Real Alternatives, Inc. v. Secretary Department of Health & Human Services

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1275

_____________

REAL ALTERNATIVES, INC.; KEVIN I. BAGATTA,

ESQ.; THOMAS A. LANG, ESQ.; CLIFFORD W.

MCKEOWN,

Appellants

v.

SECRETARY DEPARTMENT OF HEALTH AND

HUMAN SERVICES; SECRETARY UNITED STATES

DEPARTMENT OF LABOR; SECRETARY UNITED

STATES DEPARTMENT OF THE TREASURY; UNITED

STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES; UNITED STATES DEPARTMENT OF

LABOR; UNITED STATES DEPARTMENT OF

TREASURY

_______________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 1:15-cv-00105)

District Judge: Honorable John E. Jones, III

_______________________________

Argued November 3, 2016

Before: JORDAN, GREENAWAY, JR., and RENDELL,

Circuit Judges

(Opinion Filed: August 4, 2017)

Matthew S. Bowman (Argued)

David A. Cortman

Alliance Defending Freedom

440 First Street, NW

Suite 600

Washington, DC 20001

Counsel for Appellants Real Alternatives, Inc.;

Kevin I. Bagatta, Esq.; Thomas A. Lang, Esq.;

Clifford W. McKeown

Kevin H. Theriot

Elissa M. Graves

2

Alliance Defending Freedom

15100 N. 90th Street

Scottsdale, AZ 85260

Randy Wenger

Independence Law Center

23 North Front Street

Harrisburg, PA 17101

Counsel for Appellants Real Alternatives, Inc.;

Kevin I. Bagatta, Esq.; Thomas A. Lang, Esq.;

Clifford W. McKeown

Benjamin C. Mizer

Peter J. Smith

Mark B. Stern

Alisa B. Klein

Patrick G. Nemeroff

Megan Barbero

Joshua M. Salzman (Argued)

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, NW

Washington, DC 20530

3

Counsel for Appellees Secretary Department of

Health and Human Services; Secretary United

States Department of Labor; Secretary United

States Department of the Treasury; United

States Department of Health and Human

Services; United States Department of Labor;

United States Department of Treasury

Richard B. Katskee

Natacha Y. Lam

Americans United for Separation of Church and State

1901 L Street, NW

Suite 400

Washington, DC 20036

Seth M. Marnin

David L. Barkey

Anti-Defamation League

605 Third Avenue

New York, NY 10158

Counsel for Amici Curiae Americans

United for Separation of Church and

State; Anti-Defamation League; Central

Conference of American Rabbis;

4

Hadassah, The Women’s Zionist

Organization of America, Inc.; National

Council of Jewish Women; People for

the American Way Foundation; Union

for Reform Judaism; Women of Reform

Judaism

OPINION

RENDELL, Circuit Judge:

One of the many provisions of the Patient Protection

and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119

(2010), requires employer-provided health insurance plans to

cover an array of preventative services, including FDA-

approved contraceptives, at no cost to participating

employees. Employees have the option of seeking out

covered medical providers and using their services, in which

case they are reimbursed, or they can choose not to use them.

The particular provision that includes contraceptive coverage

is commonly referred to as the “Contraceptive Mandate,” and

5

it includes a limited exemption for houses of worship and

their integrated auxiliaries. See 45 C.F.R. § 147.131(a); 77

Fed. Reg. 8,725, 8,726 (Feb. 15, 2012). A wider set of

religious non-profit and for-profit employers may receive an

accommodation whereby they opt out of providing

contraceptive coverage, with the Government then arranging

for their employees to receive the coverage through third

parties at no cost to, and with no participation of, the

objecting employers. See 45 C.F.R. § 147.131(b)–(c); 78

Fed. Reg. 39,870, 39,874–39,875 (July 2, 2013); Zubik v.

Burwell, 136 S. Ct. 1557, 1559 (2016).

Two years after we upheld this opt-out accommodation

in Geneva College v. Secretary United States Department of

Health and Human Services, 778 F.3d 422, 427 (3d Cir.

2015), vacated and remanded sub nom. Zubik, 136 S. Ct. at

1561, we now confront the house-of-worship exemption.

This appeal presents two primary questions that again derive

from the purported intersection of the Contraceptive Mandate

and religion: (1) whether the Contraceptive Mandate must

exempt a secular anti-abortion group with no religious

affiliation, and (2) whether an employee’s religious beliefs

are substantially burdened by the law’s requirement that his

or her employer’s insurance plan cover contraceptives. After

careful review, but without any hesitation, we answer both

questions in the negative.

Appellant Real Alternatives urges that, pursuant to the

Equal Protection Clause of the Fifth Amendment, if a

religious organization may be exempted from the

Contraceptive Mandate, then non-religious entities with an

identical stance on contraceptives must be exempted as well.

Real Alternatives additionally challenges the Contraceptive

6

Mandate and the criteria for the exemption as not only

arbitrary and capricious under the Administrative Procedures

Act but also contrary to federal law.

The other appellants, three employees of Real

Alternatives, bring individual challenges to the Contraceptive

Mandate. They argue that the Contraceptive Mandate

violates the Church Amendment, 42 U.S.C. § 300a–7(d).

They also argue that maintaining a health insurance plan that

covers contraceptives through their employer violates their

religious rights under the Religious Freedom Restoration Act,

42 U.S.C. §§ 2000bb to 2000bb-4 (“RFRA”).

The District Court denied Appellants’ motion for

summary judgment in its entirety and granted the

Government’s cross-motion for summary judgment in its

entirety. Because we agree with the District Court’s rulings

on all of the issues raised, we will affirm.

I. BACKGROUND

A. Statutory and Regulatory Framework

1. The Affordable Care Act and the Contraceptive

Mandate

In 2010, Congress passed the Patient Protection and

Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119

(2010), and the Health Care and Education Reconciliation Act

of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010)

(collectively, the “ACA”). The ACA requires non-

grandfathered group health plans and insurance providers to

cover four categories of preventative health services, without

7

cost-sharing, as provided for in guidelines supported by the

Health Resources and Services Administration (“HRSA”), an

arm of the Department of Health and Human Services

(“HHS”). 1 One of these four categories is “preventative care

and screenings” for women.

HHS requested assistance from the Institute of

Medicine (“IOM”), a non-profit division of the National

Academy of Sciences, to develop guidelines on the specific

preventative services for women to be covered under the

ACA (none existed at the time the ACA was passed). The

IOM recommended that HRSA endorse a list of services that

included “[FDA]-approved contraceptive methods,

sterilization procedures, and patient education and counseling

for all women with reproductive capacity.” Institute of

Medicine, Clinical Preventative Services for Women:

Closing the Gaps 10 (2011). Examples of FDA-approved

contraceptive methods are diaphragms, oral contraceptives,

intrauterine devices, and emergency contraceptives. Id. at

105–06. HRSA adopted the IOM’s guidelines in full. Health

Resources & Service Administration, Women’s Preventative

Service Guidelines, available at

https://www.hrsa.gov/womensguidelines/ (last visited Jan. 27,

2017). In doing so, HRSA required every group health plan

and health insurance plan to include coverage for these

preventative care services to employees working at non-

1

Grandfathered health plan coverage is that which has

existed continually prior to March 23, 2010 and has not

undergone any of several specified changes since that time.

29 C.F.R. § 2590.715-1251 (2010).

8

exempt employers (the “Contraceptive Mandate”). It did not

require anything from the employee.

2. Exemption to the Contraceptive Mandate

At the same time as HRSA adopted IOM’s

recommended guidelines, an exemption from the

Contraceptive Mandate for certain religious employers was

proposed as an interim final regulation (the “Exemption”). 76

Fed. Reg. 46,621 (Aug. 3, 2011). Commenters to the

proposed guidelines had suggested that requiring religious

employers to sponsor group health plans that provide

contraceptive services could impinge on those employers’

religious freedom. Id. at 46,623. In light of those comments,

HHS and the Departments of Labor and Treasury

(collectively, the “Departments”), the agencies named in Real

Alternatives’s underlying lawsuit, authorized HRSA to

exempt certain religious employers from the Contraceptive

Mandate. The Departments specified that they sought “to

provide for a religious accommodation that respects the

unique relationship between a house of worship and its

employees in ministerial positions” and that “[s]uch an

accommodation would be consistent with the policies of

States that require contraceptive services coverage, the

majority of which simultaneously provide for a religious

accommodation.” 2 Id.

2

Though the language here refers to religious

accommodation, these statements refer to what would

ultimately become the exemption given to religious employers

under the ACA. The Departments established a separate

accommodation for certain employers, addressed supra, that

is not at issue in this litigation.

9

The Departments originally defined a religious

employer as an employer that:

(1) has as its purpose the inculcation of

religious values;

(2) primarily employs persons who share its

religious tenets;

(3) primarily serves persons who share its

religious tenets; and

(4) is a non-profit organization under Section

6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii)

of the [Internal Revenue] Code. 3

Id. The Departments also noted that HRSA’s “discretion to

establish an exemption applies only to group health plans

sponsored by certain religious employers and group health

insurance offered in connection with such plans,” and thus

“health insurance issuers in the individual health insurance

market would not be covered under any such exemption.” Id.

at 46,623–24 (emphasis added). The Departments formally

adopted the four-part definition for exempted employers in

2012. They also created a one-year safe harbor for non-

exempted, non-profit organizations with religious objections,

and announced that they would develop and propose changes

to the regulation that “would meet two goals—providing

3

Section 6033 of the Internal Revenue Code refers in

relevant part to “churches, their integrated auxiliaries, and

conventions or associations of churches,” and “the

exclusively religious activities of any religious order.” 26

U.S.C. § 6033(a)(3)(A)(i).

10

contraceptive coverage without cost-sharing to individuals

who want it and accommodating non-exempted, non-profit

organizations’ religious objections to covering contraceptive

services . . . .” 77 Fed. Reg. at 8,727.

The final rules regarding the Exemption went into

effect in 2012. The Departments replaced the multifactor

religious employer test with one definition, essentially the

fourth prong of the previous test: “[A]n employer that is

organized and operates as a nonprofit entity and is referred to

in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue]

Code,” which addresses churches and their integrated

auxiliaries. 78 Fed. Reg. at 39,874. The Departments noted

that this new definition “continues to respect the religious

interests of houses of worship and their integrated auxiliaries

in a way that does not undermine the governmental interests

furthered by the contraceptive coverage requirement.” Id.

The Departments also stated:

Houses of worship and their integrated

auxiliaries that object to contraceptive coverage

on religious grounds are more likely than other

employers to employ people of the same faith

who share the same objection, and who would

therefore be less likely than other people to use

contraceptive services even if such services

were covered under their plan.

Id. The Departments added that their statement about a

religious employer’s likelihood to hire employees who share

religious beliefs opposing contraceptives was made in

response to commenters concerned that the Exemption would

“undermine the [G]overnment’s compelling interests in

11

promoting public health and ensuring that women have equal

access to health care . . . .” 80 Fed. Reg. 41,318, 41,325 (July

14, 2015); see also 78 Fed. Reg. at 39,887 (“Nor do the

exemption for religious employers and the accommodations

for eligible organizations undermine the [G]overnment’s

compelling interests.”).

In 2015, the Departments stated that the Exemption

was “provided against the backdrop of the longstanding

governmental recognition of a particular sphere of autonomy

for houses of worship, such as the special treatment given to

those organizations in the [Internal Revenue] Code.” 80 Fed.

Reg. at 41,325. They continued:

This exemption . . . is consistent with their

special status under longstanding tradition in

our society and under federal law, and is not a

mere product of the likelihood that these

institutions hire coreligionists. Hiring

coreligionists is not itself a determinative factor

as to whether an organization should be

accommodated or exempted from the

contraceptive requirements.

Id.

B. Factual Background and Procedural History

1. Appellant Real Alternatives

Appellant Real Alternatives is a non-profit, non-

religious, anti-abortion organization. It does not hold itself

out as a religious entity, is not incorporated as such, and has

12

not adopted any religious views or positions. Its primary

purpose is to provide “life-affirming alternatives to abortion

services,” and it offers pregnancy and parenting support

programs as well as abstinence education services to women

and families throughout Pennsylvania, Michigan, and Indiana.

J.A. 92–93.

Real Alternatives avers that its views on human life are

based on science, reason, and non-religious philosophical

principles. Id. at 93. In addition to opposing abortion, Real

Alternatives opposes the use of all contraceptives because it

considers these drugs to be “morally wrong.” Id. at 94.

Real Alternatives administers its programs through

networks of social service agencies, which Real Alternatives

hires as subcontractors. It requires all of its subcontracting

organizations to share its views and to agree not to provide or

recommend contraceptives or abortion. It only hires

employees who share the company’s stance on contraceptives

and abortion.

Since 2008, Real Alternatives has excluded

contraceptive care from the health insurance plan it offers to

its employees. Real Alternatives alleges that in 2014, because

of the ACA, its insurer stopped omitting contraceptive care

from coverage and, as a result, a new plan was offered to

employees. 4 According to Real Alternatives, were it not for

the ACA, its insurance provider would be willing to revert to

providing a plan that omits contraceptive coverage. Real

4

Because the original insurance plan was terminated, it

does not qualify for grandfathered status.

13

Alternatives avers that the Contraceptive Mandate violates the

Equal Protection Clause and the Administrative Procedure

Act (“APA”).

2. Appellants Real Alternatives Employees

Appellants Kevin I. Bagatta, Thomas A. Lang, and

Clifford W. McKeown work for Real Alternatives (the “Real

Alternatives Employees”). They are, respectively, the

President, Vice President of Operations, and Vice President

of Administration of Real Alternatives. They are the only

full-time employees of Real Alternatives, and they aver that

they share the company’s beliefs concerning contraceptive

drugs. Each employee receives health insurance coverage

through Real Alternatives, as do their wives and total of seven

minor children, three of whom are female.

The Real Alternatives Employees aver that the

Contraceptive Mandate violates the Church Amendment.

They also aver that the Contraceptive Mandate violates their

religious rights under RFRA. Specifically, they allege that

their “sincerely held religious beliefs prohibit them from

using, supporting, or otherwise advocating the use of

abortifacients, or participating in a health insurance plan that

covers such items for themselves or their families.” J.A. 123.

3. District Court Opinion

The District Court denied Real Alternatives’s motion

for summary judgment in its entirety and granted the

Government’s cross-motion for summary judgment in its

14

entirety. 5 We find the District Court’s analysis informative

and persuasive for the most part, and we review it here.

The District Court began by addressing Real

Alternatives’s equal protection claim, finding in the first

instance that Real Alternatives is not similarly situated to

religious employers with comparable objections to the

Contraceptive Mandate because, notwithstanding those

objections, they do not share the same bases for those

positions—namely, religion versus a single secular position.

As discussed infra, the District Court raised and distinguished

two relevant federal cases, Center for Inquiry, Inc., v. Marion

Circuit Court Clerk, 758 F.3d 869 (7th Cir. 2014), and March

for Life v. Burwell, 128 F. Supp. 3d 116 (D.D.C. 2015). The

District Court also focused on the “vast history of legislative

protections [that] exist[] to safeguard religious freedom,” and

contrasted “[m]oral philosophies,” which it found “have been

historically unable to enjoy the same privileged state.” J.A.

35. The District Court continued that even if Real

Alternatives were similarly situated to a house of worship,

respecting religious autonomy plainly constitutes a legitimate

purpose to allow the classification to stand under rational

basis review. The District Court examined the Government’s

statements in the ACA regulations and found that it had

sufficiently identified religious freedom as the purpose

furthered by the Exemption. The District Court concluded its

equal protection analysis by expressing concern that

5

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1361, 2201, & 2202; 42 U.S.C. § 2000bb-1; and 5

U.S.C. § 702. This Court has appellate jurisdiction pursuant

to 28 U.S.C. § 1291.

15

“[a]llowing adherence to a single moral belief . . . to be

indistinguishable from religion or an entire moral creed . . .

leads us down a slippery slope.” Id. at 42–43. It reasoned

that “finding a singular moral objection to law on par with a

religious objection” could very well lead to a flood of similar

objections. Id. at 44.

