Well, I try to follow CA3 closely, but when it comes to Scotus cases outside of my own practice areas I often just rely on the experts at Scotusblog. So when their case stats page said there was just one CA3 cert-grant this term, Bond v. US, well, I poked no further. (My fault, not theirs.)
Imagine my surprise, then, when I finally realized that Burwell v. Hobby Lobby — only the biggest Scotus case of the term — had a companion grant, Conestoga Wood Specialties Corp. v. Burwell, from CA3. Oops.
Anyhow, CA3 decided Conestoga Wood last July, opinion here. The list of amici runs over 6 pages in the slip op, so it was a big case long before cert was granted. Cowen wrote the opinion for the panel majority, joined by Vanaskie. The majority held that, because a corporation is distinct from its owners, it cannot engage in religious exercise. Jordan dissented, 66 pages of Justice Kennedy-esque grand tone like this:
My colleagues, at the government‟s urging, are willing to say that the Hahns’ choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit.
That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is. I do not believe my colleagues or the District Court judge whose opinion we are reviewing are ill-motivated in the least, but the outcome of their shared reasoning is genuinely tragic, and one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government‟s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.
Of course, Jordan’s position prevailed in the Supreme Court.
Conestoga’s en banc petition fell
a single vote 2 votes short. (Order here). (Update: My thanks to David Fine for pointing out that 6 of 12 is not enough to grant rehearing.) The only Republican-nominated judge voting against rehearing en banc was Chagares.