The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON RIGHT TO LIFE, No. 24-6650
D.C. No.
Plaintiff - Appellant,
6:23-cv-01282-
MK
v.
ANDREW R. STOLFI, in his official
capacities as Department of OPINION
Consumer and Business Services
Director and Oregon Insurance
Commissioner,
Defendant - Appellee,
and
OREGON DEPARTMENT OF
CONSUMER & BUSINESS
SERVICES,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted June 17, 2025
2 OREGON RIGHT TO LIFE V. STOLFI
San Francisco, California
Filed October 31, 2025
Before: Mary M. Schroeder, John B. Owens, and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge VanDyke;
Concurrence by Judge VanDyke;
Dissent by Judge Schroeder
SUMMARY *
Free Exercise of Religion/Abortion
In an action brought by Oregon Right to Life (ORTL),
an education and advocacy organization that seeks relief
under the First and Fourteenth Amendments from Oregon’s
Reproductive Health Equity Act’s requirement that it
provide abortion and contraceptive insurance coverage to its
employees, the panel reversed the district court’s order
dismissing ORTL’s complaint for failure to state a claim,
vacated the district court’s order denying ORTL a
preliminary injunction, and remanded.
ORTL alleged that the Oregon Reproductive Health
Equity Act (RHEA), as applied, violates its right to free
exercise of religion under the First Amendment. Although
ORTL is not, strictly speaking, affiliated with any particular
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OREGON RIGHT TO LIFE V. STOLFI 3
religious denomination and does not have a religious
requirement for its board members, the directors on ORTL’s
board assert that their sincerely held religious beliefs guide
their governance of ORTL. RHEA contains multiple
exceptions excusing some religious organizations, including
religious employers, from its abortion and contraceptive
insurance requirement, but ORTL claims it does not fall
within any of those exceptions, which Oregon does not
dispute. The district court denied a preliminary injunction
and dismissed ORTL’s complaint on the grounds that there
was “doubt” as to whether ORTL’s beliefs regarding
abortion were “genuinely religious,” and that RHEA is a
neutral and generally applicable law and thus subject only to
rational basis review—which it satisfied.
The panel agreed with ORTL that its beliefs are religious
and sincerely held. ORTL put forth significant evidence of
its religiosity, and there was no conflicting evidence against
ORTL’s claim that its views are religiously grounded. The
district court therefore erred by failing to conclude at the
motion to dismiss stage that ORTL actually holds the beliefs
professed in the complaint and that ORTL’s opposition to
abortion is genuinely religious. The panel reversed the
district court’s order dismissing ORTL’s complaint and
vacated the district court’s order denying ORTL a
preliminary injunction.
The panel expressed no opinion on the issue of whether
Oregon’s selective denial of a religious exemption to
ORTL—whose beliefs about abortion were religious and
sincere—violates the First Amendment’s Religion Clauses.
In light of the Supreme Court’s recent decision in Catholic
Charities Bureau, Inc. v. Wisconsin Labor & Industry
Review Commission, 605 U.S. 238 (2025), which reiterated
the constitutional significance of exemptions granted to
4 OREGON RIGHT TO LIFE V. STOLFI
some religiously motivated organizations but not others, the
panel remanded this case to the district court to reevaluate,
in the first instance, whether RHEA’s application to ORTL
violates the First Amendment.
Concurring, Judge VanDyke agreed with the majority
that the unrebutted evidence in this case demonstrates that
ORTL is motivated by religious beliefs, and those beliefs are
entitled to protection under the First Amendment’s Religion
Clauses. He wrote separately to explain that under Catholic
Charities, RHEA is subject to strict scrutiny because it
discriminates based on theological choices and discriminates
between religions. Judge VanDyke would, in addition to
reversing the district court’s dismissal of ORTL’s complaint,
order the district court to enter a preliminary injunction on
behalf of ORTL because it demonstrated a strong likelihood
of success on the merits of its First Amendment claim.
Dissenting, Judge Schroeder wrote that the district
court’s dismissal should be affirmed. The majority appears
to suggest that ORTL may have been wrongfully denied an
exemption as a religious employer under RHEA. Yet ORTL
never asked to be considered a religious employer; the state
of Oregon has never been asked to determine whether ORTL
is a religious employer; and the record demonstrates that
ORTL does not consider itself to be a religious organization.
This case, therefore, is not similar to Catholic Charities, and
a remand for the district court to consider the applicability of
Catholic Charities is wasteful.
OREGON RIGHT TO LIFE V. STOLFI 5
COUNSEL
James Bopp Jr. (argued), Richard E. Coleson, and Joseph D.
Maughon, The Bopp Law Firm, Terre Haute, Indiana, for
Plaintiff-Appellant.
Carson L. Whitehead (argued) and Denise G. Fjordbeck,
Assistant Attorneys General; Benjamin Gutman, Solicitor
General; Dan Rayfield, Attorney General; Oregon
Department of Justice, Salem, Oregon; for Defendant-
Appellee.
Alexandra Zaretsky and Jess Zalph, Americans United for
Separation of Church and State, Washington, D.C., for
Amicus Curiae Americans United for Separation of Church
and State.
OPINION
VANDYKE, Circuit Judge:
This case arises out of Appellant Oregon Right to Life’s
(“ORTL”) lawsuit against Defendant Oregon Department of
Consumer and Business Services (“DCBS” or “Oregon”)
and Defendant-Appellee Andrew R. Stolfi in his official
capacity as Director of DCBS. ORTL is an education and
advocacy organization that “was formed in 1970 to proclaim
and advocate for the inherent dignity of human life and to
promote respect and protection for human life regardless of
race, sex, age, or stage of development.” Although ORTL is
not, strictly speaking, affiliated with any particular religious
denomination and does not have a religious requirement for
being a member of the organization’s board, the directors on
6 OREGON RIGHT TO LIFE V. STOLFI
ORTL’s board assert that their sincerely held religious
beliefs guide their governance of ORTL. Specifically, as
ORTL explained in this litigation, “sincerely held ... Judeo-
Christian beliefs about the sanctity of human life and about
abortion motivate the actions of ORTL [and] its board
members.” Consistent with that religiously motivated
mission, ORTL does not wish to provide abortion and
contraceptive insurance coverage to its employees.
Oregon’s Reproductive Health Equity Act (“RHEA”),
however, requires entities like ORTL to provide such
coverage. RHEA contains multiple exceptions excusing
some religious organizations from that requirement, but
ORTL claims it does not fall within any of those exceptions,
which Oregon does not dispute.
ORTL brought suit under the First and Fourteenth
Amendments seeking relief from RHEA’s requirement that
ORTL provide abortion and contraception coverage. The
district court denied a preliminary injunction and dismissed
ORTL’s complaint on the grounds that there was “doubt” as
to whether ORTL’s beliefs regarding abortion were
“genuinely religious,” and that RHEA is a neutral and
generally applicable law and thus subject only to rational
basis review—which it satisfied. ORTL appeals, arguing
that its beliefs are religiously motivated, and that RHEA’s
exemptions—extended to some religiously motivated
organizations but withheld from others—render RHEA
neither “neutral” nor “generally applicable” under
Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 881 (1990). We agree with
ORTL that its beliefs are religious and sincerely held. In
light of the Supreme Court’s recent decision in Catholic
Charities Bureau, Inc. v. Wisconsin Labor & Industry
Review Commission, 605 U.S. 238 (2025), which reiterated
OREGON RIGHT TO LIFE V. STOLFI 7
the constitutional significance of exemptions granted to
some religiously motivated organizations but not others, we
return this case to the district court to reevaluate whether
RHEA’s application to ORTL violates the First Amendment.
