Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.

Nos. 19-431 & 19-454

In the Supreme Court of the United States

__________

THE LITTLE SISTERS OF THE POOR

SAINTS PETER AND PAUL HOME, PETITIONER,

v.

THE COMMONWEALTH OF PENNSYLVANIA, ET AL.

__________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET. AL., PETITIONER

v.

THE COMMONWEALTH OF PENNSYLVANIA, ET AL.

__________

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

__________

BRIEF OF THE INTERNATIONAL SOCIETY

FOR KRISHNA CONSCIOUSNESS, INC.,

THE COALITION FOR JEWISH VALUES,

ASMA T. UDDIN, PASTOR ROBERT SOTO,

AND IMAM OSSAMA BAHLOUL

AS AMICI CURIAE SUPPORTING PETITIONER

__________

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

JOSHUA J. PRINCE*

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

QUESTIONS PRESENTED

This brief addresses only the second question

presented in No. 19-431:

2. Whether the federal government lawfully

exempted religious objectors from the

regulatory requirement to provide health plans

that include contraceptive coverage?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION AND INTERESTS OF AMICI ...... 1

STATEMENT .............................................................. 4

SUMMARY OF ARGUMENT ..................................... 5

ARGUMENT ................................................................ 7

I. RFRA, By Design, Provides Needed Protections

to Religious Minorities. ....................................... 7

II. Experience Provides Countless Real-World

Examples of How RFRA—Properly Applied—

can Benefit Religious Minorities. ..................... 16

A. Strict scrutiny—whether mandated by RFRA

or its state counterparts—benefits religious

minorities. ...................................................... 16

B. To adequately protect the religious beliefs of

religious minorities, courts and the executive

agencies must both provide RFRA’s required

exemptions. .................................................... 20

CONCLUSION .......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.,

611 F.3d 248 (5th Cir. 2010) ............................ 18, 19

Abdulhaseeb v. Calbone,

600 F.3d 1301 (10th Cir. 2010) .............................. 19

Baranowski v. Hart,

486 F.3d 112 (5th Cir. 2007) .................................. 19

Benning v. Georgia,

864 F. Supp. 2d 1358 (M.D. Ga. 2012) .................. 19

Braunfeld v. Brown,

366 U.S. 599 (1961) .......................................... 17, 18

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................. 8

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 18

Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ....................................... 10, 11

Emp’t Div., Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) ............................................ 9, 15

Ghailani v. Sessions,

859 F.3d 1295 (10th Cir. 2017) .............................. 20

Goldman v. Weinberger,

475 U.S. 503 (1986) ................................................ 19

Gonzales v. O Centro Espirita Beneficente Uniao Do

Vegetal,

546 U.S. 418 (2006) ................................................ 22

iv

Haight v. Thompson,

763 F.3d 554 (6th Cir. 2014) ............................ 11

Heffron v. Int’l Soc’y for Krishna Consciousness,

Inc.,

452 U.S. 640 (1981) ............................................. 12

Holt v. Hobbs,

135 S. Ct. 853 (2015) .............................................. 19

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992) ............................................ 12

LaPlant v. Mass. Dep’t of Corr.,

89 F. Supp. 3d 235 (D. Mass. 2015) ...................... 24

Lee v. Int’l Soc’y for Krishna Consciousness, Inc.,

505 U.S. 830 (1992) ........................................ 2, 12

Little Sisters of the Poor Home for the Aged,

Denver, Colo. v. Burwell,

799 F.3d 1315 (10th Cir. 2015) ..................... 1, 11

McAllen Grace Brethren Church v. Salazar,

764 F.3d 465 (5th Cir. 2014) .............................. 3, 21

McGowan v. Maryland,

366 U.S. 420 (1961) ................................................ 17

Minersville Sch. Dist. v. Gobitis,

310 U.S. 586 (1940) ................................................ 15

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ................................................ 19

Sherbert v. Verner,

374 U.S. 398 (1963) ............................................ 6, 17

Singh v. Carter,

168 F. Supp. 3d 216 (D.D.C. 2016) ........................ 23

v

Singh v. McConville,

187 F. Supp. 3d 152 (D.D.C. 2016) ........................ 23

Singh v. McHugh,

185 F. Supp. 3d 201 (D.D.C. 2016) ........................ 23

Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) ............................... 10