Next, the District Court concluded that Real

Alternatives’s claim that the Contraceptive Mandate is

arbitrary and capricious “fail[s] for the same reasons that [its]

Fifth Amendment equal protection claim lacked merit.” Id. at

49; see also id. at 48 (noting that “[t]he standard for

determining whether an [APA] violation exists under the

arbitrary and capricious standard is markedly similar to

rational basis review”). The District Court also rejected Real

Alternatives’s argument that the Contraceptive Mandate

violates federal law—namely, the ACA and the Weldon

Amendment of the Consolidated Security, Disaster

Assistance, and Continuing Appropriations Act of 2009 (the

“Weldon Amendment”)—as well as the Real Alternatives

Employees’ claim that it violates the Church Amendment.

Finally, the District Court rejected the Real

Alternatives Employees’ RFRA claim. It found that the

burden at issue—maintaining an insurance plan that includes

coverage for preventative services—was not substantial

enough based on the Supreme Court’s approach in other

RFRA cases. See J.A. 62 (first citing Bowen v. Roy, 476 U.S.

693, 703 (1986) (holding that the Government could

condition public benefits on the religiously prohibited act of

providing a social security number without trampling on the

beneficiary’s free exercise rights); then citing Lyng v. Nw.

Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988)

16

(finding that building a road through sacred land did not

violate the free exercise rights of those who believed in the

land’s religious significance)). The District Court concluded

in the alternative that, even if the Contraceptive Mandate did

impose a substantial burden, it would still satisfy RFRA

because it was the least restrictive means of furthering the

Government’s compelling interest in a broadly applicable

system of health care that advances public health and gender

equality.

II. DISCUSSION

A. Standard of Review

We exercise plenary review over a district court’s

grant of summary judgment, applying the same standard that

the district court should have applied. 6 Abramson v. William

Paterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir. 2001). A

court grants summary judgment if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). There

are no material facts in dispute; the questions raised by the

parties are matters of law, which we review de novo. Shuman

ex. rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146

(3d Cir. 2005).

6

When the parties were before the District Court, Real

Alternatives moved for summary judgment and the

Departments moved to dismiss or, in the alternative, for

summary judgment. The District Court treated the

Departments’ motion as one for summary judgment, and we

will review accordingly.

17

B. Equal Protection Claim 7

Real Alternatives challenges the constitutionality of

the Exemption’s scope, arguing that it violates the

organization’s right to equal protection under the Fifth

Amendment by exempting only religious employers and not

other secular entities, such as itself, that oppose the

requirements set forth in the Contraceptive Mandate. Real

Alternatives urges that “[t]here is no rational purpose to

impose the Mandate on those who do not want the items and

will not use them,” and contends that it is excluded from the

Exemption “simply because [it] is a ‘non-religious ethical

group[]’ instead of a church.” Appellants’ Br. at 28 (final

alteration in original). If churches receive a religious

exemption, the argument goes, then so too must non-religious

entities.

1. Legal Standard

To prevail on its equal protection claim, Real

Alternatives must show that the Government has treated it

differently from a similarly situated party and that the

Government’s explanation for the differing treatment does not

satisfy the relevant level of scrutiny. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439–40 (1985). The

7

The equal protection and APA claims are brought both

by Real Alternatives the entity and by Bagatta, Lang, and

McKeown, the organization’s three full-time employees. For

the sake of concision, we will refer to this group of appellants

as “Real Alternatives.”

18

parties agree, as they must, that rational basis review is the

applicable standard. Thus, there must be “a rational

relationship between the disparity of treatment and some

legitimate governmental purpose.” United States v. Pollard,

326 F.3d 397, 407 (3d Cir. 2003) (quoting Heller v. Doe, 509

U.S. 312, 320 (1993)). Rational basis review confers a

“presumption of validity” on legislation, and “the plaintiff

must negate every conceivable justification for the

classification in order to prove that the classification is wholly

irrational.” Brian B. ex rel. Lois B. v. Pa. Dep’t of Educ., 230

F.3d 582, 586 (3d Cir. 2000) (citing FCC v. Beach

Commc’ns, 508 U.S. 307, 314–15 (1993)).

2. Analysis

We must first determine whether Real Alternatives is

similarly situated to a religious employer, such that the

Exemption must be available to the group absent a legitimate

rationale. There is no question it is not.

Real Alternatives leans on its company-mandated

eschewal of contraceptives in an attempt to situate itself in

lockstep with religious employers who can avail themselves

of the Exemption, contending that it is in fact “more

favorably” or “identically” situated to houses of worship

because all of its employees by definition oppose

contraceptive coverage. Appellants’ Br. at 28, 30. In making

this claim, Real Alternatives invokes Center for Inquiry, in

which the Seventh Circuit struck down an Indiana statute that

permitted religious officials to solemnize marriages but

prohibited their counterparts from secular groups from doing

the same. 758 F.3d at 875. There, the court reasoned that

“[a]n accommodation cannot treat religions favorably when

19

secular groups are identical with respect to the attribute

selected for that accommodation.” Id. at 872.

But Real Alternatives ignores key distinctions between

that case and this one. Most notably, Real Alternatives

disregards the stark contrast between itself and the appellant

in Center for Inquiry, a humanist group that resembles a

“religion[] in everything except belief in a deity.” Id. at 871.

Real Alternatives is a completely different type of entity,

particularly because of its structure, aim, purpose, and

function in its members’ lives. Indeed, Real Alternatives’s

credo is limited to a one-sentence mission statement that says

it “exists to provide life-affirming alternatives to abortion

services throughout the nation.” J.A. 92. In Center for

Inquiry, the humanist organization explicitly argued that “its

methods and values play the same role in its members’ lives

as religious methods and values play in the lives of

adherents.” 758 F.3d at 871 (emphasis added). Real

Alternatives makes no such claim, as it is solely concerned

with administering programs that reflect its moral opposition

to contraceptives and abortion. Thus, Center for Inquiry does

not help Real Alternatives demonstrate that it is similarly

situated to a religious entity.

However, Real Alternatives does bear some

resemblance to the plaintiffs in March for Life, the district

court decision upon which it heavily relies. There, the

District Court for the District of Columbia granted summary

judgment to a non-profit, secular anti-abortion group on its

equal protection challenge to the Contraceptive Mandate. We

cannot accept the district court’s reasoning in that case.

Relying almost exclusively on Center for Inquiry, the district

court found that the secular group at issue was “similarly

20

situated with regard to the precise attribute selected for

accommodation”—specifically, a shared view that abortion is

wrong. March for Life, 128 F. Supp. 3d at 126 (emphasis

omitted). But that court—and, by extension, Real

Alternatives—ignored a crucial point: Unlike the corporation

in Center for Inquiry, which involved a comprehensive belief

system that happened not to be deity-centric, a secular anti-

abortion group mirrors a single-issue interest group and not a

religious organization that takes advantage of the Exemption.

We agree with Judge Jones’s observation regarding the

disparities between the two groups: “In every other respect,

they are different. Real Alternatives is an employer, a

company, and not a belief system . . . and its single mission

statement cannot guide believers comprehensively throughout

life as a religion can.” J.A. 42; cf. United States v. Seeger,

380 U.S. 163, 187 (1965) (accommodating a secular pacifist’s

objections to the draft because his beliefs “occup[y] the same

place in his life as the belief in a traditional deity holds in the

lives of” adherents to religion).

Real Alternatives is in no way like a religious

denomination or one of its nontheistic counterparts—not in

structure, not in aim, not in purpose, and not in function. We

do not doubt that Real Alternatives’s stance on contraceptives

is grounded in sincerely-held moral values, but “religion is

not generally confined to one question or one moral teaching;

it has a broader scope.” Malnak v. Yogi, 592 F.2d 197, 209

(3d Cir. 1979) (Adams, J., concurring). We have accordingly

noted three “guideposts” courts ought to use when identifying

a religion:

First, a religion addresses fundamental and

ultimate questions having to do with deep and

21

imponderable matters. Second, a religion is

comprehensive in nature; it consists of a belief-

system as opposed to an isolated teaching.

Third, a religion often can be recognized by the

presence of certain formal and external signs.

Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981).

We thus agree with Amici Curiae that “Real Alternatives is

functionally similar not to a church, but to the countless

nonreligious 501(c)(3) nonprofit organizations that take

morally informed positions on some discrete set of issues,”

such as the NAACP and the National Organization for

Marriage. 8 Amici Curiae Br. at 16.

8

We further agree with Amici Curiae that while

commitment to an anti-abortion platform may be important to

the people who hold them, that commitment is “not a religion

in any legally or theologically accepted sense; and

organizations do not become quasi-churches for equal-

protection purposes merely by espousing a commitment of

that sort.” Amici Curiae Br. at 15; see also Malnak, 592 F.2d

at 208–10 (Adams, J., concurring) (defining nontheistic belief

system as “religion” if it (1) deals with questions of “ultimate

concern”; (2) provides answers that speak to comprehensive

and ultimate truth; and (3) has formal characteristics

analogous to those of traditional religions); Wash. Ethical

Soc’y v. District of Columbia, 249 F.2d 127, 128 (D.C. Cir.

1957) (finding nontheistic ethical society that had regular

Sunday meetings, “leaders” who preached to members and

provided spiritual guidance, and ceremonies for naming,

marrying, and burying members qualified for tax exemption

as church); Fallon v. Mercy Catholic Med. Ctr. of Se. Pa.,

200 F. Supp. 3d 553, 562 n.4 (E.D. Pa. 2016) (distinguishing

22

Real Alternatives overemphasizes its shared opposition

to contraceptive coverage while inexplicably dismissing the

Government’s repeated statements that the Exemption “was

provided against the backdrop of the longstanding

governmental recognition of a particular sphere of autonomy

for houses of worship . . . .” 80 Fed. Reg. at 41,325. But

framing the Exemption—or any religious exemption for that

matter—so broadly as to encompass any employer who

disagrees with any aspect of an underlying law lies in direct

contradiction to the Supreme Court’s refusal to broaden

religion-based exemptions in similar contexts. See United

States v. Lee, 455 U.S. 252, 260–61 (1982) (in a Social

Security-related matter, rejecting a claim to extend a limited

exemption because “[c]onfining the . . . exemption . . .

provided for a narrow category which was readily

identifiable,” and noting that “every person cannot be

shielded from all the burdens incident to exercising every

aspect of the right to practice religious beliefs”). Permitting

Real Alternatives to qualify for the Exemption would

similarly run afoul of this country’s vast history of legislative

protections that single out and safeguard religious freedom

between plaintiff’s beliefs, which “consist[ed] solely of his

‘conscience’ and personal moral code,” and the “structural

characteristics” of secular moral systems that are equivalent

to religion except for non-belief in God); Fellowship of

Humanity v. Cty. of Almaeda, 315 P.2d 394, 409–10 (Cal.

Dist. Ct. App. 1957) (finding that nontheistic fellowship

qualified for tax exemption as church because “it is conceded

that in all respects the Fellowship’s activities are similar to

those of the theistic groups, except for their belief or lack of

belief in a Supreme Being”).

23

but not moral philosophy. See Corp. of the Presiding Bishop

of the Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 338 (1987) (“Where, as here, [G]overnment

acts with the proper purpose of lifting a regulation that

burdens the exercise of religion, we see no reason to require

that the exemption comes packaged with benefits to secular

entities.”); 9 Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. § 2000cc (“RLUIPA”) (requiring religious

accommodation for zoning and land use regulations);

Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1003(b)(2) (exempting “church plan[s]” from

retirement-plan regulations); Internal Revenue Code, 26

U.S.C. §§ 6033(a)(3)(A)(i), (iii) (carving out “churches, their

integrated auxiliaries, . . . conventions or associations of

churches,” and “the exclusively religious activities of any

religious order” from a tax-filing requirement); Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a)

(requiring that employers not discriminate on the basis of

religion). If mere disagreement, however vehemently felt,

were sufficient to bring an equal protection claim, virtually

any law implicating religion would be rendered moot because

the exemption would be too easy to invoke. 10 Cf. Cutter v.

9

We do not find persuasive Real Alternatives’s belabored

efforts to distinguish Amos, and we agree with the District

Court that the Supreme Court’s holding in that case is

applicable here.

10

We share the concerns of Amici Curiae that if such

disagreement were enough to substantiate an equal protection

claim, there would also be strong disincentives from granting

any religious exemption because of how easy it would be to

utilize or to extend it, thereby seriously undermining

24

Wilkinson, 544 U.S. 709, 724 (2005) (acknowledging that “all

manner of religious accommodations would fall” if the Court

struck down one law that implicated religion because of the

similarities among religious accommodation laws).

Finally, even if Real Alternatives were deemed

similarly situated to a religion, the group’s challenge would

still fail because of the historic principle of respect for the

autonomy of genuine religions. This principle provides the

legitimate purpose for the preferential treatment of religious

organizations. The Exemption “provide[s] for a religious

accommodation that respects the unique relationship between

a house of worship and its employees in ministerial

positions.” 76 Fed. Reg. at 46,623. It “was provided against

the backdrop of the longstanding governmental recognition of

a particular sphere of autonomy for houses of worship,” is

“consistent with their special status under longstanding

tradition in our society and under federal law, and is not a

mere product of the likelihood that these institutions hire

coreligionists.” 80 Fed. Reg. at 41,325. Real Alternatives

brazenly dismisses these statements as disingenuous. 11 In

countless legislative and regulatory programs. Relatedly,

there would be immense pressure to repeal the thousands of

religious accommodations that have been enacted at the

federal, state, and local levels for fear that they would become

vehicles to avoid compliance by anyone who dislikes the

underlying laws.

11

Without any supporting evidence, Real Alternatives

repeatedly contends that the Government is asking the Court

“to ignore the actual explanation in its regulations,” i.e., the

likelihood of religious employees using contraceptives, “and

25

doing so, it misses a crucial point about rational basis review:

It is “constitutionally irrelevant whether this [legitimate]

reasoning in fact underlay the legislative decision” because

this Court has never insisted that a legislative body articulate

its reasons for enacting a statute. U.S. R.R. Ret. Bd. v. Fritz,

449 U.S. 166, 179 (1980); see also Beach Commc’ns, 508

U.S. at 318 (applying Fritz to an administrative action). In

any event, the attribute Congress selected for classification is

not opposition to contraceptives; it is status as a house of

worship and based on the long-established governmental

desire to respect the autonomy of houses of worship

regardless of their particular stance on contraceptives.

It is beyond dispute that respecting church autonomy is

a legitimate purpose—one that not only satisfies rational basis

review but also is enshrined in the constitutional fabric of this

country. Principles of noninterference trace back to “the text

instead to suppose that the exemption was offered solely

because of the ‘church character’ of some religious

employers.” Appellants’ Reply Br. at 7. This theory hinges

on the Government’s acknowledgment that “employees of

employers availing themselves of the exemption would be

less likely to use contraceptives even if contraceptives were

covered under their health plans.” 77 Fed. Reg. at 8,728.

While we agree that likelihood of use would not alone satisfy

rational basis review, that statement was part of the

Government’s explanation that the Exemption “does not

undermine the overall benefits” of the Contraceptive

Mandate. Id. It does not negate or in any way undermine the

actual and legitimate purpose of the historic respect for

religion put forth by the Government.

26

of the First Amendment itself, which gives special solicitude

to the rights of religious organizations,” and recognizes their

“independence from secular control or manipulation—in

short, [their] power to decide for themselves, free from state

interference, matters of church government as well as those of

faith and doctrine.” Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 132 S. Ct. 694, 704, 706 (2012)

(quoting Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in N. Am., 344 U.S. 94, 116 (1952))

(internal quotation marks omitted). Even when

noninterference is not strictly required, the Government has

discretion to grant certain religious accommodations subject

to constitutional limitations. 12 See Cutter, 544 U.S. at 720–

22. These accommodations may be extended to houses of

worship and religious denominations without applying to all

nonprofit entities in order to “alleviate significant

governmental interference with the ability of religious

12

The First Amendment prohibits the Government from

inserting itself in theological disputes, appointments of

ministers, or questions of distribution of church property; the

Government may not dictate to houses of worship what to

believe or how to structure their relations with clergy to

implement and teach those beliefs. See, e.g., Hosanna-Tabor,

132 S. Ct. at 706 (employment decisions for ministers);

Serbian E. Orthodox Diocese for the U.S. & Can. v.

