Judge Brown, dissenting from the denial, joined by Judge Henderson argued
The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” ... That acknowledgement should end our inquiry into the substance of their beliefs.Judge Kavanaugh also dissented from the denial of a rehearing, arguing that the government has a still less restrictive alternative available-- a less restrictive notice of an opt out by the non-profit.
Judge Pillard, joined by Judges Rogers and Wilkins defended their 3-judge panel decision:
the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works....
RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.Washington Times reports on the decision.