See Catholic Charities, 605 U.S. at 241–42. We therefore
reverse the district court’s order dismissing ORTL’s
complaint, vacate the district court’s order denying ORTL a
preliminary injunction, and remand this action for the district
court to apply Catholic Charities to the facts of this case in
the first instance.
I.
In 2017, the Oregon legislature enacted RHEA, a law
that requires most “health benefit plan[s]” to cover abortion
and contraceptive drugs. Or. Rev. Stat. § 743A.067. As
relevant to this case, the statute has three exceptions to its
insurance coverage requirements.
First, the “religious employer” exception provides that
“[a]n insurer may offer to a religious employer a health
benefit plan that does not include coverage for
contraceptives or abortion procedures that are contrary to the
religious employer’s religious tenets,” so long as the insurer
notifies enrollees in writing. Id. § 743A.067(9). RHEA
defines a “religious employer” as an employer:
(a) Whose purpose is the inculcation of religious values;
(b) That primarily employs persons who share the
religious tenets of the employer;
(c) That primarily serves persons who share the religious
tenets of the employer; and
8 OREGON RIGHT TO LIFE V. STOLFI
(d) That is a nonprofit organization under section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue
Code.
Id. § 743A.066(4).
Second, RHEA’s “legacy” exception provides that it
“does not require a health benefit plan to cover … [a]bortion
if the insurer offering the health benefit plan … [e]xcluded
coverage for abortion in all of its individual, small employer
and large employer group plans during the 2017 plan year.”
Id. § 743A.067(7)(e)(B). Although the parties dispute the
precise reason Oregon’s legislature included this exception,
they agree that it was at least meant to carve out Providence
Health Plans (“PHP”)—a Catholic-sponsored organization
operating under “the Ethical and Religious Directives for
Catholic Health Care Services,” which forbid providing
abortion services—from the requirement to provide abortion
coverage. 1
Third, the “federal funds” exception provides that “[i]f
the Department of Consumer and Business Services
concludes that enforcement of this section may adversely
affect the allocation of federal funds to this state, the
department may grant an exemption to the requirements but
only to the minimum extent necessary to ensure the
continued receipt of federal funds.” Id. § 743A.067(10).
Some legislative history suggests this exception was
included for entities that would qualify for federal
protections under “the Weldon Amendment (a federal-funds
conscience provision).” As relevant here, the Weldon
1
This exception was included by the legislature in response to PHP’s
religious objections to providing coverage for abortion. PHP did not
cover abortion in 2017.
OREGON RIGHT TO LIFE V. STOLFI 9
Amendment provides that federal funds distributed by the
U.S. Department of Health and Human Services may not be
made available to a state if the state discriminates against
health care entities that do not provide abortion. See
Protecting Statutory Conscience Rights in Health Care;
Delegations of Authority, 84 Fed. Reg. 23170, 23172 (May
21, 2019) (to be codified at 45 C.F.R. pt. 88).
II.
ORTL is an Oregon non-stock, board-controlled
membership organization that is exempt from federal
income taxes under § 501(c)(4) of the U.S. Internal Revenue
Code. ORTL is opposed to abortion and thus asserts that it
cannot “provid[e] insurance coverage for [abortion] without
violating conscience.” Its board members, who control the
organization, have explained that their position on this issue
is motivated by their religious beliefs. ORTL’s employees
likewise share its “beliefs about the sanctity of human life,”
and they accordingly object to ORTL providing insurance
coverage that violates these beliefs and do not desire such
coverage.
A.
ORTL’s religious motivations and beliefs are overt and
long-established. They are announced throughout ORTL’s
governing documents, shared by ORTL’s board, and have
been publicly declared by ORTL since before this litigation.
In its 2019 Restated Articles of Incorporation, for example,
ORTL stated that “[t]he purposes of the corporation shall be
carried out ... by means consistent with traditional Judeo-
Christian ethics.” This statement is reiterated verbatim in
the “purposes” section of ORTL’s bylaws. Particularly
relevant here, ORTL’s religious beliefs include “belie[f] in
the sanctity of all human life from the moment of conception
10 OREGON RIGHT TO LIFE V. STOLFI
to natural death,” as stated in its publicly available Position
Statement on Abortion published on ORTL’s website.
ORTL’s use of the noun “sanctity” in describing its position
on abortion is noteworthy. It independently evinces the
religious grounding of the organization’s belief, because
“sanctity” is typically understood as a religious concept,
denoting the state of being “holy” or “sacred.” See Sanctity,
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/sanctity (last visited July 11, 2025)
(defining “sanctity” as “holiness of life and character” and
as “the quality or state of being holy or sacred”); Sanctity,
The American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=sanctity (last
visited July 11, 2025) (defining “sanctity” as “[h]oliness of
life or disposition; saintliness,” “[t]he quality or condition of
being considered sacred; inviolability,” and as “[s]omething
considered sacred”).
The verified complaint further establishes that ORTL’s
board members share and compel ORTL’s religiously
motivated opposition to abortion. ORTL has stated that
“sincerely held ... Judeo-Christian beliefs about the sanctity
of human life and about abortion motivate the actions of
ORTL [and] its board members.” ORTL has also explained
that its “beliefs about the sanctity of human life … are held
by its board members, officers, employees, and members, all
of whom would be displeased if ORTL violated those beliefs
and would likely disassociate from ORTL were it do so.”
And both parties in this case agree that under ORTL’s
bylaws “[t]he board is … responsible for adopting ‘position
statements for the corporation concerning life issues’”—
which here includes ORTL’s stated commitment to “the
sanctity of human life from the moment of conception until
OREGON RIGHT TO LIFE V. STOLFI 11
natural death” that “arises from Judeo-Christian religious
beliefs.”
Consistent with the religious beliefs held by its board
members and expressed in its Articles of Incorporation and
its bylaws, ORTL lobbied against the bill that would become
RHEA in 2017. ORTL testified against the bill before two
committees and asked for an exemption in the final
legislation. Among other objections, ORTL explained that
the bill would violate its “deeply held beliefs” and the
Weldon Amendment.
Two years after the bill had passed, ORTL submitted an
exemption request to DCBS, noting its belief that intentional
facilitation of abortifacients is “religiously forbidden under
traditional Judeo-Christian beliefs,” and reiterating that
“[t]hose sincerely held ... Judeo-Christian beliefs …
motivate the actions of ORTL [and] its board members.”
ORTL’s request was denied.
B.
In August 2023, ORTL initiated this action for
declaratory and injunctive relief, alleging that RHEA as
applied to ORTL violates its right to free exercise of religion
under the First Amendment. In its verified complaint, ORTL
sought an order compelling Oregon to accommodate its
religious beliefs by treating ORTL “as ‘religious employers’
are treated” under Or. Rev. Stat. § 743A.067(9), which
would permit ORTL to purchase an insurance plan that did
not cover abortion.
The following month, ORTL filed a motion for a
preliminary injunction, and Oregon subsequently moved to
dismiss the case under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim on the grounds that
12 OREGON RIGHT TO LIFE V. STOLFI
(1) ORTL had failed to show that its beliefs regarding
abortion and contraception were religious in nature, and
(2) RHEA is a neutral law of general applicability under
Smith, 494 U.S. 872.
On September 30, 2024, the district court issued orders
resolving these motions. The court concluded that ORTL
failed to satisfy any of the requirements for a preliminary
injunction. As to the likelihood of success on the merits, the
district court concluded that the record in this case “cast[s]
doubt” on whether ORTL’s objections to abortion and
contraception are “genuinely religious in nature,” which in
turn undermines ORTL’s free exercise of religion claim. In
a separate order, the district court granted Oregon’s motion
to dismiss on the grounds that RHEA is a neutral and
generally applicable law subject only to rational basis
review, which it satisfies. ORTL timely appealed.
