Priests for Life v. United States Department of Health & Human Services

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: May 20, 2015

No. 13-5368

PRIESTS FOR LIFE, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.,

APPELLEES

Consolidated with 13-5371, 14-5021

Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cv-01261)

(No. 1:13-cv-01441)

On Petition for Rehearing En Banc

BEFORE: GARLAND, Chief Judge; HENDERSON, ROGERS,

TATEL, BROWN**,GRIFFITH, KAVANAUGH**, SRINIVASAN*,

MILLETT*, PILLARD, AND WILKINS, Circuit Judges.

2

ORDER

Appellants/cross-appellees’ joint petition for rehearing en

banc and the response thereto were circulated to the full court,

and a vote was requested. Thereafter, a majority of the judges

eligible to participate did not vote in favor of the petition.

Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Deputy Clerk

* Circuit Judges Srinivasan and Millett did not participate in

this matter.

** Circuit Judges Brown and Kavanaugh would grant the

petition.

A statement by Circuit Judge Pillard, joined by Circuit

Judges Rogers and Wilkins, concurring in the denial of

rehearing en banc, is attached.

A statement by Circuit Judge Brown, joined by Circuit

Judge Henderson, dissenting from the denial of rehearing en

banc, is attached.

A statement by Circuit Judge Kavanaugh, dissenting from

the denial of rehearing en banc, is attached.

PILLARD, Circuit Judge, joined by ROGERS and WILKINS,

Circuit Judges, concurring in the denial of rehearing en banc:

A majority of the court has voted to deny the petition for

rehearing en banc in this case. In two thoughtful opinions,

Judge Kavanaugh, and Judge Brown joined by Judge

Henderson, dissent from that denial. The panel’s opinion

speaks at length to the issues they take up. The panel

members write further only to underscore why our court’s

approach accords with the Supreme Court’s decision in

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

The dissenters and we agree that the Religious Freedom

Restoration Act provides robust protection for religious

liberty—without regard to whether others might view an

adherent’s beliefs or practices as irrational, trivial, or wrong.

Nothing in our opinion should be seen to detract from that

vital guarantee. Where we part ways is that the dissenters

perceive in Hobby Lobby a potentially sweeping, new RFRA

prerogative for religious adherents to make substantial-burden

claims based on sincere but erroneous assertions about how

federal law works. They believe we ignored that prerogative

here. The dissenters read more into the Supreme Court’s

decision than it supports. Hobby Lobby embraced adherents’

claim about the religious meaning of the undisputed operation

of a federal regulation; this case involves a claim that courts

must credit religious adherents’ incorrect assertions about

how a different federal regulation operates. Because Hobby

Lobby did not address that distinct issue, we see no conflict.

The Court in Hobby Lobby invalidated the requirement

that closely-held, for-profit businesses with religious

objections to contraception nonetheless must buy health-

insurance coverage for their employees that pays for

contraception, or else face taxes or penalties. 134 S. Ct. at

2759. No opt out was available to those businesses. The

parties in Hobby Lobby did not dispute what the law required,

nor its practical effects: All agreed that the Affordable Care

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Act regulations mandated that employer-sponsored health

plans include contraception, and that as a result plaintiffs’

employees got access to contraception paid for, in part, by

their employers. See id. at 2762. What the parties in Hobby

Lobby contested were the moral and religious implications of

the businesses’ conceded role. The plaintiff business owners

believed that “providing the coverage demanded . . . is

connected to the destruction of an embryo in a way that is

sufficient to make it immoral for them to provide the

coverage.” Id. at 2778. The government disagreed,

contending that employees’ intervening choices whether to

use contraception broke the chain of moral culpability, and

hence the law did not substantially burden the businesses’

religious exercise. Id. at 2777-78.

In rejecting the government’s position in Hobby Lobby,

the Supreme Court emphasized that courts may not second-

guess religious beliefs about the wrongfulness of facilitating

another person’s immoral act. Id. at 2778. RFRA forbids

courts from “provid[ing] a binding national answer to . . .

religious and philosophical question[s]” or “tell[ing] the

plaintiffs that their beliefs are flawed.” Id.; see also id. at

2779 (“[I]t is not for us to say that [plaintiffs’] religious

beliefs are mistaken or insubstantial. Instead, our ‘narrow

function in this context is to determine’ whether the line

drawn reflects ‘an honest conviction.’” (alteration marks

omitted) (quoting Thomas v. Review Bd., 450 U.S. 707, 716

(1981))). The context makes clear that the Court’s discussion

of facilitation simply restates the basic tenet of the religious

freedom cases that judges may not question the correctness of

a plaintiff’s religious beliefs.

That reasoning is inapplicable here. The dispute between

the government and the Plaintiffs in this case, unlike in Hobby

Lobby, is not about religious implications of acknowledged—

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but perhaps attenuated—support for contraceptive use; the

parties disagree here about how the law functions, and

therefore whether there is any causal connection at all

between employers’ opt-out notice and employees’ access to

contraception. Plaintiffs challenge the accommodation, not

available in Hobby Lobby, based on their assertion that what

causes their employees to receive contraceptive coverage is

their compliance with the accommodation’s precondition that

they give notice of their sincere religious objections to such

coverage. As Plaintiffs characterize it, their act of excusing

themselves from legal liability for not providing contraceptive

coverage is what made such coverage available to employees,

and hence violated their Catholic faith.

We held that Plaintiffs miscast the accommodation. The

regulation allows Plaintiffs to continue to do just what they

did before the ACA: notify their insurers of their sincere

religious objection to contraception, and arrange for

contraception to be excluded from the health insurance

coverage they provide.1 As before, insurers may sell plans

1

Judge Kavanaugh is perplexed as to why, if not for an

impermissible reason, the government requires any form at all.

Kavanaugh Dissent at 12-13 & n.5. The form is far from

“meaningless,” id., because it acts as “the written equivalent of

raising a hand in response to the government’s query as to which

religious organizations want to opt out,” and extricates those

objectors in a manner consistent with the contraceptive coverage

requirement. Priests for Life v. U.S. Dep’t of Health & Human

Servs., 772 F.3d 229, 250 (D.C. Cir. 2014). Only once an insurer

becomes aware of the employer’s religious objection can it take the

steps needed to effectuate the opt out, such as: exclude

contraceptive coverage from the employer’s group health plan,

prevent the employer’s payment from funding contraception, notify

the beneficiaries that the employer plays no role in administering or

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that exclude contraception to their religious-nonprofit

customers. The difference is that now the ACA and its

regulations require that contraceptive coverage be provided to

all insured women. In the case of women who get their

insurance coverage through an accommodated employer, the

law requires insurers to offer the women contraception under

a separate plan—completely segregated from the objecting

employer’s plan and its payments.

The judges who urge us to rehear the case say that Hobby

Lobby leaves no room for us to question Plaintiffs’

characterization of how the challenged regulations operate,

including their assertions that the regulations force Plaintiffs

to facilitate the provision of contraception. As they read it,

Hobby Lobby forbids a court deciding a claim under RFRA to

assess whether a plaintiff’s belief about what a law requires

him to do is correct. See, e.g., Kavanaugh Dissent at 8-11;

Brown Dissent at 10-12. Both dissents argue that Hobby

Lobby’s discussion of facilitation requires us simply to accept

funding contraceptive coverage, and arrange for separate mailings

and accounting. Id. (citing regulatory provisions). Judge

Kavanaugh would hold that including the insurer’s identity in the

form is unnecessarily restrictive of religious exercise because,

extending our metaphor, he says it requires the objecting employer

“both to raise its hand and to point to its insurer.” Kavanaugh

Dissent at 24 n.11. But it is more apt to say that, if the employer

opts to raise its hand where the insurer cannot see it (i.e. via the

alternative notice delivered to the government rather than the

insurer, see 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.715-

2713A(b)(1)(ii)), the government must be in a position promptly to

communicate the religious objection to the insurer, or else the

employer’s insurance plan will continue to include contraceptive

coverage. An insurer that is kept in the dark about an employer’s

religious objections cannot do what it must to honor the opt out.

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whatever beliefs a RFRA plaintiff avows—even erroneous

beliefs about what a challenged regulation actually requires.

Neither the holding nor the reasoning of Hobby Lobby

made that leap. RFRA understandably accorded Hobby

Lobby Stores a victory in a contest over what religious

meaning to ascribe to the Stores’ payment for contraceptive

coverage. That holding does not require us to credit Priests

for Life’s legally inaccurate assertions about the operation of

the regulation they challenge. See Univ. of Notre Dame v.

Burwell, No. 13-3853, slip op. at 11, 15 (7th Cir. May 19,

2015); see also id. at 34 (Hamilton, J., concurring). But see

id. at 44-46 (Flaum, J., dissenting). Our panel opinion

explains that it is the mandate on insurers that causes

Plaintiffs’ employees to receive contraceptive coverage, and

not anything Plaintiffs are required to do in claiming their

accommodation. The panel thus held that Plaintiffs suffered

no substantial burden triggering RFRA strict scrutiny.

The dispute we resolved is legal, not religious. Under the

ACA regulations, a woman who obtains health insurance

coverage through her employer is no more entitled to

contraceptive coverage if her employer submits the disputed

notice than if it does not. The ACA obligation to provide

contraceptive coverage to all insured women does not depend

on that notice. Nothing in RFRA requires that we accept

Plaintiffs’ assertions to the contrary.

RFRA protects religious exercise. In no respect do we,

nor could we, question Plaintiffs’ sincere beliefs about what

their faith permits and forbids of them. But we can and must

decide which party is right about how the law works. We

concluded that the regulation challenged in this case does not,

as a matter of law or fact, give Plaintiffs’ conduct the

contraception-facilitating effect of which they complain.

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Indeed, it bears emphasis that the whole point of the

challenged regulation is to scrupulously shield objecting

religious nonprofits from any role in making contraception

available to women. The accommodation is itself evidence of

the fundamental commitment of this Nation to religious

freedom that RFRA embodies. The regulation is, of course,

properly subject to judicial scrutiny to verify that it comports

with governing law, including Hobby Lobby. Because we

conclude that it does, we believe that en banc review is not

warranted in this case.

