Burwell v. Hobby Lobby Stores, Inc.

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL. v. HOBBY LOBBY STORES, INC.,

ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 13–354. Argued March 25, 2014—Decided June 30, 2014*

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the

“Government [from] substantially burden[ing] a person’s exercise of

religion even if the burden results from a rule of general applicabil-

ity” unless the Government “demonstrates that application of the

burden to the person—(1) is in furtherance of a compelling govern-

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

that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a),

(b). As amended by the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion,

whether or not compelled by, or central to, a system of religious be-

lief.” §2000cc–5(7)(A).

At issue here are regulations promulgated by the Department of

Health and Human Services (HHS) under the Patient Protection and

Affordable Care Act of 2010 (ACA), which, as relevant here, requires

specified employers’ group health plans to furnish “preventive care

and screenings” for women without “any cost sharing requirements,”

42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of

preventive care must be covered; it authorized the Health Resources

and Services Administration, a component of HHS, to decide. Ibid.

Nonexempt employers are generally required to provide coverage for

the 20 contraceptive methods approved by the Food and Drug Admin-

——————

* Together with No. 13–356, Conestoga Wood Specialties Corp. et al.

v. Burwell, Secretary of Health and Human Services, et al., on certiorari

to the United States Court of Appeals for the Third Circuit.

2 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

istration, including the 4 that may have the effect of preventing an

already fertilized egg from developing any further by inhibiting its

attachment to the uterus. Religious employers, such as churches, are

exempt from this contraceptive mandate. HHS has also effectively

exempted religious nonprofit organizations with religious objections

to providing coverage for contraceptive services. Under this accom-

modation, the insurance issuer must exclude contraceptive coverage

from the employer’s plan and provide plan participants with separate

payments for contraceptive services without imposing any cost-

sharing requirements on the employer, its insurance plan, or its em-

ployee beneficiaries.

In these cases, the owners of three closely held for-profit corpora-

tions have sincere Christian beliefs that life begins at conception and

that it would violate their religion to facilitate access to contraceptive

drugs or devices that operate after that point. In separate actions,

they sued HHS and other federal officials and agencies (collectively

HHS) under RFRA and the Free Exercise Clause, seeking to enjoin

application of the contraceptive mandate insofar as it requires them

to provide health coverage for the four objectionable contraceptives.

In No. 13–356, the District Court denied the Hahns and their compa-

ny—Conestoga Wood Specialties—a preliminary injunction. Affirm-

ing, the Third Circuit held that a for-profit corporation could not “en-

gage in religious exercise” under RFRA or the First Amendment, and

that the mandate imposed no requirements on the Hahns in their

personal capacity. In No. 13–354, the Greens, their children, and

their companies—Hobby Lobby Stores and Mardel—were also denied

a preliminary injunction, but the Tenth Circuit reversed. It held that

the Greens’ businesses are “persons” under RFRA, and that the cor-

porations had established a likelihood of success on their RFRA claim

because the contraceptive mandate substantially burdened their ex-

ercise of religion and HHS had not demonstrated a compelling inter-

est in enforcing the mandate against them; in the alternative, the

court held that HHS had not proved that the mandate was the “least

restrictive means” of furthering a compelling governmental interest.

Held: As applied to closely held corporations, the HHS regulations im-

posing the contraceptive mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely

held for-profit corporations like Conestoga, Hobby Lobby, and Mar-

del. Pp. 16–31.

(1) HHS argues that the companies cannot sue because they are

for-profit corporations, and that the owners cannot sue because the

regulations apply only to the companies, but that would leave mer-

chants with a difficult choice: give up the right to seek judicial protec-

tion of their religious liberty or forgo the benefits of operating as cor-

Cite as: 573 U. S. ____ (2014) 3

Syllabus

porations. RFRA’s text shows that Congress designed the statute to

provide very broad protection for religious liberty and did not intend

to put merchants to such a choice. It employed the familiar legal fic-

tion of including corporations within RFRA’s definition of “persons,”

but the purpose of extending rights to corporations is to protect the

rights of people associated with the corporation, including sharehold-

ers, officers, and employees. Protecting the free-exercise rights of

closely held corporations thus protects the religious liberty of the

humans who own and control them. Pp. 16–19.

(2) HHS and the dissent make several unpersuasive arguments.

Pp. 19–31.

(i) Nothing in RFRA suggests a congressional intent to depart

from the Dictionary Act definition of “person,” which “include[s] cor-

porations, . . . as well as individuals.” 1 U. S. C. §1. The Court has

entertained RFRA and free-exercise claims brought by nonprofit cor-

porations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União

do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit

corporation can be a “person” under RFRA effectively dispatches any

argument that the term does not reach for-profit corporations; no

conceivable definition of “person” includes natural persons and non-

profit corporations, but not for-profit corporations. Pp. 19–20.

(ii) HHS and the dissent nonetheless argue that RFRA does

not cover Conestoga, Hobby Lobby, and Mardel because they cannot

“exercise . . . religion.” They offer no persuasive explanation for this

conclusion. The corporate form alone cannot explain it because

RFRA indisputably protects nonprofit corporations. And the profit-

making objective of the corporations cannot explain it because the

Court has entertained the free-exercise claims of individuals who

were attempting to make a profit as retail merchants. Braunfeld v.

Brown, 366 U. S. 599. Business practices compelled or limited by the

tenets of a religious doctrine fall comfortably within the understand-

ing of the “exercise of religion” that this Court set out in Employment

Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877.

Any suggestion that for-profit corporations are incapable of exercis-

ing religion because their purpose is simply to make money flies in

the face of modern corporate law. States, including those in which

the plaintiff corporations were incorporated, authorize corporations

to pursue any lawful purpose or business, including the pursuit of

profit in conformity with the owners’ religious principles. Pp. 20–25.

(iii) Also flawed is the claim that RFRA offers no protection be-

cause it only codified pre-Smith Free Exercise Clause precedents,

none of which squarely recognized free-exercise rights for for-profit

corporations. First, nothing in RFRA as originally enacted suggested

that its definition of “exercise of religion” was meant to be tied to pre-

4 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

Smith interpretations of the First Amendment. Second, if RFRA’s

original text were not clear enough, the RLUIPA amendment surely

dispels any doubt that Congress intended to separate the definition of

the phrase from that in First Amendment case law. Third, the pre-

Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc.,

366 U. S. 617, suggests, if anything, that for-profit corporations can

exercise religion. Finally, the results would be absurd if RFRA, a law

enacted to provide very broad protection for religious liberty, merely

restored this Court’s pre-Smith decisions in ossified form and re-

stricted RFRA claims to plaintiffs who fell within a category of plain-

tiffs whose claims the Court had recognized before Smith. Pp. 25–28.

(3) Finally, HHS contends that Congress could not have wanted

RFRA to apply to for-profit corporations because of the difficulty of

ascertaining the “beliefs” of large, publicly traded corporations, but

HHS has not pointed to any example of a publicly traded corporation

asserting RFRA rights, and numerous practical restraints would like-

ly prevent that from occurring. HHS has also provided no evidence

that the purported problem of determining the sincerity of an assert-

ed religious belief moved Congress to exclude for-profit corporations

from RFRA’s protection. That disputes among the owners of corpora-

tions might arise is not a problem unique to this context. State cor-

porate law provides a ready means for resolving any conflicts by, for

example, dictating how a corporation can establish its governing

structure. Courts will turn to that structure and the underlying state

law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exer-

cise of religion. Pp. 31–38.

(1) It requires the Hahns and Greens to engage in conduct that

seriously violates their sincere religious belief that life begins at con-

ception. If they and their companies refuse to provide contraceptive

coverage, they face severe economic consequences: about $475 million

per year for Hobby Lobby, $33 million per year for Conestoga, and

$15 million per year for Mardel. And if they drop coverage altogeth-

er, they could face penalties of roughly $26 million for Hobby Lobby,

$1.8 million for Conestoga, and $800,000 for Mardel. P. 32.

(2) Amici supporting HHS argue that the $2,000 per-employee

penalty is less than the average cost of providing insurance, and

therefore that dropping insurance coverage eliminates any substan-

tial burden imposed by the mandate. HHS has never argued this and

the Court does not know its position with respect to the argument.

But even if the Court reached the argument, it would find it unper-

suasive: It ignores the fact that the plaintiffs have religious reasons

for providing health-insurance coverage for their employees, and it is

far from clear that the net cost to the companies of providing insur-

Cite as: 573 U. S. ____ (2014) 5

Syllabus

ance is more than the cost of dropping their insurance plans and pay-

ing the ACA penalty. Pp. 32–35.

(3) HHS argues that the connection between what the objecting

parties must do and the end that they find to be morally wrong is too

attenuated because it is the employee who will choose the coverage

and contraceptive method she uses. But RFRA’s question is whether

the mandate imposes a substantial burden on the objecting parties’

ability to conduct business in accordance with their religious beliefs.

The belief of the Hahns and Greens implicates a difficult and im-

portant question of religion and moral philosophy, namely, the cir-

cumstances under which it is immoral for a person to perform an act

that is innocent in itself but that has the effect of enabling or facili-

tating the commission of an immoral act by another. It is not for the

Court to say that the religious beliefs of the plaintiffs are mistaken or

unreasonable. In fact, this Court considered and rejected a nearly

identical argument in Thomas v. Review Bd. of Indiana Employment

Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to

determine” whether the plaintiffs’ asserted religious belief reflects

“an honest conviction,” id., at 716, and there is no dispute here that it

does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of

Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distin-

guished. Pp. 35–38.

(c) The Court assumes that the interest in guaranteeing cost-free

access to the four challenged contraceptive methods is a compelling

governmental interest, but the Government has failed to show that

the contraceptive mandate is the least restrictive means of furthering

that interest. Pp. 38–49.

(1) The Court assumes that the interest in guaranteeing cost-free

access to the four challenged contraceptive methods is compelling

within the meaning of RFRA. Pp. 39–40.

(2) The Government has failed to satisfy RFRA’s least-

restrictive-means standard. HHS has not shown that it lacks other

means of achieving its desired goal without imposing a substantial

burden on the exercise of religion. The Government could, e.g., as-

sume the cost of providing the four contraceptives to women unable

to obtain coverage due to their employers’ religious objections. Or it

could extend the accommodation that HHS has already established

for religious nonprofit organizations to non-profit employers with re-

ligious objections to the contraceptive mandate. That accommodation

does not impinge on the plaintiffs’ religious beliefs that providing in-

surance coverage for the contraceptives at issue here violates their

religion and it still serves HHS’s stated interests. Pp. 40–45.

(3) This decision concerns only the contraceptive mandate and

should not be understood to hold that all insurance-coverage man-

6 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

dates, e.g., for vaccinations or blood transfusions, must necessarily

fall if they conflict with an employer’s religious beliefs. Nor does it

provide a shield for employers who might cloak illegal discrimination

as a religious practice. United States v. Lee, 455 U. S. 252, which up-

held the payment of Social Security taxes despite an employer’s reli-

gious objection, is not analogous. It turned primarily on the special

problems associated with a national system of taxation; and if Lee

were a RFRA case, the fundamental point would still be that there is

no less restrictive alternative to the categorical requirement to pay

taxes. Here, there is an alternative to the contraceptive mandate.

Pp. 45–49.

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, re-

versed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a

concurring opinion. GINSBURG, J., filed a dissenting opinion, in which

SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as

to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opin-

ion.

Cite as: 573 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 13–354 and 13–356

_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354 v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356 v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

[June 30, 2014]

JUSTICE ALITO delivered the opinion of the Court.

We must decide in these cases whether the Religious

Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,

42 U. S. C. §2000bb et seq., permits the United States

Department of Health and Human Services (HHS) to

demand that three closely held corporations provide

health-insurance coverage for methods of contraception

that violate the sincerely held religious beliefs of the

companies’ owners. We hold that the regulations that

impose this obligation violate RFRA, which prohibits the

2 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Federal Government from taking any action that substan-

tially burdens the exercise of religion unless that action

constitutes the least restrictive means of serving a compel-

ling government interest.

In holding that the HHS mandate is unlawful, we reject

HHS’s argument that the owners of the companies for-

feited all RFRA protection when they decided to organize

their businesses as corporations rather than sole proprie-

torships or general partnerships. The plain terms of

RFRA make it perfectly clear that Congress did not dis-

criminate in this way against men and women who wish to

run their businesses as for-profit corporations in the man-

ner required by their religious beliefs.

Since RFRA applies in these cases, we must decide

whether the challenged HHS regulations substantially

burden the exercise of religion, and we hold that they do.

The owners of the businesses have religious objections to

abortion, and according to their religious beliefs the four

contraceptive methods at issue are abortifacients. If the

owners comply with the HHS mandate, they believe they

will be facilitating abortions, and if they do not comply,

they will pay a very heavy price—as much as $1.3 million

per day, or about $475 million per year, in the case of one

of the companies. If these consequences do not amount to

a substantial burden, it is hard to see what would.

Under RFRA, a Government action that imposes a

substantial burden on religious exercise must serve a

compelling government interest, and we assume that the

HHS regulations satisfy this requirement. But in order

for the HHS mandate to be sustained, it must also consti-

tute the least restrictive means of serving that interest,

and the mandate plainly fails that test. There are other

ways in which Congress or HHS could equally ensure that

every woman has cost-free access to the particular contra-

ceptives at issue here and, indeed, to all FDA-approved

contraceptives.

Cite as: 573 U. S. ____ (2014) 3

Opinion of the Court

In fact, HHS has already devised and implemented a

system that seeks to respect the religious liberty of reli-

gious nonprofit corporations while ensuring that the em-

ployees of these entities have precisely the same access to

all FDA-approved contraceptives as employees of compa-

nies whose owners have no religious objections to provid-

ing such coverage. The employees of these religious non-

profit corporations still have access to insurance coverage

without cost sharing for all FDA-approved contracep-

tives; and according to HHS, this system imposes no net

economic burden on the insurance companies that are

required to provide or secure the coverage.

Although HHS has made this system available to reli-

gious nonprofits that have religious objections to the con-

traceptive mandate, HHS has provided no reason why the

same system cannot be made available when the owners of

for-profit corporations have similar religious objections.

We therefore conclude that this system constitutes an

alternative that achieves all of the Government’s aims

while providing greater respect for religious liberty. And

under RFRA, that conclusion means that enforcement of

the HHS contraceptive mandate against the objecting

parties in these cases is unlawful.

As this description of our reasoning shows, our holding

is very specific. We do not hold, as the principal dissent

alleges, that for-profit corporations and other commercial

enterprises can “opt out of any law (saving only tax laws)

they judge incompatible with their sincerely held religious

beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we

hold, as the dissent implies, that such corporations have

free rein to take steps that impose “disadvantages . . . on

others” or that require “the general public [to] pick up the

tab.” Post, at 1–2. And we certainly do not hold or suggest

that “RFRA demands accommodation of a for-profit corpo-

ration’s religious beliefs no matter the impact that ac-

commodation may have on . . . thousands of women em-

4 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

ployed by Hobby Lobby.” Post, at 2.1 The effect of the

HHS-created accommodation on the women employed by

Hobby Lobby and the other companies involved in these

cases would be precisely zero. Under that accommodation,

these women would still be entitled to all FDA-approved

contraceptives without cost sharing.