Stately v. Indian Cmty. Sch. of Milwaukee, Inc.,

351 F. Supp. 2d 858 (E.D. Wis. 2004) ................... 14

Tagore v. United States,

735 F.3d 324 (5th Cir. 2013) .................................. 20

United States v. Ballard,

322 U.S. 78 (1944) .................................................. 10

United States v. Hoffman,

2020 WL 531943 (D. Ariz. 2020) ..................... 22, 23

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) .................................. 19

Statutes

16 U.S.C. 668 ............................................................. 21

16 U.S.C. 668a ........................................................... 21

42 U.S.C. 2000bb ......................................... 5, 9, 16, 17

42 U.S.C. 2000bb-1 ...................................... 5, 7, 11, 25

42 U.S.C. 2000bb-2 ................................................. 11

42 U.S.C. 2000bb-3 .................................................... 26

42 U.S.C. 2000cc ........................................................ 19

42 U.S.C. 2000cc-1 ..................................................... 19

42 U.S.C. 2000cc-5 .................................................. 11

vi

Regulations

45 C.F.R. 147.132 ........................................................ 4

83 Fed. Reg. 57,536 (Nov. 15, 2018)............................ 4

Other Authorities

Asma T. Uddin, The Latest Attack on Islam: It’s Not a

Religion, N.Y. Times (Sept. 26, 2018),

https://www.nytimes.com/2018/09/26/opinion/islam

ophobia-muslim-religion-politics.html .................. 14

Asma T. Uddin, When Islam Is Not A Religion: Inside

America’s Fight For Religious Freedom (2019) ....... 3

Brief of Church of the Lukumi Babalu Aye, Inc. et al.

as Amici Curiae Supporting Petitioners, Zubik v.

Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418)...... 12

Christopher C. Lund, RFRA, State RFRAs, and

Religious Minorities,

53 San Diego L. Rev. 163 (2016)...................... 14, 20

Douglas Laycock & Oliver S. Thomas, Interpreting

the Religious Freedom Restoration Act,

73 Tex. L. Rev. 209 (1994) ................................... 2, 7

Jeffrey S. Sutton, 51 Imperfect Solutions: States and

the Making of American

Constitutional Law (2018) ..................................... 15

Kristen Bialik, For the fifth time in a row, the new

Congress is the most racially and ethnically diverse

ever, Pew Research Center (Feb. 8, 2019),

https://www.pewresearch.org/

fact-tank/2019/02/08/for-the-fifth-time-in-a-rowthe-new-congress-is-the-most-racially-andethnically-diverse-ever/ ......................................... 13

vii

Michael Heise & Gregory C. Sisk, Free Exercise of

Religion Before the Bench: Empirical Evidence

from the Federal Courts,

88 Notre Dame L. Rev. 1371 (2013) ...................... 14

Michael S. Paulsen, A RFRA Runs Through It:

Religious Freedom and the U.S. Code,

56 Mont. L. Rev. 249 (1995) ..................................... 7

Pew Research Center, How Income Varies Among

U.S. Religious Groups,

https://www.pewresearch.org/facttank/2016/10/11/how-income-varies-among-u-sreligious-groups/..................................................... 13

Pew Research Center, Many Americans See Religious

Discrimination in U.S.—Especially Against

Muslims,

https://www.pewresearch.org/facttank/2019/05/17/many-americans-see-religiousdiscrimination-in-u-sespecially-against-muslims/ .................................. 12

Robert P. Jones et al., What It Means to Be American:

Attitudes in an Increasingly Diverse America Ten

Years After 9/11 (2011),

https://www.brookings.edu/wpcontent/uploads/2016/06/0906_american_attitudes.

pdf ........................................................................... 13

Tanner Bean, “To the Person”: RFRA’s Blueprint for a

Sustainable Exemption Regime,

2019 BYU L. Rev. 1 ............................................ 7, 20

INTRODUCTION AND INTERESTS OF AMICI1

The Third Circuit effectively held that

government agencies are forbidden from policing

their own potential violations of the Religious

Freedom Restoration Act (RFRA) absent specific

prior congressional authorization. This novel theory

endangers the continued vitality of religious

minorities nationwide. Such minorities face unique

challenges to the right to practice their religions—

challenges that range from overt hostility to others

considering their beliefs “strange, or even silly.”