BROWN, Circuit Judge, with whom HENDERSON, Circuit

Judge, joins, dissenting from the denial of rehearing en banc:

The French say: plus ça change et plus c'est la même chose.

The more things change; the more they remain the same.

There was once a time when the church was the state and the

church as the state embodied all hope of human well-being.

R.W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE

MIDDLE AGES 23 (1970). To challenge the church was to

undermine civilization. Thus, the imposition of orthodoxy

was deemed necessary, and dissent, which amounted to

heresy, was met with coercion and violence. See ST. THOMAS

AQUINAS, SUMMA THEOLOGIÆ pt. II-II, q. 11, art. 3.

This history prompted John Locke to urge toleration and

stress the necessity of distinguishing “the business of civil

government from that of religion” and establishing clear

boundaries between them. John Locke, A Letter Concerning

Toleration, reprinted in 5 THE WORKS OF JOHN LOCKE 5, 9

(12th ed. 1824). The Framers went further, establishing not

only a limited government, but recognizing the primacy of

individual conscience and seeking the line between freedom

and justice. Thus, the Bill of Rights “grew in soil which also

produced a philosophy that . . . liberty was attainable through

mere absence of governmental restraints, and that government

should be entrusted with few controls and only the mildest

supervision over men’s affairs.” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 639–40 (1943). The federal

government was given no authority over men’s souls. For the

Founders, the not-so-distant history of persecution

engendered a fierce commitment to each individual’s natural

and inalienable right to believe according to his “conviction

and conscience” and to exercise his religion “as these may

dictate.” James Madison, Memorial and Remonstrance

Against Religious Assessments, reprinted in 2 WRITINGS OF

JAMES MADISON 183, 184 (G. Hunt ed. 1901). “If there is any

fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in

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politics, nationalism, religion, or other matters of opinion or

force citizens to confess by word or act their faith therein.”

Barnette, 319 U.S. at 642.

Of course, the right to freely exercise one’s religion is

not—and was not intended to be—absolute. The Founders

recognized state coercion would at times be necessary, with

Madison himself stating “full and free exercise . . . according

to the dictates of conscience” could be limited where “the

preservation of equal liberty . . . and the existence of the

[government] may be manifestly endangered.” G. Hunt,

Madison and Religious Liberty, 1 ANNUAL REPORT OF THE

AMERICAN HISTORICAL ASSOCIATION, H.R. Doc. No. 702,

57th Cong., 1st Sess., 163, 166–67 (1901). However, “[t]he

essence of all that has been said and written on the subject is

that only those interests of the highest order . . . can

overbalance legitimate claims to the free exercise of religion.”

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

The soil of the eighteenth century has eroded and that

fixed star grown surprisingly dim. We live in a time where

progress is sought “through expanded and strengthened

governmental controls.” Barnette, 319 U.S. at 640. In a

sense the government now fills the role formerly occupied by

the church, embodying the hope of human well-being. For

the government to pursue the good and to solve society’s

problems, it must first identify that which is good and that

which is problematic through subjective and value-laden

judgments. Cf. Laurence H. Tribe, Disentangling

Symmetries: Speech, Association, Parenthood, 28 PEPP. L.

REV. 641, 651–53 (2001) (stating that when the government

takes a side in a “direct clash of competing images of ‘the

good life,’” it “is making an intrinsically contestable

statement about the rightness or wrongness” of ideals).

Consequently, orthodoxy has been rehabilitated, and dissent

3

from the government’s determinations may be quelled

through coercion—onerous fines or banishment from

commerce and the public square.

Despite the parallels, we do not find ourselves full circle

quite yet. Religious adherents may still seek refuge from

unnecessary governmental coercion through the Religious

Freedom Restoration Act (“RFRA”). When the federal

government substantially burdens free exercise, it may do so

only in pursuit of a compelling interest and even then must

use the least restrictive means. 42 U.S.C. § 2000bb-1.

Further, the conscience of the individual remains protected in

that he must “answer to no man for the verity of his religious

views.” United States v. Ballard, 322 U.S. 78, 87 (1944).

But, in our respectful view, the panel in this case failed to

apply these protections. The panel conceded Plaintiffs

sincerely “believe that the regulatory framework makes them

complicit in the provision of contraception,” Slip Op. at 27

(quoting Mich. Catholic Conf. v. Burwell, 755 F.3d 372, 385

(6th Cir. 2014), vacated and remanded, No. 14-701, 2015 WL

1879768, at *1 (U.S. Apr. 27, 2015)). That acknowledgement

should end our inquiry into the substance of their beliefs.

Viewed objectively, Plaintiffs’ belief that the acts the

regulations compel them to perform would facilitate access to

contraception in a manner that violates the teachings of their

Church may “seem incredible, if not preposterous,” to some

people. Ballard, 322 U.S. at 87. However, this Court is

neither qualified nor authorized to so scrutinize any religious

belief. The panel trespassed into an area of inquiry Supreme

Court precedent forecloses. It then proceeded to accept

evidence that is insufficient under the rulings of the Supreme

Court to find the purported compelling interest. For these

reasons we believe this exceptionally important case is worthy

of en banc review.

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I

We begin by addressing the panel’s opening observations

and by making some of our own with the hopes of

distinguishing between fact and fancy. First, this case is not

about denying any woman access to contraception. A

woman’s right to obtain and use contraception was recognized

long ago, and nothing about this case calls for the issue to be

revisited. See Griswold v. Connecticut, 381 U.S. 479 (1965).

Second, this case is about the religious freedom of these

religiously-affiliated organizations and not about the free

exercise concerns of the plaintiffs in Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751 (2014). In that case, the

Supreme Court found the Department of Health and Human

Services’ (“HHS”) approach to religious nonprofits

demonstrated there were less restrictive means available to

deal with conscientious objectors among for-profit

corporations. Id. at 2781–82. The Court expressly reserved

judgment on whether HHS’s approach “complies with RFRA

for purposes of all religious claims.” Id. at 2782. While the

government’s approach to religious non-profits may—or may

not—fully put to rest the Hobby Lobby plaintiffs’ religious

objections, that is irrelevant to our consideration of the

religious objections put forth by Plaintiffs in this case. The

present Plaintiffs are entitled to their own personal beliefs.

Third, this case is not “paradoxical” because Plaintiffs

object to regulatory requirements the government intended as

a religious accommodation. Slip Op. at 24 (quoting Univ. of

Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014),

vacated and remanded, 135 S. Ct. 1528 (2015)). That the

government’s expressed intent in enacting the regulations at

issue was to allay religious adherents’ concerns about the

contraception mandate is not determinative of the ultimate

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question of whether Plaintiffs were in fact accommodated.

Where the government imposes a substantial burden on

religious exercise and labels it an “accommodation,” that

burden is surely as distressing to adherents as it would be if

imposed without such a designation. Therefore, heightened

skepticism is not appropriate. We should look at Plaintiffs’

claims as we would any RFRA claim. After all, in the

substantial burden analysis, the government’s motivations—

no matter how benevolent—are irrelevant; we ask only

whether the government’s action operates to place

“substantial pressure on an adherent to modify his behavior

and to violate his beliefs.” Thomas v. Review Bd., 450 U.S.

707, 718 (1981).

Fourth, this case is not one in which Plaintiffs’ “only

harm . . . is that they sincerely feel aggrieved by their inability

to prevent what other people would do to fulfill regulatory

objectives after they opt out.” Slip Op. at 24. The regulations

compel Plaintiffs to take actions they believe would amount

to “impermissibly facilitating access to abortion-inducing

products, contraceptives, and sterilization” in violation of

their religious tenets. Pet. for Reh’g En Banc at 1. Make no

mistake: the harm Plaintiffs complain of—and the harm this

Court therefore is called to assess—is from their inability to

conform their own actions and inactions to their religious

beliefs without facing massive penalties from the government.

II

The panel’s substantial burden analysis is inconsistent

with the precedent of the Supreme Court and this Court,

which identifies both permissible and impermissible lines of

inquiry in the substantial burden analysis of a RFRA claim.

6

A

As we have recognized, whether a burden is “substantial”

for purposes of RFRA is a question of law for the court to

answer, not a “question[] of fact, proven by the credibility of

the claimant.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C.

Cir. 2011). Relying on longstanding precedent, the Supreme

Court recently described permissible lines of inquiry for a

court to pursue in determining whether an adherent’s religious

exercise has been substantially burdened, both in Hobby

Lobby and in Holt v. Hobbs, 135 S. Ct. 853 (2015), a case

involving the Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C. §2000cc et seq, (RLUIPA).1

The plaintiff bears ‘the initial burden of proving [the law or

regulation at issue] implicates his religious exercise.” Holt,

135 S. Ct. at 862. While RFRA forecloses asking whether the

exercise is “compelled by, or central to, a system of religious

belief,” 42 U.S.C. § 2000cc-5(7)(A), the court does ask

whether the plaintiff’s beliefs are sincere. The answer is no if

his claims are not “sincerely based on a religious belief” but

instead on “some other motivation.” Holt, 135 S. Ct. at 862;

see also Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify

for RFRA’s protection, an asserted belief must be ‘sincere.’”).

Next, the plaintiff bears the “burden of proving that the

[law or regulation] substantially burden[s] that exercise of

religion.” Holt, 135 S. Ct. at 862. The court asks whether he

has been “put[] to th[e] choice” of either “‘engag[ing] in

conduct that seriously violates [his] religious beliefs” or

1

RLUIPA “targets two areas of state and local action: land use

regulation, 42 U.S.C. § 2000cc (RLUIPA § 2), and restrictions on

the religious exercise of institutionalized persons, § 2000cc–1

(RLUIPA § 3).” Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011).

It “borrows important elements from RFRA . . . but is less

sweeping in scope.” Id.