I

A

Congress enacted RFRA in 1993 in order to provide very

broad protection for religious liberty. RFRA’s enactment

came three years after this Court’s decision in Employ­

ment Div., Dept. of Human Resources of Ore. v. Smith, 494

U. S. 872 (1990), which largely repudiated the method of

analyzing free-exercise claims that had been used in cases

like Sherbert v. Verner, 374 U. S. 398 (1963), and Wiscon­

sin v. Yoder, 406 U. S. 205 (1972). In determining whether

challenged government actions violated the Free Exercise

Clause of the First Amendment, those decisions used a

balancing test that took into account whether the chal-

lenged action imposed a substantial burden on the prac-

tice of religion, and if it did, whether it was needed to

serve a compelling government interest. Applying this

test, the Court held in Sherbert that an employee who was

fired for refusing to work on her Sabbath could not be

denied unemployment benefits. 374 U. S., at 408–409.

And in Yoder, the Court held that Amish children could

not be required to comply with a state law demanding that

they remain in school until the age of 16 even though their

religion required them to focus on uniquely Amish values

and beliefs during their formative adolescent years. 406

U. S., at 210–211, 234–236.

In Smith, however, the Court rejected “the balancing

——————

1 See also post, at 8 (“The exemption sought by Hobby Lobby and

Conestoga . . . would deny [their employees] access to contraceptive

coverage that the ACA would otherwise secure”)

Cite as: 573 U. S. ____ (2014) 5

Opinion of the Court

test set forth in Sherbert.” 494 U. S., at 883. Smith con-

cerned two members of the Native American Church who

were fired for ingesting peyote for sacramental purposes.

When they sought unemployment benefits, the State of

Oregon rejected their claims on the ground that consump-

tion of peyote was a crime, but the Oregon Supreme Court,

applying the Sherbert test, held that the denial of benefits

violated the Free Exercise Clause. 494 U. S., at 875.

This Court then reversed, observing that use of the

Sherbert test whenever a person objected on religious

grounds to the enforcement of a generally applicable law

“would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every

conceivable kind.” 494 U. S., at 888. The Court therefore

held that, under the First Amendment, “neutral, generally

applicable laws may be applied to religious practices even

when not supported by a compelling governmental inter-

est.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).

Congress responded to Smith by enacting RFRA.

“[L]aws [that are] ‘neutral’ toward religion,” Congress

found, “may burden religious exercise as surely as laws

intended to interfere with religious exercise.” 42 U. S. C.

§2000bb(a)(2); see also §2000bb(a)(4). In order to ensure

broad protection for religious liberty, RFRA provides that

“Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule

of general applicability.” §2000bb–1(a).2 If the Govern-

ment substantially burdens a person’s exercise of religion,

under the Act that person is entitled to an exemption from

the rule unless the Government “demonstrates that appli-

cation of the burden to the person—(1) is in furtherance of

a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling govern-

——————

2 The Act defines “government” to include any “department” or

“agency” of the United States. §2000bb–2(1).

6 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

mental interest.” §2000bb–1(b).3

As enacted in 1993, RFRA applied to both the Federal

Government and the States, but the constitutional author-

ity invoked for regulating federal and state agencies dif-

fered. As applied to a federal agency, RFRA is based on

the enumerated power that supports the particular agen-

cy’s work,4 but in attempting to regulate the States and

their subdivisions, Congress relied on its power under

Section 5 of the Fourteenth Amendment to enforce the

First Amendment. 521 U. S., at 516–517. In City of

Boerne, however, we held that Congress had overstepped

its Section 5 authority because “[t]he stringent test RFRA

demands” “far exceed[ed] any pattern or practice of uncon-

stitutional conduct under the Free Exercise Clause as

interpreted in Smith.” Id., at 533–534. See also id., at

532.

Following our decision in City of Boerne, Congress

passed the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C.

§2000cc et seq. That statute, enacted under Congress’s

Commerce and Spending Clause powers, imposes the

same general test as RFRA but on a more limited category

of governmental actions. See Cutter v. Wilkinson, 544

U. S. 709, 715–716 (2005). And, what is most relevant for

present purposes, RLUIPA amended RFRA’s definition of

the “exercise of religion.” See §2000bb–2(4) (importing

RLUIPA definition). Before RLUIPA, RFRA’s definition

——————

3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that

RFRA’s “least restrictive means requirement was not used in the pre-

Smith jurisprudence RFRA purported to codify.” Id., at 509. On this

understanding of our pre-Smith cases, RFRA did more than merely

restore the balancing test used in the Sherbert line of cases; it provided

even broader protection for religious liberty than was available under

those decisions.

4 See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v.

Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).

Cite as: 573 U. S. ____ (2014) 7

Opinion of the Court

made reference to the First Amendment. See §2000bb–

2(4) (1994 ed.) (defining “exercise of religion” as “the exer-

cise of religion under the First Amendment”). In RLUIPA,

in an obvious effort to effect a complete separation from

First Amendment case law, Congress deleted the reference

to the First Amendment and defined the “exercise of reli-

gion” to include “any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.”

§2000cc–5(7)(A). And Congress mandated that this con-

cept “be construed in favor of a broad protection of reli-

gious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.” §2000cc–

3(g).5

B

At issue in these cases are HHS regulations promul-

gated under the Patient Protection and Affordable Care Act

of 2010 (ACA), 124 Stat. 119. ACA generally requires

employers with 50 or more full-time employees to offer

“a group health plan or group health insurance coverage”

that provides “minimum essential coverage.” 26 U. S. C.

§5000A(f)(2); §§4980H(a), (c)(2). Any covered employer

that does not provide such coverage must pay a substan-

tial price. Specifically, if a covered employer provides

group health insurance but its plan fails to comply with

ACA’s group-health-plan requirements, the employer may

be required to pay $100 per day for each affected “individ-

——————

5 The principal dissent appears to contend that this rule of construc-

tion should apply only when defining the “exercise of religion” in an

RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That

argument is plainly wrong. Under this rule of construction, the phrase

“exercise of religion,” as it appears in RLUIPA, must be interpreted

broadly, and RFRA states that the same phrase, as used in RFRA,

means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C.

§2000bb–2(4). It necessarily follows that the “exercise of religion”

under RFRA must be given the same broad meaning that applies under

RLUIPA.

8 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

ual.” §§4980D(a)–(b). And if the employer decides to stop

providing health insurance altogether and at least one

full-time employee enrolls in a health plan and qualifies

for a subsidy on one of the government-run ACA exchanges,

the employer must pay $2,000 per year for each of its full-

time employees. §§4980H(a), (c)(1).

Unless an exception applies, ACA requires an employ-

er’s group health plan or group-health-insurance coverage

to furnish “preventive care and screenings” for women

without “any cost sharing requirements.” 42 U. S. C.

§300gg–13(a)(4). Congress itself, however, did not specify

what types of preventive care must be covered. Instead,

Congress authorized the Health Resources and Services

Administration (HRSA), a component of HHS, to make

that important and sensitive decision. Ibid. The HRSA in

turn consulted the Institute of Medicine, a nonprofit group

of volunteer advisers, in determining which preventive

services to require. See 77 Fed. Reg. 8725–8726 (2012).

In August 2011, based on the Institute’s recommenda-

tions, the HRSA promulgated the Women’s Preventive

Services Guidelines. See id., at 8725–8726, and n. 1;

online at http://hrsa.gov/womensguidelines (all Internet

materials as visited June 26, 2014, and available in Clerk

of Court’s case file). The Guidelines provide that nonex-

empt employers are generally required to provide “cover-

age, without cost sharing” for “[a]ll Food and Drug Ad-

ministration [(FDA)] approved contraceptive methods,

sterilization procedures, and patient education and coun-

seling.” 77 Fed. Reg. 8725 (internal quotation marks

omitted). Although many of the required, FDA-approved

methods of contraception work by preventing the fertiliza-

tion of an egg, four of those methods (those specifically at

issue in these cases) may have the effect of preventing an

already fertilized egg from developing any further by

inhibiting its attachment to the uterus. See Brief for HHS

Cite as: 573 U. S. ____ (2014) 9

Opinion of the Court

in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medi-

cines to Help You.7

HHS also authorized the HRSA to establish exemptions

from the contraceptive mandate for “religious employers.”

45 CFR §147.131(a). That category encompasses “churches,

their integrated auxiliaries, and conventions or associ-

ations of churches,” as well as “the exclusively religious

activities of any religious order.” See ibid (citing 26

U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines,

HRSA exempted these organizations from the requirement

to cover contraceptive services. See http://hrsa.gov/

womensguidelines.

In addition, HHS has effectively exempted certain

religious nonprofit organizations, described under HHS

regulations as “eligible organizations,” from the contracep-

tive mandate. See 45 CFR §147.131(b); 78 Fed. Reg.

39874 (2013). An “eligible organization” means a nonprofit

organization that “holds itself out as a religious organi-

zation” and “opposes providing coverage for some or all of

any contraceptive services required to be covered . . . on

account of religious objections.” 45 CFR §147.131(b). To

qualify for this accommodation, an employer must certify

that it is such an organization. §147.131(b)(4). When a

group-health-insurance issuer receives notice that one of

its clients has invoked this provision, the issuer must then

exclude contraceptive coverage from the employer’s plan

——————

6 We will use “Brief for HHS” to refer to the Brief for Petitioners in

No. 13–354 and the Brief for Respondents in No. 13–356. The federal

parties are the Departments of HHS, Treasury, and Labor, and the

Secretaries of those Departments.

7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/

freepublications/ucm313215.htm. The owners of the companies in-

volved in these cases and others who believe that life begins at concep-

tion regard these four methods as causing abortions, but federal regula-

tions, which define pregnancy as beginning at implantation, see, e.g., 62

Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify

them.

10 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

and provide separate payments for contraceptive services

for plan participants without imposing any cost-sharing

requirements on the eligible organization, its insurance

plan, or its employee beneficiaries. §147.131(c).8 Al-

though this procedure requires the issuer to bear the cost of

these services, HHS has determined that this obligation

will not impose any net expense on issuers because its cost

will be less than or equal to the cost savings resulting

from the services. 78 Fed. Reg. 39877.9

In addition to these exemptions for religious organiza-

tions, ACA exempts a great many employers from most of

its coverage requirements. Employers providing “grandfa-

thered health plans”—those that existed prior to March

23, 2010, and that have not made specified changes after

that date—need not comply with many of the Act’s re-

quirements, including the contraceptive mandate. 42

U. S. C. §§18011(a), (e). And employers with fewer than

50 employees are not required to provide health insurance

——————

8 In the case of self-insured religious organizations entitled to the

accommodation, the third-party administrator of the organization must

“provide or arrange payments for contraceptive services” for the organi-

zation’s employees without imposing any cost-sharing requirements on

the eligible organization, its insurance plan, or its employee beneficiar-

ies. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–

2713A(b)(2)). The regulations establish a mechanism for these third-

party administrators to be compensated for their expenses by obtaining

a reduction in the fee paid by insurers to participate in the federally

facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR

§54.9815–2713A (b)(3)). HHS believes that these fee reductions will not

materially affect funding of the exchanges because “payments for

contraceptive services will represent only a small portion of total

[exchange] user fees.” 78 Fed. Reg. 39882.

9 In a separate challenge to this framework for religious nonprofit

organizations, the Court recently ordered that, pending appeal, the

eligible organizations be permitted to opt out of the contraceptive

mandate by providing written notification of their objections to the

Secretary of HHS, rather than to their insurance issuers or third-party

administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___

(2014).

Cite as: 573 U. S. ____ (2014) 11

Opinion of the Court

at all. 26 U. S. C. §4980H(c)(2).

All told, the contraceptive mandate “presently does not

apply to tens of millions of people.” 723 F. 3d 1114, 1143

(CA10 2013). This is attributable, in large part, to grand-

fathered health plans: Over one-third of the 149 million

nonelderly people in America with employer-sponsored

health plans were enrolled in grandfathered plans in 2013.

Brief for HHS in No. 13–354, at 53; Kaiser Family Foun-

dation & Health Research & Educational Trust, Employer

Health Benefits, 2013 Annual Survey 43, 221.10 The count

for employees working for firms that do not have to pro-

vide insurance at all because they employ fewer than 50

employees is 34 million workers. See The Whitehouse,

Health Reform for Small Businesses: The Affordable Care

Act Increases Choice and Saving Money for Small Busi-

nesses 1.11

II

A

Norman and Elizabeth Hahn and their three sons are

devout members of the Mennonite Church, a Christian

denomination. The Mennonite Church opposes abortion

and believes that “[t]he fetus in its earliest stages . . .

shares humanity with those who conceived it.”12

Fifty years ago, Norman Hahn started a wood-working

business in his garage, and since then, this company,

Conestoga Wood Specialties, has grown and now has 950

employees. Conestoga is organized under Pennsylvania

——————

10 While the Government predicts that this number will decline over

time, the total number of Americans working for employers to whom

the contraceptive mandate does not apply is still substantial, and there

is no legal requirement that grandfathered plans ever be phased out.

11 Online at http : / / www . whitehouse . gov / files / documents / health _

reform_for_small_businesses.pdf.

12 Mennonite Church USA, Statement on Abortion, online at

http://www.mennoniteusa.org /resource-center/resources/statements-and-

resolutions/statement-on-abortion/.

12 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

law as a for-profit corporation. The Hahns exercise sole

ownership of the closely held business; they control its

board of directors and hold all of its voting shares. One of

the Hahn sons serves as the president and CEO.

The Hahns believe that they are required to run their

business “in accordance with their religious beliefs and

moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013).

To that end, the company’s mission, as they see it, is to

“operate in a professional environment founded upon the

highest ethical, moral, and Christian principles.” Ibid.

(internal quotation marks omitted). The company’s “Vi-

sion and Values Statements” affirms that Conestoga

endeavors to “ensur[e] a reasonable profit in [a] manner

that reflects [the Hahns’] Christian heritage.” App. in No.

13–356, p. 94 (complaint).

As explained in Conestoga’s board-adopted “Statement

on the Sanctity of Human Life,” the Hahns believe that

“human life begins at conception.” 724 F. 3d 377, 382, and

n. 5 (CA3 2013) (internal quotation marks omitted). It is

therefore “against [their] moral conviction to be involved

in the termination of human life” after conception, which

they believe is a “sin against God to which they are held

accountable.” Ibid. (internal quotation marks omitted).

The Hahns have accordingly excluded from the group-

health-insurance plan they offer to their employees certain

contraceptive methods that they consider to be abortifa-

cients. Id., at 382.