Milivojevich, 426 U.S. 696, 713–14 (1976) (internal

theological disputes and religious tribunals); Presbyterian

Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l

Presbyterian Church, 393 U.S. 440, 449 (1969) (church

property); Gonzalez v. Roman Catholic Archbishop of

Manila, 280 U.S. 1, 16 (1929) (appointment of clergy).

27

organizations to define and carry out their religious

missions.” 13 Amos, 483 U.S. at 335; see also Walz v. Tax

Comm’n, 397 U.S. 664, 676 (1970) (upholding a property tax

exemption for houses of worship); Hosanna-Tabor, 132 S. Ct.

at 706 (finding a “special rule for ministers grounded in the

Religion Clauses themselves”).

We reiterate, however, that Real Alternatives cannot

satisfy the first prong of a successful equal protection claim.

Finding all single-issue non-profit organizations to be

similarly situated to houses of worship based on their

adherence to a shared position on one issue would expand

religious exemptions beyond what is constitutionally

required. That a legitimate purpose of the highest order—

respect for religious autonomy—justifies the Exemption only

underscores the inevitability of our conclusion. We therefore

find that Real Alternatives’s equal protection claim fails as a

matter of law.

C. APA Claim

Real Alternatives asserts two claims under the APA:

(1) the Contraceptive Mandate is arbitrary and capricious

because it does not serve a rational governmental purpose as

13

In this way, Center for Inquiry may be distinguished as

an outlier example of organized secular belief systems

gaining protected treatment. The District Court correctly

noted that “the majority of precedent continues to support

preferential treatment for religion under the law, without

explicitly extending that treatment to include secular beliefs.”

J.A. 36.

28

applied to Real Alternatives, an organization that employs

only people who oppose contraceptive coverage; and (2) it

violates the Constitution and federal law. Both claims lack

merit.

1. Legal Standard

A reviewing court may “hold unlawful and set aside

agency action” that is “(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or “(B)

contrary to constitutional right, power, privilege, or

immunity.” 5 U.S.C. § 706(2)(A)–(B).

We have held that the standard for determining

whether an APA violation exists under the arbitrary and

capricious standard is substantially similar to rational basis

review:

Agency action is arbitrary and capricious if the

agency offers insufficient reasons for treating

similar situations differently. If [an] agency

makes an exception in one case, then it must

either make an exception in a similar case or

point to a relevant distinction between the two

cases. Review of an equal protection claim in

the context of agency action is similar to that

under the APA. That is, an agency’s decision

must be upheld if under the Equal Protection

Clause, it can show a rational basis for its

decision. As such, the equal protection

argument can be folded into the APA argument,

since no suspect class is involved and the only

question is whether the . . . treatment of

29

[appellees] was rational (i.e., not arbitrary and

capricious).

Nazareth Hosp. v. Sec’y U.S. Dep’t of Health & Human

Servs., 747 F.3d 172, 179–80 (3d Cir. 2014) (alteration in

original) (citations and internal quotation marks omitted)

(emphasis added).

2. Analysis

Because we find that Real Alternatives’s equal

protection claim fails, we need not reexamine its arbitrary and

capricious claim, which is subject to the same standard of

review. Id.

Real Alternatives argues that the Contraceptive

Mandate also violates the APA because it infringes on two

other federal laws: the ACA and the Weldon Amendment.

The Real Alternatives Employees argue that the

Contraceptive Mandate also violates the Church Amendment

and, therefore, the APA. We disagree with these contentions

and find no violations. We address each law in turn.

a. ACA

The ACA states that none of its provisions “shall be

construed to require a qualified health plan to provide

coverage of [abortion] services as part of its essential health

benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i).

Real Alternatives argues that the Contraceptive Mandate

violates this provision by “requiring coverage of certain

‘FDA-approved contraceptives’ which act as abortifacients, in

that they cause the demise of human embryos after

30

conception and before and/or after implantation in the

uterus.” Appellants’ Br. at 57. Real Alternatives does not

cite any statutory or regulatory definition of abortion that

includes contraceptives. 14

However, longstanding FDA regulations treat

pregnancy as “the period of time from implantation until

delivery,” 45 C.F.R. § 46.202(f), and categorize drugs that

may prevent implantation as contraceptives rather than as

abortifacients. 62 Fed. Reg. 8,610, 8,611 (Feb. 25, 1997)

(“Emergency contraceptive pills are not effective if the

woman is pregnant; they act by delaying or inhibiting

ovulation, and/or altering tubal transport of sperm and/or ova

(thereby inhibiting fertilization), and/or altering the

endometrium (thereby inhibiting implantation).”). Further,

we defer to the Government’s definition because “this Court

will normally accord particular deference to an agency

interpretation of longstanding duration.” Barnhart v. Walton,

535 U.S. 212, 220 (2002) (internal quotation marks omitted).

Thus, we conclude that the Contraceptive Mandate does not

require coverage for abortion services and that Real

Alternatives’s claim to the contrary fails.

b. Weldon Amendment

14

In its brief, Real Alternatives relies on a number of

dictionary definitions to suggest, contrary to statutory and

regulatory definitions, that the modes of contraceptives

covered by the Contraceptive Mandate are capable of

inducing abortion.

31

Real Alternatives raises a similar claim based on the

Weldon Amendment, which requires that no funds provided

by the ACA’s underlying appropriations bill be made

available to a federal agency or program that “subjects any

institutional or individual health care entity to discrimination

on the basis that the health care entity does not provide, pay

for, provide coverage of, or refer for abortions.” Pub. L. No.

112-74, §§ 506, 507, 125 Stat. 786, 1111–12 (Dec. 23, 2011).

This claim fails for the reasons stated in the preceding

section. 15

c. Church Amendment

The final APA claim asserts a violation of the Church

Amendment, which prohibits an individual from being

required to “perform or assist in the performance of any part

of a health service program or research activity funded . . . by

the Secretary of [HHS] if his performance or assistance . . .

would be contrary to his religious beliefs or moral

15

See also J.A. 51 (noting Representative Weldon’s

statement when proposing the eponymous amendment: “The

provision of contraceptive services has never been defined as

abortion in Federal statute, nor has emergency contraception,

what has commonly been interpreted as the morning-after

pill. Now, some religious groups may interpret that as

abortion, but we make no reference in this statute to religious

groups or their definitions; and under the current FDA policy

that is considered contraception, and it is not affected at all by

this statute.”).

32

convictions.” 16 42 U.S.C. § 300a-7(d). This claim fails for

lack of standing. The Real Alternatives Employees purchase

their health insurance from a company in the health insurance

market, not from HHS or an HHS-administered health

insurance program that falls under the purview of the Church

Amendment. See Geneva Coll. v. Sebelius, 929 F. Supp. 2d

402, 449–50 (W.D. Pa. 2013) (where individuals obtain

health insurance through their employer, who in turn

purchases coverage from the private health insurance market

(and not HHS), the Church Amendment is not implicated)

(citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150, 153 (1970)).

D. RFRA

We now turn to the RFRA claim, which presents a

question of first impression for this Court: whether

employees, who oppose contraceptives on religious grounds

but work for secular employers, experience a substantial

burden on their religious exercise when the Government

regulates group health care plans and health care insurance

providers by requiring them to offer health insurance

coverage that includes coverage for services the employees

find incompatible with their religious beliefs. This claim is

distinct from an employer’s RFRA claim objecting to the

mandated provision of contraceptive services that was found

16

The Church Amendment claim was brought only by the

Real Alternatives Employees because the Church

Amendment applies only to individuals.

33

to be meritorious in Burwell v. Hobby Lobby Stores, Inc., 134

S. Ct. 2751, 2775 (2014). 17

Under RFRA, the “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) (emphasis

added). The “exercise of religion” constitutes “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).

Congress enacted RFRA in 1993 in response to the

Supreme Court’s decision in Employment Division v. Smith,

494 U.S. 872 (1990), which overruled the earlier method of

analyzing free exercise claims used in Sherbert v. Verner, 374

U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205

(1972). See Geneva, 778 F.3d at 430. The earlier decisions

used a balancing test that took into account whether the

17

Echoing the District Court, we state what we consider to

be obvious: Hobby Lobby did not answer the RFRA question

we confront today. In Hobby Lobby, the Supreme Court

found that an employer’s provision, not an individual’s

maintenance, of coverage may violate RFRA. 134 S. Ct. at

2778. As they did before the District Court, the Real

Alternatives Employees ignore this important distinction and

attempt to stretch the holding of Hobby Lobby well beyond its

factual confines. The Dissent similarly misstates the

applicability of Hobby Lobby, characterizing the issue there

as “very like the one at issue here.” Dissent Op. at 14.

34

challenged action imposed a substantial burden on the

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

serve a compelling governmental interest. Id. Smith rejected

this test because applying it whenever a person objected on

religious grounds to the enforcement of a generally applicable

law “would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every

conceivable kind . . . .” 494 U.S. at 888.

Courts look to pre-Smith free exercise jurisprudence

when assessing RFRA claims. See Hobby Lobby, 134 S. Ct.

at 2772. The Supreme Court has characterized RFRA as

“adopt[ing] a statutory rule comparable to the constitutional

rule rejected in Smith.” Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).

RFRA may be applied to situations not previously addressed

under pre-Smith jurisprudence. See Hobby Lobby, 134 S. Ct.

at 2772 (“It is simply not possible to read these provisions as

restricting the concept of the ‘exercise of religion’ to those

practices specifically addressed in our pre-Smith decisions.”).

1. Legal Standard

Religious exercise is impermissibly burdened when

government action compels individuals “to perform acts

undeniably at odds with fundamental tenets of their religious

beliefs.” Yoder, 406 U.S. at 218 (emphasis added).

Accordingly:

Where the state conditions receipt of an

important benefit upon conduct proscribed by a

religious faith, or where it denies such a benefit

because of conduct mandated by religious

35

belief, thereby putting substantial pressure on

an adherent to modify his behavior and to

violate his beliefs, a burden upon religion

exists.

Thomas v. Review Bd., 450 U.S. 707, 717–18 (1981)

(emphasis added). This Court has found “a substantial

burden exists where: 1) a follower is forced to choose

between following the precepts of his religion and forfeiting

benefits otherwise generally available . . . versus abandoning

one of the precepts of his religion in order to receive a

benefit; OR 2) the [G]overnment puts substantial pressure on

an adherent to substantially modify his behavior and to

violate his beliefs.” Mack v. Warden Loretto FCI, 839 F.3d

286, 304 (3d Cir. 2016).

Important principles circumscribe the RFRA inquiry,

and it is for the reviewing court to determine whether a

burden is “substantial.” We thus reiterate a self-evident

principle that we set forth in Geneva: “While the Supreme

Court reinforced in Hobby Lobby that we should defer to the

reasonableness of the [RFRA claimant’s] religious beliefs,

this does not bar our objective evaluation of the nature of the

claimed burden and the substantiality of that burden on the

[claimant’s] religious exercise.” 18 778 F.3d at 436 (emphasis

18

Although our judgment in Geneva was vacated by the

Supreme Court, it nonetheless sets forth the view of our

Court, which was based on Supreme Court precedent, that we

continue to believe to be correct regarding our duty to assess

substantiality as well as our conclusion that the regulation at

issue there did not impose a substantial burden. Cf. Zubik,

136 S. Ct. at 1560 (specifying that vacatur and remand do not

36

added). As such, “[w]hether a burden is ‘substantial’ under

RFRA is a question of law, not a question of fact.” Id. at 442

(citing Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir.

2011)); see also Kaemmerling v. Lappin, 553 F.3d 669, 679

(D.C. Cir. 2008) (“Accepting as true the factual allegations

that [plaintiff’s] beliefs are sincere and of a religious nature—

but not the legal conclusion, cast as a factual allegation, that

his religious exercise is substantially burdened . . . .”); cf.

Hobby Lobby, 134 S. Ct. at 2775 (“Because RFRA applies in

these cases, we must next ask whether the HHS contraceptive

mandate ‘substantially burden[s]’ the exercise of religion.”)

(citing 42 U.S.C. § 2000bb-1(a)) (alteration in original)).

RFRA’s legislative history underscores the

requirement that the burden be substantial. The version of

RFRA initially introduced in the House of Representatives

express the Supreme Court’s “view on the merits” of

Geneva). That judgment, and others cited here that addressed

similar claims, was vacated because the Supreme Court

wanted the parties to attempt—after the parties signaled they

might be able—to develop a way for existing or modified

ACA regulations to provide continued contraceptive coverage

to petitioners’ employees and through petitioners’ insurers

without any notice from petitioners. Id. Thus, Zubik vacated

our judgment in Geneva but did not attack our reasoning.

The Dissent mischaracterizes our holding today to be saying

that Geneva is “controlling” for purposes of this case.

Dissent Op. at 18. That is not our position. While Geneva is

no longer controlling, there is nothing that would require us—

or anyone else—to conclude that our reasoning in that

opinion was incorrect.

37

provided only that “Government shall not burden a person’s

exercise of religion” unless the burden satisfied strict

scrutiny. H.R. 1308, 103d Cong. § 3 (1993). It was only later

in the enactment process that it was modified to include the

word “substantially” immediately before “burden.” 42 U.S.C.

§ 2000bb-1(a)–(b); Little Sisters of the Poor Home for the

Aged v. Burwell, 794 F.3d 1151, 1176 (10th Cir. 2015)

(“Congress added the word ‘substantially’ before passage to

clarify that only some burdens would violate the act. 139

Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of

Sen. Kennedy and Sen. Hatch). . . . If plaintiffs could assert

and establish that a burden is ‘substantial’ without any

possibility of judicial scrutiny, the word ‘substantial’ would

become wholly devoid of independent meaning.”), vacated

and remanded sub nom. Zubik, 136 S. Ct. at 1561. This

important change made it explicit that RFRA would provide

relief only from “substantial” government burdens on

religious exercise, not from all government burdens. 19 The

19

See also Matthew A. Melone, Corporations and

Religious Freedom: Hobby Lobby Stores—A Missed

Opportunity to Reconcile a Flawed Law with a Flawed

Health Care System, 48 Ind. L. Rev. 461, 502–03 (2015)

(“[T]he lack of any principled limitation on the meaning of

religious exercise should prompt the courts to examine

whether any burden on such exercise is substantial.

Otherwise, RFRA becomes anarchical. . . . The notion that the

judiciary has no business questioning the substantiality of a

burden in this context is illogical. The law imposes objective

standards on beliefs in other contexts and appears to do so

without inordinate difficulty. . . . Every person has the right to

attach whatever religious meaning to act to an act their

conscience demands. The law, however, should not be

38

Dissent would have us read “substantial” out of the statute,

revert to a never-enacted version of RFRA, and supplant our

charge to conduct judicial review of a RFRA claim with

automatic deference to the claimant. 20 We will not. 21

hostage to the vagaries of the hypersensitive.”) (footnotes

omitted).

20

For a persuasive discussion of the untenable

consequences of the Real Alternatives Employees’ and

Dissent’s theory of absolute deference to an allegation that a

burden is substantial, see Brief of Baptist Joint Committee for

Religious Liberty as Amicus Curiae in Support of

Respondents 14–16, Zubik v. Burwell, 136 S. Ct. 1557 (2016)

(Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, 15-

191).

21

The Dissent grounds its aversion to judicial review of

substantiality in a Tenth Circuit dissent from the denial of en

banc review in the Little Sisters case, and points to James

Madison’s critique of the “notion that a civil judge can be a

competent Judge of Religious Truth” for support. Dissent

Op. at 42 (internal quotation marks omitted). Madison’s

writings are indeed instructive, as our refusal today to permit

a claimant’s bare allegations to automatically render a burden

“substantial” is embedded in Madison’s Federalist No. 10:

“No man is allowed to be a judge in his own cause, because

his interest would certainly bias his judgment, and, not

improbably, corrupt his integrity. With equal, nay with

greater reason, a body of men are unfit to be both judges and

parties at the same time.” The Federalist No. 10, 59 (James

Madison).

39

There is no substantial burden if the governmental

action does not coerce the individuals to violate their religious

beliefs or deny them the “rights, benefits, and privileges

enjoyed by other citizens”—even if “the challenged

Government action would interfere significantly with private

persons’ ability to pursue spiritual fulfillment according to

their own religious beliefs.” Lyng, 485 U.S. at 449. Nor can

a party use RFRA to “require the Government to conduct its

own internal affairs in ways that comport with the religious

beliefs of particular citizens.” Bowen, 476 U.S. at 699.

