Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.
Supreme Court briefMar 9, 2020
Ask Donna
What actually matters in this document.
Text
Nos. 19-431, 19-454
In the Supreme Court of the United States
__________________
LITTLE SISTERS OF THE POOR
SAINTS PETER AND PAUL HOME, Petitioner
v.
PENNSYLVANIA, ET AL., Respondents.
__________________
DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., Petitioners
v.
PENNSYLVANIA, ET AL., Respondents.
__________________
On Writs of Certiorari to the United States
Court of Appeals for the Third Circuit
__________________
AMICUS CURIAE BRIEF OF THE AMERICAN
CENTER FOR LAW AND JUSTICE IN SUPPORT OF
PETITIONERS
__________________
FRANCIS J. MANION
GEOFFREY R. SURTEES
AMERICAN CENTER FOR
LAW & JUSTICE
P.O. Box 60
New Hope, Kentucky 40052
(502) 549-7020
JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
JORDAN SEKULOW
WALTER M. WEBER
AMERICAN CENTER FOR
LAW & JUSTICE
201 Maryland Ave., N.E.
Washington, D.C. 20002
(202) 546-8890
sekulow@aclj.org
EDWARD L. WHITE III
ERIK M. ZIMMERMAN
AMERICAN CENTER FOR
LAW & JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
(734) 680-8007
Counsel for Amicus Curiae
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1
INTRODUCTION AND SUMMARY OF
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.
Governmental accommodations of religious
exercise, like that afforded by the religious
exemption here, are a well-established
historical practice of this country . . . . . . . . . . 6
II.
Governmental accommodations of religious
exercise, like those provided by the religious
exemption here, are consistent with the
Constitution’s religion clauses . . . . . . . . . . . 11
III.
The religious exemption here falls within the
constitutionally permissible “play in the
joints” that allows for protecting religious
freedom without establishing religion . . . . . 17
A. The religious exemption is religiously
neutral and consistent with the historical
practices and understandings of the
religion clauses . . . . . . . . . . . . . . . . . . . . . 17
B. Any alleged imposition on third parties
does not render the religious exemption
unconstitutional . . . . . . . . . . . . . . . . . . . . 20
IV.
The States Lack Article III Standing to
Challenge the Exemptions . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ii
TABLE OF AUTHORITIES
CASES
Am. Legion v. Am. Humanist Ass’n,
139 S. Ct. 2067 (2019). . . . . . . . . . 1, 11, 12, 18, 19
Am. Pulverizer Co. v. U.S. HHS,
No. 6:12-cv-03459-MDH (W.D. Mo.). . . . . . . . . . . 2
Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534 (1986). . . . . . . . . . . . . . . . . . . . . . . 25
Bick Holdings, Inc. v. U.S. HHS,
No. 4:13-cv-00462-AGF (E.D. Mo.). . . . . . . . . . . . 2
Bd. of Educ. v. Grumet,
512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . 12, 22
Bhd. of Locomotive Engineers v. Atchison,
Topeka & Santa Fe R.R.,
516 U.S. 152 (1996). . . . . . . . . . . . . . . . . . . . . . . 22
City of Boerne v. Flores,
521 U.S. 507 (1997). . . . . . . . . . . . . . . . . . . . . . 6, 7
Comm’r of Internal Revenue v. Kowalski,
434 U.S. 77 (1977). . . . . . . . . . . . . . . . . . . . . . . . 22
Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos,
483 U.S. 327 (1987). . . . . . . . . . . 12, 18, 21, 22, 23
Cnty. of Allegheny v. ACLU,
492 U.S. 573 (1989). . . . . . . . . . . . . . . . . . . . 12, 19
Cutter v. Wilkinson,
544 U.S. 709 (2005). . . . . . . . . . . . . . . . . 12, 14, 17
iii
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019). . . . . . . . . . . . . . . . . . . . . 31
Employment Div. v. Smith,
494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . 13, 14
Estate of Thornton v. Caldor, Inc.,
472 U.S. 703 (1985). . . . . . . . . . . . . . . . . . . . . . . 21
Everson v. Bd. of Educ.,
330 U.S. 1 (1947). . . . . . . . . . . . . . . . . . . . . . . . . 17
Gilardi v. United States HHS,
733 F.3d 1208 (D.C. Cir. 2013) . . . . . . . . . . . . . . . 1
Gillette v. United States,
401 U.S. 437 (1970). . . . . . . . . . . . . . 10, 12, 21, 22
Girouard v. United States,
328 U.S. 61 (1946). . . . . . . . . . . . . . . . . . . . . . . . 10
Goldman v. Weinberger,
475 U.S. 503 (1986). . . . . . . . . . . . . . . . . . . . . . . 13
Hartenbower v. U.S. HHS,
No. 1:13-cv-2253 (N.D. Ill.) . . . . . . . . . . . . . . . . . . 2
Hobbie v. Unemployment Appeals Comm’n of Fla.,
480 U.S. 136 (1987). . . . . . . . . . . . . . . . . . . . . . . 13
Hobby Lobby v. Burwell,
573 U.S. 682 (2014). . . . . . . . . . . . . . . 2, 16, 20, 21
Kilby v. CVS Pharm., Inc.,
739 F.3d 1192 (9th Cir. 2013). . . . . . . . . . . . . . . 22
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013). . . . . . . . . . . . . . . . . 2
iv
Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . 1
Larson v. Valente,
456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . 18
Lemon v. Kurtzman,
403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . . 11, 12
Lewis v. Casey,
518 U.S. 343 (1996). . . . . . . . . . . . . . . . . . . . . . . 25
Lindsay v. U.S. HHS,
No. 1:13-cv-01210 (N.D. Ill.) . . . . . . . . . . . . . . . . . 2
Massachusetts v. EPA,
549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . . . . . 26
Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977). . . . . . . . . . . . . . . . . . . . . . . 22
National Institute of Family & Life Advocates v.