Little Sisters of the Poor Home for the Aged,

Denver, Colo. v. Burwell, 799 F.3d 1315, 1318

(10th Cir. 2015) (Hartz, J., dissenting from the

denial of rehearing en banc). More often,

however, these challenges are indirect and more

analogous to the systemic challenges that hinder

other minority groups who lack both the

resources and the political power to respond to

violations of their rights through the courts or

political channels.

Through RFRA, Congress responded to the

reality that religious minorities can “lose the right

to practice their faith for many reasons short of

1 All parties have filed blanket consents for the filing of

amicus briefs. No party or party’s counsel authored this brief in

whole or in part or contributed money that was intended to fund

its preparation or submission. No person other than the amicus

curiae, its members, or its counsel, contributed money that was

intended to fund the preparation or submission of this brief.

2

open persecution” and bigotry.2 Before the decision

below, RFRA empowered the federal executive

branch and the federal courts to actively protect

religious minorities from these challenges unless

any burden that government action would impose

on religious practice could satisfy strict scrutiny.

The Third Circuit eliminated the executive path by

cabining RFRA as a judicial remedy exclusively.

Pet. App. 43a. If allowed to stand, all future

attempts to have religious conduct be exempted

from applicable laws, short of costly litigation, will

be futile. And religious minorities will have to wait

until they actually suffer a substantial burden—or

at least until such a burden is likely enough to

create a ripe claim—before they can bring a claim.

Amici include the International Society for

Krishna Consciousness, Inc. (ISKCON)3 and the

Coalition for Jewish Values,4 two minority religious

Douglas Laycock & Oliver S. Thomas, Interpreting the

Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 216

(1994).

2

Amicus the International Society for Krishna

Consciousness, Inc. (ISKCON) is a monotheistic, or Vaishnava,

tradition within the broad umbrella of Hindu culture and faith.

There are approximately 500 ISKCON temples worldwide,

including 50 in the United States. ISKCON has suffered

discrimination in the United States and has sought judicial relief

based on the First Amendment. ISKCON has successfully

pressed before this Court its constitutional rights to engage in

religious practice. See, e.g., Lee v. Int’l Soc. for Krishna

Consciousness, Inc., 505 U.S. 830 (1992) (per curiam).

3

4 Amicus the Coalition for Jewish Values represents over

1000 traditional, Orthodox rabbis in matters of American public

policy and advocates for classical Jewish ideas and standards. Its

policymakers are six traditional Orthodox rabbis who have

3

organizations. Amici also include Asma T. Uddin, 5

Pastor Robert Soto,6 and Imam Ossama Bahloul, 7

a group of believers in minority faiths that will be

served the Jewish and greater American communities for

decades as leaders, scholars, and opinion makers.

5 Amicus Asma T. Uddin is a religious liberty lawyer and

scholar working for the protection of religious expression for

people of all faiths in the United States and abroad. Ms. Uddin is

a leading advocate for Muslim religious freedom and has worked

on religious liberty cases at every level of the federal judiciary

from the Supreme Court to federal district courts. She has

defended claimants as diverse as Evangelicals, Sikhs, Muslims,

Native Americans, Jews, Catholics, and members of the Nation

of Islam. She is the author of the recent book, Asma T. Uddin,

When Islam Is Not A Religion: Inside America’s Fight For

Religious Freedom (2019).

Amicus Pastor Robert Soto is a Lipan Apache religious

leader and feather dancer. The Lipan Apache tribe has lived in

Texas and Northern Mexico for over 300 years. Pastor Soto and

his tribe have been subject to religious discrimination by the

federal government related to their use of eagle feathers in a

traditional Lipan Apache religious ceremony. See McAllen Grace

Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014).

6

7 Amicus Dr. Ossama Bahloul is the Resident Scholar of the

Islamic Center of Nashville (ICN) and a member of the Fiqh

Council of North America, a group of recognized and qualified

Islamic Scholars who accept the Qur’an and authentic Sunnah as

the primary sources of Islam. ICN, one of the oldest mosques in

Tennessee, runs the Nashville International Academy, a

religious school that provides its children with the academic,

emotional, social and spiritual growth they need—all in an

Islamic environment. Prior to joining ICN, Dr. Bahloul was the

imam at the Islamic Center of Murfreesboro, an Islamic

community that has been subjected to religious discrimination

and relied on judicial intervention to ensure its members would

be able to continue to worship.