The Hahns and Conestoga sued HHS and other federal

officials and agencies under RFRA and the Free Exercise

Clause of the First Amendment, seeking to enjoin applica-

tion of ACA’s contraceptive mandate insofar as it requires

them to provide health-insurance coverage for four FDA-

approved contraceptives that may operate after the fertili-

zation of an egg.13 These include two forms of emergency

——————

13 The Hahns and Conestoga also claimed that the contraceptive

Cite as: 573 U. S. ____ (2014) 13

Opinion of the Court

contraception commonly called “morning after” pills and

two types of intrauterine devices.14

In opposing the requirement to provide coverage for the

contraceptives to which they object, the Hahns argued

that “it is immoral and sinful for [them] to intentionally

participate in, pay for, facilitate, or otherwise support

these drugs.” Ibid. The District Court denied a prelimi-

nary injunction, see 917 F. Supp. 2d, at 419, and the Third

Circuit affirmed in a divided opinion, holding that “for-

profit, secular corporations cannot engage in religious

exercise” within the meaning of RFRA or the First

Amendment. 724 F. 3d, at 381. The Third Circuit also

rejected the claims brought by the Hahns themselves

because it concluded that the HHS “[m]andate does not

impose any requirements on the Hahns” in their personal

capacity. Id., at 389.

B

David and Barbara Green and their three children are

Christians who own and operate two family businesses.

Forty-five years ago, David Green started an arts-and-

crafts store that has grown into a nationwide chain called

Hobby Lobby. There are now 500 Hobby Lobby stores, and

the company has more than 13,000 employees. 723 F. 3d,

at 1122. Hobby Lobby is organized as a for-profit corpora-

tion under Oklahoma law.

One of David’s sons started an affiliated business, Mar-

del, which operates 35 Christian bookstores and employs

close to 400 people. Ibid. Mardel is also organized as a

for-profit corporation under Oklahoma law.

Though these two businesses have expanded over the

——————

mandate violates the Fifth Amendment and the Administrative Proce-

dure Act, 5 U. S. C. §553, but those claims are not before us.

14 See, e.g., WebMD Health News, New Morning-After Pill Ella Wins

FDA Approval, online at http://www.webmd.com/sex/birth-control/news/

20100813/new-morning-after-pill-ella-wins-fda-approval.

14 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

years, they remain closely held, and David, Barbara, and

their children retain exclusive control of both companies.

Ibid. David serves as the CEO of Hobby Lobby, and his

three children serve as the president, vice president, and

vice CEO. See Brief for Respondents in No. 13–354, p. 8.15

Hobby Lobby’s statement of purpose commits the

Greens to “[h]onoring the Lord in all [they] do by operat-

ing the company in a manner consistent with Biblical

principles.” App. in No. 13–354, pp. 134–135 (complaint).

Each family member has signed a pledge to run the busi-

nesses in accordance with the family’s religious beliefs and

to use the family assets to support Christian ministries.

723 F. 3d, at 1122. In accordance with those commit-

ments, Hobby Lobby and Mardel stores close on Sundays,

even though the Greens calculate that they lose millions

in sales annually by doing so. Id., at 1122; App. in No. 13–

354, at 136–137. The businesses refuse to engage in prof-

itable transactions that facilitate or promote alcohol use;

they contribute profits to Christian missionaries and

ministries; and they buy hundreds of full-page newspaper

ads inviting people to “know Jesus as Lord and Savior.”

Ibid. (internal quotation marks omitted).

Like the Hahns, the Greens believe that life begins at

conception and that it would violate their religion to facili-

tate access to contraceptive drugs or devices that operate

after that point. 723 F. 3d, at 1122. They specifically

object to the same four contraceptive methods as the

Hahns and, like the Hahns, they have no objection to the

other 16 FDA-approved methods of birth control. Id., at

1125. Although their group-health-insurance plan pre-

dates the enactment of ACA, it is not a grandfathered plan

——————

15 TheGreens operate Hobby Lobby and Mardel through a manage-

ment trust, of which each member of the family serves as trustee. 723

F. 3d 1114, 1122 (CA10 2013). The family provided that the trust

would also be governed according to their religious principles. Ibid.

Cite as: 573 U. S. ____ (2014) 15

Opinion of the Court

because Hobby Lobby elected not to retain grandfathered

status before the contraceptive mandate was proposed.

Id., at 1124.

The Greens, Hobby Lobby, and Mardel sued HHS and

other federal agencies and officials to challenge the con-

traceptive mandate under RFRA and the Free Exercise

Clause.16 The District Court denied a preliminary injunc-

tion, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the

plaintiffs appealed, moving for initial en banc considera-

tion. The Tenth Circuit granted that motion and reversed

in a divided opinion. Contrary to the conclusion of the

Third Circuit, the Tenth Circuit held that the Greens’ two

for-profit businesses are “persons” within the meaning of

RFRA and therefore may bring suit under that law.

The court then held that the corporations had estab-

lished a likelihood of success on their RFRA claim. 723

F. 3d, at 1140–1147. The court concluded that the contra-

ceptive mandate substantially burdened the exercise of

religion by requiring the companies to choose between

“compromis[ing] their religious beliefs” and paying a

heavy fee—either “close to $475 million more in taxes

every year” if they simply refused to provide coverage for

the contraceptives at issue, or “roughly $26 million” annu-

ally if they “drop[ped] health-insurance benefits for all

employees.” Id., at 1141.

The court next held that HHS had failed to demonstrate

a compelling interest in enforcing the mandate against the

Greens’ businesses and, in the alternative, that HHS had

failed to prove that enforcement of the mandate was the

“least restrictive means” of furthering the Government’s

asserted interests. Id., at 1143–1144 (emphasis deleted;

internal quotation marks omitted). After concluding that

the companies had “demonstrated irreparable harm,” the

——————

16 They also raised a claim under the Administrative Procedure Act, 5

U. S. C. §553.

16 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

court reversed and remanded for the District Court to

consider the remaining factors of the preliminary-

injunction test. Id., at 1147.17

We granted certiorari. 571 U. S. ___ (2013).

III

A

RFRA prohibits the “Government [from] substantially

burden[ing] a person’s exercise of religion even if the

burden results from a rule of general applicability” unless

the Government “demonstrates that application of the

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

governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental inter-

est.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added).

The first question that we must address is whether this

provision applies to regulations that govern the activities

of for-profit corporations like Hobby Lobby, Conestoga,

and Mardel.

HHS contends that neither these companies nor their

owners can even be heard under RFRA. According to

HHS, the companies cannot sue because they seek to

make a profit for their owners, and the owners cannot

be heard because the regulations, at least as a formal mat-

ter, apply only to the companies and not to the owners

as individuals. HHS’s argument would have dramatic

consequences.

Consider this Court’s decision in Braunfeld v. Brown,

——————

17 Given its RFRA ruling, the court declined to address the plaintiffs’

free-exercise claim or the question whether the Greens could bring

RFRA claims as individual owners of Hobby Lobby and Mardel. Four

judges, however, concluded that the Greens could do so, see 723 F. 3d,

at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring

in part and dissenting in part), and three of those judges would have

granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch,

J., concurring).

Cite as: 573 U. S. ____ (2014) 17

Opinion of the Court

366 U. S. 599 (1961) (plurality opinion). In that case, five

Orthodox Jewish merchants who ran small retail busi-

nesses in Philadelphia challenged a Pennsylvania Sunday

closing law as a violation of the Free Exercise Clause.

Because of their faith, these merchants closed their shops

on Saturday, and they argued that requiring them to

remain shut on Sunday threatened them with financial

ruin. The Court entertained their claim (although it ruled

against them on the merits), and if a similar claim were

raised today under RFRA against a jurisdiction still sub-

ject to the Act (for example, the District of Columbia, see

42 U. S. C. §2000bb–2(2)), the merchants would be enti-

tled to be heard. According to HHS, however, if these

merchants chose to incorporate their businesses—with-

out in any way changing the size or nature of their busi-

nesses—they would forfeit all RFRA (and free-exercise)

rights. HHS would put these merchants to a difficult

choice: either give up the right to seek judicial protection

of their religious liberty or forgo the benefits, available to

their competitors, of operating as corporations.

As we have seen, RFRA was designed to provide very

broad protection for religious liberty. By enacting RFRA,

Congress went far beyond what this Court has held is

constitutionally required.18 Is there any reason to think

that the Congress that enacted such sweeping protection

put small-business owners to the choice that HHS sug-

gests? An examination of RFRA’s text, to which we turn

——————

18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by

imposing a least-restrictive-means test, went beyond what was re-

quired by our pre-Smith decisions. Although the author of the principal

dissent joined the Court’s opinion in City of Boerne, she now claims that

the statement was incorrect. Post, at 12. For present purposes, it is

unnecessary to adjudicate this dispute. Even if RFRA simply restored

the status quo ante, there is no reason to believe, as HHS and the

dissent seem to suggest, that the law was meant to be limited to situa-

tions that fall squarely within the holdings of pre-Smith cases. See

infra, at 25–28.

18 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

in the next part of this opinion, reveals that Congress did

no such thing.

As we will show, Congress provided protection for people

like the Hahns and Greens by employing a familiar legal

fiction: It included corporations within RFRA’s definition

of “persons.” But it is important to keep in mind that the

purpose of this fiction is to provide protection for human

beings. A corporation is simply a form of organization

used by human beings to achieve desired ends. An estab-

lished body of law specifies the rights and obligations of

the people (including shareholders, officers, and employ-

ees) who are associated with a corporation in one way or

another. When rights, whether constitutional or statu-

tory, are extended to corporations, the purpose is to protect

the rights of these people. For example, extending Fourth

Amendment protection to corporations protects the privacy

interests of employees and others associated with the

company. Protecting corporations from government sei-

zure of their property without just compensation protects

all those who have a stake in the corporations’ financial

well-being. And protecting the free-exercise rights of

corporations like Hobby Lobby, Conestoga, and Mardel

protects the religious liberty of the humans who own and

control those companies.

In holding that Conestoga, as a “secular, for-profit cor-

poration,” lacks RFRA protection, the Third Circuit wrote

as follows:

“General business corporations do not, separate and

apart from the actions or belief systems of their indi­

vidual 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.”

724 F. 3d, at 385 (emphasis added).

All of this is true—but quite beside the point. Corpora-

Cite as: 573 U. S. ____ (2014) 19

Opinion of the Court

tions, “separate and apart from” the human beings who

own, run, and are employed by them, cannot do anything

at all.

B

1

As we noted above, RFRA applies to “a person’s” exer-

cise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA

itself does not define the term “person.” We therefore look

to the Dictionary Act, which we must consult “[i]n deter-

mining the meaning of any Act of Congress, unless the

context indicates otherwise.” 1 U. S. C. §1.

Under the Dictionary Act, “the wor[d] ‘person’ . . . in-

clude[s] corporations, companies, associations, firms,

partnerships, societies, and joint stock companies, as well

as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S.

___, ___ (2011) (slip op., at 6) (“We have no doubt that

‘person,’ in a legal setting, often refers to artificial entities.

The Dictionary Act makes that clear”). Thus, unless there

is something about the RFRA context that “indicates

otherwise,” the Dictionary Act provides a quick, clear, and

affirmative answer to the question whether the companies

involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional

intent to depart from the Dictionary Act definition, and

HHS makes little effort to argue otherwise. We have

entertained RFRA and free-exercise claims brought by

nonprofit corporations, see Gonzales v. O Centro Espírita

Beneficiente União do Vegetal, 546 U. S. 418 (2006)

(RFRA); Hosanna-Tabor Evangelical Lutheran Church

and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise);

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.

S. 520 (1993) (Free Exercise), and HHS concedes that a

nonprofit corporation can be a “person” within the mean-

ing of RFRA. See Brief for HHS in No. 13–354, at 17;

20 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Reply Brief in No. 13–354, at 7–8.19

This concession effectively dispatches any argument

that the term “person” as used in RFRA does not reach the

closely held corporations involved in these cases. No

known understanding of the term “person” includes some

but not all corporations. The term “person” sometimes

encompasses artificial persons (as the Dictionary Act

instructs), and it sometimes is limited to natural persons.

But no conceivable definition of the term includes natural

persons and nonprofit corporations, but not for-profit

corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378

(2005) (“To give th[e] same words a different meaning for

each category would be to invent a statute rather than

interpret one”).

2

The principal argument advanced by HHS and the

principal dissent regarding RFRA protection for Hobby

Lobby, Conestoga, and Mardel focuses not on the statutory

term “person,” but on the phrase “exercise of religion.”

According to HHS and the dissent, these corporations are

not protected by RFRA because they cannot exercise reli-

gion. Neither HHS nor the dissent, however, provides any

persuasive explanation for this conclusion.

Is it because of the corporate form? The corporate form

alone cannot provide the explanation because, as we have

pointed out, HHS concedes that nonprofit corporations can

——————

19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04–

1084, p. II (stating that the organizational respondent was “a New

Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor,

O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesi-

astical corporation”).

20 Not only does the Government concede that the term “persons” in

RFRA includes nonprofit corporations, it goes further and appears to

concede that the term might also encompass other artificial entities,

namely, general partnerships and unincorporated associations. See

Brief for HHS in No. 13–354, at 28, 40.

Cite as: 573 U. S. ____ (2014) 21

Opinion of the Court

be protected by RFRA. The dissent suggests that nonprofit

corporations are special because furthering their reli-

gious “autonomy . . . often furthers individual religious

freedom as well.” Post, at 15 (quoting Corporation of

Presiding Bishop of Church of Jesus Christ of Latter-day

Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J.,

concurring in judgment)). But this principle applies

equally to for-profit corporations: Furthering their re-

ligious freedom also “furthers individual religious freedom.”

In these cases, for example, allowing Hobby Lobby, Con-

estoga, and Mardel to assert RFRA claims protects the

religious liberty of the Greens and the Hahns.21

If the corporate form is not enough, what about the

profit-making objective? In Braunfeld, 366 U. S. 599, we

entertained the free-exercise claims of individuals who

were attempting to make a profit as retail merchants, and

the Court never even hinted that this objective precluded

their claims. As the Court explained in a later case, the

“exercise of religion” involves “not only belief and profes-

sion but the performance of (or abstention from) physical

acts” that are “engaged in for religious reasons.” Smith,

494 U. S., at 877. Business practices that are compelled or

limited by the tenets of a religious doctrine fall comforta-

bly within that definition. Thus, a law that “operates so

as to make the practice of . . . religious beliefs more expen-

sive” in the context of business activities imposes a burden

on the exercise of religion. Braunfeld, supra, at 605; see

United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing

that “compulsory participation in the social security sys-

tem interferes with [Amish employers’] free exercise

——————

21 Although the principal dissent seems to think that Justice Bren-

nan’s statement in Amos provides a ground for holding that for-profit

corporations may not assert free-exercise claims, that was not Justice

Brennan’s view. See Gallagher v. Crown Kosher Super Market of

Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26–

27.

22 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

rights”).

If, as Braunfeld recognized, a sole proprietorship that

seeks to make a profit may assert a free-exercise claim,22

why can’t Hobby Lobby, Conestoga, and Mardel do the

same?

Some lower court judges have suggested that RFRA

does not protect for-profit corporations because the pur-

pose of such corporations is simply to make money.23 This

——————

22 It is revealing that the principal dissent cannot even bring itself to

acknowledge that Braunfeld was correct in entertaining the merchants’

claims. See post, at 19 (dismissing the relevance of Braunfeld in part

because “[t]he free exercise claim asserted there was promptly rejected

on the merits”).