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facing “serious” consequences. Id. (quoting Hobby Lobby,

134 S. Ct. at 2775); see also Thomas, 450 U.S. at 718 (stating

a substantial burden exists when the government places

“substantial pressure on an adherent to modify his behavior

and to violate his beliefs”). The answer is no if the plaintiff

can identify “no [compelled] action or forbearance on his

part.” Kaemmerling, 553 F.3d at 679 (plaintiff objecting to

the government’s extraction of DNA information from fluid

or tissue samples but not to providing DNA samples); see also

Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (plaintiff

objecting to the government’s independent utilization of his

daughter’s social security number, which he himself was not

required to provide or use). The answer is also no where the

pressure being placed upon a person to act contrary to his

beliefs or the consequences he faces for not doing so are not

substantial. See Thomas, 450 U.S. at 717 (assessing the

“coercive impact” of being “put to a choice between fidelity

to religious belief or cessation of work”). Finally, this Court

has “inquir[ed] into the importance of a religious practice” to

the individual. Henderson v. Kennedy, 265 F.3d 1072, 1074

(D.C. Cir. 2001) (denying rehearing en banc). In doing so, we

have found no substantial burden exists where a regulation is

“at most a restriction on one of a multitude of means” for an

individual to engage in his desired religious exercise.

Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (the

plaintiffs could spread the gospel any number of ways, just

not the prohibited means of selling t-shirts on the National

Mall); see also Mahoney, 642 F.3d at 1120–21 (the plaintiff

had ample alternative means of spreading his religious

message besides chalking the sidewalk in front of the White

House).2

2

While the propriety of this sort of inquiry in pure free exercise

cases is arguably called into question by recent Supreme Court

8

Here, Plaintiffs’ faith compels them to provide their

employees and students with health insurance plans. Oral

Arg. Tr. at 19:5–15. Their religious beliefs forbid them not

only from providing or paying for contraception, but also

from facilitating its provision. Pls. Br. at 15. Plaintiffs

therefore believe they exercise their religion by providing

health insurance plans that do not facilitate access to

contraception. Id. at 11-12, 15, 24–25. In determining

whether an act constitutes impermissible facilitation Plaintiffs

are informed by “the Catholic doctrines of material

cooperation and scandal.” Id. at 36. The sincerity of

Plaintiffs’ beliefs has not been questioned. Slip Op. at 26.

Plaintiffs identify at least two acts that the regulations

compel them to perform that they believe would violate their

religious obligations: (1) “hiring or maintaining a contractual

relationship with any company required, authorized, or

incentivized to provide contraceptive coverage to

beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for

Reh’g En Banc at 3; and (2) “filing the self-certification or

notification,” id. at 4. Plaintiffs have therefore shown both

that they are being compelled to modify their behavior and

that, if undertaken, the modification would be a violation of

their religious beliefs. They are unlike the plaintiffs in

Kaemmerling and Bowen, as they have shown they are

themselves being compelled to modify their behavior.

If Plaintiffs do not act in violation of their beliefs,

however, they face two alternatives. First, they may offer

coverage that does not include contraceptives and face

onerous fines. 26 U.S.C. § 4980D(b)(1). Alternatively, they

precedent, see Holt, 135 S. Ct. at 862, it is not relevant to this case.

That the practice Plaintiffs defend here is of sufficient importance

to them to form the basis of a substantial burden under RFRA has

not been questioned.

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may stop providing health insurance altogether, which would

also be a violation of their religious beliefs. Oral Arg. Tr. at

19:5–15. Imposing such harsh consequences certainly

substantially pressures Plaintiffs to alter their behavior in a

way inconsistent with their religious beliefs. See Hobby

Lobby, 134 S. Ct. at 2759 (stating if “heavy” financial

penalties “do not amount to a substantial burden, it is hard to

see what would”). Plaintiffs have therefore demonstrated

their free exercise is substantially burdened: they are being

“put[] to [the] choice” of either “‘engag[ing] in conduct that

seriously violates [their sincere] religious beliefs’” or facing

“serious” consequences. Holt, 135 S. Ct. at 862 (quoting

Hobby Lobby, 134 S. Ct. at 2775).

B

The panel’s opinion parts ways with precedent by wading

into impermissible lines of inquiry. The panel did not dispute

that federal law operates to compel Plaintiffs to maintain a

relationship with an issuer or TPA that will provide the

contraceptive coverage and to execute the self-certification or

alternative notice. Their disagreement with Plaintiffs is about

the significance of those compelled acts; in other words, the

panel rejected the “adherents’ claim about the religious

meaning of the undisputed operation of [] federal

regulation[s].” Concurring Op. at 1; see also Eternal Word

Television Network, Inc. v. Sec’y, Dep’t of Health & Human

Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) (Pryor, J.

specially concurring) (disposing of the argument that the

plaintiff’s complaint should “fail[] because [the plaintiff]

holds an erroneous legal opinion about how the contraception

mandate works” because the plaintiff “offer[ed] no evidence

that its complaint turns on the advice of counsel” but instead

offered “undisputed declarations . . . about the ancient

teachings of the Catholic Church”). With a thorough analysis

10

of the regulations, the panel determined they “do not compel”

Plaintiffs to “provide, pay for, and/or facilitate access to

contraception, sterilization, abortion, or related counseling in

a manner that violates the teachings of the Catholic Church.”

Slip Op. at 26 (quoting Pls.’ Br. at 15). The panel explained

the regulations allow Plaintiffs to “wash[] their hands of any

involvement in providing insurance coverage for

contraceptive services.” Id. Therefore, the panel concluded,

Plaintiffs have been subjected to only to a de minimis burden

of completing a form, and their RFRA claim fails. Id. at 31.

In declaring that—contrary to Catholic Plaintiffs’

contentions—it would be consistent with the teaching of the

Catholic Church for Plaintiffs to comply with the regulations

the panel exceeded both the “judicial function and [the]

judicial competence.” Thomas, 450 U.S. at 716. What

amounts to “facilitating immoral conduct,” Pet. for Reh’g En

Banc at 1, “scandal,” id. at 7, and “material” or

“impermissible cooperation with evil,” id.; Slip Op. at 14, are

inherently theological questions which objective legal

analysis cannot resolve and which “federal courts have no

business addressing.” Hobby Lobby, 134 S. Ct. at 2778; see

also id. (stating “the circumstances under which it is wrong

for a person to perform an act that is innocent in itself but has

the effect of enabling or facilitating the commission of an

immoral act by another” is “a difficult and important question

of religion and moral philosophy”). The causal connection

sufficient to create impermissible “facilitation” in the eyes of

a religious group may be very different from what constitutes

proximate cause in the common law tradition. See Univ. of

Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting) (“[W]e

are judges, not moral philosophers or theologians; this is not a

question of legal causation but of religious faith.”). Likewise,

where civil authorities may conclude an individual has

“wash[ed his] hands of any involvement,” Slip Op. at 26,

11

adherents of a faith may examine the same situation and, in

their religious judgment, reach the opposite conclusion.

Pontius Pilate, too, washed his hands, but perhaps he

perceived the stain of complicity remained. See Matthew

27:24.

Under the panel’s analysis, it seems no claim of

substantial burden may prevail where the religious

significance of conduct under scripture as interpreted by a

faith tradition differs from the legal significance of that

conduct under the laws of the United States as interpreted by

federal judges. But RFRA would be an exceedingly

shallow—perhaps nonexistent—protection of religious

exercise if adherents were only permitted to give the same

meaning to their actions or inactions as does the secular law.

Plaintiffs, including an Archbishop and two Catholic

institutions of higher learning, say compliance with the

regulations would facilitate access to contraception in

violation of the teachings of the Catholic Church. What law

or precedent grants this Court authority to conduct an

independent inquiry into the correctness of this belief?

Instead, where one sincerely believes performing certain acts

would cause him to cross the line between permissible

behavior and sin, the Supreme Court has instructed, “it is not

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

Hobby Lobby, 134 S. Ct. at 2778 (quoting Thomas, 450 U.S.

at 715). Plaintiffs’ sincere determination about the

obligations their religion imposes is between them and their

God and need not be “acceptable, logical, consistent, or

comprehensible to others in order to merit . . . protection.”

Thomas, 450 U.S. at 714. This is so even when, in the

government’s opinion, Plaintiffs’ determination is based on a

misunderstanding of the nature of their legal obligations, their

religious obligations, or both—as the two could certainly

12

overlap.3 RFRA’s concern is with the sincerity of religious

beliefs and not their accuracy. For example in United States

v. Lee, Mr. Lee claimed he could not pay social security taxes

without violating an obligation under his Amish faith to care

for fellow church members. 455 U.S. 252, 257 (1982). The

Supreme Court refused to consider the government’s

argument that paying social security taxes did not actually

interfere with exercise of this belief, as the Amish would

3

Confusion remains as to the legal obligations the regulations

impose on third party administrators (“TPAs”). In Wheaton

College v. Burwell, Justice Sotomayor explained a TPA does not

have an independent obligation but instead “bears the legal

obligation to provide contraceptive coverage only upon receipt of a

valid self-certification.” 134 S. Ct. 2806, 2814 n.6 (2014)

(Sotomayor, J., dissenting) (citing 26 C.F.R. § 54.9815–

2713A(b)(2) (2013); 29 C.F.R. § 2510.3–16(b) (2013)). Even

evaluating the new regulations as supplemented in light of the

Supreme Court’s ruling in Wheaton College, the panel did not

identify any scenario under which a TPA is obligated to provide

contraceptive coverage until the TPA is designated a “plan

administrator” for purposes of ERISA. Slip Op. 41–43. As the

regulations currently stand, this designation occurs only after a

religious nonprofit has either completed the self-certification form

or the alternative notice and after the TPA agrees to enter into or

remain in a contractual relationship with the nonprofit organization.