4

especially burdened by the Third Circuit’s

untenable approach. They understand that

RFRA—properly interpreted as allowing both

government agencies and courts to protect

religious beliefs—is central to the ability of Amici

and other religious minorities to practice their

faiths. Accordingly, Amici urge the Court to reverse

the decision below and, in so doing, to correct the

Third Circuit’s misinterpretation of this critical

law.

STATEMENT

This is the latest in a long line of cases at the

intersection of religious beliefs and the Woman’s

Health Amendment to the Affordable Care Act. Pet.

App. 9a. This case involves a regulation of the

Department of Health and Human Services (HHS)

that exempts a broad group of religious objectors from

a requirement that employers provide contraception

to the women in their employ. 45 C.F.R. 147.132; Pet.

11-12. The preliminary version of the regulation was

quickly challenged by a group of states and enjoined

by the district court, as was the final rule that

reaffirmed the preliminary version. Pet. 16-17 (final

rule addressing the challenge to 83 Fed. Reg. 57,536,

57,540 (Nov. 15, 2018)).

The final rule was adopted after HHS concluded

that previous accommodations to the contraceptive

mandate failed to provide sufficient protections to

religious beliefs under RFRA. 83 Fed. Reg. 57,54557,548. In affirming the district court, the Third

Circuit employed, among other things, “the novel

theory that RFRA affords the government no leeway

5

to alleviate potential burdens on religious exercise,

but instead may be invoked only upon a showing of a

RFRA violation.” Pet. 18; see also Pet. App. 43a

(“RFRA authorizes * * * and provides a judicial

remedy via individualized adjudication.”).

SUMMARY OF ARGUMENT

Recognizing that neutral laws of general

applicability “may burden religious exercise as surely

as laws [directly] intended to interfere with religious

exercise,” Congress passed RFRA to protect the

“unalienable right” to free exercise of religion. 42

U.S.C. 2000bb(a)(1)-(2). RFRA thus forbids the

government from substantially burdening a person’s

free exercise of his or her religion unless it can satisfy

strict scrutiny. 42 U.S.C. 2000bb-1(a).

I. RFRA explicitly allows religious litigants to

assert it as either a “claim or defense” in court. Id. (c).

But nothing in the statute limits the government from

acting preemptively to avoid costly litigation by

exempting a religiously motivated action from

statutes and regulations that would otherwise burden

it. In this regard, RFRA acts both as a shield and a

sword.

Properly applied, RFRA provides significant

protections to religious minorities, who—lacking

resources and political power—are more acutely

affected by statutes and regulations than other

groups. The decision below, which held that

governments cannot limit RFRA violations by

affirmatively declining to burden a person’s religion in

the first instance, thus does great harm to the ability

of religious minorities to practice their religions.

6

II. Real-world examples of the government

burdening religious practice without a compelling

interest and in a way that fails to be the least

restrictive means are legion. Statutes and regulations

have substantially burdened more-common religious

beliefs—such as the Sabbath worship at issue in

Sherbert v. Verner, 374 U.S. 398, 406 (1963), and

elsewhere—and less-common beliefs, such as those

held by Orthodox Hasidic Jews, Rastafarians,

Wiccans, and Native Americans. And they have been

employed against religious groups for such things as

leaving food, water, and medical supplies in places

where people had died. In these cases, the

application—or lack thereof—of strict scrutiny to the

facts at issue made all the difference.

In each instance in which RFRA applied, if the

government had simply declined to substantially

burden a religious belief in the first instance by

creating an exemption, religious minorities, the

courts, and the government could have avoided costly

litigation. And for religious minorities, who often lack

the resources to bring claims on their own, the

government’s decision to exempt religious practices

from general rules under RFRA could well be the only

means of relief.

Yet the decision below strips that option from

federal agencies. If RFRA’s express prohibition on

governments substantially burdening religion means

that only courts can step in to remedy an injury that

RFRA prohibits, then for religious minorities, RFRA’s

protection will often be too little, too late.

7

ARGUMENT

I. RFRA, By Design, Provides Needed

Protections to Religious Minorities.