Becerra, 138 S. Ct. 2361 (2018) . . . . . . . . . . . . . . 1
O’Brien v. U.S. HHS,
766 F.3d 862 (8th Cir. 2014). . . . . . . . . . . . . . . . . 2
Plains Commerce Bank v. Long Family Land &
Cattle Co., 554 U.S. 316 (2008). . . . . . . . . . . . . . 25
Pleasant Grove City v. Summum,
555 U.S. 460 (2009). . . . . . . . . . . . . . . . . . . . . . . . 1
Sch. Dist. of Abington Twp. v. Schempp,
374 U.S. 203 (1963). . . . . . . . . . . . . . . . . . . . . . . 19
Selective Draft Law Cases,
245 U.S. 366 (1918). . . . . . . . . . . . . . . . . . . . . . . 12
v
Sherbert v. Verner,
374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . 23
Texas Monthly, Inc. v. Bullock,
489 U.S. 1 (1989). . . . . . . . . . . . . . . . . . . . . . . . . 13
Town of Greece v. Galloway,
134 S. Ct. 1811 (2014). . . . . . . . . . . . . . . . . . . . . 19
Trump v. Hawaii,
138 S. Ct. 2392 (2018). . . . . . . . . . . . . . . . . . . . . 18
United States v. Lee,
455 U.S. 252 (1982). . . . . . . . . . . . . . . . . . . . . . . 13
Va. House of Delegates v. Bethune-Hill,
139 S. Ct. 1945 (2019). . . . . . . . . . . . . . . . . . . . . 25
Walz v. Tax Comm’n of New York City,
397 U.S. 664 (1970). . . . . . . . . . . . . . . . . . . . 13, 18
Wisconsin v. Yoder,
406 U.S. 205 (1972). . . . . . . . . . . . . . . . . . . . . . . 23
Zorach v. Clauson,
343 U.S. 306 (1952). . . . . . . . . . . . . . . . . . . . . . . 12
Zubik v. Burwell,
136 S. Ct. 1557 (2016). . . . . . . . . . . . . . . . . . . . . . 2
STATUTES
10 U.S.C. § 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18 U.S.C. § 3597(b). . . . . . . . . . . . . . . . . . . . . . . . . . 15
26 U.S.C. § 3127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
26 U.S.C. § 3309(b). . . . . . . . . . . . . . . . . . . . . . . . . . 15
vi
29 U.S.C. § 1003(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 15
42 U.S.C. § 238n . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
42 U.S.C. § 300a-7 . . . . . . . . . . . . . . . . . . . . . . . . . . 14
42 U.S.C. § 1396u-2(b)(3)(B) . . . . . . . . . . . . . . . . . . 15
42 U.S.C. § 2000e-1 . . . . . . . . . . . . . . . . . . . . . . . . . 15
42 U.S.C. § 2000bb et seq . . . . . . . . . . 1, 16, 17, 20, 21
42 U.S.C. § 2000bb-3(a) . . . . . . . . . . . . . . . . . . . . . . 16
Ariz. Rev. Stat. § 36-2154(B) . . . . . . . . . . . . . . . . . . 14
Ga. Code Ann. § 16-12-142(a) . . . . . . . . . . . . . . . . . 14
Idaho Code § 18-612 . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mont. Code Ann. § 50-20-111(2) . . . . . . . . . . . . . . . 15
OTHER AUTHORITIES
84 Fed. Reg. 7714 (Mar. 4, 2019) . . . . . . . . . . . . . . . 23
A. Adams & C. Emmerich, A Heritage of Religious
Liberty, 137 U. Pa. L. Rev. 1559 (1989) . . . . . . . . 8
A Memorial and Remonstrance Against Religious
Assessments (1785), in The Sacred Rights
of Conscience (D. Dreisbach & M.D. Hall eds.
2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
David Brang et al., “Apotemnophilia: a neurological
disorder,” 19 NeuroReport 1305 (2008) . . . . . . . 23
Br. for the Petitioners, United States v. Texas, No.
15-674 (U.S. Mar. 1, 2016) . . . . . . . . . . . 28, 29, 30
vii
Br.
of Defendant-Intervenor-Appellant, Little
Sisters of the Poor, Saints Peter and Paul Home,
Nos. 17-3752, 18-1253, 19-1129, 19-1189 (3d Cir.
Feb. 15, 2019), available at
https://tinyurl.com/rxt5ph7 . . . . . . . . . . . . . . . . 25
Female Genital Mutilation, WHO media centre fact
sheet (Feb. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 23
L. Fisher, Religious Liberty in America: Political
Safeguards (2002) . . . . . . . . . . . . . . . . . . . . . . . . 15
Edward McGlynn Gaffney, Jr., Pierce and Parental
Liberty as a Core Value in Educational Policy, 78
U. Det. Mercy L. Rev. 491 (2001) . . . . . . . . . . . . . 3
Thomas Jefferson, To the Society of the Methodist
Episcopal Church at New London, Connecticut
(Feb. 4, 1809). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Douglas Laycock & Oliver S. Thomas, Interpreting
the Religious Freedom Restoration Act, 73 Tex.
L. Rev. 209 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 16
Letter to the Annual Meeting of Quakers (1789), in
The Papers of George Washington (Dorothy
Twohig ed. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Michael McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103
Harv. L. Rev. 1409 (1990). . . . . . . . . . . . . . . . . . . 7
Notes on the State of Virginia, in The Basic Writings
of Thomas Jefferson (Philip S. Foner ed.,
1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
viii
Michael Novak & Jana Novak, Washington’s God
(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Oxford Handbook of Church and State in the United
States (D. Davis, ed. 2010) . . . . . . . . . . . . . . . . . 15
Michael Paulsen, A RFRA Runs Through It:
Religious Freedom and the U.S. Code, 56 Mont.
L. Rev. 249 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 16
Property (March 29, 1792), in The Founders’
Constitution, Vol. 1, Doc. 23 (P. Kurland & R.
Lerner eds. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reply Br. for the Petitioners, United States v.
Texas, No. 15-674 (U.S. Mar. 1, 2016) . . . . . 30, 31
Jonathan D. Sarna, “Constitutional Dilemma on
Birth Control,” Forward.com (Mar. 16, 2012) . . 23
Brett G. Scharffs, The Autonomy of Church and
State, 2004 B.Y.U.L. Rev. 1217 (2004). . . . . . . . . 6
Brett G. Scharffs, Why Religious Freedom? Why the
Religiously Committed, the Religiously
Indifferent, and Those Hostile to Religion Should
Care, 2017 B.Y.U.L. Rev. 957 (2017) . . . . . . . . . 11
1
INTEREST OF AMICUS CURIAE1
Amicus, the American Center for Law & Justice
(“ACLJ”), is an organization dedicated to the defense of
constitutional liberties secured by law. ACLJ attorneys
have often appeared before this Court as counsel for a
party, e.g., Pleasant Grove City v. Summum, 555 U.S.
460 (2009); Lamb’s Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384 (1993), or amicus
curiae, e.g., American Legion v. American Humanist
Ass’n, 139 S. Ct. 2067 (2019); National Institute of
Family & Life Advocates v. Becerra, 138 S. Ct. 2361
(2018).
The ACLJ has vigorously opposed the federal
contraception mandate (“mandate”) since it was first
imposed on the country by regulatory fiat over eight
years ago. Through litigation and public advocacy, and
in formal comments filed with federal agencies, the
ACLJ has argued that the mandate, including the
numerous faulty regulatory attempts to accommodate
religious objections to it, violates both the First
Amendment and federal law, most notably, the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§ 2000bb et seq.
The ACLJ represented a total of thirty-two
individuals and for-profit corporations in seven legal
1
The parties in this case have consented to the filing of this
amicus brief. No counsel for any party authored this brief in whole
or in part. No person or entity aside from amicus, its members, or
its counsel made a monetary contribution to the preparation or
submission of this brief.
2
actions against the mandate,2 and submitted amicus
briefs with this Court in support of the religious
claimants in both Hobby Lobby v. Burwell, 573 U.S.
682 (2014), and Zubik v. Burwell, 136 S. Ct. 1557
(2016).