“Congress has required qualitative assessment of the merits of

. . . RFRA claims.” Geneva, 778 F.3d at 435. At the same

time, we must be careful to conduct only a review into the

substantiality of the religious burden and not to question the

reasonableness of the religious belief itself. See Hobby

Lobby, 134 S. Ct. at 2778 (RFRA does not permit courts to

address “whether the religious belief asserted in a RFRA case

is reasonable”). Courts are not to accept every allegation of

substantial burden. To the contrary, RFRA’s demand for

judicial review has been recognized by the Supreme Court, 22

by this Court in Geneva, and by virtually all of our sister

circuits, which have not hesitated to examine whether an

alleged burden is sufficiently “substantial” under RFRA. 23

22

See Bowen, 476 U.S. at 700–01 n.6 (“[F]or the

adjudication of a constitutional claim, the Constitution, rather

than an individual’s religion, must supply the frame of

reference.”).

23

See Little Sisters, 794 F.3d at 1176–77 (“RFRA’s

statutory text and religious liberty case law demonstrate that

courts—not plaintiffs—must determine if a law or policy

substantially burdens religious exercise” and finding alleged

40

burden not “substantial.”) (emphasis added); Priests for Life

v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247

(D.C. Cir. 2014) (“Accepting the sincerity of plaintiffs’

beliefs, however, does not relieve this Court of its

responsibility to evaluate the substantiality of any burden on

plaintiffs’ religious exercise . . . .”), vacated and remanded

sub nom. Zubik, 136 S. Ct. at 1561; E. Tex. Baptist Univ. v.

Burwell, 793 F.3d 449, 456 (5th Cir. 2015) (“We begin and

end our analysis with the substantial-burden prong. The

plaintiffs must show that the challenged regulations

substantially burden their religious exercise . . . .”), vacated

and remanded sub nom. Zubik, 136 S. Ct. at 1561; Korte v.

Sebelius, 735 F.3d 654, 683 (7th Cir. 2013) (characterizing

impermissible questions about the “centrality of the religious

practice to the adherent’s faith” as distinct from the

substantial burden inquiry, which “evaluates the coercive

effect of the governmental pressure on the adherent’s

religious practice and steers well clear of deciding religious

questions”); Navajo Nation v. U.S. Forest Serv., 535 F.3d

1058, 1068 (9th Cir. 2008) (en banc) (characterizing the

“crux” of the RFRA case as determining whether the

Government “impose[d] a ‘substantial burden’ on the exercise

of the Plaintiffs’ religion” and finding no substantial burden

where Government sought to use artificial snow for skiing on

a mountain sacred to Indian tribe claimant); Branch

Ministries v. Rossotti, 211 F.3d 137, 142–43 (D.C. Cir. 2000)

(directly assessing whether claimant’s alleged religious

burden was sufficiently substantial under RFRA and finding

that it was not); see generally infra note 37. But see Sharpe

Holdings, Inc. v. U.S. Dep’t of Health & Humans Servs., 801

F.3d 927, 939 (8th Cir. 2015) (“[O]ur narrow function . . . in

[the RFRA] context . . . is to determine whether the line

41

Rather than confront this precedent, our dissenting colleague

would prefer to ignore the import, even the existence, of the

“substantial” qualifier in the RFRA test. The Dissent reduces

our position to say that “[r]eligious beliefs are not being

burdened in any meaningful sense, so people should just stop

complaining.” Dissent Op. at 2. But whether the alleged

burden is “meaningful”—or, more accurately, “substantial”—

is not a question that can be so easily dismissed with a

reductionist turn of phrase. To the contrary, it is the very

essence of a RFRA claim, the threshold inquiry posed to any

individual attempting to bring a successful RFRA claim, and

it is undoubtedly for the court to answer whether it has been

satisfied. 24 Turning to the burden alleged by the Real

Alternatives Employees, we will now do just that.

drawn reflects an honest conviction.” (internal quotation

marks omitted) (alteration and omission in original)), vacated

and remanded on other grounds sub nom. U.S. Dep’t of

Health & Human Servs. v. CNS Int’l Ministries, 136 S. Ct.

2006 (2016).

24

Urging that we are wrongly questioning the “validity,”

Dissent Op. at 10, and “legitimacy,” id. at 16, of the Real

Alternatives Employees’ religious beliefs, the Dissent

conflates our dual responsibilities in adjudicating a RFRA

claim: accepting the sincerity of a RFRA claimant’s religious

belief and deciding whether the alleged burden is

“substantial.” See Hobby Lobby, 134 S. Ct. at 2778 (noting

that the RFRA presents the question of “whether the

[Contraceptive Mandate] imposes a substantial burden” on

the claimant, and not “whether the religious belief asserted . .

. is reasonable”); Little Sisters, 794 F.3d at 1176

(“[A]ccepting any burden alleged by Plaintiffs as ‘substantial’

42

2. Analysis

RFRA centers on the intersection between the specific

conduct in which the objector is forced to engage and his or

her religious exercise, and that is where we begin our

analysis. The Real Alternatives Employees characterize their

purchase of insurance as somehow enabling the provision of

contraceptives, thereby substantially burdening their religious

exercise. They allege that their “sincerely held religious

beliefs prohibit them from [(1)] using, [(2)] supporting, or

otherwise [(3)] advocating the use of abortifacients, or [(4)]

participating in a health insurance plan that covers such items

for themselves or their families.” J.A. 123 (emphasis added).

We address each enumerated allegation in turn, and we

conclude that the Real Alternatives Employees have failed to

demonstrate that the Contraceptive Mandate forces them to

violate their religious beliefs.

The act complained of is the signing on to coverage

followed by the request for reimbursement of services chosen.

That basic scheme is the same for any individual whose

employer provides him or her with insurance: The plan

deems the employee eligible to be reimbursed for hundreds of

different services, and that employee can take advantage of

that eligibility as he or she sees fit. Should the employee opt

to use a particular service, he or she fills out a form and asks

to be paid back for costs incurred. In the end, the employee

uses a covered service, or not; either way, there is no

would improperly conflate the determination that a religious

belief is sincerely held with the determination that a law or

policy substantially burdens religious exercise.”).

43

requirement to support or advocate for whatever service he or

she, or others, selects. Checking off a box to be eligible for

reimbursement of services—services of the employee’s

choosing—in no way indicates, let alone suggests, support or

advocacy for that service. The disconnect between the use of

any one service and the use of contraceptives is arguably even

greater—and it calls into question the “substantiality” of the

purported burden. After all, a substantial burden on the

exercise of religion exists only where the Government

“demands that [an individual] engage in conduct that

seriously violates [his or her] religious beliefs,” Hobby

Lobby, 134 S. Ct. at 2775 (emphasis added), and such

engagement, as discussed in the following sections, is clearly

lacking here.

We are then left with the fourth proscribed conduct

that is central to the RFRA claim: participation. As with

their equal protection claim, the Real Alternatives Employees

rely primarily on March for Life for key support, as the

district court there reasoned that “participating in” a health

insurance plan, by its very nature, effects a substantial change

in behavior because “health insurance does not exist

independently of the people who purchase it.” 128 F. Supp.

3d at 129. There, the district court found that, “[g]iven the

nature of health insurance, [employees] do play a role in the

health care plans that provide contraceptive coverage.” Id.

While characterizing what employees do by subscribing to a

plan as “playing a role,” March for Life would have us

position this fact pattern in lockstep with Hobby Lobby. But

do employees really “play a role?” The Real Alternatives

Employees, along with the Dissent, assume the affirmative,

relying on March for Life’s treatment of the concepts “buy

44

into” and “participate in” as interchangeable. But they are

not.

Subscribing to an insurance plan involves no real

“participation,” just as there is no active “participation” when

subscribing to a magazine or joining AARP or enrolling in a

credit card that has membership benefits. These are all

packages that involve a one-time enrollment, followed by

essentially passive eligibility for certain services that the

member opts in or out of. By declaring that an insurance plan

does not exist without participants, the district court in March

for Life somehow equates the plan with the employees as if

they actively engage in a way that—were it factual—might be

objectionable. Let us be clear: There is no “participation” in

the real sense of the word. The employee pays for coverage

and thereby avails him or herself of the ability to be

reimbursed for services. But payment for the ability to have

coverage does not give an employee an active “role” in the

underlying plan. The insurance company offers a package of

health benefits, including certain benefits mandated by the

Government. The plan does not assure the availability of

specific services. Those services are for the employee to seek

out and use—or not. And the employee, by merely

subscribing to that plan in the first instance, is even less

directly related to whatever specific services he or she, or

anyone else, might or might not use later on. 25 The

25

One could analogize that a bank does not “exist

independently” of its individual accountholders, whose

money the bank lends at interest in order to earn profit. But

the accountholders have no say in lending decisions (what

rates to charge, which borrowers to lend to) and no direct

control over the bank. They, like a subscriber to an insurance

45

employees’ actions under the ACA are mediated by the

insurance company, and any link between the decision to sign

up for insurance on the one hand and the provision of

contraceptives to a particular individual on the other is “far

too attenuated to rank as substantial.” Hobby Lobby, 134 S.

Ct. at 2798–99 (Ginsburg, J. dissenting).

This attenuation is fatal to the RFRA claim. Cases

finding a substantial burden under RFRA have consistently

done so where, unlike here, there is a burden that interfered

with the claimants’ exercise and religion is directly

implicated by federal action. See Hobby Lobby, 134 S. Ct. at

2751 (provision required employer-plaintiffs to provide

plan, are offered a panoply of services that are

predeterminately attached to whichever account (or plan) they

choose. Some are desirable to the accountholder and some

are not. Assume that the individual’s bank account is

mandated by the Government under a privatized Social

Security regime, for example. If an accountholder had a

religious objection to the bank’s practices—lending money at

interest—we do not see how that accountholder could

successfully vindicate his or her religious beliefs through

RFRA. So too in the context of health insurance, every

participant pays a premium so that the health insurer will

provide coverage, and every participant also receives (some

of) the benefits of that coverage as they so choose. But

paying a premium simply is not equivalent to active

participation—at a minimum, the insured employee has no

say in what benefits the insurance company will offer or to

whom—and “playing a role,” however important to the plan’s

existence, does not automatically translate into experiencing a

burden, let alone a substantial one.

46

contraceptive coverage in any group plan that they provided

to their employees); Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 527–28 (1993) (ordinance

prohibited plaintiffs from sacrificing animals); Lee, 455 U.S.

at 254 (statute required plaintiffs to pay Social Security

taxes); Thomas, 450 U.S. at 712 (law denied plaintiff

unemployment benefits); Sherbert, 374 U.S. at 399–400

(same); Yoder, 406 U.S. at 207 (law required plaintiffs to

send their children to school); see also Civil Liberties for

Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir.

2003), (holding, in the context of RLUIPA, that “a substantial

burden on religious exercise is one that necessarily bears

direct, primary, and fundamental responsibility for rendering

religious exercise . . . effectively impracticable”), reh’g en

banc denied; cf. Fernandez v. Mukasey, 520 F.3d 965, 966

(9th Cir. 2008) (per curiam) (“Petitioners have failed to

establish that the [statutory provision at issue] places a

substantial burden on their religious exercise under RFRA. . .

. [T]he connection between [the statutory requirement and

their religious exercise] is too attenuated to create a

substantial burden on petitioners’ religious exercise.”)

(footnote omitted).

These cases underscore that the connection between

the conduct and the religious belief matters, 26 for “the law

26

While the Dissent urges that whether a burden is direct

or indirect is no matter, even March for Life intimated

otherwise. Adopting Priests for Life, the District Court in

March for Life stated that “it is true that [a]n asserted burden

is also not an actionable substantial burden when it falls on a

third party, not the religious adherent.” 128 F. Supp. 3d at

129 (alteration in original). It then reasoned: “Even though

47

distinguishes between direct participation and remote

facilitation, treating the former as compelling and the latter as

negligible.” 27 Amy J. Sepinwall, Conscience and Complicity:

Assessing Pleas for Religious Exemptions in Hobby Lobby’s

Wake, 82 U. CHI. L. REV. 1897, 1938 (2015). The

Government is not mandating an endorsement, or preventing

someone from sacrificing an animal as part of a religious

ritual, or anything of that nature. The Contraceptive Mandate

increases the number of choices an employee has when he or

she purchases health insurance—in this case, broadening the

availability of services that an employee might or might not

access. But that is all it is: a choice. It is still up to the

employee to decide what to do with those options, to seek out

relevant providers, to submit claims for reimbursement for the

service he or she selects, and so on. The act complained of—

the filling out of a form that triggers eligibility for

reimbursement for services the employee chooses to use (or

not)—has not changed, and it in no way amounts to the sort

of “substantial” burden consistently found contrary to

the plaintiffs are not the direct objects of the Mandate, they

are [] very much burdened by it.” Id. By its own logic,

March for Life acknowledged that directness matters in

assessing whether there is an “actionable substantial burden,”

but then found a different means (by erroneously focusing on

participation) of concluding that plaintiffs were nonetheless

“very much burdened.”

27

See also Elizabeth Sepper, Substantiating the Burdens

of Compliance, 2016 U. ILL. L. REV. ONLINE 53, 68 (noting

that courts in multiple areas of law, including criminal law

and torts, “evaluate[] burdens along a scale between

directness and attenuation”).

48

RFRA. 28 And the possibility that others might avail

themselves of services that the employees find objectionable

is no more burdensome than filling out the form in Geneva. 29

28

This point is particularly relevant in light of the Real

Alternatives Employees’ allegation that the Contraceptive

Mandate “fundamentally chang[es] the compensation package

that can be offered to the individual employees.” J.A. 123.

That change, fundamental or not, still does not alter the nature

of the conduct that the employees engage in when signing up

for, or submitting a claim for reimbursement under, an

insurance plan.

29

The Dissent criticizes our consideration of how directly

the burden affects the religious exercise and highlights the

Supreme Court’s statement in Lyng that “indirect coercion or

penalties on the free exercise of religion, not just outright

prohibitions, are subject to scrutiny under the First

Amendment.” Dissent Op. at 26 (citing 485 U.S. at 450).

But the Dissent ignores the remainder of that paragraph,

which specifically warns against implying from that

observation that “incidental effects of government programs,

which may make it more difficult to practice certain religions

but which have no tendency to coerce individuals into acting

contrary to their religious beliefs, require [G]overnment to

bring forward a compelling justification for its otherwise

lawful actions.” 485 U.S. at 450–51. Subsequent appellate

courts applying Lyng have heeded that advice. Cf. Klem, 497

F.3d at 279 (Lyng did not “hold that its conclusion must be

read to mean that any incidental effect of a government

program which may have some tendency to coerce

individuals into acting contrary to their religious beliefs

satisfies the substantial burden standard.”).

49

Unlike in Hobby Lobby, which literally required the objecting

employers to “arrange for” contraceptive coverage in a way

that effectively amounted to sponsorship, 134 S. Ct. at 2775,

the Contraceptive Mandate requires nothing of the employees

that implicates their religious beliefs as stated. There is a

material difference between employers arranging or providing

The Dissent further aims to supplement its mistaken view

of “substantial burden” by couching it in the context of the

recent Supreme Court case Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012 (June 26, 2017),

pointing to that decision as demonstrative of the idea that

“laws that coerce religious claimants to disavow their religion

in order to receive a government benefit[] are inconsistent

with our constitutional traditions.” Dissent Op. at 34. But

Trinity Lutheran has no real bearing on the specific question

before us today. As our dissenting colleague implicitly

recognizes, Trinity Lutheran is not a RFRA case. It dealt

with a church’s constitutional challenge to a state program

that automatically denied grants to any applicant owned or

controlled by a religious entity. 137 S. Ct. at 2017. “[T]he

[state program’s] policy put[] Trinity Lutheran to a choice: It

may participate in an otherwise available benefit program or

remain a religious institution.” Id. at 2021–22. The question

before the Supreme Court addressed only the treatment of an

institution based on its religious status, not the effect of a

federal program on individual religious beliefs. Signaling its

intent to confine its holding to the particular facts and issue

before it, the opinion noted: “This case involves express

discrimination based on religious identity with respect to

playground resurfacing. We do not address religious uses of

funding or other forms of discrimination.” Id. at 2024 n.3.