The decision below, which casts RFRA only as a

“judicial remedy,” is grievously wrong in a way that

would most acutely hinder the free exercise rights of

religious minorities. Pet. App. 43a. RFRA forbids the

government from “substantially burden[ing] a

person’s exercise of religion even if the burden results

from a rule of general applicability.” 42 U.S.C. 2000bb1(a). If a rule substantially burdens a person’s exercise

of religion, that person is entitled to an exemption

from the rule unless the government satisfies strict

scrutiny by “demonstrat[ing] that application of the

burden to the person8—(1) is in furtherance of a

compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling

governmental interest.” Id. 2000bb-1(b) (emphasis

added). RFRA, by design, “operates as a sweeping

‘super-statute,’ cutting across all other federal

statutes * * * and modifying their reach.”9 In

recognizing this design, this Court has held that

RFRA provides “very broad protection for religious

8 See Tanner Bean, “To the Person”: RFRA’s Blueprint for a

Sustainable Exemption Regime, 2019 BYU L. Rev. 1, 4

(addressing the significance of RFRA’s “to the person” provision

in “vindicating the religious liberties of minority groups”).

9 Michael S. Paulsen, A RFRA Runs Through It: Religious

Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995); see

also Douglas Laycock & Oliver S. Thomas, Interpreting the

Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 211

(1994) (explaining how RFRA was Congress’ way of supervising

the implementation of federal law against religious groups).

8

liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 693 (2014).

1. Rather than applying RFRA’s plain language as

authorizing—and

even

requiring—court

and

government cooperation in avoiding the substantial

burdening of religion, the decision below casts RFRA

solely as a “judicial remedy.” Pet App. 43a. This

holding eviscerates one path through which religious

minorities may seek protections. Whereas before,

religious minorities could rely on RFRA to seek to

prevent governments from encroaching on their rights

in the first instance,10 under the decision below,

federal agencies—at least when contraceptives and

the Affordable Care Act are involved—are forbidden

from taking the first step.

The logical conclusion of the decision below, then,

is to affirmatively require governments who lack

explicit authorization to provide exemptions to act in

ways that will substantially burden religious beliefs

pending a court order. This is true even if an agency

reasonably believes such actions would violate RFRA

if they were ever challenged in federal court.

But it is not difficult to see how expansive and

harmful this holding could be. If RFRA is, as the Third

Circuit held, merely a “cause of action for government

actions that impose a substantial burden on * * *

religious beliefs,” Pet. App. 43a, then people of faith

10 The lack of resources that limits the ability. of religious

minorities to seek congressional or judicial protections will

similarly limit their ability to seek agency accommodations. But

removing this path altogether will only further hinder their

ability to seek redress, and there is value in leaving multiple

paths available.

9

must first suffer the harm—or the harm must be likely

enough to satisfy this Court’s ripeness test—before

seeking to vindicate their rights in court.

Thus, were this Court to affirm the decision below,

it would gut RFRA’s core and force religious

minorities—both here and in other cases—to wait

until their religious practices are substantially

burdened to bring a case.

2. That position is untenable. The holding below

ignores that RFRA allows governments to intervene

by declining to substantially interfere with religious

beliefs without first waiting for a court order.

Indeed, Congress passed RFRA precisely to protect

those minority religions that, because of the discrete

and insular status of their adherents, cannot obtain

protections through the typical political channels.

Although Amici might differ on the need for the

particular exemption here, the value that stems from

agencies building RFRA-based exceptions into

regulations transcends the particular circumstances

at issue.

RFRA itself makes clear that its purpose is to

“restore the compelling interest test” by guaranteeing

its application “in all cases where [the] free exercise of

religion is substantially burdened.” 42 U.S.C.

2000bb(b)(1) (emphasis added). Thus, it is no

exaggeration to say that, after Smith, the preservation

of strict scrutiny in free exercise cases—now through

RFRA—is necessary for the preservation of a

pluralistic society. See generally Emp’t Div., Dep’t of

Human Res. v. Smith, 494 U.S. 872, 903 (1990)

(O’Connor, J., concurring in the judgment); United

10

States v. Ballard, 322 U.S. 78, 87 (1944) (The

Founding Fathers “were not unaware of the varied

and extreme views of religious sects, of the violence of

disagreement among them, and of the lack of any one

religious creed on which all men would agree. They

fashioned a charter of government which envisaged

the widest possible toleration of conflicting views.”).

3. Strict scrutiny’s ability to protect religious

minorities is beyond dispute. Indeed, as members

of this and other Courts have repeatedly

recognized, when courts do not understand a

religion, they are more likely to undervalue both

the religion itself and the importance of any given

religious practice. Thus, when a religious

minority’s

rights

depend

on

a

court’s

understanding of the religion, adherents

correctly worry that their rights will turn on that

misunderstanding. See Corp. of Presiding Bishop

of Church of Jesus Christ of Latter-day Saints v.