See 26 C.F.R. § 54.9815-2713AT(b)(2) (2014) (“If a third party

administrator receives a copy of the self-certification from an

eligible organization or a notification from the Department of Labor

[sent after the religious nonprofit provides notice of its objection to

the Department] . . . and agrees to enter into or remain in a

contractual relationship with the eligible organization . . . the third

party administrator shall provide or arrange for payments of

contraceptive services . . . .”) (emphasis added). If the panel relied

on a mistaken assumption about the regulations imposing an

independent obligation on TPAs to provide contraceptive coverage,

rehearing en banc is all the more warranted.

13

remain free to care for their own community if they paid

social security taxes but did not collect benefits. Id. Instead

the Court simply accepted Mr. Lee’s “contention that both

payment and receipt of social security benefits is forbidden by

the Amish faith,” explaining “[c]ourts are not arbiters of

scriptural interpretation.” Id. (quoting Thomas, 450 U.S. at

716).

The panel’s analysis further parts ways with precedent by

recasting Plaintiffs’ objection to the facilitation of access as

an objection to the conduct of third parties. Slip Op. at 34.

The panel relied on Bowen and Kaemmerling to find Plaintiffs

may not object “to the role of [their] action in the broader

regulatory scheme.” Slip Op. at 35. There are two problems

with this analysis. First, in this case the government is

requiring Plaintiffs to perform objectionable acts. In contrast,

the Bowen and Kaemmerling plaintiffs’ objections were to the

government’s actions. See Bowen, 476 U.S. at 699–700;

Kaemmerling, 553 F.3d at 678. The claims in Bowen and

Kaemmerling are different in kind from a claim that the

government is compelling the individual himself to undertake

actions he believes are sinful.

Second, the actions to which Plaintiffs object—which

may seem innocent if examined devoid of context—must be

understood in light of the broader regulatory scheme. When

the Supreme Court has considered claims involving beliefs

about facilitation of immoral conduct, it has not employed the

panel’s approach of requiring the adherent to view their own

actions in isolation. Instead the Court found a substantial

burden where the plaintiffs were compelled to take actions

they believed to be impermissible based on the actions’ place

in a chain of events. See, e.g., Hobby Lobby, 134 S. Ct. at

2759 (the plaintiffs objected to providing access to

abortifacients because others’ use of the drugs may result in

14

the destruction of a human embryo); Thomas, 450 U.S. at 710

(plaintiff objected to fabricating turrets because those turrets

would then be affixed by others to military tanks and used by

others in warfare). This makes good sense, as the concept of

facilitation inherently involves a view of one’s conduct in

relation to that of others’. Logic and precedent therefore

compel us to permit persons to object to performing an act

that would be itself innocent but for its illicit consequences.

Plaintiffs object to maintaining a relationship with an issuer or

third-party administrator (“TPA”) that will use Plaintiffs’

health insurance plans as vehicles to provide contraceptive

coverage. They object to completing, as the panel describes

it, an “opt-out mechanism that shifts to third parties the

obligation to provide contraceptive coverage.” Slip Op. at 36.

Such claims do not fall outside the purview of RFRA.

III

As Plaintiffs have demonstrated a substantial burden on

their free exercise, the government may only prevail by

demonstrating the regulations further a compelling interest

and employ the least restrictive means of doing so. 42 U.S.C.

§ 2000bb–1. A compelling interest is an interest “of the

highest order.” Yoder, 406 U.S. at 215. To satisfy strict

scrutiny, the government must “specifically identify an actual

problem in need of solving” and the burden on free exercise

“must be actually necessary to the solution.” Brown v. Entm’t

Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (internal

citations and quotations omitted). The panel found the

government demonstrated a compelling interest in “seamless

provision of contraceptive services.” Slip Op. at 49. The

panel then rejected any less restrictive means of providing

contraceptive coverage without cost sharing that would

require women to complete additional steps to obtain the

coverage, explaining such means “make the coverage no

15

longer seamless from the beneficiaries’ perspective.” Id. at

24.

Even assuming for the sake of argument that the

government possesses a compelling interest in the provision

of contraceptive coverage without cost sharing, it has not

succeeded in demonstrating a compelling interest in the

“seamless” provision of coverage. The government has

pointed to no evidence in the record demonstrating its

purported interest in providing contraceptive coverage

without cost-sharing is harmed when women must undergo

additional administrative steps to receive the coverage. The

government cites only to one page in the Federal Register to

support the proposition that coverage must be provided

seamlessly.4 Gov’t Supp. Br. at 20 (citing 78 Fed. Reg.

39,870, 39,888 (Jul. 2, 2013)). This page provides no

evidence that a procedure under which individuals must take

additional steps to receive contraceptive coverage poses a

“problem in need of solving,” but instead offers only

conclusory and unsubstantiated statements that surely cannot

be sufficient for the government to meet its burden in strict

scrutiny analysis. That “additional steps” would be so

burdensome as to hinder women’s access to contraception is

pure speculation. For example, if all that was required was

that the employee or student fills out a “simple, one-step

form,” that would be a “de minimis requirement” to which we

assume the panel would have no objection. Slip Op. at 26,

31; see also Roman Catholic Archdiocese of New York v.

4

The government also references pages of a 2011 Institute of

Medicine Report entitled, “Clinical Preventative Services for

Women: Closing the Gaps.” Gov’t Supp. Br. at 20 (citing pages

103–07). These pages of the report discuss benefits of

contraceptive services and do not reference, much less weigh, the

comparative advantage or disadvantage of procedures for accessing

those services.

16

Sebelius, 987 F. Supp. 2d 232, 256 (E.D.N.Y. 2013) (“If these

steps only entail filling out a form, it seems that the burden of

filling out that form should fall on those who have no

religious objection to doing so.”).

Further, the government cannot meet its burden of

demonstrating a compelling interest where it leaves

“appreciable damage to [the] supposedly vital interest

unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 547 (1993) (quoting Fla. Star v.

B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring)); see

also Republican Party of Minn. v. White, 536 U.S. 765, 780

(2002) (stating a law’s purpose is undermined when it is “so

woefully underinclusive as to render belief in [its] purpose a

challenge to the credulous”). As the panel notes, the

Affordable Care Act permits employers to “ceas[e] to offer

health insurance as an employment benefit, and instead pay[]

the shared responsibility assessment and leav[e] the

employees to obtain subsidized health care coverage on an

insurance exchange.” Slip Op. at 23. While Plaintiffs state

they cannot exercise this option without violating their

religious obligations, Oral Arg. Tr. at 19:5–15, the panel

nevertheless reminds them it would be acceptable under the

law. Slip Op. at 23. The untold many whose employers

provide no health insurance and instead pay the assessment

must face “logistical, informational, and administrative

burdens,” id. at 63, in arranging for subsidized coverage on a

health insurance exchange. They must “take steps to learn

about, and to sign up for,” 78 Fed. Reg. at 39,888, health

insurance on their own. The government simply cannot argue

with a straight face that women who gain access to

contraceptive coverage by identifying and signing up for a

subsidized health insurance plan on a government exchange

receive that coverage “seamlessly.” Cf. Hobby Lobby, 134 S.

Ct. at 2783. Therefore, in leaving “appreciable damage” to its

17

“supposedly vital interest” in seamless provision of

contraceptive coverage, the government’s regulations cannot

survive strict scrutiny. Church of the Lukumi Babalu Aye,

508 U.S. at 547 (quoting Fla. Star, 491 U.S. at 542 (Scalia, J.,

concurring)).

The question of least restrictive means then becomes the

other side of the same coin. The government could treat

employees whose employers do not provide complete

coverage for religious reasons the same as it does employees

whose employers provide no coverage. This would entail

providing for subsidized—or in this case free—contraceptive

coverage to be made available on health care exchanges. An

employee of a religious objector then would face the same

administrative burdens as those who find complete

coverage—including contraceptive services coverage—on the

exchanges. However, just like others who use the exchanges,

after overcoming these administrative hurdles, employees of

religious objectors would have contraceptive coverage

without cost sharing. Such a mechanism would therefore be

effective and would minimize the burden on religious

adherents, demonstrating its viability as a less restrictive

means than the current regulations.

IV

The Supreme Court has interpreted the First Amendment

to deprive individuals of constitutional protection against

neutral laws—meaning almost any law where the government

does not announce its intention “to infringe upon or restrict

practices because of their religious motivation.” Church of

the Lukumi Babalu Aye, 508 U.S. at 533. Genuine neutrality,

however, would “allow[] many different and contending

voices to be represented in public discourse.” Michael W.

McConnell, Why is Religious Liberty the “First Freedom”?,

18

21 CARDOZO L. REV. 1243, 1262 (2000). When the state

quells disparate voices, declaring a winner on one side of the

culture wars, neutrality becomes a proxy for majoritarianism

and secularism. Id.

Priests for Life is an organization that exists solely for the

purpose of countering the benign narrative that contraception

and abortion are beneficial to women. The other Plaintiffs

exist, at least in part, to engender a counter-cultural narrative

that “life begins at the moment of conception . . . and that

certain ‘preventative’ services that interfere with conception

or terminate a pregnancy are immoral.” Pls. Br. at 15. Those

who accept employment with these organizations and students

who enroll at these schools do so with full awareness of their

mediating stance. Nevertheless, though the government

acknowledges that a primary goal of such organizations is to

oppose the government’s mission of increasing access to and

use of contraception, it places them outside its grudging

religious exemption and offers only one real choice—they can

renounce their religious scruples overtly or in practical effect.

If the government coopts their contractors and administrative

structures to dispense advice, drugs, and services that

contravene their religious views, in effect, it has written

contraceptive care, including access to abortifacients, into

Plaintiffs’ employment contracts and student health care

agreements. Commandeering is not accommodation, and, in

this context, “seamlessness” is just shorthand for surrender.

The French have another saying, mocking the Bourbon

restoration: ils n'ont rien appris, ni rien oublié. Learning

nothing and forgetting nothing. The modern maxim does the

Bourbon monarchs one better: learning nothing and forgetting

everything. Alas, preserving the fragile ark of our

constitutionalism requires us to remember that the first

19

principle of liberty is freedom from gratuitous coercion. We

respectfully dissent.