23 See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artifi-

cial being,’ . . . that was created to make money” could exercise reli-

gion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J.

dissenting) (“So far as it appears, the mission of Grote Industries, like

that of any other for-profit, secular business, is to make money in the

commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626

(CA7 2013) (“Congress did not intend to include corporations primarily

organized for secular, profit-seeking purposes as ‘persons’ under

RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting)

(“[T]he specific purpose for which [a corporation] is created matters

greatly to how it will be categorized and treated under the law” and “it

is undisputed that Hobby Lobby and Mardel are for-profit corporations

focused on selling merchandise to consumers”).

The principal dissent makes a similar point, stating that “[f]or-profit

corporations are different from religious nonprofits in that they use

labor to make a profit, rather than to perpetuate the religious values

shared by a community of believers.” Post, at 18–19 (internal quotation

marks omitted). The first half of this statement is a tautology; for-

profit corporations do indeed differ from nonprofits insofar as they seek

to make a profit for their owners, but the second part is factually

untrue. As the activities of the for-profit corporations involved in these

cases show, some for-profit corporations do seek “to perpetuate the

religious values shared,” in these cases, by their owners. Conestoga’s

Vision and Values Statement declares that the company is dedicated to

operating “in [a] manner that reflects our Christian heritage and the

highest ethical and moral principles of business.” App. in No. 13–356,

p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that

the company “is committed to . . . Honoring the Lord in all we do by

Cite as: 573 U. S. ____ (2014) 23

Opinion of the Court

argument flies in the face of modern corporate law. “Each

American jurisdiction today either expressly or by implica-

tion authorizes corporations to be formed under its general

corporation act for any lawful purpose or business.” 1 J.

Cox & T. Hazen, Treatise of the Law of Corporations §4:1,

p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher,

Cyclopedia of the Law of Corporations §102 (rev. ed. 2010).

While it is certainly true that a central objective of for-

profit corporations is to make money, modern corporate

law does not require for-profit corporations to pursue

profit at the expense of everything else, and many do not

do so. For-profit corporations, with ownership approval,

support a wide variety of charitable causes, and it is not at

all uncommon for such corporations to further humanitar-

ian and other altruistic objectives. Many examples come

readily to mind. So long as its owners agree, a for-profit

corporation may take costly pollution-control and energy-

conservation measures that go beyond what the law re-

quires. A for-profit corporation that operates facilities in

other countries may exceed the requirements of local law

regarding working conditions and benefits. If for-profit

corporations may pursue such worthy objectives, there is

no apparent reason why they may not further religious

objectives as well.

HHS would draw a sharp line between nonprofit corpo-

——————

operating . . . in a manner consistent with Biblical principles.” App. in

No. 13–354, p. 135. The dissent also believes that history is not on our

side because even Blackstone recognized the distinction between

“ecclesiastical and lay” corporations. Post, at 18. What Blackstone

illustrates, however, is that dating back to 1765, there was no sharp

divide among corporations in their capacity to exercise religion; Black-

stone recognized that even what he termed “lay” corporations might

serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the

Law of England 458–459 (1765). And whatever may have been the case

at the time of Blackstone, modern corporate law (and the law of the

States in which these three companies are incorporated) allows for-

profit corporations to “perpetuat[e] religious values.”

24 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

rations (which, HHS concedes, are protected by RFRA)

and for-profit corporations (which HHS would leave un-

protected), but the actual picture is less clear-cut. Not all

corporations that decline to organize as nonprofits do so in

order to maximize profit. For example, organizations with

religious and charitable aims might organize as for-profit

corporations because of the potential advantages of that

corporate form, such as the freedom to participate in

lobbying for legislation or campaigning for political candi-

dates who promote their religious or charitable goals.24 In

fact, recognizing the inherent compatibility between estab-

lishing a for-profit corporation and pursuing nonprofit

goals, States have increasingly adopted laws formally

recognizing hybrid corporate forms. Over half of the

States, for instance, now recognize the “benefit corpora-

tion,” a dual-purpose entity that seeks to achieve both a

benefit for the public and a profit for its owners.25

In any event, the objectives that may properly be pur-

——————

24 See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organ-

izations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its

charitable goals” while operating as a for-profit corporation to be able to

“invest in for-profit endeavors, lobby for policies that support its philan-

thropic goals, and tap Google’s innovative technology and workforce”

(internal quotation marks and alterations omitted)); cf. 26 CFR

§1.501(c)(3)–1(c)(3).

25 See Benefit Corp Information Center, online at http://

www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code

Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corpora-

tion shall have as one of its purposes the purpose of creating a general

public benefit,” and “may identify one or more specific public benefits

that it is the purpose of the benefit corporation to create. . . . This

purpose is in addition to [the purpose of engaging in any lawful busi-

ness].” “ ‘Specific public benefit’ means a benefit that serves one or

more public welfare, religious, charitable, scientific, literary, or educa-

tional purposes, or other purpose or benefit beyond the strict interest of

the shareholders of the benefit corporation . . . .”); S. C. Code Ann.

§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012

Cum. Supp.) (similar).

Cite as: 573 U. S. ____ (2014) 25

Opinion of the Court

sued by the companies in these cases are governed by the

laws of the States in which they were incorporated—

Pennsylvania and Oklahoma—and the laws of those

States permit for-profit corporations to pursue “any lawful

purpose” or “act,” including the pursuit of profit in con-

formity with the owners’ religious principles. 15 Pa. Cons.

Stat. §1301 (2001) (“Corporations may be incorporated

under this subpart for any lawful purpose or purposes”);

Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very

corporation, whether profit or not for profit” may “be

incorporated or organized . . . to conduct or promote any

lawful business or purposes”); see also §1006(A)(3); Brief

for State of Oklahoma as Amicus Curiae in No. 13–354.

3

HHS and the principal dissent make one additional

argument in an effort to show that a for-profit corporation

cannot engage in the “exercise of religion” within the

meaning of RFRA: HHS argues that RFRA did no more

than codify this Court’s pre-Smith Free Exercise Clause

precedents, and because none of those cases squarely held

that a for-profit corporation has free-exercise rights, RFRA

does not confer such protection. This argument has many

flaws.

First, nothing in the text of RFRA as originally enacted

suggested that the statutory phrase “exercise of religion

under the First Amendment” was meant to be tied to this

Court’s pre-Smith interpretation of that Amendment.

When first enacted, RFRA defined the “exercise of reli-

gion” to mean “the exercise of religion under the First

Amendment”—not the exercise of religion as recognized

only by then-existing Supreme Court precedents. 42

U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to

link the meaning of a statutory provision to a body of this

Court’s case law, it knows how to do so. See, e.g., Antiter-

rorism and Effective Death Penalty Act of 1996, 28

26 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

U. S. C. §2254(d)(1) (authorizing habeas relief from a

state-court decision that “was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States”).

Second, if the original text of RFRA was not clear

enough on this point—and we think it was—the amend-

ment of RFRA through RLUIPA surely dispels any doubt.

That amendment deleted the prior reference to the First

Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (in-

corporating §2000cc–5), and neither HHS nor the principal

dissent can explain why Congress did this if it wanted to

tie RFRA coverage tightly to the specific holdings of our

pre-Smith free-exercise cases. Moreover, as discussed, the

amendment went further, providing that the exercise of

religion “shall be construed in favor of a broad protection

of religious exercise, to the maximum extent permitted by

the terms of this chapter and the Constitution.” §2000cc–

3(g). It is simply not possible to read these provisions as

restricting the concept of the “exercise of religion” to those

practices specifically addressed in our pre-Smith decisions.

Third, the one pre-Smith case involving the free-exercise

rights of a for-profit corporation suggests, if anything, that

for-profit corporations possess such rights. In Gallagher v.

Crown Kosher Super Market of Mass., Inc., 366 U. S. 617

(1961), the Massachusetts Sunday closing law was chal-

lenged by a kosher market that was organized as a for-

profit corporation, by customers of the market, and by a

rabbi. The Commonwealth argued that the corporation

lacked “standing” to assert a free-exercise claim,26 but not

one member of the Court expressed agreement with that

——————

26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28–

31 (arguing that corporation “has no ‘religious belief’ or ‘religious

liberty,’ and had no standing in court to assert that its free exercise of

religion was impaired”).

Cite as: 573 U. S. ____ (2014) 27

Opinion of the Court

argument. The plurality opinion for four Justices rejected

the First Amendment claim on the merits based on the

reasoning in Braunfeld, and reserved decision on the

question whether the corporation had “standing” to raise

the claim. See 366 U. S., at 631. The three dissenters,

Justices Douglas, Brennan, and Stewart, found the law

unconstitutional as applied to the corporation and the

other challengers and thus implicitly recognized their

right to assert a free-exercise claim. See id., at 642 (Bren-

nan, J., joined by Stewart, J., dissenting); McGowan v.

Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J.,

dissenting as to related cases including Gallagher). Fi-

nally, Justice Frankfurter’s opinion, which was joined by

Justice Harlan, upheld the Massachusetts law on the

merits but did not question or reserve decision on the

issue of the right of the corporation or any of the other

challengers to be heard. See McGowan, 366 U. S., at 521–

522. It is quite a stretch to argue that RFRA, a law enacted

to provide very broad protection for religious liberty,

left for-profit corporations unprotected simply because in

Gallagher—the only pre-Smith case in which the issue

was raised—a majority of the Justices did not find it nec-

essary to decide whether the kosher market’s corporate

status barred it from raising a free-exercise claim.

Finally, the results would be absurd if RFRA merely

restored this Court’s pre-Smith decisions in ossified form

and did not allow a plaintiff to raise a RFRA claim unless

that plaintiff fell within a category of plaintiffs one of

whom had brought a free-exercise claim that this Court

entertained in the years before Smith. For example, we

are not aware of any pre-Smith case in which this Court

entertained a free-exercise claim brought by a resident

noncitizen. Are such persons also beyond RFRA’s protec-

tive reach simply because the Court never addressed their

rights before Smith?

Presumably in recognition of the weakness of this ar-

28 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

gument, both HHS and the principal dissent fall back on

the broader contention that the Nation lacks a tradition of

exempting for-profit corporations from generally applica-

ble laws. By contrast, HHS contends, statutes like Title

VII, 42 U. S. C. §2000e–19(A), expressly exempt churches

and other nonprofit religious institutions but not for-profit

corporations. See Brief for HHS in No. 13–356, p. 26. In

making this argument, however, HHS did not call to our

attention the fact that some federal statutes do exempt

categories of entities that include for-profit corporations

from laws that would otherwise require these entities to

engage in activities to which they object on grounds of

conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27

If Title VII and similar laws show anything, it is

that Congress speaks with specificity when it intends a

religious accommodation not to extend to for-profit

corporations.

——————

27 The principal dissent points out that “the exemption codified in

§238n(a) was not enacted until three years after RFRA’s passage.”

Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in

fact, “ope[n] all statutory schemes to religion-based challenges by for-

profit corporations” because if it had “there would be no need for a

statute-specific, post-RFRA exemption of this sort.” Ibid.

This argument fails to recognize that the protection provided by

§238n(a) differs significantly from the protection provided by RFRA.

Section 238n(a) flatly prohibits discrimination against a covered

healthcare facility for refusing to engage in certain activities related to

abortion. If a covered healthcare facility challenged such discrimina-

tion under RFRA, by contrast, the discrimination would be unlawful

only if a court concluded, among other things, that there was a less

restrictive means of achieving any compelling government interest.

In addition, the dissent’s argument proves too much. Section

238n(a) applies evenly to “any health care entity”—whether it is a

religious nonprofit entity or a for-profit entity. There is no dispute that

RFRA protects religious nonprofit corporations, so if §238n(a) were

redundant as applied to for-profit corporations, it would be equally

redundant as applied to nonprofits.

Cite as: 573 U. S. ____ (2014) 29

Opinion of the Court

4

Finally, HHS contends that Congress could not have

wanted RFRA to apply to for-profit corporations because it

is difficult as a practical matter to ascertain the sincere

“beliefs” of a corporation. HHS goes so far as to raise the

specter of “divisive, polarizing proxy battles over the reli-

gious identity of large, publicly traded corporations such

as IBM or General Electric.” Brief for HHS in No. 13–356,

at 30.

These cases, however, do not involve publicly traded

corporations, and it seems unlikely that the sort of corpo-

rate giants to which HHS refers will often assert RFRA

claims. HHS has not pointed to any example of a publicly

traded corporation asserting RFRA rights, and numerous

practical restraints would likely prevent that from occur-

ring. For example, the idea that unrelated shareholders—

including institutional investors with their own set of

stakeholders—would agree to run a corporation under the

same religious beliefs seems improbable. In any event, we

have no occasion in these cases to consider RFRA’s ap-

plicability to such companies. The companies in the cases

before us are closely held corporations, each owned and

controlled by members of a single family, and no one has

disputed the sincerity of their religious beliefs.28

HHS has also provided no evidence that the purported

problem of determining the sincerity of an asserted reli-

gious belief moved Congress to exclude for-profit corpora-

tions from RFRA’s protection. On the contrary, the scope

of RLUIPA shows that Congress was confident of the

ability of the federal courts to weed out insincere claims.

RLUIPA applies to “institutionalized persons,” a category

——————

28 To qualify for RFRA’s protection, an asserted belief must be “sin-

cere”; a corporation’s pretextual assertion of a religious belief in order

to obtain an exemption for financial reasons would fail. Cf., e.g., United

States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).

30 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

that consists primarily of prisoners, and by the time of

RLUIPA’s enactment, the propensity of some prisoners to

assert claims of dubious sincerity was well documented.29

Nevertheless, after our decision in City of Boerne, Con-

gress enacted RLUIPA to preserve the right of prisoners to

raise religious liberty claims. If Congress thought that the

federal courts were up to the job of dealing with insincere

prisoner claims, there is no reason to believe that Con-

gress limited RFRA’s reach out of concern for the seem-

ingly less difficult task of doing the same in corporate

cases. And if, as HHS seems to concede, Congress wanted

RFRA to apply to nonprofit corporations, see, Reply Brief

in No. 13–354, at 7–8, what reason is there to think that

Congress believed that spotting insincere claims would

be tougher in cases involving for-profits?

HHS and the principal dissent express concern about

the possibility of disputes among the owners of corpora-

tions, but that is not a problem that arises because of

RFRA or that is unique to this context. The owners of

closely held corporations may—and sometimes do—

disagree about the conduct of business. 1 Treatise of the

Law of Corporations §14:11. And even if RFRA did not

exist, the owners of a company might well have a dispute

relating to religion. For example, some might want a

company’s stores to remain open on the Sabbath in order

to make more money, and others might want the stores to

close for religious reasons. State corporate law provides a

ready means for resolving any conflicts by, for example,

dictating how a corporation can establish its governing

structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8,

§351 (2011) (providing that certificate of incorporation

——————

29 See,

e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v.

White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996

WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819–

820 (Iowa 1996).

Cite as: 573 U. S. ____ (2014) 31

Opinion of the Court

may provide how “the business of the corporation shall be

managed”). Courts will turn to that structure and the

underlying state law in resolving disputes.