III.
Under Federal Rule of Civil Procedure 12(b)(6), a court
may dismiss a complaint for failure to state a claim upon
which relief may be granted. In considering a Rule 12(b)(6)
motion, a court must accept a plaintiff’s material factual
allegations as true and view all facts in the light most
favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662,
663 (2009). This court reviews a district court’s decision to
grant a motion to dismiss de novo. Mudpie, Inc. v. Travelers
Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021).
This court reviews the district court’s denial of a
preliminary injunction for abuse of discretion. Tingley v.
Ferguson, 47 F.4th 1055, 1066 (9th Cir. 2022). “In deciding
whether the district court has abused its discretion, we
employ a two-part test: first, we determine de novo whether
the trial court identified the correct legal rule to apply to the
OREGON RIGHT TO LIFE V. STOLFI 13
relief requested; second, we determine if the district court’s
application of the correct legal standard was (1) illogical,
(2) implausible, or (3) without support in inferences that
may be drawn from the facts in the record.” Pimentel v.
Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (internal
quotation marks omitted). “A decision based on an
erroneous legal standard or a clearly erroneous finding of
fact amounts to an abuse of discretion.” Id. The district
court’s conclusions of law are reviewed de novo and its
findings of fact for clear error. All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
IV.
The district court erred by failing to conclude at the
motion to dismiss stage that ORTL “actually holds the
beliefs professed in the Complaint” and that ORTL’s
opposition to abortion is “genuinely religious.”
A.
The Supreme Court has instructed that when
constitutional religious liberty rights “are extended to
corporations, the purpose is to protect …. the religious
liberty of the humans who own and control those
companies.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 707 (2014). Corporate structure is not relevant in this
analysis. See id. at 717. The Supreme Court has
affirmatively rejected the notion that religious protection
does not extend to corporations with structures allowing for
disagreement among owners about how to apply religious
principles. See id. at 718–19. Recognizing that even the
owners of closely held corporations sometimes disagree
about such matters, id. at 718, the Court nonetheless directed
that lower courts would simply need to look to the
management structure of a corporation to resolve any
14 OREGON RIGHT TO LIFE V. STOLFI
conflict, id. at 718–19. In other words, regardless of whether
the corporation is closely held, and regardless of whether
there could theoretically be disagreement about religious
beliefs among those who control it, the decisive question is
whether those in control have shared religious beliefs that
are recognized and promulgated through the corporation.
Here, however, the district court concluded that its
“doubt” about the religious basis for ORTL’s beliefs
“distinguish[ed] [ORTL] from the corporations that have
been found to exercise religion in their own right,” such as
Hobby Lobby, and therefore “undermine[d] [ORTL]’s
showing of likely success on the merits.” That was error.
Aside from being a non-profit organization (which, if
anything, strengthens ORTL’s claim that religious beliefs
motivate its actions), ORTL is organized very similarly to
how Hobby Lobby was at the time the Supreme Court made
clear that Hobby Lobby exercised religion in its own right.
ORTL has put forth significant evidence of its religiosity,
and there is no conflicting evidence against ORTL’s claim
that its views are religiously grounded.
For example, ORTL’s verified complaint—the
evidentiary equivalent of an affidavit, Lew v. Kona Hosp.,
754 F.2d 1420, 1423 (9th Cir. 1985)—repeatedly describes
the religious nature of ORTL’s objection to abortion. It
states:
ORTL’s belief in “the sanctity of human life
from the moment of conception until natural
death,” www.ortl.org/positions/ (Position
Statement on Euthanasia), arises from Judeo-
Christian religious beliefs—traditionally
incorporated into Western Civilization’s
respect for human life—to which ORTL and
OREGON RIGHT TO LIFE V. STOLFI 15
those who control it subscribe. Those include
the Bible’s command against the intentional
destruction of innocent human life, making
the taking of innocent human life a grave sin.
These beliefs include the inviolable, inherent,
ultimate worth of each human life, which
requires respect for and protection of
innocent human life by opposing abortion
and abortifacient “contraceptives.” And
these beliefs include the consequent belief
that it is a grave religious and moral wrong to
deliberately cooperate, facilitate, or
otherwise participate in some meaningful
way in the provision of abortion or
abortifacient “contraceptives,” which belief
precludes ORTL from providing insurance
coverage for those without violating
conscience.
Beyond this statement about the beliefs of “those who
control” ORTL, the verified complaint expressly states that
these religiously based “beliefs about the sanctity of human
life” are held by ORTL’s board members and “motivate
[ORTL’s] actions.” ORTL also noted its belief “in the
sanctity of all human life” yet again in the verified
complaint, quoting from its online Position Statement on
Abortion. Again, this is particularly noteworthy because
ORTL’s belief in the “sanctity” of life—as stated both in the
verified complaint and in its longstanding position
statement—independently evinces the religious nature of
16 OREGON RIGHT TO LIFE V. STOLFI
ORTL’s beliefs since, as explained above, “sanctity” is
generally understood as an inherently religious concept. 2
As further evidence of its religiosity, ORTL’s Articles of
Incorporation include the Judeo-Christian Operation Clause,
and as Oregon acknowledges, ORTL’s bylaws reiterate that
statement verbatim. And this stated position is not the only
evidence of ORTL’s religious motivation that predates this
litigation. As mentioned above, ORTL in 2017 expressed
the “deeply held” nature of its beliefs; two years later, ORTL
adopted the Judeo-Christian Operation Clause in its 2019
Restated Articles of Incorporation. That same year, ORTL
publicly expressed the religious basis of its beliefs in
numerous ways in its exemption request to DCBS. And in
2020, ORTL filed a complaint with the U.S. Office for Civil
Rights based on those same religious motivations.
Courts are required to give “great weight” to this
evidence in determining whether ORTL’s beliefs “are, in
[its] own scheme of things, religious.” United States v.
Seeger, 380 U.S. 163, 184–85 (1965). Oregon nonetheless
argues that this articulation of ORTL’s beliefs is insufficient
to demonstrate religiosity, based almost entirely on the fact
that ORTL’s Executive Director answered in a deposition, “I
don’t know,” when asked when ORTL had “referred to its
opposition to abortion as a religious belief” outside of this
2
See Sanctity, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/sanctity (last visited July 11, 2025) (defining
“sanctity” as “holiness of life and character” and as “the quality
or state of being holy or sacred”); Sanctity, The American
Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=sanctity (last visited July
11, 2025) (defining “sanctity” as “[h]oliness of life or disposition;
saintliness,” “[t]he quality or condition of being considered sacred;
inviolability,” and as “[s]omething considered sacred).
OREGON RIGHT TO LIFE V. STOLFI 17
litigation. But the fact that the Executive Director failed to
remember particular instances in which ORTL had described
a particular belief in a particular way is not evidence that
ORTL never did so. It’s just evidence that the Executive
Director when put on the spot couldn’t recall whether and
when ORTL did so. It certainly does not refute or weigh
against the substantial evidence in the record that ORTL’s
opposition to abortion is a religious belief.
Indeed, ORTL’s Executive Director had already
discussed in that same deposition (and stated in verified
form) various occasions when ORTL had asserted the
religious nature of its beliefs, including: (l) its Articles of
Incorporation, (2) its civil-rights complaint, and (3) its
exemption request to DCBS. Merely answering “I don’t
know” to a question asked after Oregon’s counsel had
already asked about and moved on from those three topics
does not negate that the Executive Director had, multiple
times, testified concerning ORTL’s previous instances of
presenting its beliefs as religious. And again, the Executive
Director’s answer that the defendants in this case rely on so
heavily is really a nonanswer. She didn’t say ORTL had not
previously asserted that its beliefs were religious; she simply
said that at that moment she couldn’t recall when it had done
so.