KAVANAUGH, Circuit Judge, dissenting from the denial

of rehearing en banc: In my respectful view, the panel

opinion misapplies the Religious Freedom Restoration Act

and contradicts the Supreme Court’s recent decisions in

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014),

Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and

Little Sisters of the Poor Home for the Aged v. Sebelius, 134

S. Ct. 1022 (2014). I would grant rehearing en banc and rule

for the plaintiff religious organizations.

At the outset, it is important to recognize that two of the

key Supreme Court precedents here – Hobby Lobby and

Wheaton College – were divided decisions with vigorous

dissents. Some believe that those two decisions tilted too far

in the direction of religious freedom. Others, by contrast,

think that those decisions did not go far enough in the

direction of religious freedom. We are a lower court in a

hierarchical judicial system headed by “one supreme Court.”

U.S. Const. art. III, § 1. It is not our job to re-litigate or trim

or expand Supreme Court decisions. Our job is to follow

them as closely and carefully and dispassionately as we can.

Doing so here, in my respectful view, leads to the conclusion

that the plaintiff religious organizations should ultimately

prevail on their RFRA claim, but not to the full extent that

they seek.

Some background: The Affordable Care Act requires

most employers, including non-profit organizations, to

provide health insurance coverage for their employees or else

pay a significant monetary penalty to the Government. By

regulation, that insurance must cover all FDA-approved

contraceptives, including certain methods of birth control that,

some believe, operate as abortifacients and result in the

destruction of embryos.

As a religious accommodation, the regulations exempt

religious non-profit organizations from the contraceptive

2

mandate. To be exempt from the monetary penalty, however,

the religious organizations must either submit a form with

certain required information to their insurer or submit a letter

with certain required information to the Secretary of Health

and Human Services. 1 (For ease of reference, I will use the

term “form” to cover both documents.) The insurer must

continue to provide contraceptive coverage to the religious

organizations’ employees, albeit with separate funds provided

either by the insurer itself or by the United States.

Many prominent religious organizations around the

country – including the plaintiffs in this case – have bitterly

1

The form submitted to a religious organization’s insurer must

certify that the organization (1) opposes providing coverage for

some or all of the contraceptive services required by the

contraceptive mandate on account of religious objections; (2) is

organized and operates as a non-profit entity; and (3) holds itself

out as a religious organization. See 29 C.F.R. § 2590.715-

2713A(a), (b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(b), (c)(1). In

certain circumstances, the form must also “include notice” of the

insurer’s obligations to provide contraceptive coverage to the

religious organization’s employees. 29 C.F.R. § 2590.715-

2713A(b)(1)(ii)(A).

The letter to the Secretary of Health and Human Services must

include the following information: (1) the name of the religious

non-profit organization; (2) the basis on which it qualifies for an

accommodation; (3) its objection based on sincerely held religious

beliefs to providing coverage for some or all contraceptive services,

including notice of the subset of contraceptive services to which it

objects; (4) its insurance plan’s name and type; and (5) the name

and contact information for any of the insurance plan’s third party

administrators and health insurance issuers. See 29 C.F.R.

§ 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R.

§ 147.131(c)(1)(ii); Coverage of Certain Preventative Services

Under the Affordable Care Act, 79 Fed. Reg. 51,092, 51,094-95

(Aug. 27, 2014).

3

objected to this scheme. They complain that submitting the

required form contravenes their religious beliefs because

doing so, in their view, makes them complicit in providing

coverage for contraceptives, including some that they believe

operate as abortifacients. They say that the significant

monetary penalty for failure to submit the form constitutes a

substantial burden on their exercise of religion. They

contend, moreover, that the Government has less restrictive

ways of ensuring that the employees of the religious

organizations have access to contraception without making

the organizations complicit in the scheme in this way.

The plaintiffs in this case have sued under the Religious

Freedom Restoration Act, known as RFRA. RFRA grants

individuals and organizations an exemption from generally

applicable federal laws that “substantially burden” their

“exercise of religion,” unless the Government demonstrates

that the law furthers a “compelling governmental interest” and

is the “least restrictive means” of furthering that interest. 42

U.S.C. § 2000bb-1. 2 As the Supreme Court has explained,

“RFRA was designed to provide very broad protection for

religious liberty.” Hobby Lobby, 134 S. Ct. at 2767, slip op.

at 17. RFRA statutorily incorporated the compelling interest

test that the Supreme Court had applied in cases such as

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

Yoder, 406 U.S. 205 (1972). 42 U.S.C. § 2000bb(b)(1).

Under RFRA and the relevant Supreme Court case law,

we must consider three questions here. First, do the

2

The relevant section of RFRA provides in full: “Government

may substantially burden a person’s exercise of religion only if it

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

interest.” 42 U.S.C. § 2000bb-1(b).

4

regulations – which compel religious organizations to submit

the required form or else pay significant monetary penalties –

“substantially burden” the religious organizations’ “exercise

of religion”? Second, if so, does the Government have a

“compelling” interest in facilitating access to contraception

for the employees of these religious organizations? Third, if

the Government does have such a compelling interest, do the

regulations represent the “least restrictive” means of

furthering that interest?

I conclude as follows:

First, under Hobby Lobby, the regulations substantially

burden the religious organizations’ exercise of religion

because the regulations require the organizations to take an

action contrary to their sincere religious beliefs (submitting

the form) or else pay significant monetary penalties.

Second, that said, Hobby Lobby strongly suggests that the

Government has a compelling interest in facilitating access to

contraception for the employees of these religious

organizations.

Third, this case therefore comes down to the least

restrictive means question. Under Hobby Lobby, Wheaton

College, and Little Sisters of the Poor, requiring the religious

organizations to submit this form is not the Government’s

least restrictive means of furthering its interest in facilitating

access to contraception for the organizations’ employees.

Rather, the Government can achieve its interest even if it

accepts the less restrictive notice that the Supreme Court has

already relied on in the Wheaton College and Little Sisters of

the Poor cases. Unlike the form required by current federal

regulations, the Wheaton College/Little Sisters of the Poor

notice does not require a religious organization to identify or

5

notify its insurer, and thus lessens the religious organization’s

complicity in what it considers to be wrongful. And even

with just the Wheaton College/Little Sisters of the Poor

notice, the Government can independently determine the

identity of the organization’s insurer and thereby ensure that

the same insurer continues to provide the same contraceptive

coverage to the organization’s employees. Hence, the

Wheaton College/Little Sisters of the Poor notice is a less

restrictive way for the Government to achieve its compelling

interest.

I

First, under Hobby Lobby, this regulatory scheme

imposes a substantial burden on plaintiffs’ exercise of

religion.

Under RFRA, a substantial burden on the exercise of

religion occurs when, for example, the Government imposes

sanctions or punishment on someone, or denies a benefit to

someone, for exercising his or her religion. Thus, if the

Government requires someone (under threat of incurring

monetary sanctions or punishment, or of having a benefit

denied) to act or to refrain from acting in violation of his or

her sincere religious beliefs, that constitutes a substantial

burden on the exercise of religion. See Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751, 2775-79, slip op. at 31-38

(2014); Thomas v. Review Board of Indiana Employment

Security Division, 450 U.S. 707, 717-18 (1981); Sherbert v.

Verner, 374 U.S. 398, 403-04 (1963).

That is precisely what has happened here.

The “substantial burden” in this case comes from the

large monetary penalty imposed on religious organizations

6

that choose not to submit the required form. Cf. Hobby

Lobby, 134 S. Ct. at 2775-76, 2779, slip op. at 31-32, 38. It is

settled that a direct monetary penalty on the exercise of

religion constitutes a “substantial burden.” See id. (penalty

for not providing contraceptive coverage); Wisconsin v.

Yoder, 406 U.S. 205, 208, 218-19 (1972) (fine for not sending

children to high school); Sherbert, 374 U.S. at 404 (describing

hypothetical fine for Saturday worship). 3

Therefore, the remaining question with respect to the first

prong of the RFRA analysis is whether submitting the form

actually contravenes plaintiffs’ sincere religious beliefs. In

analyzing that question, we must first understand the context

in which the question arises. In most religious liberty cases,

the Government has said in essence: “Do X or suffer a

penalty.” The religious objector responds that X violates his

3

The Supreme Court has determined that denying benefits to

(and not just imposing penalties on) someone engaged in conduct

mandated by religious belief imposes a substantial burden on the

exercise of religion. In denial-of-benefits cases, “[w]hile the

compulsion may be indirect, the infringement upon free exercise is

nonetheless substantial.” Thomas, 450 U.S. at 718. Congress

incorporated that broad understanding of substantial burden into

RFRA. Of course, the question of indirect burdens from the denial

of government benefits is not at issue in this case. Here, we have

the classic direct monetary penalty compelling conduct that

contravenes religious belief. There has never been a question that

such a direct penalty imposes a substantial burden on the exercise

of religion. See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, slip op.

at 31-32, 38; Yoder, 406 U.S. at 208, 218; Sherbert, 374 U.S. at

404. Put simply, it is black-letter law that a “substantial burden” on

the exercise of religion occurs when, as here, the government

“compel[s] someone to do something that violates his religious

beliefs, or prohibit[s] someone from doing something that is

mandated by his religious beliefs.” Eugene Volokh, The First

Amendment and Related Statutes 1060 (5th ed. 2014).

7

or her religious beliefs. For example, in the recent Holt v.

Hobbs case, it was “shave your beard or suffer a penalty.”

See Holt v. Hobbs, 135 S. Ct. 853, 860-61, slip op. at 4

(2015). Or in the classic Wisconsin v. Yoder case, it was

“send your children to high school or pay a $5 fine.” See 406

U.S. at 208. Or in United States v. Lee, it was “pay the Social

Security tax or suffer a penalty.” See 455 U.S. 252, 254-55

(1982). Simple enough.

Here, the situation is only slightly more complicated.