For all these reasons, we hold that a federal regulation’s

restriction on the activities of a for-profit closely held

corporation must comply with RFRA.30

IV

Because RFRA applies in these cases, we must next ask

whether the HHS contraceptive mandate “substantially

burden[s]” the exercise of religion. 42 U. S. C. §2000bb–

1(a). We have little trouble concluding that it does.

——————

30 The principal dissent attaches significance to the fact that the

“Senate voted down [a] so-called ‘conscience amendment,’ which would

have enabled any employer or insurance provider to deny coverage

based on its asserted religious beliefs or moral convictions.” Post, at 6.

The dissent would evidently glean from that vote an intent by the

Senate to prohibit for-profit corporate employers from refusing to offer

contraceptive coverage for religious reasons, regardless of whether the

contraceptive mandate could pass muster under RFRA’s standards.

But that is not the only plausible inference from the failed amend-

ment—or even the most likely. For one thing, the text of the amend-

ment was “written so broadly that it would allow any employer to deny

any health service to any American for virtually any reason—not just

for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis

added). Moreover, the amendment would have authorized a blanket

exemption for religious or moral objectors; it would not have subjected

religious-based objections to the judicial scrutiny called for by RFRA, in

which a court must consider not only the burden of a requirement on

religious adherents, but also the government’s interest and how nar-

rowly tailored the requirement is. It is thus perfectly reasonable to

believe that the amendment was voted down because it extended more

broadly than the pre-existing protections of RFRA. And in any event,

even if a rejected amendment to a bill could be relevant in other con-

texts, it surely cannot be relevant here, because any “Federal statutory

law adopted after November 16, 1993 is subject to [RFRA] unless such

law explicitly excludes such application by reference to [RFRA].” 42

U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such

an explicit reference in the meager legislative history on which the

dissent relies.

32 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

A

As we have noted, the Hahns and Greens have a sincere

religious belief that life begins at conception. They there-

fore object on religious grounds to providing health insur-

ance that covers methods of birth control that, as HHS

acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4,

may result in the destruction of an embryo. By requiring

the Hahns and Greens and their companies to arrange for

such coverage, the HHS mandate demands that they

engage in conduct that seriously violates their religious

beliefs.

If the Hahns and Greens and their companies do not

yield to this demand, the economic consequences will be

severe. If the companies continue to offer group health

plans that do not cover the contraceptives at issue, they

will be taxed $100 per day for each affected individual. 26

U. S. C. §4980D. For Hobby Lobby, the bill could amount

to $1.3 million per day or about $475 million per year; for

Conestoga, the assessment could be $90,000 per day or

$33 million per year; and for Mardel, it could be $40,000

per day or about $15 million per year. These sums are

surely substantial.

It is true that the plaintiffs could avoid these assess-

ments by dropping insurance coverage altogether and thus

forcing their employees to obtain health insurance on one

of the exchanges established under ACA. But if at least

one of their full-time employees were to qualify for a sub-

sidy on one of the government-run exchanges, this course

would also entail substantial economic consequences. The

companies could face penalties of $2,000 per employee

each year. §4980H. These penalties would amount to

roughly $26 million for Hobby Lobby, $1.8 million for

Conestoga, and $800,000 for Mardel.

B

Although these totals are high, amici supporting HHS

Cite as: 573 U. S. ____ (2014) 33

Opinion of the Court

have suggested that the $2,000 per-employee penalty is

actually less than the average cost of providing health

insurance, see Brief for Religious Organizations 22, and

therefore, they claim, the companies could readily elimi-

nate any substantial burden by forcing their employees to

obtain insurance in the government exchanges. We do not

generally entertain arguments that were not raised below

and are not advanced in this Court by any party, see

United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60,

n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13

(1979); Knetsch v. United States, 364 U. S. 361, 370 (1960),

and there are strong reasons to adhere to that practice in

these cases. HHS, which presumably could have compiled

the relevant statistics, has never made this argument—

not in its voluminous briefing or at oral argument in this

Court nor, to our knowledge, in any of the numerous cases

in which the issue now before us has been litigated around

the country. As things now stand, we do not even know

what the Government’s position might be with respect to

these amici’s intensely empirical argument.31 For this

same reason, the plaintiffs have never had an opportunity

to respond to this novel claim that—contrary to their

longstanding practice and that of most large employers—

they would be better off discarding their employer insur-

ance plans altogether.

Even if we were to reach this argument, we would find it

unpersuasive. As an initial matter, it entirely ignores the

fact that the Hahns and Greens and their companies have

religious reasons for providing health-insurance coverage

for their employees. Before the advent of ACA, they were

not legally compelled to provide insurance, but they never-

theless did so—in part, no doubt, for conventional business

——————

31 Indeed, one of HHS’s stated reasons for establishing the religious

accommodation was to “encourag[e] eligible organizations to continue to

offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).

34 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

reasons, but also in part because their religious beliefs

govern their relations with their employees. See App. to

Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354,

at 139.

Putting aside the religious dimension of the decision to

provide insurance, moreover, it is far from clear that the

net cost to the companies of providing insurance is more

than the cost of dropping their insurance plans and paying

the ACA penalty. Health insurance is a benefit that em-

ployees value. If the companies simply eliminated that

benefit and forced employees to purchase their own insur-

ance on the exchanges, without offering additional com-

pensation, it is predictable that the companies would face

a competitive disadvantage in retaining and attracting

skilled workers. See App. in No. 13–354, at 153.

The companies could attempt to make up for the elimi-

nation of a group health plan by increasing wages, but this

would be costly. Group health insurance is generally less

expensive than comparable individual coverage, so the

amount of the salary increase needed to fully compensate

for the termination of insurance coverage may well exceed

the cost to the companies of providing the insurance. In

addition, any salary increase would have to take into

account the fact that employees must pay income taxes on

wages but not on the value of employer-provided health

insurance. 26 U. S. C. §106(a). Likewise, employers can

deduct the cost of providing health insurance, see

§162(a)(1), but apparently cannot deduct the amount of

the penalty that they must pay if insurance is not pro-

vided; that difference also must be taken into account.

Given these economic incentives, it is far from clear that it

would be financially advantageous for an employer to drop

coverage and pay the penalty.32

——————

32 Attempting to compensate for dropped insurance by raising wages

would also present administrative difficulties. In order to provide full

Cite as: 573 U. S. ____ (2014) 35

Opinion of the Court

In sum, we refuse to sustain the challenged regulations

on the ground—never maintained by the Government—

that dropping insurance coverage eliminates the substan-

tial burden that the HHS mandate imposes. We doubt

that the Congress that enacted RFRA—or, for that matter,

ACA—would have believed it a tolerable result to put

family-run businesses to the choice of violating their sin-

cerely held religious beliefs or making all of their employ-

ees lose their existing healthcare plans.

C

In taking the position that the HHS mandate does not

impose a substantial burden on the exercise of religion,

HHS’s main argument (echoed by the principal dissent) is

basically that the connection between what the objecting

parties must do (provide health-insurance coverage for

four methods of contraception that may operate after the

fertilization of an egg) and the end that they find to be

morally wrong (destruction of an embryo) is simply too

attenuated. Brief for HHS in 13–354, pp. 31–34; post, at

22–23. HHS and the dissent note that providing the

coverage would not itself result in the destruction of an

embryo; that would occur only if an employee chose to take

advantage of the coverage and to use one of the four meth-

ods at issue.33 Ibid.

——————

compensation for employees, the companies would have to calculate the

value to employees of the convenience of retaining their employer-

provided coverage and thus being spared the task of attempting to find

and sign up for a comparable plan on an exchange. And because some

but not all of the companies’ employees may qualify for subsidies on an

exchange, it would be nearly impossible to calculate a salary increase

that would accurately restore the status quo ante for all employees.

33 This argument is not easy to square with the position taken by

HHS in providing exemptions from the contraceptive mandate for

religious employers, such as churches, that have the very same reli-

gious objections as the Hahns and Greens and their companies. The

connection between what these religious employers would be required

36 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

This argument dodges the question that RFRA presents

(whether the HHS mandate imposes a substantial burden

on the ability of the objecting parties to conduct business

in accordance with their religious beliefs) and instead

addresses a very different question that the federal courts

have no business addressing (whether the religious belief

asserted in a RFRA case is reasonable). The Hahns and

Greens believe that providing the coverage demanded by

the HHS regulations is connected to the destruction of an

embryo in a way that is sufficient to make it immoral for

them to provide the coverage. This belief implicates a

difficult and important question of religion and moral

philosophy, namely, the circumstances under which it is

wrong for a person to perform an act that is innocent in

itself but that has the effect of enabling or facilitating the

commission of an immoral act by another.34 Arrogating

the authority to provide a binding national answer to this

religious and philosophical question, HHS and the princi-

——————

to do if not exempted (provide insurance coverage for particular contra-

ceptives) and the ultimate event that they find morally wrong (destruc-

tion of an embryo) is exactly the same. Nevertheless, as discussed,

HHS and the Labor and Treasury Departments authorized the exemp-

tion from the contraceptive mandate of group health plans of certain

religious employers, and later expanded the exemption to include

certain nonprofit organizations with religious objections to contracep-

tive coverage. 78 Fed. Reg. 39871. When this was done, the Govern-

ment made clear that its objective was to “protec[t]” these religious

objectors “from having to contract, arrange, pay, or refer for such

coverage.” Ibid. Those exemptions would be hard to understand if the

plaintiffs’ objections here were not substantial.

34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in

Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins,

Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The

general principles governing cooperation” in wrongdoing—i.e., “physical

activity (or its omission) by which a person assists in the evil act of

another who is the principal agent”—“present troublesome difficulties

in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935)

(Cooperation occurs “when A helps B to accomplish an external act by

an act that is not sinful, and without approving of what B does”).

Cite as: 573 U. S. ____ (2014) 37

Opinion of the Court

pal dissent in effect tell the plaintiffs that their beliefs are

flawed. For good reason, we have repeatedly refused to

take such a step. See, e.g., Smith, 494 U. S., at 887 (“Re-

peatedly and in many different contexts, we have warned

that courts must not presume to determine . . . the plausi-

bility of a religious claim”); Hernandez v. Commissioner,

490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v.

Mary Elizabeth Blue Hull Memorial Presbyterian Church,

393 U. S. 440, 450 (1969).

Moreover, in Thomas v. Review Bd. of Indiana Employ­

ment Security Div., 450 U. S. 707 (1981), we considered

and rejected an argument that is nearly identical to the

one now urged by HHS and the dissent. In Thomas, a

Jehovah’s Witness was initially employed making sheet

steel for a variety of industrial uses, but he was later

transferred to a job making turrets for tanks. Id., at 710.

Because he objected on religious grounds to participating

in the manufacture of weapons, he lost his job and sought

unemployment compensation. Ruling against the em-

ployee, the state court had difficulty with the line that

the employee drew between work that he found to be con-

sistent with his religious beliefs (helping to manufacture

steel that was used in making weapons) and work that he

found morally objectionable (helping to make the weapons

themselves). This Court, however, held that “it is not for

us to say that the line he drew was an unreasonable one.”

Id., at 715.35

Similarly, in these cases, the Hahns and Greens and

their companies sincerely believe that providing the in-

surance coverage demanded by the HHS regulations lies

on the forbidden side of the line, and it is not for us to say

that their religious beliefs are mistaken or insubstantial.

Instead, our “narrow function . . . in this context is to

——————

35 The principal dissent makes no effort to reconcile its view about the

substantial-burden requirement with our decision in Thomas.

38 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

determine” whether the line drawn reflects “an honest

conviction,” id., at 716, and there is no dispute that it

does.

HHS nevertheless compares these cases to decisions in

which we rejected the argument that the use of general

tax revenue to subsidize the secular activities of religious

institutions violated the Free Exercise Clause. See Tilton

v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board

of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236,

248–249 (1968). But in those cases, while the subsidies

were clearly contrary to the challengers’ views on a secu-

lar issue, namely, proper church-state relations, the chal-

lengers never articulated a religious objection to the sub-

sidies. As we put it in Tilton, they were “unable to

identify any coercion directed at the practice or exercise of

their religious beliefs.” 403 U. S., at 689 (plurality opin-

ion); see Allen, supra, at 249 (“[A]ppellants have not con-

tended that the New York law in any way coerces them as

individuals in the practice of their religion”). Here, in

contrast, the plaintiffs do assert that funding the specific

contraceptive methods at issue violates their religious

beliefs, and HHS does not question their sincerity. Be-

cause the contraceptive mandate forces them to pay an

enormous sum of money—as much as $475 million per

year in the case of Hobby Lobby—if they insist on provid-

ing insurance coverage in accordance with their religious

beliefs, the mandate clearly imposes a substantial burden

on those beliefs.

V

Since the HHS contraceptive mandate imposes a sub-

stantial burden on the exercise of religion, we must move

on and decide whether HHS has shown that the mandate

both “(1) is in furtherance of a compelling governmental

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

ing that compelling governmental interest.” 42 U. S. C.

Cite as: 573 U. S. ____ (2014) 39

Opinion of the Court

§2000bb–1(b).

A

HHS asserts that the contraceptive mandate serves a

variety of important interests, but many of these are

couched in very broad terms, such as promoting “public

health” and “gender equality.” Brief for HHS in No. 13–

354, at 46, 49. RFRA, however, contemplates a “more

focused” inquiry: It “requires the Government to demon-

strate that the compelling interest test is satisfied through

application of the challenged law ‘to the person’—the

particular claimant whose sincere exercise of religion is

being substantially burdened.” O’Centro, 546 U. S., at

430–431 (quoting §2000bb–1(b)). This requires us to

“loo[k] beyond broadly formulated interests” and to “scru-

tiniz[e] the asserted harm of granting specific exemptions

to particular religious claimants”—in other words, to look

to the marginal interest in enforcing the contraceptive

mandate in these cases. O Centro, supra, at 431.

In addition to asserting these very broadly framed

interests, HHS maintains that the mandate serves a

compelling interest in ensuring that all women have ac-

cess to all FDA-approved contraceptives without cost

sharing. See Brief for HHS in No. 13–354, at 14–15, 49;

see Brief for HHS in No. 13–356, at 10, 48. Under our

cases, women (and men) have a constitutional right to

obtain contraceptives, see Griswold v. Connecticut, 381

U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies

have demonstrated that even moderate copayments for

preventive services can deter patients from receiving those

services.” Brief for HHS in No. 13–354, at 50 (internal

quotation marks omitted).

The objecting parties contend that HHS has not shown

that the mandate serves a compelling government inter-

est, and it is arguable that there are features of ACA that

support that view. As we have noted, many employees—

40 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

those covered by grandfathered plans and those who work

for employers with fewer than 50 employees—may have no

contraceptive coverage without cost sharing at all.

HHS responds that many legal requirements have

exceptions and the existence of exceptions does not in

itself indicate that the principal interest served by a law is

not compelling. Even a compelling interest may be out-

weighed in some circumstances by another even weightier

consideration. In these cases, however, the interest served

by one of the biggest exceptions, the exception for grandfa-

thered plans, is simply the interest of employers in avoid-

ing the inconvenience of amending an existing plan.