Particularly against the backdrop of the ample evidence
limned above, no evidence in this case comes close to
supporting the notion that ORTL’s claim of religious
motivation is “so bizarre” or “so clearly nonreligious” that it
can be disregarded. Thomas v. Rev. Bd. of Ind. Emp. Sec.
Div., 450 U.S. 707, 715 (1981). And no evidence was
offered to show that those in control of ORTL do not hold
ORTL’s beliefs about abortion or consider such beliefs to be
nonreligious. Indeed, other than the misguided reliance on
18 OREGON RIGHT TO LIFE V. STOLFI
the Executive Director’s “I don’t know” statement, the
evidence of ORTL’s religiosity in this case is entirely one-
sided and undisputed.
Our dissenting colleague disagrees, pointing first to
ORTL’s verified complaint and then to a statement of
ORTL’s attorney during the preliminary injunction hearing
to contend that ORTL has admitted it “does not consider
itself to be a religious organization” and has “never asked to
be considered a religious employer.” This assertion repeats
the mistake made by the district court. ORTL asked for an
exemption both when RHEA was passed and during this
litigation. Because ORTL believes that it does not “fit the
definition of a ‘religious employer’ under RHEA,” it did not
ask for an exemption under the statute. But the whole point
of this lawsuit is that ORTL is seeking an exemption that it
cannot get under Oregon law because of “the legislature’s
decision to pick and choose among religious organizations”
with its narrow definition of “religious employer.”
Similarly, the dissent mistakenly relies on the statement
of ORTL’s attorney during the preliminary injunction
hearing that ORTL “is not a religious organization and does
not qualify for … the religious employer exemption,” a
statement which, read in context, again suggests merely that
ORTL does not believe it meets RHEA’s narrow definition
of “religious employer.” The attorney made the statement
while discussing RHEA’s religious employer exemption,
which the attorney understood as applying “in effect” only
to “churches, mosques, or [synagogues].” And during the
same preliminary injunction hearing the attorney noted that
“the core belief of the Oregon Right to Life is based upon
religious concepts and principles,” referred to ORTL and
similar organizations as “employers … motivated by
religious concerns related to abortion,” and discussed how
OREGON RIGHT TO LIFE V. STOLFI 19
“religious concepts … motivate and animate and are the
fundamental basis for the policies that Oregon Right to Life
adheres to.” The dissent is therefore incorrect in assuming
that the attorney admitted that ORTL’s beliefs are not
religiously motivated. Instead, the attorney’s statement is
more plausibly read as an articulation of the same point
ORTL has consistently articulated: that ORTL did not
qualify as a religious employer under RHEA.
The dissent also questions ORTL’s religiosity because
members may join for nonreligious reasons and, according
to the dissent, “traditional Judeo-Christian ethics … do[] not
necessarily suggest the religious belief that life begins at
conception.” The latter rationale is easily refuted. It is
unnecessary for us to conclude that Judeo-Christian ethics
ineluctably require precisely the beliefs about abortion and
contraception that ORTL holds. All that is necessary is for
us to conclude that ORTL’s beliefs in this instance are
religiously motivated. As explained at length, on the current
record in this case the religious motivation for ORTL’s
beliefs is both abundantly clear and unrebutted, and the
district court erred in concluding otherwise. That someone
else might derive different religiously motivated beliefs
from their own view of Judeo-Christian ethics is irrelevant.
Similarly irrelevant is the dissent’s concern about the
“motivations of the individuals who become members” of
ORTL. Whether ORTL’s message is motivated by its
religious beliefs does not turn on the motivations of every
ORTL member. As already explained, it turns on the
motivations of its controlling leadership and governing
documents. The dissent’s impugning of the religious
character of ORTL’s organizational beliefs could just as
easily be leveled against churches and synagogues: perhaps
some attend for social reasons rather than religious ones;
20 OREGON RIGHT TO LIFE V. STOLFI
perhaps others attend merely “wish[ing] to please a relative.”
If the dissent was correct that organizations’ religiosity turns
on divining the pure “religious” motivations of all members,
it is unclear whether any churches or synagogues would even
qualify for basic First Amendment protections. We will not
second-guess the unrebutted statements of ORTL’s
leadership and organizational documents that its beliefs are
religiously motivated, based on bare speculation that perhaps
not every member of ORTL shares those underlying
religious beliefs.
The Supreme Court’s decision in Hobby Lobby confirms
that we cannot ignore the self-proclaimed religious
foundation of ORTL’s beliefs. Consider, for example,
ORTL’s Judeo-Christian Operation Clause. That clause is
substantively indistinguishable from Hobby Lobby’s
statement of purpose that the Supreme Court found sufficient
to demonstrate that organization’s religious motivation. See
Hobby Lobby, 573 U.S. at 710 n.23. Hobby Lobby’s
statement of purpose said that organization was “committed
to Honoring the Lord in all we do by operating in a manner
consistent with Biblical principles.” Id. (cleaned up). The
Court concluded that statement of purpose demonstrated
Hobby Lobby sought “to perpetuate the religious values
shared ... by [its] owners.” Id. (internal quotation marks
omitted). And although the Hobby Lobby majority
mentioned additional evidence of Hobby Lobby’s religious
belief, it leaned solely on that statement of purpose to
demonstrate that the for-profit corporation had a purpose of
perpetuating its owners’ shared religious values. See id.
ORTL’s Judeo-Christian Operation Clause, which
makes explicit its commitment to “carr[y] out … [t]he
purposes of the corporation ... by means consistent with
traditional Judeo-Christian ethics,” does not differ
OREGON RIGHT TO LIFE V. STOLFI 21
substantively from Hobby Lobby’s commitment to
“operat[e] ... consistent with Biblical principles.” Id. at 710
n.23. And although the district court emphasized that ORTL
“is not affiliated with any religious practice or institution and
does not have any religious requirement for being an
employee or director,” the same was true of Hobby Lobby.
Thus, regardless of whether ORTL’s board members are
“required to subscribe to [certain] beliefs,” ORTL’s Judeo-
Christian Operation Clause—found in two of ORTL’s
governing documents—strongly evinces that ORTL is
bound to religious beliefs in the same way Hobby Lobby
was.
Oregon also argues in passing that there is insufficient
evidence demonstrating the sincerity of ORTL’s religious
beliefs by pointing to the type of insurance ORTL has
provided to its employees in the past through PHP—which
covers abortifacient contraceptives, but not abortion (except
in extraordinary circumstances). But that argument fails
under Skyline Wesleyan Church v. California Department of
Managed Health Care, 968 F.3d 738 (9th Cir. 2020), in
which this court explained that beliefs cannot be discounted
simply because an entity retains objectionable coverage
when the alternatives would be an even worse fit. Id. at 748–
49; see also Philbrook v. Ansonia Bd. of Educ., 757 F.2d
476, 482 (2d Cir. 1985) (describing as “distinctly
unpalatable” the argument that one should be found not to
have religious beliefs simply because he had to resort to the
best of bad options).
B.
This case presents a second issue: whether Oregon’s
selective denial of a religious exemption to ORTL—whose
beliefs about abortion we hold are religious and sincere—
22 OREGON RIGHT TO LIFE V. STOLFI
violates the First Amendment’s Religion Clauses. On this
second question, we express no opinion. The Supreme Court
recently released a unanimous decision resolving questions
in this area of law, see Catholic Charities, 605 U.S. 238, and
we leave it to the district court to apply Catholic Charities to
the facts of this case, including ORTL’s religious beliefs, in
the first instance. 3
V.