50

an insurance plan that includes contraception coverage—so

that employees can avail themselves of that benefit—and

becoming eligible to apply for reimbursement for a service of

one’s choosing. 30

30

By contrast, “[t]he religious costs at issue in Hobby

Lobby were generated by the owners’ direct participation in

the purportedly wrong act—arranging and paying for the

coverage of emergency contraception that they knew would

be used by at least some employees and beneficiaries of their

health plan. While one might have argued, as Justice

Ginsburg did, that the independent decisions of employees

and beneficiaries to use contraception were something like

‘intervening causes’ which cut off the owners’ responsibility,

it is also reasonable to conclude that those third-party

decisions are insufficient to terminate responsibility when

owners’ themselves are required to arrange and (partially) pay

for coverage of the objectionable contraceptives.” Frederick

Mark Gedicks, “Substantial” Burdens: How Courts May

(and Why They Must) Judge Burdens on Religion Under

RFRA, 85 GEO. WASH. L. REV. 94, 147 (2017) (footnotes

omitted) (first emphasis added); see also Geneva, 778 F.3d at

436–37 (“The issue of whether there is an actual burden was

easily resolved in Hobby Lobby, since there was little doubt

that the actual provision of services did not render the

plaintiffs ‘complicit.’ And in Hobby Lobby, the Court came

to its conclusion that, without any accommodation, the

contraceptive coverage requirement imposed a substantial

burden on the religious exercise of the for-profit corporations,

because those plaintiffs were required to either provide health

insurance that included contraceptive coverage, in violation

of their religious beliefs, or pay substantial fines.”) (final

emphasis added). The contrast with this case, which the

51

The Real Alternatives Employees ultimately fail to

grasp that one size does not fit all: The fact that the

Government may require insurers to offer coverage for

expenditures for certain services that some might find

objectionable on religious grounds cannot form the basis of

requiring the Government to adjust its programs on behalf of

all employees. The categories of services that could offend

religious beliefs is wide-ranging and, as discussed infra,

denying reimbursement for such services to all on the basis of

the religious objections of some would be neither desirable

nor administrable. It is certainly not mandated under RFRA,

which has long protected against substantial, usually direct,

burdens on the individual bringing the claim, not those utterly

disconnected from the claimants themselves.

In fact, the only behavior that the Contraceptive

Mandate governs is the behavior of a third party, the insurer.

And as Amici Curiae rightly note, RFRA does not afford the

Real Alternatives Employees a “religious veto over

governmental action that affects them only incidentally and

does not coerce them to violate their faith.” Amici Curiae Br.

at 24. This principle, that a RFRA claimant show that a

penalty or benefit be more than incidental in order to amount

to a substantial injury, is well-rooted in RFRA jurisprudence.

In Lyng, the Supreme Court rejected the RFRA claimants’

Dissent fails to reconcile, is abundantly clear: Whereas an

employer fashioning a plan for employees and offering it to

them might arguably signal approval of that plan and its

contents, the employee’s act of signing up for a pre-defined

health insurance plan that provides reimbursement for

services that include contraceptive services does not.

52

free exercise claim because the injury only amounted to an

incidental effect. 485 U.S. at 453. The Court held that the

indirect burden cases “cannot imply that incidental effects of

government programs, which may make it more difficult to

practice certain religions but which have no tendency to

coerce individuals into acting contrary to their religious

beliefs, require [G]overnment to bring forward a compelling

justification for its otherwise lawful actions.” Id. at 450–51.

As discussed at length supra, in passing RFRA, Congress

bolstered Lyng’s reading of the Free Exercise Clause with

RFRA’s text 31 and legislative history. 32 We incorporated this

logic in Geneva, finding that “free exercise jurisprudence

instructs that we are to examine the act the [claimants] must

perform—not the effect of that act—to see if it burdens

substantially the [claimants] religious exercise,” 778 F.3d at

440, and we reinforce that conclusion today. 33

31

42 U.S.C. § 2000bb-1 (“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).

32

S. Rep. 103-111, 9 (1993) (“The act thus would not

require such a justification for every government action that

may have some incidental effect on religious institutions.”).

33

Other courts have come to similar conclusions in

various contexts. Newdow v. Peterson, 753 F.3d 105, 109–10

(2d Cir. 2014) (holding that a currency’s slogan did not

substantially burden the plaintiff’s free exercise rights);

United States v. Friday, 525 F.3d 938, 947 (10th Cir. 2008)

(holding that requiring some to receive a permit before

engaging in a religiously mandated activity did not

substantially burden their free exercise rights); Henderson v.

53

Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (holding that a law

did not substantially burden people’s free exercise rights by

preventing them from distributing religious shirts on the

National Mall because they “can still distribute t-shirts for

free on the Mall, or sell them on streets surrounding the

Mall”); Goodall by Goodall v. Stafford Cty. Sch. Bd., 60 F.3d

168, 172–73 (4th Cir. 1995) (“We find that the financial

burden which the [RFRA claimants] must bear in order to

provide [their son] with a cued speech interpreter at his

private sectarian school does not constitute a substantial

burden under RFRA.”); Smith by Smith v. Bd. of Educ., 844

F.2d 90, 94 (2d Cir. 1988) (holding that a school did not

substantially burden a student’s free exercise rights by

holding graduation on the Sabbath); Azeez v. Fairman, 795

F.2d 1296, 1300 (7th Cir. 1986) (holding that an

administrative name change procedure did not substantially

burden a prisoner’s free exercise rights); Friedman v. Bd. of

Cty. Comm’rs, 781 F.2d 777, 791 (10th Cir. 1985) (holding

that a county seal did not substantially burden the plaintiff’s

free exercise of religion); Lakewood, Ohio Congregation of

Jehovah’s Witnesses, Inc., v. City of Lakewood, 699 F.2d 303,

307–08 (6th Cir. 1983) (finding that a local ordinance did not

substantially burden a church’s free exercise rights by

preventing the church from constructing a new church in just

ten percent of a city); Walsh v. Louisiana High Sch. Athletic

Ass’n, 616 F.2d 152, 158 (5th Cir. 1980) (finding that an

interscholastic athletic rule did not substantially burden the

plaintiff’s free exercise rights by preventing him from

competing in interscholastic high school sports for a year

after a transfer); Berman v. Bd. of Elections, 420 F.2d 684,

686 (2d Cir. 1969) (holding, in the alternative, that the

Government did not substantially burden a voter’s free

54

RFRA precedent further instructs that the Real

Alternatives Employees’ requested remedy, lifting a penalty

imposed on a third party—the insurer—would run afoul of

this Court’s and others’ findings that individuals cannot use

RFRA to compel the Government to structure its relations

with a third party in a certain way. “The Supreme Court has

consistently rejected the argument that an independent

obligation on a third party can impose a substantial burden on

the exercise of religion in violation of RFRA . . . .” Geneva,

778 F.3d at 440–41 (outlining cases); see also Estate of

Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985)

(recognizing as “a fundamental principle of the Religious

Clauses” that “[t]he First Amendment . . . gives no one the

right to insist that in pursuit of their own interests others must

conform their conduct to his own religious necessities”)

(omission in original) (internal quotation marks omitted); E.

Texas Baptist Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir.

2015) (“RFRA confers no right to challenge the independent

conduct of third parties . . . .”), vacated and remanded sub

nom. Zubik, 136 S. Ct. at 1561; Priests for Life, 772 F.3d at

246 (“[N]o RFRA right to be free from the unease, or even

anguish, of knowing that third parties are legally privileged or

obligated to act in ways their religion abhors.”); Ave Maria

Found. v. Sebelius, 991 F. Supp. 2d. 957, 965–66 (E.D. Mich.

2014) (“[A] great number of religious objections based on

third-party actions are dismissed simply because the plaintiff

is not pressured to act in any way.”) (citing cases).

exercise rights when it accommodated his religious

opposition to voting in a church by allowing him to change

voting districts and vote by absentee ballot).

55

Before we end our discussion of the “substantial

burden” inquiry under RFRA, we note that while the Dissent

would downplay the workability concerns exposed by the

District Court regarding the ramifications of finding a

substantial burden here, we believe they are real. As one

Seventh Circuit Court of Appeals jurist observed,

“contraceptive care is by no means the sole form of health

care that implicates religious concerns.” J.A. 66 (citing Grote

v. Sebelius, 708 F.3d 850, 866 (7th Cir. 2013) (Rovner, J.,

dissenting)). Medical treatments that some might view as

objectionable are as varied as they are numerous. Examples

that are by no means exhaustive include artificial

insemination and other reproductive technologies; genetic

screening and counseling; preventative and remedial

treatment for sexually transmitted diseases; sex reassignment;

vaccination; organ transplant from deceased donors; blood

transfusions; euthanasia or physician-assisted suicide; and so

on. See id. (noting that “in some religions, virtually all

conventional medical treatments[] are objectionable”). By

extension, “[a] finding that coverage for one set of

objectionable services constitutes a substantial burden would

imply that coverage for all such services imposes a substantial

burden”—an implication that would “render the health care

system totally unworkable.” Id.; see also Navajo Nation, 535

F.3d at 1072 (“[G]overnment simply could not operate if it

were required to satisfy every citizen’s religious needs and

desires.”).

The Dissent parrots March for Life’s dismissal of these

workability concerns, pointing to the incentives of insurance

companies as safeguards against “a world in which the

[G]overnment would require third-party insurance companies

to provide coverage in every possible form requested by an

56

individual on religious grounds.” 34 March for Life, 128 F.

Supp. 3d at 132; see also Dissent Op. at 35–39. But the

incentives argument is off-point and not curative of our

concerns. The Dissent transplants March for Life’s

discussion of insurance companies’ incentives—reviewed

there in the context of deciding whether the Government

satisfied the third “least restrictive” prong of the RFRA

analysis—into its analysis of the first “substantial burden”

prong. And even if insurance companies’ incentives were

relevant, they would still not satisfy our concerns. The

district court’s presumption in March for Life, the backbone

of the Dissent’s rebuttal here, is that “[i]insurance companies

have every incentive to maintain a sustainable and

functioning market . . . .” Dissent Op. at 37–38 (alteration in

original) (quoting 128 F. Supp. 3d at 132). This is a false

premise: Insurance companies have an interest in a

sustainable and functioning insurance market only to the

extent that it is profitable for them. 35 Nor is the identification

34

Gonzales, the only other case that the Dissent cites to

address workability, said nothing about our concerns

regarding the end-run on legislation that a ruling in favor of

the Real Alternatives Employees would unleash. See Dissent

Op. at 35–36 (citing Gonzales, 546 U.S. at 436).

35

The Dissent would prefer that “we leave to the

insurance companies themselves the decision of what

coverage options they can profitably provide.” Dissent Op. at

39. By the Dissent’s logic, any regulation of any market is

unnecessary because sellers in any market presumably have

some interest in keeping that market functioning. Why

require car manufacturers to provide seatbelts if market

demands will necessitate them anyway? It is entirely within

57

of an insurance company that is allegedly willing to provide a

satisfactory plan relevant to our analysis. The RFRA test

does not ask whether a claimant is able to offset a purported

burden with an alternative scheme of his or her choosing, and

neither the Real Alternatives Employees nor the Dissent have

pointed to any case indicating otherwise. 36

Our inquiry today urges an examination of the claimed

substantial nature of an alleged burden. This approach

contrasts sharply with that of the district court in March for

Life, which assumed—without any analysis whatsoever—the

“substantial” nature of the so-called burden of “participating”

in an insurance plan. Id. at 129–30. Yet we arguably need

not even address the issue of whether the employee’s choice

is coercive when the so-called burden of signing up for

coverage that might enable themselves or others to be

reimbursed for various services is clearly not substantial. No

matter how sincerely held their beliefs may be, we cannot

accept at face value that subscribing to the plan imposes a

“substantial burden.” Surely the word “substantial” is a

matter of subjectivity, not as to genuineness of belief but as to

the nature and extent to which religious exercise is hampered

or restrained by the conduct in question. It is, after all, an

imperative safeguard, else religious beliefs would invariably

trump government action.

the legislature’s prerogative to regulate an industry regardless

of whether that industry may otherwise and on its own

impose similar regulations.

36

The existence of an alternative plan is only relevant to

standing and questions of redressability.

58

In characterizing the facts in an inaccurate manner,

sidestepping the statutory text, legislative history, and

controlling case law entirely, the Real Alternatives

Employees urge us to put an active gloss on what is

essentially a passive commercial monetary decision:

enrolling in a plan so as to be reimbursed for services of

which one later chooses to avail him or herself. Viewing the

situation for what it is compels us to conclude that whatever

burden there might be, it is certainly not substantial.

Because we conclude that the Real Alternatives

Employees have not—and cannot—show that the

Contraceptive Mandate imposes a substantial burden on their

religious beliefs, we need not reach the question of whether

the Contraceptive Mandate is the least restrictive means of

furthering a compelling governmental interest. 37

III. CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s order denying Appellants’ motion for summary

37

We note that the Dissent’s assertion that “[t]ime and

again courts have rejected the regulation because it is not the

least restrictive means of achieving its objective,” Dissent Op.

at 4, is simply wrong, for only one case in addition to March

for Life has addressed the precise question before us today.

That case, Wieland v. United States Department of Health

and Human Services, 196 F. Supp. 3d 1010 (E.D. Mo. 2016),

essentially adopted the reasoning of March for Life in finding

for the RFRA claimants and did not perform a meaningfully

distinct analysis.

59

judgment in its entirety and granting the Government’s cross-

motion for summary judgment in its entirety.

60

Real Alternatives, et. al. v. Burwell, et al., No. 16-1275

JORDAN, Circuit Judge, concurring in part in the judgment

and dissenting in part.

Not so long ago, the idea of making nuns sign

government documents they believe would involve them in

grievous sins relating to life and death, or forcing devout

Mennonites to pay for health insurance coverage for drugs

and devices they view as abortifacients, would probably have

been unthinkable in this country. Then came the Patient

Protection and Affordable Care Act, known variously as

Obamacare, or the Affordable Care Act, or the ACA. It has

trailed in its wake a number of highly contentious lawsuits

but none more intensely fought than the ones in which the

government has sought to sweep aside the religious

objections of individuals and organizations opposed to the

portion of the ACA called the “Contraceptive Mandate.”

That feature of the statute, which requires non-grandfathered

group health care plans to include coverage for certain

controversial contraceptive items, was at the center of the

aforementioned disputes involving the nuns and the

Mennonites. See Burwell v. Hobby Lobby Stores, Inc., 134 S.

Ct. 2751 (2014); Little Sisters of the Poor Home for the Aged

v. Burwell, 794 F.3d 1151, 1168 (10th Cir.), vacated and

remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016).

And it is here for a return engagement in this case.

Having been beaten back in earlier efforts to force the

Contraceptive Mandate on the populace, the government has

changed its tune a bit – it has come up with a new rationale

for its erratically aggressive enforcement of that feature of the

ACA – but the song it sings is essentially the same:

individuals whose faith prompts sincere opposition to paying

1

for or facilitating the purchase of contraceptives cannot be

heard to object; the only thing legitimately at issue is the

regulation of insurance markets. According to the

government, the Mandate has nothing to do with deep

questions about the beginning of life, or the boundaries of

moral culpability, or about faith and one’s obligations to God.

Religious beliefs are not being burdened in any meaningful

sense, so people should just stop complaining. That is the

line pressed by the United States Department of Justice, and it

is the line accepted by my colleagues in the Majority, but I

reject it.

Even if this case could properly be characterized as

nothing more than an examination of insurance markets,

though, I could not agree with my friends in the Majority on

the central point of the dispute. They believe that citizens

who buy health insurance are ciphers, that they do not have

any “‘participation’ in the real sense of the word” when it

comes to the coverage they sign up and pay for, and therefore

the answer to the question “do employees really ‘play a role’”

in the market for health care services is, according to my

colleagues, a resounding no. (Maj. Op. at 45.) I disagree.