Grandfathered plans are required “to comply with a subset

of the Affordable Care Act’s health reform provisions” that

provide what HHS has described as “particularly signifi-

cant protections.” 75 Fed. Reg. 34540 (2010). But the

contraceptive mandate is expressly excluded from this

subset. Ibid.

We find it unnecessary to adjudicate this issue. We will

assume that the interest in guaranteeing cost-free access

to the four challenged contraceptive methods is compelling

within the meaning of RFRA, and we will proceed to con-

sider the final prong of the RFRA test, i.e., whether HHS

has shown that the contraceptive mandate is “the least

restrictive means of furthering that compelling govern-

mental interest.” §2000bb–1(b)(2).

B

The least-restrictive-means standard is exceptionally

demanding, see City of Boerne, 521 U. S., at 532, and it is

not satisfied here. HHS has not shown that it lacks other

means of achieving its desired goal without imposing a

substantial burden on the exercise of religion by the ob-

jecting parties in these cases. See §§2000bb–1(a), (b)

(requiring the Government to “demonstrat[e] that applica-

tion of [a substantial] burden to the person . . . is the least

Cite as: 573 U. S. ____ (2014) 41

Opinion of the Court

restrictive means of furthering [a] compelling governmen-

tal interest” (emphasis added)).

The most straightforward way of doing this would be for

the Government to assume the cost of providing the four

contraceptives at issue to any women who are unable to

obtain them under their health-insurance policies due to

their employers’ religious objections. This would certainly

be less restrictive of the plaintiffs’ religious liberty, and

HHS has not shown, see §2000bb–1(b)(2), that this is not a

viable alternative. HHS has not provided any estimate of

the average cost per employee of providing access to

these contraceptives, two of which, according to the FDA,

are designed primarily for emergency use. See Birth

Control: Medicines to Help You, online at http://

www.fda.gov/forconsumers/byaudience/forwomen/freepubli

cations/ucm313215.htm. Nor has HHS provided any

statistics regarding the number of employees who might

be affected because they work for corporations like Hobby

Lobby, Conestoga, and Mardel. Nor has HHS told us that

it is unable to provide such statistics. It seems likely,

however, that the cost of providing the forms of contracep-

tives at issue in these cases (if not all FDA-approved

contraceptives) would be minor when compared with the

overall cost of ACA. According to one of the Congressional

Budget Office’s most recent forecasts, ACA’s insurance-

coverage provisions will cost the Federal Government

more than $1.3 trillion through the next decade. See CBO,

Updated Estimates of the Effects of the Insurance Cover-

age Provisions of the Affordable Care Act, April 2014, p.

2.36 If, as HHS tells us, providing all women with cost-free

access to all FDA-approved methods of contraception is a

Government interest of the highest order, it is hard to

understand HHS’s argument that it cannot be required

under RFRA to pay anything in order to achieve this

——————

36 Online at http://cbo.gov/publication/45231.

42 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

important goal.

HHS contends that RFRA does not permit us to take

this option into account because “RFRA cannot be used to

require creation of entirely new programs.” Brief for HHS

in 13–354, at 15.37 But we see nothing in RFRA that

supports this argument, and drawing the line between the

“creation of an entirely new program” and the modification

of an existing program (which RFRA surely allows) would

be fraught with problems. We do not doubt that cost may

——————

37 In a related argument, HHS appears to maintain that a plaintiff

cannot prevail on a RFRA claim that seeks an exemption from a legal

obligation requiring the plaintiff to confer benefits on third parties.

Nothing in the text of RFRA or its basic purposes supports giving the

Government an entirely free hand to impose burdens on religious

exercise so long as those burdens confer a benefit on other individuals.

It is certainly true that in applying RFRA “courts must take adequate

account of the burdens a requested accommodation may impose on

nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005)

(applying RLUIPA). That consideration will often inform the analysis

of the Government’s compelling interest and the availability of a less

restrictive means of advancing that interest. But it could not reasona-

bly be maintained that any burden on religious exercise, no matter how

onerous and no matter how readily the government interest could be

achieved through alternative means, is permissible under RFRA so long

as the relevant legal obligation requires the religious adherent to confer

a benefit on third parties. Otherwise, for example, the Government

could decide that all supermarkets must sell alcohol for the convenience

of customers (and thereby exclude Muslims with religious objections

from owning supermarkets), or it could decide that all restaurants must

remain open on Saturdays to give employees an opportunity to earn

tips (and thereby exclude Jews with religious objections from owning

restaurants). By framing any Government regulation as benefiting a

third party, the Government could turn all regulations into entitle-

ments to which nobody could object on religious grounds, rendering

RFRA meaningless. In any event, our decision in these cases need not

result in any detrimental effect on any third party. As we explain, see

infra, at 43–44, the Government can readily arrange for other methods

of providing contraceptives, without cost sharing, to employees who are

unable to obtain them under their health-insurance plans due to their

employers’ religious objections.

Cite as: 573 U. S. ____ (2014) 43

Opinion of the Court

be an important factor in the least-restrictive-means

analysis, but both RFRA and its sister statute, RLUIPA,

may in some circumstances require the Government to

expend additional funds to accommodate citizens’ religious

beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may

require a government to incur expenses in its own opera-

tions to avoid imposing a substantial burden on religious

exercise.”). HHS’s view that RFRA can never require the

Government to spend even a small amount reflects a

judgment about the importance of religious liberty that

was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a

new, government-funded program in order to conclude

that the HHS regulations fail the least-restrictive-means

test. HHS itself has demonstrated that it has at its dis-

posal an approach that is less restrictive than requiring

employers to fund contraceptive methods that violate their

religious beliefs. As we explained above, HHS has already

established an accommodation for nonprofit organizations

with religious objections. See supra, at 9–10, and nn. 8–9.

Under that accommodation, the organization can self-

certify that it opposes providing coverage for particular

contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1);

26 CFR §§54.9815–2713A(a)(4), (b). If the organization

makes such a certification, the organization’s insurance

issuer or third-party administrator must “[e]xpressly

exclude contraceptive coverage from the group health

insurance coverage provided in connection with the group

health plan” and “[p]rovide separate payments for any

contraceptive services required to be covered” without

imposing “any cost-sharing requirements . . . on the eligi-

ble organization, the group health plan, or plan partici-

pants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR

§54.9815–2713A(c)(2).38

——————

38 HHS has concluded that insurers that insure eligible employers

44 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

We do not decide today whether an approach of this type

complies with RFRA for purposes of all religious claims.39

At a minimum, however, it does not impinge on the plain-

tiffs’ religious belief that providing insurance coverage for

the contraceptives at issue here violates their religion, and

it serves HHS’s stated interests equally well.40

The principal dissent identifies no reason why this

accommodation would fail to protect the asserted needs of

women as effectively as the contraceptive mandate, and

there is none.41 Under the accommodation, the plaintiffs’

female employees would continue to receive contraceptive

coverage without cost sharing for all FDA-approved con-

traceptives, and they would continue to “face minimal

——————

opting out of the contraceptive mandate and that are required to pay

for contraceptive coverage under the accommodation will not experience

an increase in costs because the “costs of providing contraceptive

coverage are balanced by cost savings from lower pregnancy-related

costs and from improvements in women’s health.” 78 Fed. Reg. 39877.

With respect to self-insured plans, the regulations establish a mecha-

nism for the eligible employers’ third-party administrators to obtain a

compensating reduction in the fee paid by insurers to participate in the

federally facilitated exchanges. HHS believes that this system will not

have a material effect on the funding of the exchanges because the

“payments for contraceptive services will represent only a small portion

of total [federally facilitated exchange] user fees.” Id., at 39882; see 26

CFR §54.9815–2713A(b)(3).

39 See n. 9, supra.

40 The principal dissent faults us for being “noncommital” in refusing

to decide a case that is not before us here. Post, at 30. The less re-

strictive approach we describe accommodates the religious beliefs as-

serted in these cases, and that is the only question we are permitted

to address.

41 In the principal dissent’s view, the Government has not had a fair

opportunity to address this accommodation, post, at 30. n. 27, but the

Government itself apparently believes that when it “provides an excep-

tion to a general rule for secular reasons (or for only certain religious

reasons), [it] must explain why extending a comparable exception to a

specific plaintiff for religious reasons would undermine its compelling

interests.” Brief for the United States as Amicus Curiae in Holt v.

Hobbs, No. 13–6827, p. 10, now pending before the Court.

Cite as: 573 U. S. ____ (2014) 45

Opinion of the Court

logistical and administrative obstacles,” post, at 28 (inter-

nal quotation marks omitted), because their employers’

insurers would be responsible for providing information

and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26

CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s

approach that would “[i]mped[e] women’s receipt of bene-

fits by ‘requiring them to take steps to learn about, and to

sign up for, a new government funded and administered

health benefit,’ ” post, at 28, because the dissent would

effectively compel religious employers to drop health-

insurance coverage altogether, leaving their employees to

find individual plans on government-run exchanges or

elsewhere. This is indeed “scarcely what Congress con-

templated.” Ibid.

C

HHS and the principal dissent argue that a ruling in

favor of the objecting parties in these cases will lead to a

flood of religious objections regarding a wide variety of

medical procedures and drugs, such as vaccinations and

blood transfusions, but HHS has made no effort to sub-

stantiate this prediction.42 HHS points to no evidence that

insurance plans in existence prior to the enactment of

ACA excluded coverage for such items. Nor has HHS

provided evidence that any significant number of employ-

ers sought exemption, on religious grounds, from any of

ACA’s coverage requirements other than the contraceptive

mandate.

It is HHS’s apparent belief that no insurance-coverage

mandate would violate RFRA—no matter how significantly

it impinges on the religious liberties of employers—that

would lead to intolerable consequences. Under HHS’s

view, RFRA would permit the Government to require all

——————

42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediat-

ric vaccines” for some uninsured and underinsured children).

46 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

employers to provide coverage for any medical procedure

allowed by law in the jurisdiction in question—for in-

stance, third-trimester abortions or assisted suicide. The

owners of many closely held corporations could not in good

conscience provide such coverage, and thus HHS would

effectively exclude these people from full participation in

the economic life of the Nation. RFRA was enacted to

prevent such an outcome.

In any event, our decision in these cases is concerned

solely with the contraceptive mandate. Our decision

should not be understood to hold that an insurance-

coverage mandate must necessarily fall if it conflicts with

an employer’s religious beliefs. Other coverage require-

ments, such as immunizations, may be supported by dif-

ferent interests (for example, the need to combat the

spread of infectious diseases) and may involve different

arguments about the least restrictive means of providing

them.

The principal dissent raises the possibility that discrim-

ination in hiring, for example on the basis of race, might

be cloaked as religious practice to escape legal sanction.

See post, at 32–33. Our decision today provides no such

shield. The Government has a compelling interest in

providing an equal opportunity to participate in the work-

force without regard to race, and prohibitions on racial

discrimination are precisely tailored to achieve that criti-

cal goal.

HHS also raises for the first time in this Court the

argument that applying the contraceptive mandate to for-

profit employers with sincere religious objections is essen-

tial to the comprehensive health-insurance scheme that

ACA establishes. HHS analogizes the contraceptive man-

date to the requirement to pay Social Security taxes,

which we upheld in Lee despite the religious objection of

an employer, but these cases are quite different. Our

holding in Lee turned primarily on the special problems

Cite as: 573 U. S. ____ (2014) 47

Opinion of the Court

associated with a national system of taxation. We noted

that “[t]he obligation to pay the social security tax initially

is not fundamentally different from the obligation to pay

income taxes.” 455 U. S., at 260. Based on that premise,

we explained that it was untenable to allow individuals to

seek exemptions from taxes based on religious objections

to particular Government expenditures: “If, for example, a

religious adherent believes war is a sin, and if a certain

percentage of the federal budget can be identified as de-

voted to war-related activities, such individuals would

have a similarly valid claim to be exempt from paying that

percentage of the income tax.” Ibid. We observed that

“[t]he tax system could not function if denominations were

allowed to challenge the tax system because tax payments

were spent in a manner that violates their religious be-

lief.” Ibid.; see O Centro, 546 U. S., at 435.

Lee was a free-exercise, not a RFRA, case, but if the

issue in Lee were analyzed under the RFRA framework,

the fundamental point would be that there simply is no

less restrictive alternative to the categorical requirement

to pay taxes. Because of the enormous variety of govern-

ment expenditures funded by tax dollars, allowing tax-

payers to withhold a portion of their tax obligations on

religious grounds would lead to chaos. Recognizing

exemptions from the contraceptive mandate is very differ-

ent. ACA does not create a large national pool of tax

revenue for use in purchasing healthcare coverage. Ra-

ther, individual employers like the plaintiffs purchase

insurance for their own employees. And contrary to the

principal dissent’s characterization, the employers’ contri-

butions do not necessarily funnel into “undifferentiated

funds.” Post, at 23. The accommodation established by

HHS requires issuers to have a mechanism by which to

“segregate premium revenue collected from the eligible

organization from the monies used to provide payments

for contraceptive services.” 45 CFR §147.131(c)(2)(ii).

48 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Recognizing a religious accommodation under RFRA for

particular coverage requirements, therefore, does not

threaten the viability of ACA’s comprehensive scheme in

the way that recognizing religious objections to particular

expenditures from general tax revenues would.43

In its final pages, the principal dissent reveals that its

fundamental objection to the claims of the plaintiffs is an

objection to RFRA itself. The dissent worries about forc-

ing the federal courts to apply RFRA to a host of claims

made by litigants seeking a religious exemption from

generally applicable laws, and the dissent expresses a

desire to keep the courts out of this business. See post, at

32–35. In making this plea, the dissent reiterates a point

made forcefully by the Court in Smith. 494 U. S., at 888–

889 (applying the Sherbert test to all free-exercise claims

“would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every

conceivable kind”). But Congress, in enacting RFRA, took

the position that “the compelling interest test as set forth

in prior Federal court rulings is a workable test for

striking sensible balances between religious liberty and

competing prior governmental interests.” 42 U. S. C.

§2000bb(a)(5). The wisdom of Congress’s judgment on this

——————

43 HHS highlights certain statements in the opinion in Lee that it

regards as supporting its position in these cases. In particular, HHS

notes the statement that “[w]hen followers of a particular sect enter

into commercial activity 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.” 455 U. S., at 261. Lee was a free exercise, not a RFRA,

case, and the statement to which HHS points, if taken at face value, is

squarely inconsistent with the plain meaning of RFRA. Under RFRA,

when followers of a particular religion choose to enter into commercial

activity, the Government does not have a free hand in imposing obliga-

tions that substantially burden their exercise of religion. Rather, the

Government can impose such a burden only if the strict RFRA test is

met.

Cite as: 573 U. S. ____ (2014) 49

Opinion of the Court

matter is not our concern. Our responsibility is to enforce

RFRA as written, and under the standard that RFRA

prescribes, the HHS contraceptive mandate is unlawful.

* * *

The contraceptive mandate, as applied to closely held

corporations, violates RFRA. Our decision on that statu-

tory question makes it unnecessary to reach the First

Amendment claim raised by Conestoga and the Hahns.