Now that the government has, at long last, provided
an authentic accommodation of religious exercise with
respect to the mandate, the ACLJ urges the Court to
uphold the religious exemption at issue in this case and
reverse the lower court’s decision.3
INTRODUCTION AND
SUMMARY OF ARGUMENT
In 1804, the Ursuline Sisters of New Orleans wrote
a letter to the Secretary of State, James Madison,
expressing their concerns that the Jefferson
administration would not respect the rights that they
had enjoyed prior to the Louisiana Purchase. After
Madison replied, sharing the President’s “grateful
sentiments due to those of all religious persuasions
who so laudably devote themselves in its diffusion,”
Jefferson himself wrote in response:
2
Gilardi v. United States HHS, 733 F.3d 1208 (D.C. Cir. 2013);
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); O’Brien v. U.S.
HHS, 766 F.3d 862 (8th Cir. 2014); Am. Pulverizer Co. v. U.S.
HHS, No. 6:12-cv-03459-MDH (W.D. Mo.); Lindsay v. U.S. HHS,
No. 1:13-cv-01210 (N.D. Ill.); Bick Holdings, Inc. v. U.S. HHS, No.
4:13-cv-00462-AGF (E.D. Mo.); Hartenbower v. U.S. HHS, No. 1:13cv-2253 (N.D. Ill.).
3
This brief is also submitted on behalf of more than 463,000
supporters of the ACLJ as an expression of their support for the
principles of religious freedom at stake in this case.
3
I have received, Holy Sisters, the letters you
have written to me, wherein you express anxiety
for the property vested in your institution by the
former Government of Louisiana. The principles
of the Government and Constitution of the
United States are a sure guaranty to you that it
will be preserved to you sacred and inviolate,
and that your institution will be permitted to
govern itself according to its own voluntary
rules, without interference from civil authority.4
Jefferson pledged that the Sisters’ charitable work
would be afforded “all the protection my office can give
it.”5
If the previous administration, when it first created
the mandate, offered to the Little Sisters of the Poor
the same solicitude that Jefferson offered the Ursuline
Sisters, it would not have been necessary for the
Sisters to engage in years of litigation, at every level of
the federal judiciary, to secure their legal rights. Not
only that, but had the previous administration granted
to the Little Sisters the same religious exemption that
the current administration has granted, it is highly
doubtful that Respondents would have sued that
administration in order to force the Sisters to violate
their conscience.
This case is therefore not about access to cost-free
contraceptive services, which the government could
4
As quoted in Edward McGlynn Gaffney, Jr., Pierce and Parental
Liberty as a Core Value in Educational Policy, 78 U. Det. Mercy L.
Rev. 491, 506 (2001).
5
Id.
4
provide to citizens in any number of ways without
dragooning religious objectors into participating. It
concerns whether the government can alleviate
religious burdens that it itself has imposed. Entities
like the Little Sisters desire only to conduct themselves
according to their religious convictions, free from
governmental coercion, on a subject matter of great
moral significance.
The rulemaking at issue in this case, providing an
exemption to entities that object to the mandate on
religious or moral grounds, is in keeping with
Jefferson’s assurances to the Ursuline Sisters and our
nation’s longstanding tradition of respecting and
protecting religious freedom. The right of an individual
or institution to conduct itself according to the dictates
of religious conscience is a principle of autonomy that
should be held “sacred and inviolate.”
While the lower court did not address whether the
religious exemption violates the Establishment Clause,
it is more than likely that amici for Respondents (if not
Respondents themselves) will argue that it does. Not
only did Respondents’ complaint allege an
Establishment Clause violation, amici in the court
below filed briefs asserting that contention in support
of Respondents.
Contrary to any such assertions, however, the
religious exemption does not violate the Establishment
Clause. Even before the founding of this country, the
government alleviated burdens on religious exercise by
granting exemptions, a practice wholly consistent with
the religion clauses of the First Amendment. The
challenged religious exemption here falls comfortably
5
within that long-established historical tradition.
Indeed, far from violating the religion clauses, the
religious exemption faithfully pursues the freedoms the
First Amendment guarantees.
Additionally, exemptions for religious objectors are
not rendered unconstitutional by the possibility that
some third parties may be inconvenienced or burdened.
This is especially true where, as here, the government
can address those third parties’ concerns through
alternative means that do not involve infringing upon
the freedom of conscience.
Finally, the states do not have Article III standing
to press their claims here. Allowing state attorneys
general to challenge federal regulations that address
abortion access or conscience rights based merely on
the consequential budgetary impact from such
rulemaking would create an unprecedented and
unwarranted expansion of state attorney general
standing. This flawed view of the law would give state
attorneys general standing to attack, in federal court,
the Hyde Amendment’s bar on federal tax funding of
abortions, the federal conscience protection statutes,
and any regulations that protect conscience in these
contexts, and would open the floodgates for a host of
federal lawsuits by states contesting federal actions
that at most have incidental economic impacts on
states (a category that likely sweeps in most, if not all,
federal action).
6
ARGUMENT
I.
Governmental accommodations of religious
exercise, like that afforded by the religious
exemption here, are a well-established
historical practice of this country.
The challenged rulemaking in this case provides
entities and individuals with an exemption from
complying with the mandate based on religious
principles or moral convictions.6 The granting of such
exemptions is fully consistent with the long and wellestablished history in this country of governmental
accommodation of religious beliefs and practices.
“The pursuit of religious liberty was one of the most
powerful forces driving early settlers to the American
continent and remained a powerful force at the time of
the founding of the American republic.” Brett G.
Scharffs, The Autonomy of Church and State, 2004
B.Y.U.L. Rev. 1217, 1230 (2004). Even before the
ratification of the Constitution, “tension between
religious conscience and generally applicable laws,
though rare, was not unknown.” City of Boerne v.
Flores, 521 U.S. 507, 557 (1997) (O’Connor, dissenting).
The resolution of conflicts over matters such as
“oath requirements, military conscription, and religious
assessments,” demonstrates that “Americans in the
Colonies and early States thought that, if an
6
At issue in this case are both a moral and religious exemption to
complying with the mandate. As there can be no real question that
the (non-religious-based) moral exemption does not violate the
Establishment Clause, this brief focuses on the constitutionality of
the religious exemption.
7
individual’s religious scruples prevented him from
complying with a generally applicable law, the
government should, if possible, excuse the person from
the law’s coverage.” Id. Exemptions were understood as
“a natural and legitimate response to the tension
between law and religious convictions.” Michael
McConnell, The Origins and Historical Understanding
of Free Exercise of Religion, 103 Harv. L. Rev. 1409,
1466 (1990).
In 1775, for example, the Continental Congress
passed a resolution exempting individuals with pacifist
religious convictions from military conscription:
As there are some people, who, from religious
principles, cannot bear arms in any case, this
Congress intend no violence to their consciences,
but earnestly recommend it to them, to
contribute liberally in this time of universal
calamity, to the relief of their distressed
brethren in the several colonies, and to do all
other services to their oppressed Country, which
they can consistently with their religious
principles.
Id. at 1469 (citation omitted).