Amos, 483 U.S. 327, 336 (1987); see id. at 343

(Brennan, J., concurring) (“While a church may

regard the conduct of certain functions as

integral to its mission, a court may disagree.”).

And when, as with several Amici, a group’s

religious “practices do not fit nicely into

traditional categories,” the need for heightened

protections is even more acute. Spencer v. World

Vision, Inc., 633 F.3d 723, 732 n.8 (9th Cir. 2011)

(O’Scannlain, J., concurring).

It is against this backdrop that the importance

of RFRA—particularly for religious minorities—

becomes even more stark. It defines religious

exercise broadly to include “any exercise of

11

religion, whether or not compelled by, or central

to, a system of religious belief.” 42 U.S.C. 2000bb2(4) (adopting the definition found at 42 U.S.C.

2000cc-5(7)(A) (emphasis added)). It then forbids

the government—including the relevant agencies

here—from substantially burdening the exercise

of religion. 42 U.S.C. 2000bb-1(a). By expanding

important protections to all religious exercise,

then, regardless of the centrality of a given

practice, RFRA righted a significant wrong. It

removed from governmental consideration the

ability—to borrow from Justice Brennan—to

“disagree” with a religion on the centrality of a

belief or practice to the faith. See Amos, 483 U.S.

at 343 (Brennan, J., concurring). No longer can

“governments or courts * * * inquire into the

centrality to a faith of certain religious

practices—dignifying

some,

disapproving

others.” Haight v. Thompson, 763 F.3d 554, 566

(6th Cir. Cir. 2014). And a court’s consideration

that a litigant’s beliefs are “strange, or even

silly,” can no longer be used as a reason to deny

protecting those beliefs. Little Sisters of the Poor

Home for the Aged, Denver, Colo. v. Burwell, 799

F.3d 1315, 1318 (10th Cir. 2015) (Hartz, J.,

dissenting from the denial of rehearing en banc).

Consider just one example of how courts have

misunderstood a religious minority’s beliefs in a

way that directly hindered the ability of its

members to practice their religion. A d h e r e n t s

o f Amicus ISKCON practice Sankirtan, which

“enjoins its members to go into public places to

distribute or sell religious literature and to solicit

donations for the support of the Krishna

12

religion.” Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 645 (1981). As

Amici have highlighted elsewhere, 11 even this

Court has struggled to understand how to protect

that unfamiliar practice. Compare Int’l Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,

685 (1992) (holding that an airport could ban

ISKCON adherents from soliciting funds), with

Lee v. Int’l Soc’y for Krishna Consciousness, Inc.,

505 U.S. 830, 831 (1992) (per curiam) (holding

that an airport could not).

Besides simply being misunderstood, religious

minorities, more than other religious groups, often

lack both resources and public support, so they rely

more heavily on the law to protect their right to live

out their faith. When even the law discriminates

against them, there is often nowhere else for them to

turn. They are then left surrounded by a community

that

misunderstands,

under-appreciates,

and

12

sometimes even conveys hostility towards them—

and lacking the financial resources,13 or even

Brief of Church of the Lukumi Babalu Aye, Inc. et al. as

Amici Curiae Supporting Petitioners at 8-9, Zubik v. Burwell, 136

S. Ct. 1557 (2016) (No. 14-1418).

11

See, e.g., Pew Research Center, Many Americans See

Religious Discrimination in U.S.—Especially Against Muslims,

https://www.pewresearch.org/fact-tank/2019/05/17/manyamericans-see-religious-discrimination-in-u-s-especiallyagainst-muslims/ (last visited Mar. 7, 2020) (finding that in 2019

82% of Americans say Muslims are subject to discrimination,

compared to only 50% of Americans say Evangelical Christians

are subject to discrimination).

12

13 See, e.g., Pew Research Center, How Income Varies Among

U.S.

Religious

Groups,

https://www.pewresearch.org/fact-

13

representation by members of the religious group in

the political branches14 to vindicate their rights.

Statistical data highlight RFRA’s importance to

religious minorities: They show that, unlike other

religious groups, religious minorities often have fewer

resources and less public support,15 so they must rely

more heavily on the law to protect their right to live

out their faith. This unfortunate reality, coupled with

religious minorities’ lack of financial or political

resources, is reason alone to allow government

officials broad leeway to employ exemptions.

Too often, however, the government does not.