The judgment of the Tenth Circuit in No. 13–354 is

affirmed; the judgment of the Third Circuit in No. 13–356

is reversed, and that case is remanded for further proceed-

ings consistent with this opinion.

It is so ordered.

Cite as: 573 U. S. ____ (2014) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 13–354 and 13–356

_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354 v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356 v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

[June 30, 2014]

JUSTICE KENNEDY, concurring.

It seems to me appropriate, in joining the Court’s opin-

ion, to add these few remarks. At the outset it should be

said that the Court’s opinion does not have the breadth

and sweep ascribed to it by the respectful and powerful

dissent. The Court and the dissent disagree on the proper

interpretation of the Religious Freedom and Restoration

Act of 1993 (RFRA), but do agree on the purpose of that

statute. 42 U. S. C. §2000bb et seq. It is to ensure that

interests in religious freedom are protected. Ante, at 5–6;

post, at 8–9 (GINSBURG, J., dissenting).

In our constitutional tradition, freedom means that all

persons have the right to believe or strive to believe in a

divine creator and a divine law. For those who choose this

2 BURWELL v. HOBBY LOBBY STORES, INC.

KENNEDY, J., concurring

course, free exercise is essential in preserving their own

dignity and in striving for a self-definition shaped by their

religious precepts. Free exercise in this sense implicates

more than just freedom of belief. See Cantwell v. Connect-

icut, 310 U. S. 296, 303 (1940). It means, too, the right

to express those beliefs and to establish one’s religious

(or nonreligious) self-definition in the political, civic, and

economic life of our larger community. But in a complex

society and an era of pervasive governmental regulation,

defining the proper realm for free exercise can be difficult.

In these cases the plaintiffs deem it necessary to exercise

their religious beliefs within the context of their own

closely held, for-profit corporations. They claim protection

under RFRA, the federal statute discussed with care and

in detail in the Court’s opinion.

As the Court notes, under our precedents, RFRA imposes

a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v.

Flores, 521 U. S. 507, 533 (1997)). The Government must

demonstrate that the application of a substantial burden

to a person’s exercise of religion “(1) is in furtherance of a

compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling govern-

mental interest.” §2000bb–1(b).

As to RFRA’s first requirement, the Department of

Health and Human Services (HHS) makes the case that

the mandate serves the Government’s compelling interest

in providing insurance coverage that is necessary to pro-

tect the health of female employees, coverage that is sig-

nificantly more costly than for a male employee. Ante, at

39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15.

There are many medical conditions for which pregnancy is

contraindicated. See, e.g., id., at 47. It is important to

confirm that a premise of the Court’s opinion is its as-

sumption that the HHS regulation here at issue furthers a

legitimate and compelling interest in the health of female

employees. Ante, at 40.

Cite as: 573 U. S. ____ (2014) 3

KENNEDY, J., concurring

But the Government has not made the second showing

required by RFRA, that the means it uses to regulate is

the least restrictive way to further its interest. As the

Court’s opinion explains, the record in these cases

shows that there is an existing, recognized, workable, and

already-implemented framework to provide coverage. That

framework is one that HHS has itself devised, that the

plaintiffs have not criticized with a specific objection that

has been considered in detail by the courts in this litiga-

tion, and that is less restrictive than the means challenged

by the plaintiffs in these cases. Ante, at 9–10, and n. 9,

43–44.

The means the Government chose is the imposition of a

direct mandate on the employers in these cases. Ante, at

8–9. But in other instances the Government has allowed

the same contraception coverage in issue here to be pro-

vided to employees of nonprofit religious organizations, as

an accommodation to the religious objections of those

entities. See ante, at 9–10, and n. 9, 43–44. The accom-

modation works by requiring insurance companies to

cover, without cost sharing, contraception coverage for

female employees who wish it. That accommodation

equally furthers the Government’s interest but does not

impinge on the plaintiffs’ religious beliefs. See ante, at 44.

On this record and as explained by the Court, the Gov-

ernment has not met its burden of showing that it cannot

accommodate the plaintiffs’ similar religious objections

under this established framework. RFRA is inconsis-

tent with the insistence of an agency such as HHS on

distinguishing between different religious believers—bur-

dening one while accommodating the other—when it

may treat both equally by offering both of them the same

accommodation.

The parties who were the plaintiffs in the District

Courts argue that the Government could pay for the

methods that are found objectionable. Brief for Respond-

4 BURWELL v. HOBBY LOBBY STORES, INC.

KENNEDY, J., concurring

ents in No. 13–354, p. 58. In discussing this alternative,

the Court does not address whether the proper response to

a legitimate claim for freedom in the health care arena is

for the Government to create an additional program.

Ante, at 41–43. The Court properly does not resolve

whether one freedom should be protected by creating

incentives for additional government constraints. In these

cases, it is the Court’s understanding that an accommoda-

tion may be made to the employers without imposition of a

whole new program or burden on the Government. As the

Court makes clear, this is not a case where it can be estab-

lished that it is difficult to accommodate the government’s

interest, and in fact the mechanism for doing so is already

in place. Ante, at 43–44.

“[T]he American community is today, as it long has

been, a rich mosaic of religious faiths.” Town of Greece v.

Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting)

(slip op., at 15). Among the reasons the United States is

so open, so tolerant, and so free is that no person may be

restricted or demeaned by government in exercising his or

her religion. Yet neither may that same exercise unduly

restrict other persons, such as employees, in protecting

their own interests, interests the law deems compelling.

In these cases the means to reconcile those two priorities

are at hand in the existing accommodation the Govern-

ment has designed, identified, and used for circumstances

closely parallel to those presented here. RFRA requires

the Government to use this less restrictive means. As the

Court explains, this existing model, designed precisely for

this problem, might well suffice to distinguish the instant

cases from many others in which it is more difficult and

expensive to accommodate a governmental program to

countless religious claims based on an alleged statutory

right of free exercise. Ante, at 45–46.

For these reasons and others put forth by the Court, I

join its opinion.

Cite as: 573 U. S. ____ (2014) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 13–354 and 13–356

_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354 v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356 v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

[June 30, 2014]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR

joins, and with whom JUSTICE BREYER and JUSTICE

KAGAN join as to all but Part III–C–1, dissenting.

In a decision of startling breadth, the Court holds that

commercial enterprises, including corporations, along with

partnerships and sole proprietorships, can opt out of any

law (saving only tax laws) they judge incompatible with

their sincerely held religious beliefs. See ante, at 16–49.

Compelling governmental interests in uniform compliance

with the law, and disadvantages that religion-based opt-

outs impose on others, hold no sway, the Court decides, at

least when there is a “less restrictive alternative.” And

such an alternative, the Court suggests, there always will

be whenever, in lieu of tolling an enterprise claiming a

2 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

religion-based exemption, the government, i.e., the general

public, can pick up the tab. See ante, at 41–43.1

The Court does not pretend that the First Amendment’s

Free Exercise Clause demands religion-based accommoda-

tions so extreme, for our decisions leave no doubt on that

score. See infra, at 6–8. Instead, the Court holds that

Congress, in the Religious Freedom Restoration Act of

1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the

extraordinary religion-based exemptions today’s decision

endorses. In the Court’s view, RFRA demands accommo-

dation of a for-profit corporation’s religious beliefs no

matter the impact that accommodation may have on third

parties who do not share the corporation owners’ religious

faith—in these cases, thousands of women employed by

Hobby Lobby and Conestoga or dependents of persons

those corporations employ. Persuaded that Congress

enacted RFRA to serve a far less radical purpose, and

mindful of the havoc the Court’s judgment can introduce, I

dissent.

I

“The ability of women to participate equally in the

economic and social life of the Nation has been facilitated

by their ability to control their reproductive lives.”

Planned Parenthood of Southeastern Pa. v. Casey, 505

U. S. 833, 856 (1992). Congress acted on that understand-

——————

1 TheCourt insists it has held none of these things, for another less

restrictive alternative is at hand: extending an existing accommoda-

tion, currently limited to religious nonprofit organizations, to encom-

pass commercial enterprises. See ante, at 3–4. With that accommoda-

tion extended, the Court asserts, “women would still be entitled to all

[Food and Drug Administration]-approved contraceptives without cost

sharing.” Ante, at 4. In the end, however, the Court is not so sure. In

stark contrast to the Court’s initial emphasis on this accommodation, it

ultimately declines to decide whether the highlighted accommodation is

even lawful. See ante, at 44 (“We do not decide today whether an

approach of this type complies with RFRA . . . .”).

Cite as: 573 U. S. ____ (2014) 3

GINSBURG, J., dissenting

ing when, as part of a nationwide insurance program

intended to be comprehensive, it called for coverage of

preventive care responsive to women’s needs. Carrying

out Congress’ direction, the Department of Health and

Human Services (HHS), in consultation with public health

experts, promulgated regulations requiring group health

plans to cover all forms of contraception approved by the

Food and Drug Administration (FDA). The genesis of this

coverage should enlighten the Court’s resolution of these

cases.

A

The Affordable Care Act (ACA), in its initial form, speci-

fied three categories of preventive care that health plans

must cover at no added cost to the plan participant or

beneficiary.2 Particular services were to be recommended

by the U. S. Preventive Services Task Force, an independ-

ent panel of experts. The scheme had a large gap, how-

ever; it left out preventive services that “many women’s

health advocates and medical professionals believe are

critically important.” 155 Cong. Rec. 28841 (2009) (state-

ment of Sen. Boxer). To correct this oversight, Senator

Barbara Mikulski introduced the Women’s Health

Amendment, which added to the ACA’s minimum coverage

requirements a new category of preventive services specific

to women’s health.

Women paid significantly more than men for preventive

care, the amendment’s proponents noted; in fact, cost

——————

2 See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must pro-

vide coverage, without cost sharing, for (1) certain “evidence-based

items or services” recommended by the U. S. Preventive Services Task

Force; (2) immunizations recommended by an advisory committee of the

Centers for Disease Control and Prevention; and (3) “with respect to

infants, children, and adolescents, evidence-informed preventive care

and screenings provided for in the comprehensive guidelines supported

by the Health Resources and Services Administration”).

4 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

barriers operated to block many women from obtaining

needed care at all. See, e.g., id., at 29070 (statement of

Sen. Feinstein) (“Women of childbearing age spend 68

percent more in out-of-pocket health care costs than

men.”); id., at 29302 (statement of Sen. Mikulski) (“co-

payments are [often] so high that [women] avoid getting

[preventive and screening services] in the first place”).

And increased access to contraceptive services, the spon-

sors comprehended, would yield important public health

gains. See, e.g., id., at 29768 (statement of Sen. Durbin)

(“This bill will expand health insurance coverage to the

vast majority of [the 17 million women of reproductive age

in the United States who are uninsured] . . . . This ex-

panded access will reduce unintended pregnancies.”).

As altered by the Women’s Health Amendment’s pas-

sage, the ACA requires new insurance plans to include

coverage without cost sharing of “such additional preven-

tive care and screenings . . . as provided for in comprehen-

sive guidelines supported by the Health Resources and

Services Administration [(HRSA)],” a unit of HHS. 42

U. S. C. §300gg–13(a)(4). Thus charged, the HRSA devel-

oped recommendations in consultation with the Institute

of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3

The IOM convened a group of independent experts, includ-

ing “specialists in disease prevention [and] women’s

health”; those experts prepared a report evaluating the

efficacy of a number of preventive services. IOM, Clinical

Prevention Services for Women: Closing the Gaps 2 (2011)

(hereinafter IOM Report). Consistent with the findings of

“[n]umerous health professional associations” and other

organizations, the IOM experts determined that preven-

——————

3 The

IOM is an arm of the National Academy of Sciences, an organi-

zation Congress established “for the explicit purpose of furnishing

advice to the Government.” Public Citizen v. Department of Justice,

491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted).

Cite as: 573 U. S. ____ (2014) 5

GINSBURG, J., dissenting

tive coverage should include the “full range” of FDA-

approved contraceptive methods. Id., at 10. See also id.,

at 102–110.

In making that recommendation, the IOM’s report

expressed concerns similar to those voiced by congres-

sional proponents of the Women’s Health Amendment. The

report noted the disproportionate burden women carried

for comprehensive health services and the adverse health

consequences of excluding contraception from preventive

care available to employees without cost sharing. See,

e.g., id., at 19 (“[W]omen are consistently more likely than

men to report a wide range of cost-related barriers to

receiving . . . medical tests and treatments and to filling

prescriptions for themselves and their families.”); id., at

103–104, 107 (pregnancy may be contraindicated for

women with certain medical conditions, for example, some

congenital heart diseases, pulmonary hypertension, and

Marfan syndrome, and contraceptives may be used to

reduce risk of endometrial cancer, among other serious

medical conditions); id., at 103 (women with unintended

pregnancies are more likely to experience depression and

anxiety, and their children face “increased odds of preterm

birth and low birth weight”).

In line with the IOM’s suggestions, the HRSA adopted

guidelines recommending coverage of “[a]ll [FDA-]

approved contraceptive methods, sterilization procedures,

and patient education and counseling for all women with

reproductive capacity.”4 Thereafter, HHS, the Depart-

ment of Labor, and the Department of Treasury promul-

gated regulations requiring group health plans to include

coverage of the contraceptive services recommended in the

——————

4 HRSA, HHS, Women’s Preventive Services Guidelines, available at

http://www.hrsa.gov/womensguidelines/ (all Internet materials as

visited June 27, 2014, and available in Clerk of Court’s case file),

reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a.

See also 77 Fed. Reg. 8725–8726 (2012).

6 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

HRSA guidelines, subject to certain exceptions, described

infra, at 25–27.5 This opinion refers to these regulations

as the contraceptive coverage requirement.

B

While the Women’s Health Amendment succeeded, a

countermove proved unavailing. The Senate voted down

the so-called “conscience amendment,” which would have

enabled any employer or insurance provider to deny cov-

erage based on its asserted “religious beliefs or moral

convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id.,

at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That

amendment, Senator Mikulski observed, would have “pu[t]

the personal opinion of employers and insurers over the

practice of medicine.” Id., at S1127 (Feb. 29, 2012). Re-

jecting the “conscience amendment,” Congress left health

care decisions—including the choice among contraceptive

methods—in the hands of women, with the aid of their

health care providers.

II

Any First Amendment Free Exercise Clause claim Hobby

Lobby or Conestoga7 might assert is foreclosed by this

Court’s decision in Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith,

two members of the Native American Church were dis-

——————

5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715–

2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013)

(Treasury).

6 Separating moral convictions from religious beliefs would be of ques-

tionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358

(1970) (Harlan, J., concurring in result).

7 As the Court explains, see ante, at 11–16, these cases arise from two

separate lawsuits, one filed by Hobby Lobby, its affiliated business

(Mardel), and the family that operates these businesses (the Greens);

the other filed by Conestoga and the family that owns and controls that

business (the Hahns). Unless otherwise specified, this opinion refers to

the respective groups of plaintiffs as Hobby Lobby and Conestoga.