Thus, even when the country was in dire need of
men to take up arms to fight for independence, our
forefathers knew that conscience is inviolable and must
be honored. They understood that to conscript men into
military service against their religious conscience
would have undermined the very cause of liberty to
which they pledged their lives, fortunes, and sacred
honor.
8
The care and concern for religious freedom prior to
the ratification of the Constitution was the underlying
and animating principle of the religion clauses of the
First Amendment:
The core value of the religion clauses is liberty of
conscience in religious matters, an ideal which
recurs throughout American history from the
colonial period of Roger Williams to the early
national period of the Founders. All three
traditions of church and state—Enlightenment,
pietistic, and political centrist—regarded
religious liberty as an inalienable right
encompassing both belief and action and as an
essential cornerstone of a free society.
A. Adams & C. Emmerich, A Heritage of Religious
Liberty, 137 U. Pa. L. Rev. 1559, 1664 (1989).7
Examples of this truth are seen most clearly in the
writings of the Founding Fathers themselves. James
Madison, the Father of the Constitution, opined that
“[c]onscience is the most sacred of all property,” and
that man “has a property of peculiar value in his
religious opinions, and in the profession and practice
dictated by them.” Property (March 29, 1792), in The
Founders’ Constitution, Vol. 1, Doc. 23 (P. Kurland &
R. Lerner eds. 1987). Madison understood that one’s
duty to the “Creator . . . . is precedent, both in order of
7
The states at the time of the founding were similarly concerned
with the preservation of religious liberty and conscience. “Between
1776 and 1792, every state that adopted a constitution sought to
prevent the infringement of ‘liberty of conscience,’ ‘the dictates of
conscience,’ ‘the rights of conscience,’ or the ‘free exercise of
religion.’” A Heritage of Religious Liberty, supra, at 1600-01.
9
time and in degree of obligation, to the claims of Civil
Society.” A Memorial and Remonstrance Against
Religious Assessments (1785), in The Sacred Rights of
Conscience, 309 (D. Dreisbach & M.D. Hall eds. 2009).
“The Religion . . . of every man must be left to the
conviction and conscience of every man,” and efforts to
“degrade[] from the equal rank of Citizens all those
whose opinions in Religion do not bend to those of the
Legislative authority” must be prevented. Id.
George Washington, the Father of the Country,
noted that “the establishment of Civil and Religious
Liberty was the Motive that induced me to the field of
battle.” Michael Novak & Jana Novak, Washington’s
God, 111 (2006). In his famous 1789 letter to the
Quakers, he wrote:
The conscientious scruples of all men should be
treated with great delicacy and tenderness: and
it is my wish and desire, that the laws may
always be extensively accommodated to them, as
a due regard for the protection and essential
interests of the nation may justify and permit.
Letter to the Annual Meeting of Quakers (1789), in The
Papers of George Washington, 266 (Dorothy Twohig ed.
1993).
Thomas Jefferson observed that “[n]o provision in
our Constitution ought to be dearer to man than that
which protects the rights of conscience against the
enterprises of the civil authority.” To the Society of the
Methodist Episcopal Church at New London,
Connecticut (Feb. 4, 1809). Like Madison, Jefferson
understood the right of conscience to be a pre-political
10
one, i.e., one that could not be surrendered to the
government as a term of the social contract: “[O]ur
rulers can have authority over such natural rights only
as we have submitted to them. The rights of conscience
we never submitted, we could not submit. We are
answerable for them to our God.” Notes on the State of
Virginia, in The Basic Writings of Thomas Jefferson,
157-58 (Philip S. Foner ed., 1944).
In sum, “[t]he victory for freedom of thought
recorded in our Bill of Rights recognizes that in the
domain of conscience there is a moral power higher
than the State.” Girouard v. United States, 328 U.S. 61,
68 (1946). And it is the longstanding commitment to
that principle that has animated the “happy tradition”
in our country “of avoiding unnecessary clashes with
the dictates of conscience.” Gillette v. United States,
401 U.S. 437, 453 (1970).
Recognition and legal protection of religious
freedom is not just a project of the American
experiment:
Freedom of thought, conscience, and belief,
including foundationally freedom of religion, is
historically the taproot of the tree of human
rights that was planted with the Magna Carta
(drafted by a religious leader, the Archbishop of
Canterbury, Stephen Langton), nourished by the
Declaration of Independence (with its
inalienable rights with which human beings are
endowed “by their Creator”) and the French
Declaration of the Rights of Man (which
describes the foundational rights it identifies as
“sacred”), given global recognition in the
11
Universal Declaration of Human Rights
(UDHR), and turned into globally recognized
and protected rights protected by international
treaties such the International Covenant on
Civil and Political Rights (ICCPR) and the
European Convention on Human Rights
(ECHR), among others, and scores of post-World
War II constitutions.
Brett G. Scharffs, Why Religious Freedom? Why the
Religiously Committed, the Religiously Indifferent, and
Those Hostile to Religion Should Care, 2017 B.Y.U.L.
Rev. 957, 962-63 (2017).
II.
Governmental accommodations of religious
exercise, like those provided by the
religious exemption here, are consistent
with the Constitution’s religion clauses.
In light of the foregoing, it is clear that the
accommodation of religious beliefs and practices, such
as those afforded by the religious exemption, is wholly
consistent with the text, nature, and purpose of the
First Amendment’s religion clauses.
The requirement of Lemon v. Kurtzman, 403 U.S.
602, 612 (1971), that a law have a secular purpose
(assuming arguendo Lemon remains good law)8 “does
8
This Court’s recent decision in American Legion put another nail
in Lemon’s coffin. The plurality opinion refused to apply Lemon,
139 S. Ct. at 2087, and instead summarized its many
“shortcomings.” Id. at 2080. None of the dissenting Justices argued
that the Lemon test should be used as the controlling analytical
framework in Establishment Clause cases. Justice Kavanaugh
catalogued all the Establishment Clause cases in which Lemon
was either ignored or which were otherwise irreconcilable with
12
not mean that the law’s purpose must be unrelated to
religion.” Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335
(1987). In fact, “[g]overnment policies of
accommodation, acknowledgment, and support for
religion are an accepted part of our political and
cultural heritage.” Cnty. of Allegheny v. ACLU, 492
U.S. 573, 657 (1989) (Kennedy, J., concurring in
judgment in part and dissenting in part). Such
solicitude “respects the religious nature of our people
and accommodates the public service to their spiritual
needs.” Zorach v. Clauson, 343 U.S. 306, 314 (1952).
Indeed, “[s]ince the framing of the Constitution,”
this Court “has approved legislative accommodations
for a variety of religious practices.” Bd. of Educ. v.
Grumet, 512 U.S. 687, 723 (1994) (Kennedy, J.,
concurring in judgment) (citing Selective Draft Law
Cases, 245 U.S. 366, 389-90 (1918), and Gillette
(military draft exemption for religious objectors);
Zorach (program permitting public school children to
leave school for one hour a week for religious
observance and instruction); and Amos (exemption of
religious organizations from Title VII’s prohibition of
religious discrimination)); see also Cutter v. Wilkinson,
544 U.S. 709 (2005) (holding that the Religious Land
Use and Institutionalized Persons Act does not violate
Establishment Clause).