The Government has said in essence: “Do X or Y or suffer a

penalty.” X is provide contraceptive coverage. Y is submit

the form. All agree that X – providing contraceptive coverage

– implicates plaintiffs’ “exercise of religion.” But religious

organizations can avoid that option by choosing Y –

submitting the form. In other words, the Government is

exempting religious organizations from providing

contraceptive coverage but is still saying: “Submit the form

or suffer a penalty.”

As a result, the key inquiry under the first prong of

RFRA is whether submitting the form violates plaintiffs’

sincere religious beliefs. The form is part of the process by

which the Government ensures that the religious

organizations’ insurers provide contraceptive coverage to the

organizations’ employees. To plaintiffs, the act of

“submitting” this form would, “in their religious judgment,

impermissibly facilitate[] delivery” of contraceptive and

abortifacient coverage. Plaintiffs’ Supplemental Br. 1.

As the Supreme Court stated in Hobby Lobby, such a

question of complicity – that is, when “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” – is “a difficult and important

8

question of religion and moral philosophy.” Hobby Lobby,

134 S. Ct. at 2778, slip op. at 36. Judge Gorsuch has

explained well the complicity issue that arises in these

circumstances: “All of us face the problem of complicity. All

of us must answer for ourselves whether and to what degree

we are willing to be involved in the wrongdoing of others.

For some, religion provides an essential source of guidance

both about what constitutes wrongful conduct and the degree

to which those who assist others in committing wrongful

conduct themselves bear moral culpability. [Plaintiffs] are

among those who seek guidance from their faith on these

questions. Understanding that is the key to understanding this

case.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1152 (10th Cir. 2013) (Gorsuch, J., concurring).

But what if the religious organizations are misguided in

thinking that this scheme – in which the form is part of the

process by which the Government ensures contraceptive

coverage – makes them complicit in facilitating contraception

or abortion? That is not our call to make under the first prong

of RFRA. The Supreme Court has emphasized that judges in

RFRA cases may question only the sincerity of a plaintiff’s

religious belief, not the correctness or reasonableness of that

religious belief. See Hobby Lobby, 134 S. Ct. at 2774 n.28,

2777-79, slip op. at 29 n.28, 35-38; see also Thomas, 450 U.S.

at 714-16. 4 The Supreme Court has long stated, moreover,

4

In that regard, it is important to note at least three limits on a

claimant’s ability to prevail under RFRA.

First, RFRA does not provide protection to philosophical,

policy, political, or personal beliefs, for example. It protects only

religious beliefs. 42 U.S.C. § 2000bb-1(a) (“Government shall not

substantially burden a person’s exercise of religion even if the

burden results from a rule of general applicability, except as

provided in subsection (b) of this section.”) (emphasis added).

9

that religious beliefs need not be “acceptable, logical,

consistent, or comprehensible to others” in order to merit

protection. Thomas, 450 U.S. at 714. As Justice Brennan, the

primary architect of the body of religious freedom law now

incorporated into RFRA, once put it: “[R]eligious freedom –

the freedom to believe and to practice strange and, it may be,

foreign creeds – has classically been one of the highest values

Second, RFRA does not cover insincere religious beliefs – that

is, beliefs that are not truly held – such as when someone asserts a

personal objection dressed up as a religious objection. Under

RFRA, the courts must police sincerity. As the Supreme Court has

explained, RFRA reflects Congress’s confidence in “the ability of

the federal courts to weed out insincere claims.” Hobby Lobby, 134

S. Ct. at 2774, slip op. at 29. And the Hobby Lobby Court

approvingly cited a number of cases where courts have inquired

into the sincerity of religious claims. Id. at 2774 nn.28-29, slip op.

at 29-30 nn.28-29 (citing United States v. Quaintance, 608 F.3d

717, 718-19 (10th Cir. 2010); Abate v. Walton, 77 F.3d 488, 1996

WL 5320, at *5 (9th Cir. Jan. 5, 1996); Ochs v. Thalacker, 90 F.3d

293, 296 (8th Cir. 1996); Green v. White, 525 F. Supp. 81, 83-84

(E.D. Mo. 1981); Winters v. State, 549 N.W.2d 819, 819-20 (Iowa

1996)). As the Supreme Court has previously stated: “[W]hile the

truth of a belief is not open to question, there remains the

significant question whether it is truly held. This is the threshold

question of sincerity which must be resolved in every case.” United

States v. Seeger, 380 U.S. 163, 185 (1965) (internal quotation

marks omitted). In short, in these religious freedom cases, the

courts appropriately “inquir[e] into the sincerity” of a claimant’s

“professed religiosity.” Cutter v. Wilkinson, 544 U.S. 709, 725

n.13 (2005) (applying the related Religious Land Use and

Institutionalized Persons Act).

Third, as explained more fully below, RFRA’s compelling

interest standard allows the Government to compel or proscribe

action in certain circumstances even though, by doing so, the

Government may be substantially burdening someone’s religion.

10

of our society.” Braunfeld v. Brown, 366 U.S. 599, 612

(1961) (Brennan, J., concurring in part and dissenting in part).

That bedrock principle means that we may not question

the wisdom or reasonableness (as opposed to the sincerity) of

plaintiffs’ religious beliefs – including about complicity in

wrongdoing. In Hobby Lobby, the Supreme Court

emphatically confirmed that point. There, as here, the

Government argued that the employers’ alleged complicity in

providing contraception did not infringe on the employers’

religious beliefs. In particular, the Government claimed that

“the connection between what the objecting parties must do”

(pay for insurance) and “the end that they find to be morally

wrong (destruction of an embryo)” was “simply too

attenuated” because the end would occur only as a result of

intervening decisions by individual covered employees.

Hobby Lobby, 134 S. Ct. at 2777, slip op. at 35.

The Supreme Court adamantly rejected the basic premise

of the Government’s argument. The Court emphasized that

federal courts have “no business” trying to answer whether

the religious beliefs asserted in a RFRA case – including the

complicity belief at issue in Hobby Lobby – are correct or

reasonable. Id. at 2778, slip op. at 36. A federal court may

not tell the objectors that “their beliefs are flawed,” and thus

may not arrogate to itself “the authority to provide a binding

national answer to this religious and philosophical question”

of complicity. Id. at 2778, slip op. at 36-37. Instead, the

“narrow function” of federal courts is to determine whether

the belief is sincere and “reflects an honest conviction.” Id. at

2779, slip op. at 37-38 (internal quotation marks omitted). In

doing so, moreover, courts must keep in mind that RFRA

protects “any exercise of religion, whether or not compelled

by, or central to, a system of religious belief.” 42 U.S.C.

§ 2000cc-5(7)(A) (defining “religious exercise” for purposes

11

of the related Religious Land Use and Institutionalized

Persons Act); see id. § 2000bb-2 (incorporating that Act’s

definition set forth in § 2000cc-5 into RFRA).

As a matter of religious belief, plaintiffs in this case say

that the act of submitting the required form makes them

complicit in moral wrongdoing. Importantly, no one here

disputes that plaintiffs’ religious belief is sincere and reflects

an honest conviction. Cf. Wheaton College v. Burwell, 134 S.

Ct. 2806, 2808, slip op. at 4 (2014) (Sotomayor, J.,

dissenting) (“The sincerity of Wheaton’s deeply held religious

beliefs is beyond refute.”); id. at 2812, slip op. at 11.

Therefore, plaintiffs’ decision to decline to submit the

required letter or form is an “exercise of religion” under

RFRA. No one disputes, moreover, that plaintiffs will be

required to pay huge monetary penalties if they do not submit

the required form. Those large monetary penalties plainly

represent a “substantial burden” on plaintiffs’ exercise of

religion. See Hobby Lobby, 134 S. Ct. at 2759, slip op. at 2.

Judge Flaum persuasively summarized the point in a

similar case that involved Notre Dame: “Yet we are judges,

not moral philosophers or theologians; this is not a question of

legal causation but of religious faith. Notre Dame tells us that

Catholic doctrine prohibits the action that the government

requires it to take. So long as that belief is sincerely held, I

believe we should defer to Notre Dame’s understanding.”

University of Notre Dame v. Sebelius, 743 F.3d 547, 566 (7th

Cir. 2014) (Flaum, J., dissenting), vacated and remanded, 135

S. Ct. 1528 (2015). Judge Pryor has likewise cogently

explained: “So long as the [religious organization’s] belief is

sincerely held and undisputed – as it is here – we have no

choice but to decide that compelling the participation of the

[religious organization] is a substantial burden on its religious

exercise.” Eternal Word Television Network, Inc. v.

12

Secretary, Department of Health & Human Services, 756 F.3d

1339, 1348 (11th Cir. 2014) (Pryor, J., specially concurring).

In short, under Hobby Lobby, the regulations

substantially burden plaintiffs’ exercise of religion.

The panel opinion concludes, however, that there is no

substantial burden on plaintiffs’ exercise of religion. In

particular, the panel opinion says that plaintiffs are wrong to

think that they would be complicit in moral wrongdoing if

they submit this form, as required by the Government. But to

reiterate: Judicially second-guessing the correctness or

reasonableness (as opposed to the sincerity) of plaintiffs’

religious beliefs is exactly what the Supreme Court in Hobby

Lobby told us not to do. See Hobby Lobby, 134 S. Ct. at

2778, slip op. at 36. And Hobby Lobby was not the first

Supreme Court case to say as much. See Thomas, 450 U.S. at

714-16.

The panel opinion responds that plaintiffs are simply

misunderstanding the law and that the law, properly

understood, does not actually make plaintiffs complicit in

providing contraceptive coverage. But there is no dispute that

the Government is requiring plaintiffs to submit a form (to the

Government or to the insurer) or else pay a penalty. And

there is no dispute that the form is part of the process by

which the Government ensures that the religious

organizations’ insurers provide contraceptive coverage to the

organizations’ employees. In other words, the form matters

and plays a role in this scheme. After all, if the form were

meaningless, why would the Government require it? The

Government is requiring plaintiffs to submit the form

precisely because the form is part of the process by which the

Government ensures that the religious organizations’ insurers

provide contraceptive coverage to the organizations’

13

employees. 5 Plaintiffs in turn sincerely believe that

submitting the form under those circumstances makes them

complicit in wrongdoing in contravention of their religious

beliefs. See Plaintiffs’ Supplemental Br. 1. Compelling

submission of the form therefore imposes a substantial burden

under RFRA. 6

The panel opinion separately notes that the Government

intended the form to accommodate religious organizations so

that the organizations themselves would not have to provide

5

If the form were meaningless, the Government presumably

would not require it and perpetuate this rancorous dispute with

religious organizations around the country.

