregoing reasons, the Court finds that

plaintiffs have failed to demonstrate a likelihood of success on

the merits, and plaintiffs’ motion for a preliminary injunction

is DENIED.   Because the Court has decided the motion on the

papers pursuant to Local Civil Rule 65.1(d), the motions hearing

                                24
currently scheduled for March 6, 2013 is hereby CANCELED.   An

appropriate Order accompanies this Memorandum Opinion.



Signed:   Emmet G. Sullivan
          United States District Judge
          March 3, 2013




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