Importantly, “[t]he limits of permissible state
accommodation to religion are by no means coextensive
Lemon. Id. at 2092-93 (Kavanaugh, J., concurring). Included
among those were the Court’s “accommodations and exemptions”
cases. Id. at 2092 (citations omitted).
13
with the non-interference mandated by the Free
Exercise Clause.” Walz v. Tax Comm’n of New York
City, 397 U.S. 664, 673 (1970). In other words, a
governmental accommodation of religious practice is
not limited only to what the Free Exercise Clause
requires; to the contrary, the government may afford
additional religious protection by offering such
accommodations. See Hobbie v. Unemployment Appeals
Comm’n of Fla., 480 U.S. 136, 144-45 (1987) (“. . . the
government may (and sometimes must) accommodate
religious practices and . . . may do so without violating
the Establishment Clause”); Texas Monthly, Inc. v.
Bullock, 489 U.S. 1, 18 n.8 (1989) (not “all benefits
conferred exclusively upon religious groups or upon
individuals on account of their religious beliefs are
forbidden by the Establishment Clause unless they are
mandated by the Free Exercise Clause”); cf.
Employment Div. v. Smith, 494 U.S. 872, 890 (1990)
(“[T]o say that a nondiscriminatory religious-practice
exemption is permitted, or even that it is desirable, is
not to say that it is constitutionally required.”).9
9
In fact, there are numerous instances of Congress providing
greater protection for religious practice than the Free Exercise
Clause does. For example, after the Court in United States v. Lee,
455 U.S. 252 (1982), denied a free exercise claim by an adherent of
the Amish faith over the payment of social security taxes, Congress
adopted 26 U.S.C. § 3127, granting the Amish (and others) such an
exemption. Also, following this Court’s rejection of a free exercise
claim of an Air Force serviceman to wear a yarmulke while in
uniform, Goldman v. Weinberger, 475 U.S. 503 (1986), Congress
enacted 10 U.S.C. § 774, allowing members of the armed services
to wear “religious apparel.”
14
This Court has thus recognized that there is “play
in the joints” in the First Amendment’s religion
clauses: a “space for legislative action that is neither
compelled by the Free Exercise Clause nor prohibited
by the Establishment Clause.” Cutter, 544 U.S. at 719,
720 (citing Smith, 494 U.S. at 890 (“[A] society that
believes in the negative protection accorded to religious
belief can be expected to be solicitous of that value in
its legislation.”)).
Congress has regularly operated within that zone to
provide numerous religious and moral exemptions in
the context of health care. For example, the “Church
Amendment” provides that individuals or entities
receiving federal health grants, contracts, loans, or
loan guarantees are not required to participate in
abortion or sterilization procedures contrary to their
religious or moral beliefs. 42 U.S.C. § 300a-7. The
federal government, or governments receiving federal
funds, may not discriminate against health care
entities that refuse to perform, train, or refer for
abortions. 42 U.S.C. § 238n.10 Medicaid managed care
10
Congress is not alone in protecting the religious exercise of those
who object to participating in abortions. States are virtually
unanimous in affording various levels of statutory protection to
those who are so opposed. Arizona, for example, provides that a
physician or staff member who states in writing an objection to
abortion “on moral or religious grounds is not required to facilitate
or participate in the medical or surgical procedures that will result
in the abortion.” Ariz. Rev. Stat. § 36-2154(B). Georgia law protects
“any person” who states in writing an objection to participating in
“any abortion or all abortions on moral or religious grounds.” Ga.
Code Ann. § 16-12-142(a). Idaho provides that medical
professionals should not be required to “participate in the
performance or provision of any abortion” if they object on the
15
organizations are not required to provide coverage or
reimbursements for counseling or referrals contrary to
their moral or religious objections. 42 U.S.C. § 1396u2(b)(3)(B).
Obviously, religious exemptions in federal law are
not limited to the provision of health care services.
Title VII of the Civil Rights Act of 1964 specifically
exempts religious employers from antidiscrimination
laws that apply to secular employers. 42 U.S.C.
§ 2000e-1. Under the Federal Death Penalty Act, “[n]o
employee . . . shall be required . . . to be in attendance
at or to participate in any prosecution or execution
under this section if such participation is contrary to
the moral or religious convictions of the employee.” 18
U.S.C. § 3597(b). Federal law provides an exemption
from unemployment insurance obligations for
employers that are “operated primarily for religious
purposes.” 26 U.S.C. § 3309(b). ERISA exempts “church
plan[s]” from its otherwise-comprehensive regulation of
employee benefit plans. 29 U.S.C. § 1003(b)(2). Indeed,
“[r]eligious exemptions to ordinary laws and policies
are so common we often do not notice them at all.”
Oxford Handbook of Church and State in the United
States, at 167 (D. Davis, ed. 2010).11
basis of “personal, moral or religious reasons.” Idaho Code § 18612. Montana protects individual medical personnel from having
to “advise concerning, perform, assist, or participate in abortion
because of religious beliefs or moral convictions.” Mont. Code Ann.
§ 50-20-111(2).
11
See also L. Fisher, Religious Liberty in America: Political
Safeguards, 231 (2002) (“The United States Code is filled with
religious exemptions. On hundreds of occasions, Congress has
decided to protect religious interests by exempting them from
16
The most sweeping federal law that provides for
religious exemptions is RFRA. That law—described as
“the most important congressional action with respect
to religion since the First Congress proposed the First
Amendment,” Douglas Laycock & Oliver S. Thomas,
Interpreting the Religious Freedom Restoration Act, 73
Tex. L. Rev. 209, 243 (1994)—authorizes religious
exemptions from complying with any federal law that
is not specifically excluded from RFRA’s reach. 42
U.S.C. § 2000bb–3(a) (the statute “applies to all
Federal law, and the implementation of that law,
whether statutory or otherwise, and whether adopted
before or after November 16, 1993”). The sweeping
breadth of RFRA is why it has been described as a
“super-statute.” Michael Paulsen, A RFRA Runs
Through It: Religious Freedom and the U.S. Code, 56
Mont. L. Rev. 249, 253 (1995). While RFRA is not
necessitated by the Free Exercise Clause as this Court
has interpreted it—in fact, it was adopted in the wake
of a Supreme Court decision limiting the Clause’s reach
and scope, see Hobby Lobby, 573 U.S. at 693-96
(discussing RFRA’s history)—the law furthers, and
expands upon, the same underlying interests, i.e., the
preservation and protection of religious exercise. This,
as explained previously, is well within the
government’s authority and purview. “By enacting
RFRA, Congress went far beyond what this Court has
held is constitutionally required.” Id. at 706.
general laws on taxation, social security, military service, peyote
use, labor laws, discrimination in housing and employment, census
questions, rehabilitative services, medical examinations, and
public health measures.”).
17
In sum, there is more than ample room within the
religion clauses for the government to accommodate the
religious exercise of persons and entities, even where
the Free Exercise Clause does not require that it do so.