Cite as: 573 U. S. ____ (2014) 7

GINSBURG, J., dissenting

missed from their jobs and denied unemployment benefits

because they ingested peyote at, and as an essential ele-

ment of, a religious ceremony. Oregon law forbade the

consumption of peyote, and this Court, relying on that

prohibition, rejected the employees’ claim that the denial

of unemployment benefits violated their free exercise

rights. The First Amendment is not offended, Smith held,

when “prohibiting the exercise of religion . . . is not the

object of [governmental regulation] but merely the inci-

dental effect of a generally applicable and otherwise valid

provision.” Id., at 878; see id., at 878–879 (“an individ-

ual’s religious beliefs [do not] excuse him from compliance

with an otherwise valid law prohibiting conduct that the

State is free to regulate”). The ACA’s contraceptive cover-

age requirement applies generally, it is “otherwise valid,”

it trains on women’s well being, not on the exercise

of religion, and any effect it has on such exercise is

incidental.

Even if Smith did not control, the Free Exercise Clause

would not require the exemption Hobby Lobby and Cones-

toga seek. Accommodations to religious beliefs or obser-

vances, the Court has clarified, must not significantly

impinge on the interests of third parties.8

——————

8 See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of

course, is not one in which any harm to the physical or mental health of

the child or to the public safety, peace, order, or welfare has been

demonstrated or may be properly inferred.”); Estate of Thornton v.

Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring

employers to accommodate an employee’s Sabbath observance where

that statute failed to take into account the burden such an accommoda-

tion would impose on the employer or other employees). Notably, in

construing the Religious Land Use and Institutionalized Persons Act of

2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned

that “adequate account” must be taken of “the burdens a requested

accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson,

544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be

measured so that it does not override other significant interests”). A

8 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

The exemption sought by Hobby Lobby and Conestoga

would override significant interests of the corporations’

employees and covered dependents. It would deny legions

of women who do not hold their employers’ beliefs access

to contraceptive coverage that the ACA would otherwise

secure. See Catholic Charities of Sacramento, Inc. v.

Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93

(2004) (“We are unaware of any decision in which . . . [the

U. S. Supreme Court] has exempted a religious objector

from the operation of a neutral, generally applicable law

despite the recognition that the requested exemption

would detrimentally affect the rights of third parties.”). In

sum, with respect to free exercise claims no less than free

speech claims, “ ‘[y]our right to swing your arms ends just

where the other man’s nose begins.’ ” Chafee, Freedom of

Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

III

A

Lacking a tenable claim under the Free Exercise Clause,

Hobby Lobby and Conestoga rely on RFRA, a statute

instructing that “[g]overnment shall not substantially

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

results from a rule of general applicability” unless the

government shows that application of the burden is “the

least restrictive means” to further a “compelling govern-

mental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In

RFRA, Congress “adopt[ed] a statutory rule comparable to

the constitutional rule rejected in Smith.” Gonzales v. O

Centro Espírita Beneficente União do Vegetal, 546 U. S.

418, 424 (2006).

RFRA’s purpose is specific and written into the statute

itself. The Act was crafted to “restore the compelling

——————

balanced approach is all the more in order when the Free Exercise

Clause itself is at stake, not a statute designed to promote accommoda-

tion to religious beliefs and practices.

Cite as: 573 U. S. ____ (2014) 9

GINSBURG, J., dissenting

interest test as set forth in Sherbert v. Verner, 374 U. S.

398 (1963) and Wisconsin v. Yoder, 406 U. S. 205

(1972) and to guarantee its application in all cases where

free exercise of religion is substantially burdened.”

§2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling

interest test as set forth in prior Federal court rulings is

a workable test for striking sensible balances between

religious liberty and competing prior governmental in-

terests.”); ante, at 48 (agreeing that the pre-Smith compel-

ling interest test is “workable” and “strike[s] sensible

balances”).

The legislative history is correspondingly emphatic on

RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993)

(hereinafter Senate Report) (RFRA’s purpose was “only to

overturn the Supreme Court’s decision in Smith,” not to

“unsettle other areas of the law.”); 139 Cong. Rec. 26178

(1993) (statement of Sen. Kennedy) (RFRA was “designed

to restore the compelling interest test for deciding free

exercise claims.”). In line with this restorative purpose,

Congress expected courts considering RFRA claims to

“look to free exercise cases decided prior to Smith for

guidance.” Senate Report 8. See also H. R. Rep. No. 103–

88, pp. 6–7 (1993) (hereinafter House Report) (same). In

short, the Act reinstates the law as it was prior to Smith,

without “creat[ing] . . . new rights for any religious prac-

tice or for any potential litigant.” 139 Cong. Rec. 26178

(statement of Sen. Kennedy). Given the Act’s moderate

purpose, it is hardly surprising that RFRA’s enactment in

1993 provoked little controversy. See Brief for Senator

Murray et al. as Amici Curiae 8 (hereinafter Senators

——————

9 Under Sherbert and Yoder, the Court “requir[ed] the government to

justify any substantial burden on religiously motivated conduct by a

compelling state interest and by means narrowly tailored to achieve

that interest.” Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in

judgment).

10 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

Brief ) (RFRA was approved by a 97-to-3 vote in the Senate

and a voice vote in the House of Representatives).

B

Despite these authoritative indications, the Court sees

RFRA as a bold initiative departing from, rather than

restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7,

17, 25–27. To support its conception of RFRA as a meas-

ure detached from this Court’s decisions, one that sets a

new course, the Court points first to the Religious Land

Use and Institutionalized Persons Act of 2000 (RLUIPA),

42 U. S. C. §2000cc et seq., which altered RFRA’s defini-

tion of the term “exercise of religion.” RFRA, as originally

enacted, defined that term to mean “the exercise of reli-

gion under the First Amendment to the Constitution.”

§2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by

RLUIPA, RFRA’s definition now includes “any exercise of

religion, whether or not compelled by, or central to, a

system of religious belief.” §2000bb–2(4) (2012 ed.) (cross-

referencing §2000cc–5). That definitional change, accord-

ing to the Court, reflects “an obvious effort to effect a

complete separation from First Amendment case law.”

Ante, at 7.

The Court’s reading is not plausible. RLUIPA’s altera-

tion clarifies that courts should not question the centrality

of a particular religious exercise. But the amendment in

no way suggests that Congress meant to expand the class

of entities qualified to mount religious accommodation

claims, nor does it relieve courts of the obligation to in-

quire whether a government action substantially burdens

a religious exercise. See Rasul v. Myers, 563 F. 3d 527,

535 (CADC 2009) (Brown, J., concurring) (“There is no

doubt that RLUIPA’s drafters, in changing the definition

of ‘exercise of religion,’ wanted to broaden the scope of the

kinds of practices protected by RFRA, not increase the

universe of individuals protected by RFRA.”); H. R. Rep.

Cite as: 573 U. S. ____ (2014) 11

GINSBURG, J., dissenting

No. 106–219, p. 30 (1999). See also Gilardi v. United

States Dept. of Health and Human Servs., 733 F. 3d 1208,

1211 (CADC 2013) (RFRA, as amended, “provides us with

no helpful definition of ‘exercise of religion.’ ”); Henderson

v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The

[RLUIPA] amendments did not alter RFRA’s basic prohi-

bition that the ‘[g]overnment shall not substantially bur-

den a person’s exercise of religion.’ ”).10

Next, the Court highlights RFRA’s requirement that the

government, if its action substantially burdens a person’s

religious observance, must demonstrate that it chose the

least restrictive means for furthering a compelling inter-

est. “[B]y imposing a least-restrictive-means test,” the

Court suggests, RFRA “went beyond what was required by

our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of

Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6,

n. 3. But as RFRA’s statements of purpose and legislative

history make clear, Congress intended only to restore, not

to scrap or alter, the balancing test as this Court had

applied it pre-Smith. See supra, at 8–9. See also Senate

Report 9 (RFRA’s “compelling interest test generally

should not be construed more stringently or more leniently

than it was prior to Smith.”); House Report 7 (same).

The Congress that passed RFRA correctly read this

Court’s pre-Smith case law as including within the “com-

pelling interest test” a “least restrictive means” require-

ment. See, e.g., Senate Report 5 (“Where [a substantial]

burden is placed upon the free exercise of religion, the

Court ruled [in Sherbert], the Government must demon-

——————

10 RLUIPA, the Court notes, includes a provision directing that “[t]his

chapter [i.e., RLUIPA] shall be construed in favor of a broad protection

of religious exercise, to the maximum extent permitted by the terms of

[the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at

6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of reli-

gion,” as RLUIPA does, but contains no omnibus rule of construction

governing the statute in its entirety.

12 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

strate that it is the least restrictive means to achieve a

compelling governmental interest.”). And the view that

the pre-Smith test included a “least restrictive means”

requirement had been aired in testimony before the Sen-

ate Judiciary Committee by experts on religious freedom.

See, e.g., Hearing on S. 2969 before the Senate Committee

on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993)

(statement of Prof. Douglas Laycock).

Our decision in City of Boerne, it is true, states that the

least restrictive means requirement “was not used in the

pre-Smith jurisprudence RFRA purported to codify.” See

ante, at 6, n. 3, 17, n. 18. As just indicated, however, that

statement does not accurately convey the Court’s pre-

Smith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t

would plainly be incumbent upon the [government] to

demonstrate that no alternative forms of regulation would

combat [the problem] without infringing First Amendment

rights.”); Thomas v. Review Bd. of Indiana Employment

Security Div., 450 U. S. 707, 718 (1981) (“The state may

justify an inroad on religious liberty by showing that it is

the least restrictive means of achieving some compelling

state interest.”). See also Berg, The New Attacks on Reli-

gious Freedom Legislation and Why They Are Wrong, 21

Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court

erroneously said that the least restrictive means test ‘was

not used in the pre-Smith jurisprudence.’ ”).11

C

With RFRA’s restorative purpose in mind, I turn to the

——————

11 The Court points out that I joined the majority opinion in City of

Boerne and did not then question the statement that “least restrictive

means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning

that observation, I remind my colleagues of Justice Jackson’s sage

comment: “I see no reason why I should be consciously wrong today

because I was unconsciously wrong yesterday.” Massachusetts v.

United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).

Cite as: 573 U. S. ____ (2014) 13

GINSBURG, J., dissenting

Act’s application to the instant lawsuits. That task, in

view of the positions taken by the Court, requires consid-

eration of several questions, each potentially dispositive of

Hobby Lobby’s and Conestoga’s claims: Do for-profit corpo-

rations rank among “person[s]” who “exercise . . . reli-

gion”? Assuming that they do, does the contraceptive

coverage requirement “substantially burden” their reli-

gious exercise? If so, is the requirement “in furtherance of

a compelling government interest”? And last, does the

requirement represent the least restrictive means for

furthering that interest?

Misguided by its errant premise that RFRA moved

beyond the pre-Smith case law, the Court falters at each

step of its analysis.

1

RFRA’s compelling interest test, as noted, see supra, at

8, applies to government actions that “substantially bur-

den a person’s exercise of religion.” 42 U. S. C. §2000bb–

1(a) (emphasis added). This reference, the Court submits,

incorporates the definition of “person” found in the Dic-

tionary Act, 1 U. S. C. §1, which extends to “corporations,

companies, associations, firms, partnerships, societies, and

joint stock companies, as well as individuals.” See ante, at

19–20. The Dictionary Act’s definition, however, controls

only where “context” does not “indicat[e] otherwise.” §1.

Here, context does so indicate. RFRA speaks of “a person’s

exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis

added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether

——————

12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of

the definition of “exercise of religion” does not bear the weight the

Court places on it. Moreover, it is passing strange to attribute to

RLUIPA any purpose to cover entities other than “religious as-

sembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at

26. That law applies to land-use regulation. §2000cc(a)(1). To permit

commercial enterprises to challenge zoning and other land-use regula-

14 BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting

a corporation qualifies as a “person” capable of exercis-

ing religion is an inquiry one cannot answer without refer-

ence to the “full body” of pre-Smith “free-exercise caselaw.”

Gilardi, 733 F. 3d, at 1212. There is in that case law no

support for the notion that free exercise rights pertain to

for-profit corporations.

Until this litigation, no decision of this Court recognized

a for-profit corporation’s qualification for a religious ex-

emption from a generally applicable law, whether under

the Free Exercise Clause or RFRA.13 The absence of such

precedent is just what one would expect, for the exercise of

religion is characteristic of natural persons, not artificial

legal entities. As Chief Justice Marshall observed nearly

two centuries ago, a corporation is “an artificial being,

invisible, intangible, and existing only in contemplation of

law.” Trustees of Dartmouth College v. Woodward, 4

Wheat. 518, 636 (1819). Corporations, Justice Stevens

more recently reminded, “have no consciences, no beliefs,

no feelings, no thoughts, no desires.” Citizens United v.

Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opin-

ion concurring in part and dissenting in part).

The First Amendment’s free exercise protections, the

——————

tions under RLUIPA would “dramatically expand the statute’s reach”

and deeply intrude on local prerogatives, contrary to Congress’ intent.

Brief for National League of Cities et al. as Amici Curiae 26.

13 The Court regards Gallagher v. Crown Kosher Super Market of

Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit

corporations possess [free-exercise] rights.” Ante, at 26–27. See also

ante, at 21, n. 21. The suggestion is barely there. True, one of the five

challengers to the Sunday closing law assailed in Gallagher was a

corporation owned by four Orthodox Jews. The other challengers were

human individuals, not artificial, law-created entities, so there was no

need to determine whether the corporation could institute the litiga-

tion. Accordingly, the plurality stated it could pretermit the question

“whether appellees ha[d] standing” because Braunfeld v. Brown, 366

U. S. 599 (1961), which upheld a similar closing law, was fatal to their

claim on the merits. 366 U. S., at 631.

Cite as: 573 U. S. ____ (2014) 15

GINSBURG, J., dissenting

Court has indeed recognized, shelter churches and other

nonprofit religion-based organizations.14 “For many indi-

viduals, religious activity derives meaning in large meas-

ure from participation in a larger religious community,”

and “furtherance of the autonomy of religious organiza-

tions often furthers individual religious freedom as well.”

Corporation of Presiding Bishop of Church of Jesus Christ

of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987)

(Brennan, J., concurring in judgment). The Court’s “spe-

cial solicitude to the rights of religious organizations,”

Hosanna-Tabor Evangelical Lutheran Church and School

v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how-

ever, is just that. No such solicitude is traditional for com-

mercial organizations.15 Indeed, until today, religious

——————

14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School

v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Benefi­

cente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu

Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries

v. Board of Equalization of Cal., 493 U. S. 378 (1990).

15 Typically, Congress has accorded to organizations religious in char-

acter religion-based exemptions from statutes of general application.

E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition

against employment discrimination based on religion for “a religious

corporation, association, educational institution, or society with respect

to the employment of individuals of a particular religion to perform

work connected with the carrying on . . . of its activities”); 42 U. S. C.

§12113(d)(1) (parallel exemption in Americans With Disabilities Act of

1990). It can scarcely be maintained that RFRA enlarges these exemp-

tions to allow Hobby Lobby and Conestoga to hire only persons who

share the religious beliefs of

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