After the federal government gave itself a vastly greater role

in the health insurance market, there has no doubt been less

room for decision making by individual purchasers. But that

does not mean that people were not meaningfully

participating in the market before. There were plans available

that employers were free to sponsor, and employees were free

to seek, that did not require payment for contraceptive

coverage. And there are still, as this record demonstrates,

insurers who are ready, willing, and able to provide such

plans again, if the government did not forbid it. So, while it

is true that individual choice has been drastically reduced by

2

the federal government, that subtraction of freedom cannot be

a reason to say that government coercion of payment for

unwanted contraceptive products – indeed, to some people,

morally abhorrent products – is no burden on individuals.

The circularity of the government’s and the Majority’s

reasoning is stark.

I do not disagree with every aspect of my colleagues’

decision. The portion of the judgment that deals with the

Equal Protection and Administrative Procedures Act claims

of Real Alternatives, Inc. is sound. 1 I write separately,

however, to specify my disagreements with the Majority’s

treatment of the Religious Freedom Restoration Act

(“RFRA”) claim brought by Real Alternatives’ employees

Kevin I. Bagatta, Thomas A. Lang, and Clifford W.

McKeown (the “Individual Plaintiffs”). In my view, the

Individual Plaintiffs have adequately pled and provided

sufficient evidence to demonstrate that the Contraceptive

Mandate is a substantial burden on their free exercise of

religion. 2

1

I do not agree in full with the reasoning the Majority

employs for the APA claim, see infra footnote 4, but I do

agree that precedent requires the result.

2

In the District Court, the government asked either for

dismissal or summary judgment. The District Court accepted

and perpetuated that ambivalence, granting the government’s

motion to dismiss or in the alternative for summary judgment.

The Majority Opinion treats the District Court opinion as

solely granting summary judgment to the government. As I

see it, the government does not win either way; it loses either

way. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To

3

Having reached that conclusion, I confront the

question that the Majority avoids: whether the Contraceptive

Mandate is narrowly tailored to support a compelling

government interest. The answer is no. Time and again

courts have rejected the regulation because it is not the least

restrictive means of achieving its objective. There are several

other options the government could have chosen to enforce its

regulation without impinging on the rights of religiously

devout individuals. For that reason, I respectfully dissent.

I. Background

The Individual Plaintiffs are full-time employees of

Real Alternatives, 3 a non-profit organization devoted solely

“to promoting alternatives to abortion.” (Opening Br. at 2.)

All three men, their wives, and collectively seven minor

children, are covered by Real Alternatives’ health insurance

plan.

survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’”) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Fed. R. Civ. P.

56 (“The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”).

The Individual Plaintiffs’ RFRA claim should survive.

3

Bagatta serves as the President of Real Alternatives,

Lang is the Vice President of Operations, and McKeown is

the Vice President of Administration.

4

In addition to dedicating their professional lives to

preventing abortion, the Individual Plaintiffs hold religious

beliefs that honor life from conception. It is undisputed that

all three men are devout in their respective religious faiths –

Bagatta and Lang are Catholics, and McKeown is an

Evangelical Christian. Among their sincerely held

convictions, “[e]ach of the employees and their families

believe that all human lives have full human dignity from the

moment of conception/fertilization.” (JA 99.) That is the

baseline, undisputed factual background upon which we are

obligated to proceed. The Individual Plaintiffs’ belief that

life begins at conception entails the further belief “that they

are prohibited from using, supporting, or otherwise

advocating abortifacient drugs and devices, including IUD

and any hormonal birth control method … .” (JA 99.)

The Contraceptive Mandate, promulgated under the

ACA, requires non-grandfathered group health care plans to

include coverage for the full range of FDA-approved

contraceptive methods, which encompasses diaphragms, oral

contraceptives, intrauterine devices, and drugs such as “Plan

B” and “Ella.” 4 (JA 6.) The latter two are sometimes called,

4

Grandfathered plans are defined as those that existed

prior to March 23, 2010. See Burwell v. Hobby Lobby Stores,

Inc., 134 S. Ct. 2751, 2764 (2014) (citing 42 U.S.C.

§§ 18011(a), (e)). They “need not comply with many of the

[ACA’s] requirements, including the [C]ontraceptive

[M]andate.” Id. As I indicated in dissent in Conestoga Wood

Specialties Corp. v. Secretary of United States Department of

Health & Human Services, 724 F.3d 377 (3d Cir. 2013)

(Jordan, J., dissenting), rev’d and remanded sub nom. Burwell

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

5

Mandate and related regulations were “not the product of any

legislative debate” or “even the result of work within an

administrative agency.” Id. at 391 n.2. They were drafted by

the Institute of Medicine, a private entity that, as a result of

the ACA’s complicated scheme “has ended up dictating

regulations that the government insists override[] the

[Individual Plaintiffs’] rights to religious liberty.” Id.

The Majority takes issue with whether the products

and services covered by the Contraceptive Mandate include

abortifacients. See (Maj. Op. at 31-32). While we may be

bound to accept the Department of Health and Human

Services’ definition of “abortifacients” for purposes of APA

review, see Auer v. Robbins, 519 U.S. 452, 461 (1997)

(holding – not without controversy – that courts must defer to

an agency’s interpretation of its own ambiguous regulation so

long as it is not “plainly erroneous or inconsistent with the

regulation” (citation omitted)), that is not true when we are

considering the burden imposed on the Individual Plaintiffs’

exercise of their religious beliefs. The Individual Plaintiffs

are persuaded that life begins at conception and that, by

definition, a drug or device that prevents implantation of a

fertilized ovum is an abortifacient. In other litigation, the

government has admitted that some items covered by the

Contraceptive Mandate can indeed prevent implantation.

Brief of Respondent United States in Opposition to Cert.,

Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL

5740267 at *10 n.5 (filed October 21, 2013) (“Plan B, an

emergency contraceptive, is a pill that works mainly by

stopping the release of an egg from the ovary but may also

work by preventing fertilization of an egg or by preventing

attachment (implantation) to the womb (uterus). … Ella,

another emergency contraceptive, is a pill that works mainly

6

respectively, the “morning-after pill” and the “week-after

pill.” (Id.)

The Individual Plaintiffs currently elect to obtain their

health insurance through their employer, Real Alternatives.

Before the Mandate went into effect, Real Alternatives

bought an insurance plan for its employees that did not

contain contraceptive coverage. Because of the

Contraceptive Mandate, that plan is no longer available. If

the Individual Plaintiffs decide to decline coverage through

their employer, the government requires them to obtain it in

the open market, either independently or through “insurance

exchanges,” which are organizations created pursuant to the

ACA to facilitate the purchase of health insurance. All the

plans available on the open market – again because of the

Contraceptive Mandate – contain coverage for the

contraceptives. 5 In other words, the government has declared

that the Individual Plaintiffs must buy health insurance and,

simultaneously, has made it impossible for them to purchase

any coverage that conforms to their religious beliefs.

Enforcement of the Contraceptive Mandate, however,

is far from uniform. The government has granted a great

by stopping or delaying the ovaries from releasing an egg but

may also work by changing the lining of the womb (uterus)

that may prevent attachment (implantation).” (quotations and

citation omitted)).

5

According to the Verified Complaint, all available

plans “will include all contraceptives, including

abortifacients, and might also include surgical abortion.” (JA

114.)

7

many exceptions. See Conestoga Wood Specialties Corp. v.

Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377,

413 (3d Cir. 2013) (Jordan, J., dissenting), rev’d and

remanded sub nom. Burwell v. Hobby Lobby Stores, Inc., 134

S. Ct. 2751 (2014) (“By its own choice, the government has

exempted an enormous number of employers from the

Mandate, including ‘religious employers’ who appear to share

the same religious objection as Conestoga and the Hahns,

leaving tens of millions of employees and their families

untouched by it.”). As the District Court observed, this

scheme of sporadic application has spawned “dozens of

lawsuits … challeng[ing] both the Contraceptive Mandate and

the dimensions of its exemptions.” (JA 11.) This is just the

latest episode.

8

II. Discussion 6

A. RFRA

RFRA was enacted “to provide very broad protection

for religious liberty.” Hobby Lobby, 134 S. Ct. at 2760. It

was passed in the wake of the Supreme Court’s decision in

Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872 (1990), which upended

6

As stated in the Majority Opinion, the District Court

had jurisdiction and so do we. See (Maj. Op. at 15 n.5). The

government conceded at oral argument that the Individual

Plaintiffs have standing to challenge the Mandate. See

http://www2.ca3.uscourts.gov/oralargument/audio/16-

1275RealAlternativesInc,etalv.SecretaryDeptofHealthandHu

manServices,etal..mp3, at 22:32 (argued November 3, 2016)

(counsel for the government recognizing that there “probably

was standing”). I agree. But for the Mandate, the Individual

Plaintiffs would be able to purchase a health plan that does

not include the contraceptives to which they object. Cf.

March for Life v. Burwell, 128 F. Supp. 3d 116, 123 n.6

(D.D.C. 2015) (“At the request of the Court, plaintiffs

submitted a letter received from March for Life’s insurance

carrier, CareFirst BlueCross BlueShield. The letter states that

CareFirst would be willing to offer March for Life or its

employees a plan omitting the contraceptive coverage that

they are objecting to [i]f a legal exemption from [the

Mandate] is obtained.” (alteration in original) (citation

omitted)). The Majority acknowledges this when they state

that “[t]he existence of an alternative plan is … relevant to

standing[.]” (Maj. Op. at 58. n.36.)

9

decades of precedent by “virtually eliminat[ing] the

requirement that the government justify burdens on religious

exercise.” Conestoga Wood, 724 F.3d at 407 (Jordan, J.,

dissenting) (quoting 42 U.S.C. § 2000bb(a)(4)). RFRA was

supported by an “extraordinary ecumenical coalition in the

Congress[,]” id., and has been hailed as “the most important

congressional action with respect to religion since the First

Congress proposed the First Amendment.” Id. (quoting

Douglas Laycock & Oliver S. Thomas, Interpreting the

Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 243

(1994)). 7

Most importantly for present purposes, RFRA restored

in religious liberty cases “the judicial standard of review

known as ‘strict scrutiny,’ which is ‘the most demanding test

known to constitutional law.’” Id. at 408 (quoting City of

Boerne v. Flores, 521 U.S. 507, 534 (1997)). According to

RFRA, the government is generally forbidden to

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

the burden results from a rule of general applicability.” 42

7

The Majority focuses its telling of this history on

Smith’s rejection of a test that allowed broad protection for

religious liberty. See (Maj. Op. at 35 (quoting Smith, 494

U.S. at 888 for the proposition that a balancing test “would

open the prospect of constitutionally required religion

exemptions from civic obligations of almost every

conceivable kind”)). That misses the key point that RFRA

was passed for the very purpose of overruling Smith to the

fullest extent of Congress’s power. See 42 U.S.C.

§ 2000bb(b) (declaring that the purpose of RFRA was “to

restore the compelling interest test” from pre-Smith

jurisprudence).

10

U.S.C. § 2000bb-1(a). If the government does substantially

burden an individual’s exercise of religion, then that

individual is entitled to an exemption from the government

action, unless the government can show that the “application

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

compelling government interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.”

42 U.S.C. § 2000bb-1(b). No one disputes that the strict

scrutiny required by RFRA applies to the Contraceptive

Mandate, if the Mandate substantially burdens religious belief

and practice. 8

B. Substantial Burden

The Majority says that the Individual Plaintiffs have

not demonstrated a substantial burden on their religious

beliefs, but my colleagues reach that conclusion by a route

that amounts to questioning the validity of those beliefs – an

indulgence that we are forbidden. The Supreme Court has

made it clear that, when applying RFRA and analyzing a

burden on religion, our role is confined. “[F]ederal courts

have no business addressing … whether the religious belief

asserted in a RFRA case is reasonable … .” Hobby Lobby,

134 S. Ct. at 2778 (internal quotations omitted); cf. Smith,

8

RFRA as passed by Congress also applied to the

States, but, in City of Boerne v. Flores, 521 U.S. 507, 534

(1997), the Supreme Court held that the attempt to apply the

statute to the States exceeded Congress’s power under

Section Five of the Fourteenth Amendment. See Hobby

Lobby, 134 S. Ct. at 2761 (discussing City of Boerne, 521

U.S. at 533-34.)

11

494 U.S. at 887 (“Repeatedly and in many different contexts,

we have warned that courts must not presume to determine

the place of a particular belief in a religion or the plausibility

of a religious claim.”); Thomas v. Review Bd. of Ind. Emp’t

Sec. Div., 450 U.S. 707, 715 (1981) (recognizing that “it is

not for us to say that the line [a religious observer] drew was

an unreasonable one” and that courts cannot “dissect religious

beliefs”). Instead of weighing the reasonableness of deeply-

held religious convictions (and inevitably passing judgment

on their value), we have a “narrow function.” Hobby Lobby,

134 S. Ct. at 2779. We ask only “whether the line drawn [by

the adherent] reflects an honest conviction.” Id. (citation

omitted).

Once we have determined that an adherent has an

honest conviction, we ask if the government regulation

imposes a substantial burden on adherence to that conviction.

In this instance, we must decide “whether the [Contraceptive]

[M]andate imposes a substantial burden on the ability of the

objecting parties to [live] in accordance with their religious

beliefs[.]” Hobby Lobby, 134 S. Ct. at 2778. A “substantial

burden” exists where: (1) “a follower is forced to choose

between following the precepts of his religion and forfeiting

benefits otherwise generally available to other [persons]

versus abandoning one of the precepts of his religion in order

to receive a benefit”; or (2) “the government puts substantial

pressure on an adherent to substantially modify his behavior

and to violate his beliefs.” Washington v. Klem, 497 F.3d

272, 280 (3d Cir. 2007).

The Individual Plaintiffs attest in their Verified

Complaint that paying for insurance coverage for

12

contraception violates their religious beliefs. 9 See Verified

Complaint at ¶ 46 (JA 99-100) (“[T]he Real Alternatives

employees and their families object, on the basis of their

sincerely held ethical and religious beliefs, to participating in,

and/or paying a portion of the premium for, a health insurance

plan which provides coverage for objectionable items for

themselves and their family members.”). Because of the

Contraceptive Mandate, they are faced with two choices:

purchase a plan with the offending coverage (either through

their employer or on the exchanges) or decline to purchase a

plan, face a tax penalty, and leave their families uninsured.

See 26 U.S.C. § 5000A (codifying the ACA’s individual

mandate which requires individuals without employer-

coverage to purchase insurance or pay a penalty).

Notwithstanding the Majority’s protestations to the contrary,

that is a prime example of a substantial burden on religion. It

manages to satisfy both of the alternative tests for a

substantial burden: a believer is forced to choose whether to

follow the precepts of his religion and be penalized by the

government, or to abandon his convictions, 10 and the

9

A Verified Complaint is treated as an affidavit in the

summary judgment posture. See, e.g., Reese v. Sparks, 760

F.2d 64, 67 (3d Cir. 1985) (treating a verified complaint as an

affidavit for purposes of summary judgment).

10

Supreme Court jurisprudence demonstrates that the

imposition of a government penalty is at least as onerous as

the withholding of a government benefit. See Hobby Lobby,

134 S. Ct. at 2775 (noting that it had “little trouble

concluding” that forcing plaintiffs to choose between

honoring their religious convictions or facing severe

economic penalties was a substantial burden).

13

“government [thus] puts substantial pressure on [the follower]

to substantially modify his behavior and to violate his

beliefs.” Washington, 497 F.3d at 280.

The Supreme Court has long since declared that a

Hobson’s choice like the one forced upon the Individual

Plaintiffs is indeed a substantial burden on the exercise of

religion. See Thomas, 450 U.S. at 716 (“More tha[n] 30 years

ago, the Court held that a person may not be compelled to

choose between the exercise of a First Amendment right and

participation in an otherwise available public program.”).

And that principle remains in full force today. See Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.

2012, 2021-22 (2017) (finding a burden on religion under the

Free Exercise clause where a state statute required a church to

choose between “participat[ing] in an otherwise available

benefit program or remain[ing] a religious institution”). It

reflects an understanding that predates RFRA but rings

throughout the statute. See Sherbert v. Verner, 374 U.S. 398,

404 (1963) (finding a burden on a plaintiff where a state

unemployment law “force[d] her to choose between following

the precepts of her religion and forfeiting benefits, on the one

hand, and abandoning one of the precepts of her religion in

order to accept work, on the other hand”); Wisconsin v.