The government does not establish a religion, or take
a step toward doing so, by simply declining to burden
the freedom of conscience of individuals and entities.
III.
The religious exemption here falls within
the constitutionally permissible “play in
the joints” that allows for protecting
religious freedom without establishing
religion.
A. The religious exemption is religiously
neutral and consistent with the
historical practices and understandings
of the religion clauses.
The religious exemption, promulgated by the
government in light of RFRA’s purposes and
protections, fits within a permissible regulatory play in
the joints. It is fully “compatible with the
Establishment Clause because it alleviates exceptional
government-created burdens on private religious
exercise.” Cutter, 544 U.S. at 720. Regardless of
whether it is required by the Free Exercise Clause, the
religious exemption is a justifiable and permissible
regulatory measure under the Establishment Clause.
The hallmark principle of the Establishment Clause
is neutrality among religions and denominations, see,
e.g., Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947), and
it is beyond dispute that the exemptions that the
18
challenged regulations provide are religiously neutral.12
The religious exemption does not give preference to one
religion over another, as any covered person of any
faith or religious belief may claim the exemption. Nor
does the rulemaking favor religion over non-religion, as
any person with a non-religious objection to the drugs
required by the mandate may claim a moral
exemption.13 No matter what judicial rubric one uses,
the religious exemption does not breach the
Establishment Clause. “There is ample room under the
Establishment Clause for ‘benevolent neutrality which
will permit religious exercise to exist without
sponsorship and without interference.’” Amos, 483 U.S.
at 334 (quoting Walz, 397 U.S. at 673).
This Court’s recent approach in considering
historical practice in adjudging Establishment Clause
claims further supports the constitutionality of the
religious exemption. See Am. Legion v. Am. Humanist
Ass’n, 139 S. Ct. 2067, 2087 (2019) (noting that this
Court’s recent Establishment Clause cases use an
analysis “that focuses on the particular issue at hand
and looks to history for guidance”).
12
See also Trump v. Hawaii, 138 S. Ct. 2392, 2417 (2018) (“Our
cases recognize that ‘[t]he clearest command of the Establishment
Clause is that one religious denomination cannot be officially
preferred over another.’”) (quoting Larson v. Valente, 456 U.S. 228,
244 (1982)).
13
Nonetheless, where the “government acts with the proper
purpose of lifting a regulation that burdens the exercise of
religion,” there is “no reason to require that the exemption come
packaged with benefits to secular entities.” Amos, 483 U.S. at 338.
19
In Town of Greece v. Galloway, 134 S. Ct. 1811
(2014), this Court held that “the Establishment Clause
must be interpreted ‘by reference to historical practices
and understandings.’” Id. at 1819 (quoting Allegheny,
492 U.S. at 670 (Kennedy, J.)). It observed that the line
“between the permissible and the impermissible” under
the Establishment Clause has nothing to do with the
reasonable observer and his perceptions of
endorsement, but rather is “one which accords with
history and faithfully reflects the understanding of the
Founding Fathers.” Id. (quoting Sch. Dist. of Abington
Twp. v. Schempp, 374 U.S. 203, 294, (1963) (Brennan,
J., concurring)). While the respondents in both
American Legion and Town of Greece were burdened
with the feelings of offense at witnessing a large cross
displayed on public property and governmentsanctioned prayer, respectively, those burdens did not
overcome the indisputable weight of history that
supported the challenged governmental practices.
According to the history and tradition of
government-created religious exemptions, discussed
previously at Section I, there can be no doubt that
when the government lifts a government-imposed
burden on religious exercise, as the religious exemption
does with the mandate, it is an action that comports
fully with the Establishment Clause. The practice of
accommodating religious exercise has been a tradition
of this country even before the adoption of the First
Amendment’s religion clauses.
20
B. Any alleged imposition on third parties
does not render the religious exemption
unconstitutional.
Any argument that because the religious exemption
allegedly burdens third parties, it must therefore
violate the Establishment Clause, is unpersuasive.
First, the notion that a religious exemption that
burdens any non-beneficiary must necessarily violate
the Establishment Clause was rejected by this Court in
Hobby Lobby, a decision providing, in part, the impetus
for the rulemaking challenged here. In that case, the
government suggested that “a plaintiff cannot prevail
on a RFRA claim that seeks an exemption from a legal
obligation requiring the plaintiff to confer benefits on
third parties.” 573 U.S. at 729 n.37. The Court
responded that while burdens on non-beneficiaries can
be taken into account in evaluating governmental
interests and the means to further those interests, it
“could not reasonably be maintained that any burden
on religious exercise, no matter how onerous and no
matter how readily the government interest could be
achieved through alternative means, is permissible
under RFRA so long as the relevant legal obligation
requires the religious adherent to confer a benefit on
third parties.” Id. Indeed, “[b]y framing any
Government regulation as benefiting a third party, the
Government could turn all regulations into
entitlements to which nobody could object on religious
grounds, rendering RFRA meaningless.” Id.
Second, any impact on third parties will not be a
government-imposed impact, but rather the result of
the discretionary choices of private actors made
21
pursuant to their religious or moral beliefs. That
distinction is crucial. See Amos, 483 U.S. at 337 n.15
(“it was the Church . . . and not the Government,” that
“impinged” upon the employee’s choice). Indeed, the
Free Exercise Clause, RFRA, RLUIPA, and the church
autonomy doctrine, like the religious exemption here, all
protect religious practice from governmental burdens.
These situations are therefore quite unlike the case of
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985),
in which the burden on religious exercise (facing work
obligations on the Sabbath) was the doing of private
employers, not the government. Id. at 710. Here, the
religious exemption lifts a regulatory burden imposed
by the government itself.14
Third, even to the extent the effects an exemption
will have on third parties is minimally relevant, the
standard for what burdens upon third parties are “too
much” is high. For example, the third party suffering
religious discrimination in Amos did not negate the
religious exemption of the employer. Being required to
serve in place of a conscientious objector in the military
in wartime, at risk of life and limb, as in Gillette, did
14
The court below stated that Petitioners “downplayed this burden
on women, contradicting Congress’s mandate that women be
provided contraceptive coverage.” Trump Pet. App. 41a. But
Congress did not mandate contraceptive coverage in the Affordable
Care Act. It was the Health Resources and Service Administration,
a division of the Department of Health and Human Services, which
promulgated the “Women’s Preventive Services Guidelines”—
guidelines which require “nonexempt employers . . . to provide
‘coverage, without cost sharing’ for ‘[a]ll Food and Drug
Administration approved contraceptive methods, sterilization
procedures, and patient education and counseling.’” Hobby Lobby,
573 U.S. at 697.
22
not negate the religious exemption. See Grumet, 512
U.S. at 724-25 (Kennedy, J., concurring in judgment)
(citing Amos and Gillette as upholding laws under the
Establishment Clause despite these “substantial”
burdens on third parties). Declining to provide cost-free
contraceptive services through an employer’s health
insurance plan falls well below the third-party burdens
at issue—and tolerated—in those, and other, cases.