ORTL is a religiously motivated organization, governed
by a board whose members have sincere religious beliefs,
and with purposes to “be carried out ... by means consistent
with traditional Judeo-Christian ethics.” We therefore
REVERSE the district court’s order dismissing ORTL’s
complaint for failure to state a claim, VACATE the district
court’s order denying ORTL a preliminary injunction, and
REMAND this action to the district court for further
proceedings consistent with this opinion.
3
The dissent contends that “Oregon Right to Life never asked to be
considered a religious employer.” This, the dissent believes, renders this
case “unlike” Catholic Charities. Here again, the dissent mistakenly
fixates on ORTL’s concession that it falls outside Oregon’s statutory
exemption when in fact ORTL has consistently argued that the
Constitution requires that it be exempted because of its religious status.
Just like in Catholic Charities, ORTL’s central argument in this case has
always been that the statutory religious exemption in question is too
narrow. See Catholic Charities, 605 U.S. at 241–42.
OREGON RIGHT TO LIFE V. STOLFI 23
VANDYKE, Circuit Judge, concurring:
I agree with the majority that the unrebutted evidence in
this case demonstrates that Oregon Right to Life (“ORTL”)
is motivated by religious beliefs, and those beliefs are
entitled to protection under the First Amendment’s Religion
Clauses. I write separately to explain my further view that
under Catholic Charities Bureau, Inc. v. Wisconsin Labor &
Industry Review Commission, 605 U.S. 238 (2025),
Oregon’s Reproductive Health Equity Act (“RHEA”) is
subject to strict scrutiny. Indeed, it is rare to encounter a
case with a Supreme Court case so clearly on point.
The Supreme Court’s unanimous opinion summarized
the First Amendment problem in Catholic Charities as
follows: the organization was denied a religious exemption,
but “could qualify for [a state’s statutory] exemption … if
they engaged in proselytization or limited their services to
fellow Catholics.” 605 U.S. at 249. That is this case too.
ORTL is a religious organization that has been denied a state
statutory religious exemption to which it would otherwise be
entitled if its purpose were “the inculcation of religious
values” (i.e. proselytization), Or. Rev. Stat.
§ 743A.066(4)(a), and if it “primarily serve[d] persons who
share [its] religious tenets,” Or. Rev. Stat. § 743A.066(4)(c).
Accordingly, I would not remand on the proper application
of Catholic Charities when the question is squarely
presented, the issue is briefed, and the correct answer in my
view is inescapable.
I.
The majority opinion recounts the facts of this case more
exhaustively, so I emphasize only a few key points here.
RHEA requires most Oregon health benefit plans to cover
24 OREGON RIGHT TO LIFE V. STOLFI
abortion and contraceptive drugs. Or. Rev. Stat.
§ 743A.067. As relevant to this case, the statute has three
exceptions to its insurance coverage requirements. The first
exempts a select set of “religious employer[s]”; the second
is a “legacy” exemption for insurers that “[e]xcluded
coverage for abortion in all of its individual, small employer
and large employer group plans during the 2017 plan year”;
and the third allows the state to provide exemptions if it
concludes that failing to do so “may adversely affect the
allocation of federal funds to” Oregon. Or. Rev. Stat.
§ 743A.067.
Despite the statute having these exemptions (including
for “religious employers”) to its general requirement
regarding abortion and contraceptive coverage, these
exemptions do not apply to ORTL. Oregon argues that these
exemptions do not favor the secular over the religious. Even
assuming that is true, however, they are nevertheless not
neutral under Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872, 879–
82 (1990), because they treat certain religious organizations
more favorably than others, Larson v. Valente, 456 U.S. 228,
244 (1982). And that is no less forbidden by the Constitution
than favoring the secular over the religious. See Catholic
Charities, 605 U.S. at 253–54.
II.
Catholic Charities controls this case. In Catholic
Charities, the Supreme Court considered a Wisconsin law
that required nonprofit entities to either contribute to the
State’s unemployment fund through payroll taxes or
reimburse the State for benefits paid to their laid-off
employees. See Wis. Stat. §§ 108.17–108.18, 108.151. But
the Wisconsin statute had a carveout for religious employers.
OREGON RIGHT TO LIFE V. STOLFI 25
See § 108.02(15)(h). As relevant here, organizations were
eligible for the exemption only if they were “operated
primarily for religious purposes.” See § 108.02(15)(h)(2).
To determine whether an organization’s activities were
“‘primarily’ religious in nature,” Wisconsin looked to
“whether an organization participated in worship services,
religious outreach, ceremony, or religious education.” Cath.
Charities Bureau, Inc. v. Lab. & Indus. Rev. Comm’n, 411
Wis. 2d 1, 34–35, rev’d and remanded sub nom. Cath.
Charities, 605 U.S. 238. And under that test, Catholic
Charities was excluded because it “do[es] not ‘attempt to
imbue program participants with the Catholic faith,’ ‘supply
any religious materials to program participants or
employees,’ or limit their charitable services to members of
the Catholic Church.” Cath. Charities, 605 U.S. at 249.
“Put simply,” the Supreme Court explained, Catholic
Charities “could qualify for the exemption … if they
engaged in proselytization or limited their services to fellow
Catholics.” Id.
The Court held that this was the “paradigmatic form of
denominational discrimination,” id. at 249, because “an
exemption provided only to organizations that engage in
proselytization or serve only co-religionists is not, on its
face, ‘available on an equal basis’ to all denominations,” id.
at 251. “That type of ‘explicit’ distinction between religious
practices is what [the Supreme] Court has deemed subject to
strict scrutiny, including in the context of religious
exemptions.” Id.
It is worth pointing out that the unanimous Supreme
Court emphasized that the issue in Catholic Charities (and a
fortiori the issue here) was not a “hard call[].” Id. at 254.
That was because the Court was breaking no new ground.
See id. Since long before Catholic Charities, it has been
26 OREGON RIGHT TO LIFE V. STOLFI
black letter law that the Free Exercise Clause bars laws that
“discriminate[] against some or all religious beliefs,” Church
of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
532 (1993) (emphasis added), and one way to discriminate
against “some … religious beliefs” is to privilege certain
religious beliefs or actions over the disfavored beliefs or
actions. Indeed, nearly a half-century ago the Supreme
Court explained that “[t]he clearest command of the
Establishment Clause is that one religious denomination
cannot be officially preferred over another,” observed that
neutrality among religious denominations is “inextricably
connected with the continuing vitality of the Free Exercise
Clause,” and recognized that the Religion Clauses prevent
“religious gerrymandering.” Larson, 456 U.S. at 244–45,
255; see also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)
(explaining that the Establishment Clause means that
governments cannot “prefer one religion over another”);
Zorach v. Clauson, 343 U.S. 306, 314 (1952) (“The
government must be neutral when it comes to competition
between sects.”).
Applying these principles, the Supreme Court has
consistently applied strict scrutiny to laws that give
preferential treatment to some religious conduct over other
religious conduct. For example, the Supreme Court found
“a municipal ordinance was applied in an unconstitutional
manner when interpreted to prohibit preaching in a public
park by a Jehovah’s Witness but to permit preaching during
the course of a Catholic [M]ass or Protestant church
service.” Lukumi, 508 U.S. at 533 (citing Fowler v. Rhode
Island, 345 U.S. 67, 69–70 (1953)). Likewise, in Sherbert
v. Verner, the Supreme Court held that “[t]he
unconstitutionality of the disqualification of the Sabbatarian
is thus compounded by the religious discrimination”
OREGON RIGHT TO LIFE V. STOLFI 27
resulting from South Carolina’s favorable treatment of
Sunday worshippers and unfavorable treatment of Saturday
worshippers. 374 U.S. 398, 406 (1963). And in Larson v.