Yoder, 406 U.S. 205, 218 (1972) (finding a substantial burden

where a “Wisconsin [compulsory education] law

affirmatively compel[led] [the plaintiffs] under threat of

criminal sanction, to perform acts undeniably at odds with

fundamental tenets of their religious beliefs”). The avoidance

of such dilemmas is a key purpose of RFRA. See 42 U.S.C.

§ 2000bb(b) (stating that a purpose of RFRA is “to provide a

claim or defense to persons whose religious exercise is

substantially burdened by [the] government”).

14

Hobby Lobby considered in depth whether the

Contraceptive Mandate imposed a substantial burden on

religiously devout persons who were being forced to make a

choice very like the one at issue here. 11 134 S. Ct. at 2775-

77. In that case, “family-run businesses” whose owners had

strongly-held religious beliefs against contraception were

forced to face severe economic fines if they chose to honor

their beliefs. 12 Id. The Supreme Court reasoned that

11

The Majority asserts that my saying the decisions

faced by the employers in Hobby Lobby and the employees

here are similar “misstates the applicability of Hobby

Lobby[.]” (Maj. Op. at 34 n.17.) Not so. The comparison is

apt because the claimants in Hobby Lobby and the Individual

Plaintiffs in this case were both forced by the United States to

take nearly-identical action: purchase of and participation in a

plan that covers a form of contraception that they believe is

antithetical to the sanctity of life.

12

The Supreme Court also rejected an argument made

by the government that the plaintiffs could avoid the

substantial burden by simply declining to provide health

insurance to their employees. See Hobby Lobby, 134 S. Ct. at

2777 (“We doubt that the Congress that enacted RFRA – or,

for that matter, ACA – would have believed it a tolerable

result to put family-run businesses to the choice of violating

their sincerely held religious beliefs or making all of their

employees lose their existing healthcare plans.”). Here, the

burden is likewise substantial because the Individual

Plaintiffs’ only alternative to purchasing the offending

insurance plans is to forego insurance and pay the associated

penalty.

15

“[b]ecause the Contraceptive Mandate forces them to pay an

enormous sum of money … if they insist on providing

insurance coverage in accordance with their religious beliefs,

the [M]andate clearly imposes a substantial burden on those

beliefs.” 13 Id. at 2779.

Two other courts have considered the precise question

before us today: whether the Mandate imposes a substantial

burden on the exercise of religious beliefs when individuals

are required to purchase insurance coverage through their

employer or on the open market, and all available plans

(because of government action) are required to contain

coverage at odds with those individuals’ faith. Both courts

held that the Contraceptive Mandate does, in that context,

impose a substantial burden on the exercise of religion. In

March for Life v. Burwell, 128 F. Supp. 3d 116, 130 (D.D.C.

2015), the court said “[e]mployee plaintiffs are … caught

between the proverbial rock and a hard place: they can either

buy into and participate in a health insurance plan that

includes the coverage they find objectionable and thereby

violate their religious beliefs, or they can forgo health

insurance altogether and thereby subject themselves to

penalties for violating the ACA’s individual mandate.”

Similarly, in Wieland v. United States Department of Health

& Human Services, 196 F. Supp. 3d 1010, 1017 (E.D. Mo.

13

The immediate financial cost to the employees is

less here, but not insignificant. See 26 U.S.C. § 5000A

(imposing a penalty of the higher of either 2.5% of household

income or $695/adult and $347.50/child, the latter capped at

$2,085). Of course, that cost does not account for the very

serious risk that must be absorbed if one is forced to go

without health insurance.

16

2016), the court observed that the Mandate’s “ultimate impact

is that Plaintiffs must either maintain a health insurance plan

that includes contraceptive coverage, in violation of their

sincerely-held religious beliefs, or they can forgo healthcare

altogether, which will result in the imposition of significant

penalties (not to mention the potentially crippling costs of

uninsured health care).”

The Majority here, though, sees things differently. It

claims that the Contraceptive Mandate cannot possibly

impose a substantial burden on anyone, relying on six general

arguments to bolster that conclusion. Those reasons,

however, look like nothing more than a rejection of where the

Individual Plaintiffs’ consciences have led them to draw the

line against being complicit in what their religions tell them is

wrong. It is the legitimacy of their conscientious religious

objections that my colleagues call into question, contrary to

the explicit direction of the Supreme Court. See Hobby

Lobby, 134 S.Ct. at 2778 (refusing to delve into “difficult and

important question[s] of religion and moral philosophy”).

1. The Precedential Effect of Geneva

College

First, the Majority relies on the now-vacated decision

of our court in Geneva College v. Secretary, United States

Department of Health & Human Services, 778 F.3d 422 (3d

Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell,

136 S. Ct. 1557 (2016), to emphasize that courts can, and

should, assess the substantiality of a claimant’s asserted

burden. In that case, a panel considered the religious

exemption to the Mandate and determined that requiring non-

profit religious employers to register their objection to the

17

Contraceptive Mandate by filling out a form was not a

substantial burden under RFRA. See id. at 442 (“Because we

find that the self-certification procedure does not cause or

trigger the provision of contraceptive coverage, appellees are

unable to show that their religious exercise is burdened.”).

That opinion was deprived of any precedential effect by the

Supreme Court’s decision in Zubik v. Burwell, 136 S. Ct at

1561. Nevertheless, the Majority contends that Geneva is

persuasive and was not vacated because it was incorrect.

(Maj. Op. at 37 n.18.) I have my doubts about Geneva’s

reasoning, 14 but no doubt that it is not controlling. 15

14

The opinion in Geneva reflects, I think, an admirable

effort to explain why the form-filling exercise should not give

the faithful concern that they are complicit in actions contrary

to their religion. But there is a different and persuasive

discussion in the dissent from the order denying rehearing en

banc review in the Tenth Circuit in Little Sisters of the Poor

Home for the Aged v. Burwell, 799 F.3d 1315, 1317 (10th Cir.

2015) (Hartz, J., dissenting) (“When a law demands that a

person do something the person considers sinful, and the

penalty for refusal is a large financial penalty, then the law

imposes a substantial burden on that person’s free exercise of

religion. All the plaintiffs in this case sincerely believe that

they will be violating God’s law if they execute the

documents required by the government. And the penalty for

refusal to execute the documents may be in the millions of

dollars. How can it be any clearer that the law substantially

burdens the plaintiffs’ free exercise of religion?”).

15

In claiming that I mischaracterize their argument,

my colleagues agree that Geneva is not controlling and lacks

precedential force. (Maj. Op. at 37 n.18.) (“Geneva is no

18

longer controlling[.]”). But the Majority claims that “Zubik

vacated our judgment in Geneva but did not attack the

reasoning” and suggests that the Supreme Court’s vacatur has

no impact on “the view of our Court” as set forth in that case.

(Id.) It is inaccurate to claim that a vacatur has no effect on

the strength of an opinion – indeed, we have repeatedly

emphasized in our case law that, when an opinion is vacated,

“it carries no precedential force.” 1621 Route 22 W.

Operating Co., LLC v. Nat’l Labor Relations Bd., 825 F.3d

128, 141 n.6 (3d Cir. 2016); see also Leader v. Apex Hosiery

Co., 108 F.2d 71, 81 (3d Cir. 1939) (holding that a decree

considered to be vacated “is no longer binding as a precedent,

as the law of the case, or as res judicata”). Other Circuits are

in general agreement on this point. See, e.g., Durning v.

Citibank, N.A., 950 F.2d 1419, 1424 (9th Cir. 1991) (rejecting

an argument that a decision still had precedential value

because it was vacated on alternative grounds because while

“[a] decision may be reversed on other grounds … a decision

that has been vacated has no precedential authority

whatsoever”). The Majority cites no case law for the

extraordinary proposition that an appellate court’s reasoning

and judgment, after it has been vacated by the Supreme

Court, should carry weight in future cases, especially when

applied to litigants who were not parties to the original

dispute.

Geneva’s holding was vacated after the Supreme Court

received supplemental briefing indicating that the government

and non-profit religious employers could potentially reach a

compromise position that did not infringe on the rights of the

latter. See Zubik, 136 S. Ct at 1560 (“Given the gravity of the

dispute and the substantial clarification and refinement in the

positions of the parties, the parties on remand should be

19

But even if Geneva were binding or persuasive

precedent, it does not lead to the result the Majority reaches

in this case. There are significant factual differences between

the burdens alleged in Geneva and those at issue here.

Notably, the panel in Geneva reasoned that the claimed

burden – the requirement to fill out and file a form – was

actually a means to register and affirm the employer’s

objection to providing contraceptive coverage. See Geneva,

778 F.3d at 438-39 (“If anything, because the appellees

specifically state on the self-certification form that they object

on religious grounds to providing such coverage, it is a

declaration that they will not be complicit in providing

coverage.”). According to Geneva, filling out the form was,

in effect, the organization’s chance to “wash[] its hands of

any involvement in contraceptive coverage[,]” leaving it to

“the insurer and the third party administrator [to] tak[e] up the

slack under compulsion of federal law.” Id. at 441 (internal

quotation omitted). 16 Here, the Individual Plaintiffs are

afforded an opportunity to arrive at an approach going

forward that accommodates petitioners’ religious exercise

while at the same time ensuring that women covered by

petitioners’ health plans ‘receive full and equal coverage,

including contraceptive coverage.’” (citation omitted)). Thus,

the Supreme Court did not in any way endorse the conclusion

that the college did not face a substantial burden under

RFRA. See id. (“[T]he Court does not decide whether

petitioners’ religious exercise has been substantially burdened

… .”)

16

The response to that reasoning, of course, is that

saying something does not make it so. If the government says

“file this paperwork so that we can give abortifacients to your

20

compelled to do much more than fill out and file a form. Far

from distancing themselves from the objectionable coverage,

the Individual Plaintiffs are forced to sign up and pay for it,

unless they want themselves and their families to be

uninsured and to pay fines. They must actually provide

financial support for the objectionable contraceptive

coverage, just like the plaintiffs in Hobby Lobby. The

Majority does nothing to address that distinction between

Geneva and this case.

2. Using, Supporting, or Advocating the

Use of Contraceptives

The Majority next turns to the words of the Individual

Plaintiffs’ Complaint, where they object to “using,

supporting, or otherwise advocating, the use of abortifacients,

or participating in a health insurance plan that covers such

items for themselves or their families.” (Verified Compl.

¶ 158.) 17 The Majority first claims that signing up for an

employees,” it may not help to add “and don’t worry, you will

not be complicit in what’s going to happen as soon as you file

that paperwork.”

17

The Majority ignores this statement of the Individual

Plaintiffs in their Verified Complaint defining their burden:

“the Real Alternatives employees and their families object, on

the basis of their sincerely held ethical and religious beliefs,

to participating in, and/or paying a portion of the premium

for, a health insurance plan which provides coverage for

objectionable items for themselves and their family

members.” See Verified Complaint at ¶ 46. That particular

iteration of the burden focuses on the financial aspect of

21

insurance plan that covers contraceptive coverage does not

involve the “use, support, or advocacy of contraceptives”

because “[c]hecking off a box to be eligible for

reimbursement of services … of the employee’s choosing …

in no way indicates, let alone suggests, support or advocacy

for that service.” (Maj. Op. at 44.) That conclusion relies on

the Majority’s perception of how insurance coverage works:

The plan deems the employee eligible to be

reimbursed for hundreds of different services,

and that employee can take advantage of that

eligibility as he or she sees fit. Should the

employee opt to use a particular service, he or

she fills out a form and asks to be paid back for

costs incurred. In the end, the employee uses a

covered service, or not; either way, there is no

requirement to support or advocate for whatever

service he or she, or others, selects.

(Id.)

As my colleagues see it, because the Individual

Plaintiffs can elect not to use the covered contraceptives, they

are not burdened by having to pay for the coverage. The

message is “get over it.” And that seems to me to be only a

“thinly-veiled attack” on sincerely-held religious beliefs.

paying into a plan that supports contraceptive services. The

Majority has completely ignored the financial consequences

of the Mandate, so it is perhaps not surprising that they have

chosen to attend solely to a portion of the Complaint that does

not mention those consequences.

22

March for Life, 128 F. Supp. 3d at 129. When the Individual

Plaintiffs say in their Verified Complaint that it is at odds

with their religious beliefs to purchase a plan which uses their

money to offer products and services they believe to be

morally abhorrent, I think we are supposed to believe them.

And we should, because their concern that their money

will be used to support contraceptives is perfectly logical. It

is the Majority’s characterization of how the insurance market

functions that is confused. It overlooks two essential truths:

money is fungible and insurance is based on the pooling of

risk. Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.

2566, 2585 (2012) (The requirement that everyone must

purchase health insurance “forces into the insurance risk pool

more healthy individuals, whose premiums on average will be

higher than their health care expenses. This allows insurers to

subsidize the costs of covering the unhealthy individuals the

[ACA] reforms require them to accept.”). In the

government’s own words, the system “works through ‘risk

pooling in the group market’ which ‘results in sharing …

costs … across an entire plan or employee group.’”

(Responding Br. at 23-24 (quoting 75 Fed. Reg. at 41,730).)

Thus even when the Individual Plaintiffs elect not to use

contraceptive coverage, they still pay for and thus support it.

See id. at 24 (noting that the plans “cover a wide array of

services … [and insurers] set rates based on standardized

policies [that] ensure[] that medical costs are spread across

the entire pool of plan beneficiaries”). It is peculiar, then, for

the Majority to claim that purchasing an insurance plan that

includes contraception “does not assure the availability of

specific services.” (Maj. Op. at 45.) While an individual

must seek out and use a particular service, the point of health

23

insurance is in fact to help facilitate and support access to

each service for everyone in the risk pool.

Taken to its logical conclusion, my colleagues’

position means that the Contraceptive Mandate could only be

a “substantial burden” on the exercise of religion if the

government forced religious objectors not only to buy plans

with contraceptive coverage, but also to buy the covered

contraceptives. That idea was rejected by the Supreme Court

in Hobby Lobby, when it determined that providing coverage

to employees, who may or may not elect to use the

contraceptive coverage, was a substantial burden on the

exercise of religion. 18 See Hobby Lobby, 134 S. Ct. at 2778

(“The Hahns and Greens believe that providing the coverage

demanded by the HHS regulations is connected to the

destruction of an embryo in a way that is sufficient to make it

immoral for them to provide the coverage.”). The Majority

here may prefer the position taken by the dissent in Hobby

Lobby, see 134 S. Ct. at 2799 (Ginsburg, J., dissenting) (“I

18

The Majority makes an artificial distinction and says

that while the Contraceptive Mandate “requires nothing of the

employees that implicates their religious beliefs” the Mandate

did affect the employers in Hobby Lobby because it “literally

required” them to “‘arrange for’ contraceptive coverage in a

way that effectively amounted to sponsorship.” (Maj. Op. at

51 (quoting Hobby Lobby, 134 S. Ct. at 2775)). That

purported difference is meaningless – in both Hobby Lobby

and here the claimants were forced to financially support

others’ use of contraceptives, an action that was antithetical to

their religious beliefs. As in Hobby Lobby, “it is not for us to

say [whether] the[] religious beliefs are mistaken or

insubstantial.” 134 S. Ct. at 2778.

24

would conclude that the connection between the families’

religious objections and the contraceptive coverage

requirement is too attenuated to rank as substantial. The

requirement carries no command that Hobby Lobby or

Conestoga purchase or provide the contraceptives they find

objectionable.”), but that was the losing argument, as it

should have been.

3. Participating in a Plan

Containing Contraceptives

The Majority next focuses its attention on the

Individual Plaintiffs’ claim that participating in a health

insurance plan containing coverage for contraceptives is a

substantial burden on their free exercise. In doing so, my

colleagues reduce the Individual Plaintiffs to non-entities in

the calculus of harm. The Majority’s argument is that the

Individual Plaintiffs do not meaningfully “participate” in the

acquisition of their health insurance coverage, so the market

regulation forcing all but exempt plans to carry contraceptive

coverage cannot be a substantial burden on them. There is,

however, no sound legal or logical foundation for that

position.