Fourth, any alleged burdens placed on employees of
employers who claim an exemption under the Rules
must be considered in their proper context, namely,
that inconveniences and burdens to employees are part
and parcel of the employment context. A dress code
denies the freedom to dress as one chooses. E.g., Mt.
Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
282 (1977) (employee criticizing workplace dress code).
Finite salaries deny employees money beyond their
agreed upon pay. E.g., Comm’r of Internal Revenue v.
Kowalski, 434 U.S. 77, 81 (1977) (amount of salary
subject to labor negotiation). Fixed work shifts deny
employees the freedom to work the hours they choose.
E.g., Bhd. of Locomotive Engineers v. Atchison, Topeka
& Santa Fe R.R., 516 U.S. 152, 158 (1996) (noting
fatigue likely to result from 12-hour shifts). The
physical layout of an office will deny employees the
space, window views, or furniture arrangements they
might prefer. E.g., Kilby v. CVS Pharm., Inc., 739 F.3d
1192, 1194 (9th Cir. 2013) (noting role of “business
judgment” in determining the “physical layout of the
workplace”). That employees do not always get what
23
they deem to be optimum benefits and conditions is not
remarkable, but rather a fact of life.15
Fifth, the mischaracterization (see Amos, 483 U.S.
at 337 n.15) of religious exemptions as imposing
burdens upon third parties is a charge that knows no
limits. The employee who refuses a Sabbath shift
“imposes” upon his employer or, perhaps, co-workers
who need to fill in. But see Sherbert v. Verner, 374 U.S.
398 (1963). The parents who remove their Amish child
from formal high school education deny that child the
instruction that would otherwise be given. But see
Wisconsin v. Yoder, 406 U.S. 205 (1972). The owners of
a kosher deli who refuse to sell pork deny their patrons
the option of a ham sandwich. But see Jonathan D.
Sarna, “Constitutional Dilemma on Birth Control,”
Forward.com (Mar. 16, 2012) (“We all might agree that
kosher delis should not be coerced into selling ham.”).
And the physician who refuses to perform a “female
circumcision,” see Female Genital Mutilation, WHO
media centre fact sheet (Feb. 2014), or an unnecessary
amputation, see David Brang et al., “Apotemnophilia:
a neurological disorder,” 19 NeuroReport 1305 (2008)
(disorder characterized by intense desire for
amputation of healthy limb), “imposes” upon the wouldbe recipients of those procedures (or their parents).
Nevertheless, both law and common sense recognize
that compelling someone to personally take action that
violates his or her religious beliefs and conscience is a
much more egregious thing than the mere
15
It should be noted, however, that the government has alleviated
any purported burden by broadening Title X to cover any women
whose employers cannot provide the contraceptive coverage at
issue in this case. 84 Fed. Reg. 7714, 7734 (Mar. 4, 2019).
24
inconvenience that a third party may experience by the
government declining to compel such conscienceviolating action.
Finally, it is important that the religious exemption
does not coerce any person into participating in the
religious practices of her employer. Nothing in the
rulemaking compels employees to agree with the
religious choice made by an employer who objects to the
mandate. Nothing in the challenged regulations
authorizes an employer to forbid their employees from
using their salaries to obtain contraceptive services.
Just as the employers are free to follow their conscience
with respect to choosing and paying for a health
insurance plan, employees remain free to make their
own private choices with respect to birth control using
their own money and resources.
In sum, any attenuated, minor burden imposed on
third parties on account of choices made by private
actors pursuant to the religious exemption does not
render it unconstitutional under the Establishment
Clause. If purported harm to third parties is to be the
measure of whether one can exercise a liberty granted
by the Constitution, laws, or regulations, then those
liberties are not truly liberties, but mere fleeting perks
that can be easily rescinded by somebody else crying
foul.
25
IV.
The States Lack Article III Standing to
Challenge the Exemptions.
In any event, this Court should reverse the
judgment below and remand with instructions to
dismiss the case for lack of standing.
Petitioners Little Sisters of the Poor have already
thoroughly debunked the states’ asserted claim of
standing in this case in their briefing before the Third
Circuit. See Br. of Defendant-Intervenor-Appellant,
Little Sisters of the Poor, Saints Peter and Paul Home,
Nos. 17-3752, 18-1253, 19-1129, 19-1189 (3d Cir. Feb.
15, 2019) (Argument § I), available at
https://tinyurl.com/rxt5ph7. That argument need not be
repeated here.
Moreover, whether the Little Sisters or the federal
government press the argument before this Court is
beside the point. “As a jurisdictional requirement,
standing to litigate cannot be waived or forfeited.” Va.
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,
1951 (2019); accord Lewis v. Casey, 518 U.S. 343, 349
n.1 (1996) (“[S]tanding . . . is jurisdictional and not
subject to waiver.”). Hence, as this Court has often
noted, “we bear an independent obligation to assure
ourselves that jurisdiction is proper before proceeding
to the merits.” Plains Commerce Bank v. Long Family
Land & Cattle Co., 554 U.S. 316, 324 (2008). Indeed,
“every federal appellate court has a special obligation
to satisfy itself not only of its own jurisdiction, but also
that of the lower courts in a cause under review, even
though the parties are prepared to concede it.” Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986).
26
Addressing—and rejecting—the states’ claim of
standing here is especially important, as the theory
adopted by the Third Circuit would give states
standing to challenge any federal government action
arguably limiting not just access to birth control, but
access to abortion—or for that matter any federal
action that arguably would lead to an increase in the
number of people who are born or who continue living
rather than dying. Amicus therefore turns to the heart
of the standing argument as embraced by the court
below.
This is decidedly not a case like Massachusetts v.
EPA, 549 U.S. 497 (2007), where the injury the state
alleged was the swallowing up of its own sovereign
property under rising sea levels. See, e.g., id. at 521-23
& n.19. This Court divided sharply over whether the
harm alleged was actual or imminent and not
conjectural, and whether the elements of causation and
redressability were satisfied. See id. at 541-46 (Roberts,
C.J., dissenting). But no Justice questioned the notion
that the destruction of state-owned land was a
cognizable Article III injury to a state.
In the present case, by contrast, the states claim no
destruction of their sovereign territory. Rather, the
states assert a consequential budgetary impact from
the challenged federal regulation. The reasoning, as
explained by the Third Circuit, Pet. App. 21a-27a (No.
19-431), is as follows:
1. The federal action allows employers to decline
to provide certain insurance coverage for
contraception.
27
2. Some employers will take advantage of this
opportunity and drop certain insurance coverage
for at least some contraception.
3. Some employees who would otherwise use the
employer insurance coverage will instead turn to
state-funded benefits or will forego using the
contraception in question.
4. Those women who turn to state funded
programs will raise state expenses.
5. Some of those women who forego using
contraception will more likely get pregnant, and
some of those women in turn will seek statefunded services in connection with their
pregnancies and associated costs.
6. States will therefore incur greater expenses.
Particularly notable is the following passage
relating to women who forego birth control: “The costs
of such unintended pregnancies are often shouldered by
states, costing hundreds of millions of dollars.” Pet.