Valente, the Court considered a Minnesota law that placed
higher administrative burdens on religious groups that
emphasized “door-to-door and public-place proselytizing
and solicitation” than religious groups with other emphases.
456 U.S. at 230–34. The Supreme Court deemed this a clear
violation of the “principle of denominational neutrality” that
the Court had “restated on many occasions,” and the law was
thus subject to strict scrutiny. Id. at 246; see also Niemotko
v. Maryland, 340 U.S. 268, 272–73 (1951) (involving
Jehovah’s Witnesses who were denied use of a public park
while other religious organizations were given access). As
these cases show, decades of Supreme Court precedent prior
to Catholic Charities made clear that “[t]he government
must be neutral when it comes to competition between
sects,” including when offering religious exemptions.
Zorach, 343 U.S. at 314.
A.
The “principle of denominational neutrality” at the heart
of Catholic Charities is exceedingly well-grounded in First
Amendment doctrine. 605 U.S. at 247. Now try to find the
daylight between Catholic Charities and this case. Oregon’s
RHEA sets forth a general rule of insurance coverage for
contraception and abortion. Oregon provides an exemption
for “religious employers,” but ORTL is not eligible for that
exemption because it does not have a “purpose” to
“inculcat[e] … religious values” or “primarily serve[]
persons who share the religious tenets of the employer.” Or.
Rev. Stat. § 743A.066(4)(a)–(c). The “inculcation of
religious values” aspect of Oregon’s definition cannot be
distinguished in any relevant way from Wisconsin’s
28 OREGON RIGHT TO LIFE V. STOLFI
consideration of proselytization. 1 Cath. Charities, 605 U.S.
at 244–48 (citing Cath. Charities, 411 Wis. 2d at 34–35).
And RHEA’s consideration of whether the employer
chooses to serve individuals who do not “share the religious
tenets of the employer,” Or. Rev. Stat. § 743A.066(4)(c), is
a mirror image of Wisconsin’s focus on whether the
organization chooses to “serve only co-religionists” or to
“limit … services to [church] members,” Cath. Charities at
249–50. Because the Supreme Court has already held that
denying exemptions to religious organizations on the basis
of whether they proselytize or serve only co-religionists
“facially differentiates among religions based on theological
choices,” there is no escaping the conclusion that RHEA’s
“religious employer” exemption triggers strict scrutiny. Id.
at 251.
It is also worth highlighting that Oregon’s definition of
“religious employer” so plainly discriminates against certain
religious organizations that Oregon itself has conceded the
point, characterizing repeatedly the “religious employers” to
whom the exemption applies as “a narrow class of religious
organizations.” For example, those who do not have
“inculcation of religious values” as their purpose, but instead
focus on feeding the poor, are excluded. Or. Rev. Stat.
§ 743A.066(4)(a). Indeed, Catholic Charities itself would be
excluded under RHEA’s definition, since its focus is almost
exclusively on helping the poor, not inculcating religious
1
Proselytize, Webster’s Second New International Dictionary (1934)
(“To proselyte; convert”); Proselyte, Webster’s Second New
International Dictionary (1934) (“To convert to some religion, opinion,
system, or the like.”); Proselytism, Webster’s Third New International
Dictionary, (1993); (“[T]he act of becoming or condition of being a
proselyte.”); Proselyte, Webster’s Third International Dictionary (1993)
(“[T]o convert from one religion, belief, opinion, or party to another.”).
OREGON RIGHT TO LIFE V. STOLFI 29
values. See Cath. Charities, 605 U.S. at 244 (“[R]eligious
doctrine prohibit[s] Catholic bodies from ‘misus[ing] works
of charity for purposes of proselytism.’” (third alteration in
original)); see also id. at 250 (“Many religions apparently
impose … rules prohibiting proselytization or religious
differentiation in the provision of charitable services.”). So
too would Hobby Lobby be excluded under RHEA’s
definition of “religious employer” since Hobby Lobby never
maintained that evangelism is one of its main purposes. See
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 703
(2014). RHEA’s “religious employer” exemption is thus not
neutral because it draws distinctions on the basis of which
religiously motivated activities it considers worthy of an
exemption. See also Stormans, Inc. v. Wiesman, 794 F.3d
1064, 1076 (9th Cir. 2015) (“[I]f the object of a law is to
infringe upon or restrict practices because of their religious
motivation, the law is not neutral.”). 2
So Oregon’s refrain that “RHEA is not motivated by
animosity to religion” misses the point. A plaintiff does not
have to demonstrate hostility to religion if a law
discriminates between religions or religious motivations.
See generally Cath. Charities, 605 U.S. 238. A government
is not allowed to pass a law that favors Muslims over
Christians, or Hindu beliefs over Muslim beliefs, regardless
of whether the reason was actual animus toward one of those
2
Oregon argues the core principle that the government cannot prefer one
religion over another “has no bearing in this case because the exception
[in RHEA] is for certain types of employers not certain religions.” That
response obviously flunks the Catholic Charities test. See Cath.
Charities, 605 U.S. at 253–54. And necessarily so. All differential
treatment of religions can be characterized as discriminating based on
the “types” of religious organizations, not the religion itself. That is a
distinction without a difference in this context.
30 OREGON RIGHT TO LIFE V. STOLFI
religions or some more “benign” justification. See generally
id.
Finally, Catholic Charities also demonstrates that
Oregon is simply wrong that the “religious employer”
exemption “does not render the [RHEA’s mandate] facially
non-neutral” because it is a “protection[] for religious
practice.” Whether characterized as a “protection” or not,
the fact remains that the exemption “imposes a
denominational preference,” Cath. Charities, 605 U.S. at
254, and is the “paradigmatic form of denominational
discrimination,” id. at 249. Indeed, the Supreme Court in
Catholic Charities explicitly considered and rejected
Wisconsin’s argument that its exemption was
constitutionally permissible because it did not “favor any
sect, religion, or cluster of religions.” Id. at 251 (cleaned
up).
“It is fundamental to our constitutional order that the
government maintain ‘neutrality between religion and
religion.’ There may be hard calls to make in policing that
rule, but this is not one.” Id. at 254 (quoting Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)).
B.
For the reasons I just explained, under Catholic Charities
and decades of preceding case law RHEA discriminates
based on theological choices and is therefore subject to strict
scrutiny on that basis alone. But that is not RHEA’s only
First Amendment infirmity. The “legacy” exemption, which
clarifies that RHEA “does not require a health benefit
plan to cover … [a]bortion if the insurer offering the
health benefit plan … [e]xcluded coverage for abortion
in all of its individual, small employer and large
employer group plans during the 2017 plan year,” also
OREGON RIGHT TO LIFE V. STOLFI 31
undermines RHEA’s denominational neutrality. Or. Rev.
Stat. § 743A.067(7)(e)(B).
Both parties spill a great deal of ink in their briefing
arguing about the proper interpretation of this exemption, in
particular whether the “legacy” exemption was intended to
accommodate religious objections and accordingly whether
it privileges secular conduct over religious conduct.
Although those arguments raise interesting and challenging
questions about the role of legislative history in statutory
interpretation, they are somewhat of an irrelevant distraction
here. Assume Oregon is correct that the “legacy” exemption
does not privilege the secular over the religious because the
purpose of the “legacy” exception was to benefit one
religious organization—Providence Health Plans (“PHP”).