To begin, the Majority claims that there is no “active

‘participation’” by an individual in subscribing to an

insurance plan. (Maj. Op. at 45.) Their argument is that the

concepts of “buy into” and “participate in” are not

“interchangeable[,]” therefore when individuals purchase an

insurance plan, they do not participate in it. (Id.) This is a

semantic distinction without difference. And even assuming

that the “active” participation requirement had a basis in our

case law (which it does not), being an insurance plan

25

participant should fit the bill. “[H]ealth insurance does not

exist independently of the people who purchase it,” March for

Life, 128 F. Supp. 3d at 129, and the purchasers are not

designated by the insurers as “plan participants” for nothing.

As already explained, the Individual Plaintiffs are not simply

paying for the services they elect to use; they are participants

in a plan that pools risk and provides comprehensive

coverage. They are paying for all services, even those they

individually decline to use, thus their participation in the plan

directly subsidizes the use of contraceptives. That is hardly

“remote facilitation.” (Maj. Op. at 48) (citation omitted).

What’s more, the Majority completely ignores that

“participation” in the insurance market is compelled – and

enforced with a significant monetary penalty. 19 Being

required to associate with and subsidize an organization or

activity that one disagrees with does indeed impose a

substantial burden on religion.

The Majority also makes a nearly identical argument

using a slightly different term – directness. But, deploying a

synonym does not improve the argument that the Individual

Plaintiffs can be ignored as playing no “active ‘role’” in their

19

By ignoring the fact that the Individual Plaintiffs are

forced to buy health insurance, the Majority attempts to make

the central question whether or not a health insurance

purchaser meaningfully “participates” in their insurance plan.

But that is not the question RFRA asks. The proper inquiry is

whether government action substantially burdens religion.

Where the “participation” is abhorrent to the claimants’

religion – and it is compelled – it should be plain that their

religious exercise is substantially burdened.

26

health plans. (Maj. Op. at 45.) Even if the Individual

Plaintiffs’ burden or participation could rightly be

characterized as “indirect” in some way, nothing requires a

burden to be “direct” to be cognizable under RFRA. See

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

450 (1988) (“It is true that this Court has repeatedly held that

indirect coercion or penalties on the free exercise of religion,

not just outright prohibitions, are subject to scrutiny under the

First Amendment.”). 20

20

The Majority chides me for not including a fuller

quotation in the parenthetical to this citation to Lyng v.

Northwest Indian Cemetery Protective Association, 485 U.S.

439 (1988). (Maj. Op. at 49-50 n.29.) But the Supreme

Court itself, in Trinity Lutheran Church of Columbia, Inc. v.

Comer, recently relied on Lyng for that precise principle,

noting that “the Free Exercise clause protects against ‘indirect

coercion or penalties on the free exercise of religion, not just

outright prohibitions.’” 137 S. Ct. 2012, 2022 (2017)

(quoting Lyng, 485 U.S. at 450).

Also, according to my colleagues, the March for Life

opinion that they spend so much time belittling actually

supports them on the significance of “direct vs. indirect”

burdens. But in the quotation the Majority borrows, the

March for Life opinion simply acknowledged the fact that the

Contraceptive Mandate regulated insurers in the first instance.

See March for Life, 128 F. Supp. 3d at 129 (noting that

individuals are not “the direct objects” of the Contraceptive

Mandate). That does not mean that purchasers are unaffected.

In reality, the labels “direct” and “indirect” are too malleable

to be of any real use in this context. By regulating the types

of plans insurance companies can offer, and then forcing

individuals to purchase those plans, the government is, in a

27

My colleagues also draw a number of analogies in an

effort to demonstrate why this case does not involve a

substantial burden. None ring true. They hypothesize

someone alleging a substantial burden when subscribing to a

magazine, or joining an organization, or acquiring a credit

card. According to the Majority, “there is no active

‘participation’” in any of these scenarios because “[t]hese are

all packages that involve a one-time enrollment, followed by

essentially passive eligibility for certain services that the

member opts in or out of.” (Maj. Op. at 45.) My colleagues

again completely ignore that purchasing health insurance in

the era of the ACA is far from voluntary – it is compelled and

enforced with a monetary fine. Their examples are therefore

meaningless. Of course subscribing to a magazine would be a

substantial burden under RFRA if it were abhorrent to the

subscriber’s religious beliefs and were forced upon him by

the government. 21 The same is true for compelled

membership in an organization.

very real sense, directly acting on individuals. Moreover, the

Majority has ignored the rest of the discussion in March for

Life, which lays out why the Mandate is a substantial burden.

See id. (“While it is true that an asserted burden is also not an

actionable substantial burden when it falls on a third party,

not the religious adherent … health insurance does not exist

independently of the people who purchase it.” (internal

citations and quotations omitted)).

21

Jefferson was right: “to compel a man to furnish

contributions of money for the propagation of opinions which

he disbelieves, is sinful and tyrannical.” Abood v. Detroit Bd.

of Ed., 431 U.S. 209, 235 n.31 (1977) (quoting I. Brant,

James Madison: The Nationalist 354 (1948)).

28

The credit card and banking analogy fares no better.

My colleagues say that, as in the insurance market,

“accountholders [at a bank] have no say in lending decisions

(what rates to charge, which borrowers to lend to) and no

direct control over the bank.” (Maj. Op. at 46 n.25.)

Accordingly, if we were to “[a]ssume that the individual’s

bank account is mandated by the Government under a

privatized Social Security regime” and “an accountholder had

a religious objection to the bank’s practices” such as “lending

money at interest[,]” that accountholder could not

“successfully vindicate his or her religious beliefs through

RFRA.” (Id.) I disagree. In that hypothetical, it would

undoubtedly impose a substantial burden on religion to force

such believers to put their money into an interest bearing

account contrary to their religious beliefs. 22 The

consequence of determining that there was a substantial

burden would not be to prevent the government from

instituting a privatized Social Security regime. The

consequence would be to force the government to satisfy

strict scrutiny before forcing the religious objector to

22

Those who desire to follow prohibitions on usury in

the Torah and Quran often avoid traditional banking or enter

into alternative arrangements with banks. See, e.g., Naureen

S. Malik, Interest-Free Financing for U.S. Muslims, ABC

News http://abcnews.go.com/Business/story?id=87070

(explaining that there are two relevant Islamic prohibitions,

“[o]ne against the use of ribaa or ribit, also known as usury;

and the other against gharar, the unbundled sale of risk, such

as gambling, insurance or derivatives[,]” and noting that

banks will offer alternative arrangements to comply with

those prohibitions).

29

participate. 23 See United States v. Lee, 455 U.S. 252, 260-61

(1982) (analyzing whether Social Security satisfied strict

scrutiny with respect to an Amish objector).

23

The Majority’s analogies are troubling not only

under RFRA, but also under the Constitution. See W.

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943) (“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 politics, nationalism, religion, or

other matters of opinion or force citizens to confess by word

or act their faith therein.”). The proposals suggested by the

Majority would violate the First Amendment in more ways

than one. In the association context, the Supreme Court has

repeatedly found that being forced to subsidize and affiliate

with an organization one disagrees with clearly burdens

freedom of association and expression, even when the cost of

membership is de minimis and there is no additional

requirement to participate. See, e.g., Harris v. Quinn, 134 S.

Ct. 2618, 2639, 189 L. Ed. 2d 620 (2014) (striking down

compelled labor union membership requirements); Keller v.

State Bar of California, 496 U.S. 1, 6, (1990) (finding

mandatory bar dues that were used for ideological or political

educational programs violated the First Amendment).

Likewise, free speech protections prevent the government

from compelling an individual to subsidize or facilitate

expression of speech that one disagrees with. See, e.g.,

Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974)

(holding that the government cannot require a newspaper to

provide space for the expression of certain viewpoints); Pac.

Gas & Elec. Co. v. Pub. Utilities Comm’n of California, 475

U.S. 1 (1986) (rejecting a law that forced a power company to

30

In the end, the Majority’s claim that the Individual

Employees do not meaningfully participate in their health

care plans cannot be saved by the hypotheticals on which they

rely. Each ignores that the government has coerced the

Individual Plaintiffs to purchase health insurance with

provisions deeply offensive to their sincerely held religious

beliefs. The hypotheticals thus serve only to underscore the

weakness of the Majority’s argument.

4. “Incidental” Effects and Lyng

To bolster its arguments regarding “direct” and

“active” participation, the Majority tries to link this case and

Geneva to Lyng v. Northwest Indian Cemetery Protective

Association. In that case the Supreme Court concluded that

the government’s building of a road on public land used for

religious purposes by Native Americans was not a violation

of their right to Free Exercise. 485 U.S. at 447-53. My

colleagues also make passing reference (Maj. Op. at 40) to

Bowen v. Roy, 476 U.S. 693, 699-700 (1986), a Supreme

Court case relied upon in Lyng which held that requiring the

use of social security numbers to participate in federal food

stamp and aid programs was not a significant burden on

religious beliefs. See Bowen, 476 U.S. at 699-700.

Bowen and Lyng are distinguishable. Both cases

recognized the difference between challenges to “certain

forms of governmental compulsion” and policies that

amounted to the “Government’s internal procedures.”

allow public interest groups to share a message on its billing

envelopes).

31

Bowen, 476 U.S. at 700. In Bowen, because the assignment

of a social security number did not require the religious

objectors to do anything, the Court found that the law fell into

the latter category. Id. (recognizing that religious protections

under the Free Exercise clause extend to “what the

government cannot do to the individual, not in terms of what

the individual can extract from the government”) (quotation

omitted). And in Lyng, the same was true: the claimants

sought to stop government action that affected their religious

practice (i.e. building a road through their lands), but did not

compel their own behavior. Lyng, 485 U.S. at 449 (“In both

cases, the challenged Government action would interfere

significantly with private persons’ ability to pursue spiritual

fulfillment according to their own religious beliefs. In neither

case, however, would the affected individuals be coerced by

the Government’s action into violating their religious beliefs;

nor would either governmental action penalize religious

activity by denying any person an equal share of the rights,

benefits, and privileges enjoyed by other citizens.”). By

contrast, the ACA forces the Individual Plaintiffs to engage in

certain behavior – purchasing health insurance – and enforces

that compulsion with the threat of a significant fine.

My colleagues, however, fixate on the Supreme

Court’s observation in Lyng that an incidental effect of a

government program with “no tendency to coerce individuals

into acting contrary to their religious beliefs” is not violative

of the First Amendment. (Maj. Op. at 49 n.29.) (quoting

Lyng, 485 U.S. at 450-51). Of course, I do not disagree with

that limitation. But the Majority is fighting a losing battle

with common sense when it argues that imposing financial

penalties on individuals who fail to take action that violates

their religion has “no tendency to coerce.” The Mandate

32

coerces the Individual Plaintiffs into violating their beliefs by

forcing them to purchase a health care plan at odds with their

religious convictions. See Verified Complaint at ¶ 46 (JA 99-

100) (“[T]he Real Alternatives employees and their families

object, on the basis of their sincerely held … religious beliefs,

to participating in, and/or paying a portion of the premium

for, a health insurance plan which provides coverage for

objectionable items for themselves and their family

members.”). Thus, the Individual Plaintiffs here are not

challenging the way the government “conduct[s] its own

internal affairs,” (Maj. Op. at 40 (quoting Bowen, 476 U.S. at

699)); they are challenging what a government regulation

requires them to do. 24 As the Supreme Court’s recent holding

24

The Majority’s collection of out-of-Circuit cases is

also not persuasive. I will spare the reader an extensive

response to each and every one of the cases cited by the

Majority in its lengthy footnote 33. Broadly speaking,

however, the cases cited are simply inapplicable or

distinguishable. For instance, some of the cases involve

situations where the government offered an accommodation

for religious belief. See, e.g., United States v. Friday, 525

F.3d 938, 947-48 (10th Cir. 2008) (upholding a law creating a

general prohibition on hunting bald eagles but allowing

Native Americans to apply for a permit if they need to hunt

for religious reasons); Berman v. Bd. of Elections, 420 F.2d

684, 685–86 (2d Cir. 1969) (concluding a case was moot

where the municipality permitted an individual to vote in

another polling place when voting in a Church violated his

religious beliefs). Others recognized that claimants could

exercise their religion, without government penalty, in closely

analogous circumstances that did not impose a burden. See,

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

33

in Trinity Lutheran demonstrates, laws that coerce religious

claimants to disavow their religion in order to receive a

government benefits are inconsistent with our constitutional

traditions. Cf. Trinity Lutheran, 137 S. Ct. at 2022 (finding

“express discrimination” under the First Amendment where a

church was denied the opportunity to compete for a

government benefit “solely because it is a church). 25

(upholding a law preventing sale of t-shirts on the National

Mall against a RFRA challenge because the religious

individuals seeking to sell their shirts on the Mall had not

shown why selling on the Mall rather than a few blocks away

was required by their religious beliefs); Lakewood, Ohio

Congregation of Jehovah’s Witnesses, Inc., v. City of

Lakewood, 699 F.2d 303, 307–08 (6th Cir. 1983) (upholding

a zoning ordinance that limited locations where churches

could be built where there was no suggestion that building in

the approved zone would impose a prohibitive cost or

interfere with the religious mission of the Church). Most

fundamentally, none of these cases involved challenges to

government action that forced individuals to act contrary to

their religious beliefs under threat of government fine.

25

The Majority says that Trinity Lutheran is not

relevant because it is “not a RFRA case[.]” (Maj. Op. at 41 n.

29.) But First Amendment cases based on the Free Exercise

clause certainly are relevant to understanding the meaning

and application of RFRA. See Hobby Lobby, 134 S. Ct. at

2778-79 (relying on pre-RFRA cases to analyze a substantial

burden under RFRA); (Maj. Op. at 43 (relying on Lyng, a pre-

RFRA case)). And whether the Supreme Court was

“[s]ignaling its intent to confine its holding” (Maj. Op. at 50

n.29) in Trinity Lutheran with a footnote is far from clear.

34

The Majority also dresses up the “incidental” point in

different language and says that RFRA bars claims arising out

of burdens on third parties. The faulty logic is that, because

the Contraceptive Mandate only regulates the insurer and not

the Individual Plaintiffs, it cannot be a substantial burden

under RFRA. See (Maj. Op. at 55 (“The Supreme Court has

consistently rejected the argument that an independent

obligation on a third party can impose a substantial burden on

the exercise of religion in violation of RFRA.” (quoting

Geneva, 778 F.3d at 440-41))). But the Individual Plaintiffs

do not object to insurance companies offering plans with

contraceptive coverage, making the cases the Majority relies

on about third parties irrelevant. The Individual Plaintiffs are

only asking the government to allow them to purchase a plan

that does not include the offending coverage – a request that,

according to this record, would not impose any harm or

burden on any third parties. There evidently are insurers

prepared to fill that market demand, just as there were before

the ACA told all insurers that they had to eliminate that

choice.

5. Opening the Floodgates

The Majority also relies on a floodgates argument to

hold that the Individual Plaintiffs have not experienced a

See Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J.,

concurring) (voicing concern that courts would “mistakenly

read” that footnote to narrow the scope of the court’s holding

and pointing out that doing so was “unreasonable” because

cases are “governed by general principles, rather than ad hoc

improvisations.” (citation omitted)).

35

substantial burden on their free exercise of religion. My

colleagues worry that allowing the Individual Plaintiffs to

maintain a RFRA claim would open the way to myriad

challenges to the ACA, because “the categories of services

that could offend religious beliefs [are] wide-ranging.” (Maj.

Op. at 52.) Thus, “denying … such services to all on the

basis of the religious objections of some would be neither

desirable nor administrable.” Id.

Of course, that fails to address the burden issue at all.

It is merely an assertion that, regardless of the burden on

religious belief, it could be difficult for the government to do

what it wants if any accommodation for religious believers

must be made. Sadly, this argument is “the classic rejoinder

of bureaucrats throughout history: If I make an exception for

you, I’ll have to make one for everybody, so no exceptions.”

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 436 (2006). It is also the reasoning of the

dissent in Hobby Lobby, which worried that allowing a RFRA

challenge to one part of the ACA “would open the prospect of

constitutionally required religious exemptions from civic

obligations of almost every conceivable kind.” 134 S. Ct. at

2785 (quoting Smith, 494 U.S. at 888-89). But the Majority

in Hobby Lobby rightly rejected that hyperbolic concern,

recognizing that the judiciary is bound to apply the balancing

test set forth by RFRA to adjudicate such claims. See id.

(“But Congress, in enacting RFRA, took th

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