6

The panel’s concurrence in the denial of rehearing en banc

largely echoes Justice Sotomayor’s dissent in Wheaton College.

Compare Panel Concurrence at 5 (“In no respect do we, nor could

we, question Plaintiffs’ sincere beliefs about what their faith

permits and forbids of them. But we can and must decide which

party is right about how the law works.”), with Wheaton College,

134 S. Ct. at 2812, slip op. at 10 (Sotomayor, J., dissenting)

(“Wheaton is mistaken – not as a matter of religious faith, in which

it is undoubtedly sincere, but as a matter of law . . . . Any provision

of contraceptive coverage by Wheaton’s third-party administrator

would not result from any action by Wheaton; rather, in every

meaningful sense, it would result from the relevant law and

regulations.”). But the Supreme Court, by a 6-3 margin, did not

agree with Justice Sotomayor’s dissent in Wheaton College, at least

for purposes of the injunction. The Court instead granted an

injunction under the All Writs Act to Wheaton College, which the

Court could do only if it concluded that the required form

“indisputably” would impose a substantial burden on Wheaton

College’s exercise of religion. See Turner Broadcasting System,

Inc. v. Federal Communications Commission, 507 U.S. 1301, 1303

(1993) (Rehnquist, C.J., in chambers) (internal quotation marks

omitted); Wheaton College, 134 S. Ct. at 2808, slip op. at 4

(Sotomayor, J., dissenting) (internal quotation marks omitted).

14

contraceptive coverage. But the panel opinion has been faked

out by the Government’s accommodation. The

accommodation provides an alternative, but the alternative

itself imposes a substantial burden on the religious

organizations’ exercise of religion. Again, this case arises in

a “Do X or Y or pay a penalty” posture. All agree that X –

providing contraceptive coverage – infringes plaintiffs’

exercise of religion. But so does Y – submitting the form.

What the panel opinion misses is that submitting this form is

itself an act that contravenes the organizations’ sincere

religious beliefs. It is no different from the recent Holt case,

in which the act that contravened the Muslim prisoner’s

sincere religious beliefs was shaving his beard. Submitting

the form = shaving your beard. Or the Yoder case, in which

the act that contravened the Amish parents’ beliefs was

sending their children to high school. Submitting the form =

sending your children to high school. Or the Lee case, in

which the act that contravened the Amish employer’s

religious beliefs was paying Social Security taxes.

Submitting the form = paying the Social Security tax. Or the

Sherbert case, in which the act that contravened the Seventh-

day Adventist’s belief was working on Saturday, the Sabbath

day of the faith. Submitting the form = working on the

Sabbath.

In all of those cases, the Supreme Court recognized that

the act in question represented a sincere religious belief that

the Government could not override except by employing the

least restrictive means to further a compelling governmental

interest. The same is true here. The panel opinion does not

fully come to grips with that critical point, in my view.

The panel opinion therefore also does not appreciate that

the substantial burden on plaintiffs’ exercise of religion comes

from the monetary penalty (which in this case happens to be

15

huge) that the organizations will have to pay if they adhere to

their religious beliefs and do not submit the required form. In

Holt, the substantial burden came from the discipline the

prisoner would receive if he refused to shave his beard. In

Yoder, it was the $5 monetary fine for the parents whose

children did not attend high school. In Lee, it was the

monetary penalty for failure to pay taxes. In Sherbert, it was

the denial of unemployment benefits for not working on the

Sabbath.

The essential principle is crystal clear: When the

Government forces someone to take an action contrary to his

or her sincere religious belief (here, submitting the form) or

else suffer a financial penalty (which here is huge), the

Government has substantially burdened the individual’s

exercise of religion. So it is in this case.

To be clear, that conclusion does not mean that plaintiffs

prevail on their RFRA claim. Rather, it means only that they

prevail on the first prong of the three-part RFRA inquiry and

that we now must move on to the second and third prongs.

The Government may still be able to compel plaintiffs to

submit the required form if the Government prevails on those

second and third prongs. Cf. Lee, 455 U.S. at 257, 261

(Government may force Amish employer to pay Social

Security taxes notwithstanding substantial burden on Amish

employer’s religion).

II

Second, does the Government have a compelling interest

in facilitating women’s access to contraception – in particular,

in facilitating access to contraception for the employees of

these religious organizations? See 42 U.S.C. § 2000bb-1(b)

(“Government may substantially burden a person’s exercise

16

of religion only if it demonstrates that application of the

burden to the person . . . is in furtherance of a compelling

governmental interest.”) (emphasis added); Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

430-31 (2006) (compelling interest test focuses on interest as

applied to particular plaintiffs).

The plaintiff religious organizations strenuously argue

that there is no such compelling governmental interest. As I

see it, however, plaintiffs’ argument cannot be squared with

the views expressed by a majority of the Justices in Hobby

Lobby.

To begin with, how do we determine whether the

Government has a “compelling interest” in overriding a

fundamental constitutional or statutory right such as RFRA’s

right to religious freedom? Good question. No code or

history book lists the Government’s compelling interests.

Rather, courts have developed those interests over time, in

common-law-like fashion. 7 What we do know, to put it in

colloquial and somewhat question-begging terms, is that the

asserted governmental interest must be so critically important

that it justifies overriding certain fundamental individual

rights in certain circumstances. To quote the Supreme Court,

7

The compelling interest nomenclature took root somewhat

ignominiously in free speech cases as a way to justify the

Government’s suppression of Communist speech. See, e.g.,

Konigsberg v. State Bar of California, 366 U.S. 36, 49-52 (1961);

Barenblatt v. United States, 360 U.S. 109, 126-27 (1959); Sweezy v.

New Hampshire, 354 U.S. 234, 265-67 (1957) (Frankfurter, J.,

concurring in result). In any event, the compelling interest override

is now an established part of various constitutional doctrines,

including the First and Fourteenth Amendments. And Congress

expressly incorporated it into the Religious Freedom Restoration

Act.

17

the interest must be “of the highest order.” Wisconsin v.

Yoder, 406 U.S. 205, 215 (1972); see Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751, 2781, slip op. at 41 (2014).

Examples of compelling interests from past Supreme Court

cases include conducting the military draft, maintaining the

tax system, running the Social Security program, and

preventing discrimination against third parties. See Gillette v.

United States, 401 U.S. 437, 461-63 (1971); Hernandez v.

Commissioner of Internal Revenue, 490 U.S. 680, 699-700

(1989); United States v. Lee, 455 U.S. 252, 257-59 (1982);

Bob Jones University v. United States, 461 U.S. 574, 603-04

(1983). 8

In this case, we do not have to tackle the compelling

interest question without guidance from above. Justice

Kennedy strongly suggested in his Hobby Lobby concurring

opinion – which appears to be controlling de facto if not also

de jure on this particular issue – that the Government

generally has a compelling interest in facilitating access to

contraception for women employees. Hobby Lobby, 134 S.

Ct. at 2785-86, slip op. at 2 (Kennedy, J., concurring); see

also id. at 2779-80, slip op. at 39-40 (majority opinion); id. at

2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting); cf.

Marks v. United States, 430 U.S. 188, 193 (1977). In

particular, Justice Kennedy referred to the “premise” of the

Court’s decision: namely, its “assumption” that the

8

As noted above, at least three aspects of RFRA limit the

statute’s reach and thus help answer the parade of horribles

sometimes raised in opposition to religious freedom claims. First,

RFRA covers only religious objections. Second, insincere

religious claims are excluded from RFRA’s protection. Third,

RFRA’s compelling interest standard allows the Government to

compel or proscribe action in certain circumstances even though, by

doing so, the Government may be substantially burdening

someone’s religion.

18

Government has a “legitimate and compelling interest” in

facilitating access to contraception. Hobby Lobby, 134 S. Ct.

at 2786, slip op. at 2 (Kennedy, J., concurring). Justice

Kennedy’s use of the term “compelling” in this context was

no doubt carefully considered. And the four dissenting

Justices likewise stated that the Government had a compelling

interest in facilitating women’s access to contraception. Id. at

2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting).

It is not difficult to comprehend why a majority of the

Justices in Hobby Lobby (Justice Kennedy plus the four

dissenters) would suggest that the Government has a

compelling interest in facilitating women’s access to

contraception. About 50% of all pregnancies in the United

States are unintended. The large number of unintended

pregnancies causes significant social and economic costs. To

alleviate those costs, the Federal Government has long sought

to reduce the number of unintended pregnancies, including

through the Affordable Care Act by making contraceptives

more cheaply and widely available. It is commonly accepted

that reducing the number of unintended pregnancies would

further women’s health, advance women’s personal and

professional opportunities, reduce the number of abortions,9

and help break a cycle of poverty that persists when women

who cannot afford or obtain contraception become pregnant

unintentionally at a young age. In light of the numerous

benefits that would follow from reducing the number of

unintended pregnancies, it comes as no surprise that Justice

Kennedy’s opinion expressly referred to a “compelling”

governmental interest in facilitating women’s access to

contraception.

9

As the panel opinion in this case accurately pointed out, as of

now about 40% of all unintended pregnancies end in abortion.

19

In short, even if the Court did not formally hold as much,

Hobby Lobby at least strongly suggests that the Government

has a compelling interest in facilitating access to

contraception for the employees of these religious

organizations. 10

III

Third, in light of those two conclusions, we must

consider the least restrictive means issue. When, as here, a

law substantially burdens the exercise of religion, but the law

furthers a compelling governmental interest, RFRA requires

the Government to use the “least restrictive means of

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

§ 2000bb-1(b). The Supreme Court has emphasized that the

“least-restrictive-means standard is exceptionally

demanding.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.