Even granting Oregon that benefit of the doubt, the “legacy”
exemption still discriminates between religions by
deliberately providing exemptions to some religious
organizations, but not to others, despite unexempted
organizations presenting religious objections.
Oregon has explained that the “legacy” exemption “was
enacted to accommodate [PHP]’s faith-based objection to
providing coverage for abortion,” “was intended to exempt
… only [PHP],” and permits only “[PHP]’s religiously
motivated conduct.” Accordingly, Oregon contends that
“the legislature created the [legacy] exception to
accommodate religious objections.” Indeed, the legacy
exemption did not even seem to be a consideration until a
PHP representative explained that PHP objected to the
requirement to cover abortion before the Oregon House
Committee on Healthcare. 3 PHP explained that, as a
3
Testimony, House Committee on Health Care, H.B. 3391, March 15,
2017 (statement of Michael Cotton) (available at
32 OREGON RIGHT TO LIFE V. STOLFI
Catholic-sponsored organization, it operated under “the
Ethical and Religious Directives for Catholic Health Care
Services,” which forbid providing abortion services. PHP
sought “a narrowly tailored conscience clause for insurers
sponsored by a religious organization.” At the next meeting
of the House Committee on Health Care, Representative
Sheri Malstrom explained that PHP and the sponsors of the
bill had “found a path forward that resolves [PHP’s
concern].” 4
While PHP—a “faith-based, not-for-profit health
system”—was providing its testimony and seeking
protection from the abortion and contraceptive coverage
mandate, ORTL was likewise “testifying against [the bill] …
and asking for an exemption in the final legislation.”
Ultimately, as Oregon acknowledged, the legislature crafted
an exemption that was intended “to accommodate [PHP]’s
faith-based objection to providing coverage for abortion,”
designed “to exempt … only [PHP],” and permit only
“[PHP]’s religiously motivated conduct.” Oregon has since
discovered a second insurer that it claims also qualifies for
the legacy exemption: Samaritan Health Plans. But
everyone agrees that ORTL received no such exemption.
The fact that the legislature was aware of ORTL’s
religiously motivated desire for an exemption, and yet chose
to offer only an exemption favoring other religious activity
over ORTL’s religious activity, demonstrates disparate
https://olis.oregonlegislature.gov/liz/2017R1/Downloads/CommitteeMe
etingDocument/107514).
4
Video Recording, House Committee on Health Care,
H.B. 3391, April 14, 2017, 02:23:14 (available at
https://olis.oregonlegislature.gov/liz/mediaplayer/?clientID=487961548
6&eventID=2017041305).
OREGON RIGHT TO LIFE V. STOLFI 33
treatment of certain religious organizations and
motivations—and worse, differential treatment that appears
to be intentional. Whatever reason the legislature had for
granting PHP (and Samaritan Health Plans) a religious
exemption but not ORTL, such treatment cannot be
characterized as religiously neutral.
The “legacy” exemption thus likewise runs afoul of the
First Amendment. Indeed, Oregon’s arguments in defense
of the exemption only bring the nature of the constitutional
infirmity into sharper relief. If one assumes ORTL’s lead
argument—that the “legacy” exemption privileges secular
conduct over religious conduct—is correct, then there is a
classic Free Exercise Clause problem under Tandon v.
Newsom, 593 U.S. 61 (2021), Fulton v. City of Philadelphia,
593 U.S. 522 (2021), and many other recent cases. But if
one instead assumes that the district court correctly
concluded that “the purpose of the legacy exception was to
accommodate existing restrictions based on religious
objections,” then the legacy exemption runs headlong into
Catholic Charities and the prior precedent it relies on. This
is because even if the district court and Oregon were correct
that the legacy exemption was crafted to be a religious
exemption and applies to multiple religious organizations, it
is undisputed that it does not apply to ORTL’s religiously
motivated desire for an exemption. And again, the
government can’t discriminate between religions by
accommodating one and not another, particularly when both
accommodations would, in the same manner, undermine the
government’s alleged interest in providing generally
available abortion and contraception coverage. 5
5
Because RHEA is transparently unconstitutional on two independently
sufficient grounds—the “religious employer” exemption and the
34 OREGON RIGHT TO LIFE V. STOLFI
This court’s recent decision in Youth 71Five Ministries
v. Williams, No. 24-4101 (9th Cir. Aug. 18, 2025), confirms
this analysis. There we upheld a grant program that required
applicants to not discriminate on the basis of religion when
hiring employees. Id. at 4. Although that requirement
prevented a religious organization from receiving a grant,
the panel reasoned that such a program did not “explicitly
differentiat[e] between religions based on theological
practices,” but instead merely had “the indirect
consequence” of doing so. Id. at 14 (emphasis added)
(quoting Cath. Charities, 605 U.S. at 250). Not so here,
where the RHEA does explicitly and intentionally favor
certain religiously motivated activity over other religious
activity. The RHEA’s narrow definition of “religious
employer,” see Or. Rev. Stat. § 743A.066(4), deliberately
privileges certain religiously motivated activities, and the
legacy exemption is explicitly meant to—and does—treat
some religious organizations (PHP and Samaritan Health
Plans) more favorably than others.
III.
Finally, it is also worth briefly explaining why it makes
no difference whether ORTL couched its argument in Free
Exercise Clause terms rather than in Establishment Clause
terms. In short, the Supreme Court has told us it makes no
difference.
Catholic Charities makes clear that the First
Amendment’s Religion Clauses—both the Free Exercise
Clause and the Establishment Clause—forbid the
“legacy” exemption—I would not reach ORTL’s arguments regarding
the “federal funds” exemption, which present distinct and challenging
questions that are unnecessary to resolve here.
OREGON RIGHT TO LIFE V. STOLFI 35
government from favoring one religion over another based
on theological practices. The Court itself styled its opinion
as “revers[ing]” the Wisconsin Supreme Court’s judgment
that the statutory exemption did not “violate[] the First
Amendment’s Religion Clauses.” Cath. Charities, 605 U.S.
at 246, 254. The majority opinion also cited both
Establishment Clause and Free Exercise precedent for its
holding, including earlier case law holding that the
“prohibition of denominational preferences is inextricably
connected with the continuing vitality of the Free Exercise
Clause.” Id. at 248 (quoting Larson, 456 U.S. at 245).
Indeed, as if to make the point even more clear, both Justice
Thomas and Justice Jackson made plain in their respective
concurrences that the “Religion Clauses”—not just the
Establishment Clause in isolation—provide for
denominational neutrality. See id. at 256 (Thomas, J.,
concurring) (“The Religion Clauses’ special protection for
the autonomy of religious institutions derives from at least
three sources.”); id. at 270 (Jackson, J., concurring)
(“Because I agree that this distinction violates the neutrality
principle of the Constitution’s Religion Clauses, I join the
Court’s opinion in full.”).
Catholic Charities makes unmistakably clear that the
First Amendment’s “Religion Clauses” do not permit the
government to treat certain religious practices or
denominations better than others. But even before the
Supreme Court unanimously reiterated this point, the law
was settled: Both the Free Exercise Clause and the
Establishment Clause jointly and independently prohibit the
government from giving preferential treatment to one
religion over another on the basis of doctrine or practices.
Suggesting anything to the contrary is like arguing that
because a law prohibiting a Muslim from proclaiming his
36 OREGON RIGHT TO LIFE V. STOLFI
belief in Allah would be unconstitutional under the Free
Exercise Clause, an individual who brings a Free Speech
Clause claim is left with nothing. That is transparently
wrong. The Constitution has overlapping sets of protections
to better safeguard the liberties of the people—the Religion
Clauses are one example of that.