App. 25a (No. 19-431). The implications of this line of
(speculative) reasoning are staggering.
First, anything the federal government does to
protect the conscience rights of individuals or entities
who object to abortion, sterilization, abortifacients, or
any form of contraception will be subject to challenge
by hostile state attorneys general. State AGs will
simply allege that failing to force objectors to violate
their consciences will lead either to women turning to
the state for alternative providers or to more women
getting pregnant and incurring expenses the state may
28
cover. This means that state attorneys general can
attack, in federal court, the Hyde Amendment’s bar on
federal tax funding of abortions, the federal conscience
protection statutes, and any regulations that protect
conscience in these contexts.
Second, anything the federal government does to
regulate or limit abortion will be subject to challenge by
hostile state attorneys general. Those attorneys general
will simply allege that the restrictions will lead to more
women getting pregnant and incurring expenses the
state may cover. This means states can attack, in
federal court, the federal partial birth abortion ban, the
Title X regulations requiring separation of family
planning and abortion, and any other existing or future
federal regulation or prohibition of abortion.
But that is not all. The same rationale would apply
to any federal limit on assisted suicide or euthanasia,
as states could plead the greater expense of caring for
elderly or disabled people who are not dead yet. Indeed,
under the theory embraced by the Third Circuit, state
attorneys general can challenge any federal action that
arguably would increase the number of births or
decrease the number of deaths, as states can claim an
anticipated increased expense in providing services to
the additional people. The same rationale would confer
standing on states to challenge a vast array of federal
government actions on the theory that such actions
affect state expenditures. But as the Department of
Justice explained in a prior case before this Court:
It is to be expected that actions of the federal
government affecting individuals within a State
may in turn generate incidental effects on that
29
State with respect to its own governmental
actions affecting those same individuals. But the
necessary autonomy inherent in the
Constitution’s framework of separate sovereigns,
each acting directly upon individuals, is
inconsistent with the notion that a State has a
legally-protected interest in avoiding the
incidental effects that are derivative of the
federal government’s actions affecting residents
of the State. Those every-day emanations of
federal government action therefore cannot be
the basis for a State to invoke the jurisdiction of
an Article III court to challenge such action . . .
Br. for the Petitioners at 23, United States v. Texas, No.
15-674 (U.S. Mar. 1, 2016) (“DOJ Deferred Action
Br.”).16 Disallowing standing in such cases is especially
apt given the that alleged injury—increased state
expenditures—is subject to the states’ own control over
what to subsidize, and how much, and thus in a sense
is a “self-inflicted” injury. As the DOJ explained:
[T]here can be no “real need” for a State to
invoke the judicial power to challenge federal
policies on the basis of their incidental effects on
the State when the plaintiff State itself created
the causal link that produces the unwanted
effects. Any such injury is properly treated as
self-inflicted, and not a legally cognizable injury
or one that is fairly traceable to the challenged
federal policy. See Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1152-1153 (2013); Petro-Chem
16
This Court equally divided in that case and so did not issue a
decision on the merits.
30
Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C.
Cir.) (Ginsburg, J.), cert. denied, 490 U.S. 1106
(1989). This Court has rejected a State’s effort to
claim standing on such a self-generated basis.
In Pennsylvania v. New Jersey, 426 U.S. 660
(1976) (per curiam), this Court held that a State
that chooses to extend a tax credit on the basis
of another sovereign’s actions does not thereby
gain standing to challenge the other sovereign’s
policies by claiming that they have the
incidental consequence of costing the
complaining State money. Specifically, this
Court concluded that Pennsylvania lacked
standing to challenge a New Jersey tax that
triggered a tax credit under Pennsylvania law
and thereby reduced Pennsylvania’s tax
revenue. Id. at 662-664. The Court explained
that “[n]o State can be heard to complain about
damage inflicted by its own hand,” and noted
that “nothing prevents Pennsylvania from
withdrawing [the] credit.” Id. at 664.
DOJ Deferred Action Br. at 24-25. Here, the “causal
link” is far more attenuated, as any increase in state
expenditures depends on a host of intermediate
contingencies. But the point remains that a state itself
chooses whether to make the outlays that allegedly will
increase as an indirect consequence of the challenged
federal action. As the DOJ explained further:
Respondents cannot establish a cognizable
Article III injury based on their more
generalized allegations that the Guidance will
have the incidental effect of increasing Texas’s
31
costs . . . for education, health care, and social
services. This Court has never found such claims
to be cognizable under Article III, and doing so
here would utterly transform the judicial power.
Federal courts would displace the political
process as the preferred forum for policy
disputes between individual States and the
federal government because a potentially
limitless class of federal actions could be said to
have incidental effects on a State’s fisc. See U.S.
Br. 30-33; pp. 9-11, infra. For example, the
decision to regulate—or even not regulate—a
particular drug or medical device might impose
increased health care costs on a State.
Reply Br. for the Petitioners at 6-7, United States v.
Texas, No. 15-674 (U.S. Mar. 1, 2016). Treating a
state’s increased incidental expenses as a basis for
challenging federal action would immensely expand
state standing.
The states’ “increased population as Article III
injury” argument is further refuted by the fact that
states receive many benefits from having increased
populations, such as a greater tax, consumer,
employee, and employer base. In fact, many of these
same states recently established Article III standing
before this Court by relying on the benefits that
population brings, such as greater federal funding and
higher representation in Congress. Dep’t of Commerce
v. New York, 139 S. Ct. 2551, 2565-66 (2019). How can
population gain and population loss both give rise to
Article III standing? Even in the highly unlikely event
that a cause-and-effect relationship can be established
32
between the enactment of the religious exemptions
here and an increase in a state’s population, the
benefits that a would-be a plaintiff state receives by
having more citizens outweighs any negatives such
that no Article III injury would exist.
Rejecting such an unprecedented expansion of state
attorney general standing would not, of course,
preclude any private party from challenging federal
action that causes that party to suffer Article III
injury. But repudiating the claim of state standing here
would represent an important doorstop on what
otherwise would be an enormous and unprecedented
expansion of state attorney general standing.
This Court should reverse the judgment of the Third
Circuit as to state standing and remand with
instructions to dismiss for lack of jurisdiction.
33
CONCLUSION
This Court should reverse the judgment below.
Respectfully submitted,
JAY ALAN SEKULOW
Counsel of Record
STUART J. ROTH
JORDAN SEKULOW
WALTER M. WEBER
AMERICAN CENTER FOR LAW & JUSTICE
201 Maryland Ave., N.E.
Washington, D.C. 20002
(202) 546-8890
sekulow@aclj.org
FRANCIS J. MANION
GEOFFREY R. SURTEES
AMERICAN CENTER FOR LAW & JUSTICE
P.O. Box 60
New Hope, Kentucky 40052
(502) 549-7020
EDWARD L. WHITE III
ERIK M. ZIMMERMAN
AMERICAN CENTER FOR LAW & JUSTICE
3001 Plymouth Road
Suite 203
Ann Arbor, Michigan 48105
(734) 680-8007
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.