2751, 2780, slip op. at 40 (2014).

Congress adopted the least restrictive means requirement

to help thread the needle between two conflicting principles.

The least restrictive means requirement, properly applied,

allows religious beliefs to be accommodated and the

Government’s compelling interests to be achieved – a win-

win resolution of these often contentious disputes. See

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 436 (2006) (quoting 42 U.S.C. § 2000bb(a)(5))

(RFRA “‘is a workable test for striking sensible balances

between religious liberty and competing prior governmental

interests.’”). As a leading First Amendment scholar has put

10

Justice Kennedy’s Hobby Lobby opinion did not expressly

discuss whether a compelling governmental interest in ensuring

general coverage for contraceptives encompasses ensuring coverage

for those specific drugs and services that, some believe, operate as

abortifacients and result in the destruction of embryos.

20

it: “If there’s some way of granting an exemption and yet

accomplishing the government’s goal, then there’s no real

need to interfere with the religious practice, so the exemption

must be granted.” Eugene Volokh, The First Amendment and

Related Statutes 986 (5th ed. 2014).

Requiring religious organizations to submit the form

mandated by current federal regulations is not the

Government’s least restrictive means of furthering its interest

in facilitating access to contraception for the organizations’

employees. That is because the Government can still achieve

its interest by allowing the religious organizations to submit

the less restrictive notice that the Supreme Court has already

twice indicated should be good enough to satisfy the

Government’s interest.

In the Wheaton College and Little Sisters of the Poor

cases, the Supreme Court carefully specified that the religious

organizations would satisfy their current legal obligations by

submitting a simple notice to the Secretary of Health and

Human Services “in writing that it is a nonprofit organization

that holds itself out as religious and has religious objections to

providing coverage for contraceptive services.” Wheaton

College v. Burwell, 134 S. Ct. 2806, 2807, slip op. at 1

(2014); see also Little Sisters of the Poor Home for the Aged

v. Sebelius, 134 S. Ct. 1022, 1022, slip op. at 1 (2014) (notice

should be “in writing that they are non-profit organizations

that hold themselves out as religious and have religious

objections to providing coverage for contraceptive services”);

cf. Eternal Word Television Network, Inc. v. Secretary,

Department of Health & Human Services, 756 F.3d 1339,

1349 (11th Cir. 2014) (Pryor, J., specially concurring) (“The

United States, for example, could require the [religious

organization] to provide a written notification of its religious

objection to the Department of Health and Human Services.”).

21

By contrast to the form required by current federal

regulations, the Wheaton College/Little Sisters of the Poor

notice does not require the religious organizations to identify

or notify their insurers, and thus (according to plaintiffs)

lessens the religious organizations’ degree of complicity in

what they consider to be wrongful as a matter of religious

belief. See Plaintiffs’ Supplemental Br. 10. And even with

the less detailed Wheaton College/Little Sisters of the Poor

notice, the Government can independently determine the

identity of the organizations’ insurers and thereby ensure that

the insurers provide contraceptive coverage to the

organizations’ employees. The Wheaton College/Little

Sisters of the Poor notice may create some administrative

inconvenience for the Government, because the Government

itself will have to identify the religious organizations’

insurers. But administrative inconvenience alone does not

negate the feasibility of an otherwise less restrictive means –

unless the administrative problem would be “of such

magnitude” that it would render “the entire statutory scheme

unworkable.” Sherbert v. Verner, 374 U.S. 398, 408-09

(1963); see also Bowen v. Roy, 476 U.S. 693, 731 (1986)

(O’Connor, J., concurring in part and dissenting in part)

(“[A]dministrative inconvenience is not alone sufficient to

justify a burden on free exercise unless it creates problems of

substantial magnitude.”).

If a religious organization does not use the currently

required form but instead uses the Wheaton College/Little

Sisters of the Poor notice, how would that affect third parties,

namely the religious organizations’ employees? That

question matters because the Supreme Court has stated that

“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 the related

22

Religious Land Use and Institutionalized Persons Act). In

Hobby Lobby, the Court reiterated that this consideration

“will often inform the analysis of the Government’s

compelling interest and the availability of a less restrictive

means of advancing that interest.” Hobby Lobby, 134 S. Ct.

at 2781 n.37, slip op. at 42 n.37. As Justice Kennedy put it in

his concurrence, the accommodation must not “unduly restrict

other persons, such as employees, in protecting their own

interests.” Id. at 2787, slip op. at 4 (Kennedy, J., concurring).

But here, the religious organizations’ employees would

still receive the same insurance coverage from the same

insurer for contraceptives. As the Supreme Court explained

in its Wheaton College order: “Nothing in this interim order

affects the ability of the applicant’s employees and students to

obtain, without cost, the full range of FDA approved

contraceptives” or “precludes the Government from relying

on this notice, to the extent it considers it necessary, to

facilitate the provision of full contraceptive coverage under

the Act.” Wheaton College, 134 S. Ct. at 2807, slip op. at 1-2.

So accommodating the religious organizations by allowing

them to use the Wheaton College/Little Sisters of the Poor

notice would not, to use Justice Kennedy’s formulation,

“unduly restrict” third parties. Cf. Douglas NeJaime & Reva

B. Siegel, Conscience Wars: Complicity-Based Conscience

Claims in Religion and Politics, 124 Yale L.J., at 116

(forthcoming 2015) (version of Apr. 10, 2015) (“Wheaton

College, like Hobby Lobby, appears to tie accommodation to

the fact that the government has other ways of providing for

the statute’s intended beneficiaries so that no third-party harm

would result from the accommodation.”).

Although the Supreme Court’s Wheaton College and

Little Sisters of the Poor orders were not final merits rulings,

they at least qualify as extremely strong signals from the

23

Supreme Court about how to resolve the least restrictive

means issue in this case. In particular, the Court in Wheaton

College granted an injunction under the All Writs Act, which

is appropriate “only where the legal rights at issue are

indisputably clear.” Wheaton College, 134 S. Ct. at 2808, slip

op. at 4 (Sotomayor, J., dissenting) (internal quotation marks

omitted). Moreover, the Court issued the Wheaton College

order just days after its Hobby Lobby decision, and it did so

over a detailed and forceful dissent.

In any event, regardless of whether we as a lower court

are formally bound by the Supreme Court stay orders in

Wheaton College and Little Sisters of the Poor, the notice

identified by the Supreme Court in those two cases is

undoubtedly a less restrictive way for the Government to

further its interest than the form required by current federal

regulations. It necessarily follows that the form required by

current regulations is not the “least restrictive means”

available to the Government. As the Supreme Court said a

few months ago in a similar context: If “a less restrictive

means is available for the Government to achieve its goals,

the Government must use it.” Holt v. Hobbs, 135 S. Ct. 853,

864, slip op. at 11 (2015) (internal quotation marks omitted).

So too here.

To be sure, some religious organizations claim that even

the less restrictive Wheaton College/Little Sisters of the Poor

notice still imposes a substantial burden on their religious

beliefs. But that obviously does not help the Government’s

argument in support of the current, even more burdensome

form. The key point here is that the Wheaton College/Little

Sisters of the Poor notice is less restrictive (that is, less

burdensome) than the currently required form and yet still

furthers the Government’s compelling interest. Under RFRA,

24

the Government therefore must employ that less restrictive

means. 11

Put simply, the Government need not – and therefore

under RFRA may not – pursue its compelling interest in

facilitating access to contraception by requiring religious non-

profit organizations to submit the form required by current

federal regulations. 12

11

The Wheaton College/Little Sisters of the Poor notice

requires a religious organization to, in effect, raise its hand to opt

out. But contrary to what the panel’s concurrence in the denial of

rehearing en banc says, see Panel Concurrence at 3-4 n.1, the

currently required form requires a religious organization both to

raise its hand and to point to its insurer. From the perspective of

the plaintiff religious organizations, the currently required form is

therefore more burdensome because it makes the organizations

identify or notify their insurers, which the organizations believe

makes them more complicit in the provision of contraceptive

coverage to which they object as a matter of religious belief.

12

As the Court in Hobby Lobby noted, the Government could

directly subsidize or provide contraceptives to employees of

religious non-profit organizations. See Hobby Lobby, 134 S. Ct. at

2780-81, slip op. at 41. The direct funding option raises certain

feasibility issues. A means that is not a reasonably feasible way of

furthering the Government’s interest cannot be deemed a less

restrictive means of furthering that interest. In Little Sisters of the

Poor, Hobby Lobby, and Wheaton College, the Court did not say

that direct funding was the least restrictive means of furthering the

Government’s interest. If it had, then even the Wheaton

College/Little Sisters of the Poor notice would itself be too

restrictive. In any event, what matters in the present case is that the

Wheaton College/Little Sisters of the Poor notice is less restrictive

than the form required by the current federal regulations but still

achieves the Government’s interest.

25

One final note for clarity: The Government may of

course continue to require the religious organizations’

insurers to provide contraceptive coverage to the religious

organizations’ employees, even if the religious organizations

object. As Judge Flaum correctly explained, “RFRA does not

authorize religious organizations to dictate the independent

actions of third-parties, even if the organization sincerely

disagrees with them.” University of Notre Dame v. Sebelius,

743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting),

vacated and remanded, 135 S. Ct. 1528 (2015). “That is true

whether the third-party is the government, an insurer, a

student, or some other actor.” Id. “So long as the

government does not require” religious organizations

themselves “to take action, RFRA does not give” the religious

organizations “a right to prevent the government from

providing contraceptives to” the religious organizations’

employees. Id.

***

In sum, I respectfully would grant rehearing en banc and

rule for the plaintiff religious organizations on the ground that

the Wheaton College/Little Sisters of the Poor notice is a less

restrictive way than the currently mandated form for the

Government to achieve its compelling interest in facilitating

access to contraception for the organizations’ employees.