As I explained above, the Supreme Court has repeatedly
emphasized that neutrality among religious denominations is
“inextricably connected with the continuing vitality of the
Free Exercise Clause.” Larson, 456 U.S. at 245; Cath.
Charities, 605 U.S. at 248. Many other cases have reiterated
the same point. Cruz v. Beto, for example, held that Texas
violated the Free Exercise Clause by giving certain benefits
to prisoners of Catholic, Protestant, and Jewish faiths, but
withholding those benefits from Buddhists. 405 U.S. 319,
319–23 (1972) (per curiam). And Carson v. Makin
explained that an inquiry focused on use-based distinctions
would raise “serious concerns” about “denominational
favoritism” on Free Exercise grounds. 596 U.S. 767, 787
(2022); see also Shakur v. Schriro, 514 F.3d 878, 887 (9th
Cir. 2008).
The upshot is that, as with other areas of the Constitution,
the protections of the Free Exercise Clause and
Establishment Clause are not hermetically sealed from one
another. Their ambits overlap, and the reach of the first is
not limited by the reach of the second. That is why the
Supreme Court has explained that the Religion Clauses
“appear in the same sentence of the same Amendment” and
therefore a “natural reading of that sentence” indicates that
the Clauses have “‘complementary’ purposes, not warring
ones.” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 533
(2022) (quoting Everson v. Bd. of Educ., 330 U.S. 1, 13, 15
(1947)). And that is also why on many occasions the
OREGON RIGHT TO LIFE V. STOLFI 37
Supreme Court has referred to the “Religion Clauses” in
cases where the protections of both Clauses are implicated,
and thus a plaintiff might have a viable claim under either.
See, e.g., Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 565 U.S. 171, 190 (2012) (“[T]here is a
ministerial exception grounded in the Religion Clauses of
the First Amendment.”); N.L.R.B. v. Cath. Bishop of Chi.,
440 U.S. 490, 507 (1979) (explaining that the NLRB’s
exercise of jurisdiction would “implicate the guarantees of
the Religion Clauses”); Cath. Charities, 605 U.S. at 256 n.1
(Thomas, J., concurring) (“Although our decisions have
grounded the church autonomy doctrine in both Religion
Clauses, they have also made clear that the Free Exercise
Clause is an independently sufficient basis for the
doctrine.”).
* * *
For the foregoing reasons, in addition to reversing the
district court’s dismissal of ORTL’s complaint, I would
order the district court to enter a preliminary injunction on
behalf of ORTL, which has demonstrated a strong likelihood
of success on the merits of its First Amendment claim. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir.
2020).
“The First Amendment mandates government neutrality
between religions and subjects any state-sponsored
denominational preference to strict scrutiny.” Cath.
Charities, 605 U.S. at 241. Under the Supreme Court’s
decision in Catholic Charities (and decades of preceding
case law), government action is subject to strict scrutiny
when it denies a religious organization an exemption
because it does not “engage[] in proselytization” or “limit[]
38 OREGON RIGHT TO LIFE V. STOLFI
[its] services to fellow [church members].” Id. at 249. As
the majority in this case now holds, ORTL is a religious
organization and is motivated by religious beliefs. And
under RHEA, ORTL would be eligible for the exemption
that it has been denied if its purpose were “the inculcation of
religious values” (i.e. proselytization), Or. Rev. Stat.
§ 743A.066(4)(a), and if it “primarily serve[d] persons who
share [its] religious tenets,” Or. Rev. Stat. § 743A.066(4)(c).
RHEA’s lack of an exemption for ORTL is subject to strict
scrutiny, which Oregon has not argued it can satisfy.
SCHROEDER, Circuit Judge, dissenting:
This is quite a remarkable result. The majority appears
to suggest that the plaintiff, Oregon Right to Life, may have
been wrongfully denied an exemption as a religious
employer under Oregon’s Reproductive Health Equity Act
(RHEA). Yet Oregon Right to Life never asked to be
considered a religious employer. The case is thus unlike the
Supreme Court’s recent decision in Catholic Charities
Bureau, Inc. v. Wisconsin Labor & Industry Review
Commission, 605 U.S. 238 (2025), and I trust on remand the
district court will so recognize.
Oregon Right to Life is an organization of over 25,000
members with no requirement for membership other than a
desire to join and a payment of $5.00. We cannot know the
motivations of the individuals who become members. They
could be motivated by religion, personal experience, or a
wish to please a relative. Oregon Right to Life’s board of
directors must adhere to a number of “personal life
perspectives” which contain no mention of religion. The
majority asserts that only the views of those in control matter
OREGON RIGHT TO LIFE V. STOLFI 39
and the views of members do not, even though the members
select two board members who have voting rights.
As the district court accurately found, these facts readily
distinguish Oregon Right to Life from the entities at issue in
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
The companies there were closely held corporations, each
owned and exclusively controlled by members of a single
family, and they had all adopted explicitly religious
resolutions. See id. at 700-04, 717. The Supreme Court
explained that “protecting the free-exercise rights of
corporations like [these] protects the religious liberty of the
humans who own and control those companies.” Id. at 707.
Oregon Right to Life originally sought an exemption
from RHEA’s requirements for its eight employees on the
ground that its compliance with the statute would jeopardize
Oregon’s receipt of federal funds. When the agency denied
that exemption, Oregon Right to Life filed a complaint in
federal district court claiming a constitutional violation of
the Free Exercise Clause. Oregon Right to Life contended,
not that it was a religious employer, but that the lack of any
applicable exemption burdened the free exercise rights of its
members. The district court observed, correctly in my view,
that the beliefs of its members were not necessarily religious
in nature.
On appeal, Oregon Right to Life contends that the district
court should have applied strict scrutiny. It does not argue
the organization itself is entitled to an exemption as a
religious employer, or that the state’s application of that
exemption may have violated the Establishment Clause.
Indeed it could not have made those arguments, because the
state never had occasion to consider whether Oregon Right
to Life was a religious employer.
40 OREGON RIGHT TO LIFE V. STOLFI
The record demonstrates that Oregon Right to Life does
not consider itself to be a religious organization. For
example, in its verified complaint, Oregon Right to Life
alleged it did not fit the definition of a “religious employer”
under RHEA “because (though it is nonprofit and its
employees share its religious views) its purpose is prolife
advocacy, not inculcating religious values, and it doesn’t
primarily serve persons sharing its religious tenets.” It was
even more direct at the preliminary injunction hearing:
“And, of course, Oregon Right to Life is not a religious
organization and does not qualify for the religious
exemption . . . .” In her deposition, its executive director was
asked, “Outside of this litigation, when has Oregon Right to
Life referred to its opposition to abortion as a religious
belief?” The executive director responded, “I don’t know.”
The only reference to anything remotely related to
religion in this record is Oregon Right to Life’s own
statement in its corporate documents that its purposes shall
be carried out “by means consistent with traditional Judeo-
Christian ethics.” Such a pronouncement of theistic origins
does not necessarily suggest the religious belief that life
begins at conception. Indeed many faiths with such origins,
including, I believe, the Jewish faith, do not accept the
premise that life begins at conception.
It was not until this court asked for supplemental briefing
with respect to Catholic Charities that anyone ever
suggested Oregon Right to Life was a religious employer.
Thus, the case is not similar to Catholic Charities, where the
state of Wisconsin was taken to task for applying too narrow
an interpretation of what a religion is. The state of Oregon
has never been asked to determine whether Oregon Right to
Life is a religious employer. A remand for the district court
to consider the applicability of Catholic Charities to this
OREGON RIGHT TO LIFE V. STOLFI 41
case is simply wasteful. The district court’s dismissal should
be affirmed and I therefore respectfully dissent.