Without affirmative government action, expensive

litigation becomes the only way that religious

minorities can secure their rights.16

tank/2016/10/11/how-income-varies-among-u-s-religious-groups/

(last visited Mar. 7, 2020) (finding that some religious minorities

rank among the lowest in household income of U.S. religious

groups).

14 See, e.g., Kristen Bialik,

For the fifth time in a row, the new

Congress is the most racially and ethnically diverse ever, Pew

Research Center (Feb. 8, 2019), https://www.pewresearch.org/

fact-tank/2019/02/08/for-the-fifth-time-in-a-row-the-newcongress-is-the-most-racially-and-ethnically-diverse-ever/

(finding that only two Native Americans have seats in the House

of Representatives, making up 1% of the House)

15 See Robert P. Jones et al., What It Means to Be American:

Attitudes in an Increasingly Diverse America Ten Years After

9/11,

at

5-6

(2011),

https://www.brookings.edu/wpcontent/uploads/2016/06/0906_american_attitudes.pdf

(addressing favorability ratings of minority religions among

different groups).

16 And because RFRA no longer applies to state laws,

“religious minorities will have to think carefully about where

14

Recent empirical studies also highlight how even

the courts regularly fail to provide needed RFRA

protections to religious minorities. Muslims, for

example, are much less likely than other religious

groups to successfully vindicate their rights in court.17

And when, as with many Native American religions,

the structure of a religion is “less formal than many

western religions,” Stately v. Indian Cmty. Sch. of

Milwaukee, Inc., 351 F. Supp. 2d 858, 867 (E.D. Wis.

2004), or perhaps when a religious group has less

clearly defined beliefs, the risk that RFRA will be

improperly applied—or determined not to apply at

all18—is only amplified.

The data confirm the sad truth that religious

minorities suffer the most when courts fail to curb

discrimination by broadly protecting religious beliefs,

be it through RFRA or other channels. History

“demonstrates the harsh impact majoritarian rule has

had on unpopular or emerging religious groups such

they can live.” Christopher C. Lund, RFRA, State RFRAs, and

Religious Minorities, 53 San Diego L. Rev. 163, 166 n.15 (2016).

17 See, e.g., Michael Heise & Gregory C. Sisk, Free Exercise of

Religion Before the Bench: Empirical Evidence from the Federal

Courts, 88 Notre Dame L. Rev. 1371, 1386 (2013) (“[C]laimants

from other religious communities were nearly twice as likely to

prevail as Muslims.”).

This sad truth applies even to well-known religious

minorities, and there are those who would deny religious freedom

to, for example, Muslim Americans by taking the absurd position

that Islam is not a religion at all. Asma T. Uddin, The Latest

Attack on Islam: It’s Not a Religion, N.Y. Times (Sept. 26, 2018),

https://www.nytimes.com/2018/09/26/opinion/islamophobiamuslim-religion-politics.html (highlighting the rise of such

arguments).

18

15

as the Jehovah’s Witnesses and the Amish.”19

Jehovah’s Witnesses, for example, have been on the

receiving end of government discrimination and

persecution for refusing to salute or pledge allegiance

to the American flag, an act they consider the

equivalent of worshiping a graven image in violation

of the Ten Commandments. Minersville Sch. Dist. v.

Gobitis, 310 U.S. 586, 591-592, 592 n.1 (1940).20

RFRA’s protections push back against that historical

tide of discrimination against such religious groups by

requiring the government (i.e., the majority) to grant

exemptions to all religions if it cannot satisfy strict

scrutiny.

When even the courts fail to properly apply RFRA,

religious minorities suffer more than other religious

groups because the courts are often their last hope.

And if the decision below stands, the courts will

suddenly be their sole hope for protection.

Thus, RFRA’s protections are vital to members of

minority faiths such as Amici, and any decision that

limits RFRA’s ability to defend against governmental

intrusion does them real violence. RFRA is designed

to act both as a sword—permitting governments to

affirmatively prevent their own RFRA violations—and

as a shield—allowing religious parties to seek judicial

19 Smith, 494 U.S. at 902 (O’Connor, J., concurring in the

judgment).

20 See also Jeffrey S. Sutton, 51 Imperfect Solutions: States

and the Making of American Constitutional Law 152-155 (2018)

(exploring a string of similar cases involving violations of the

rights of Jehovah’s Witnesses in state courts).

16

help if they don’t. The decision below destroys the

sword to the great detriment of religious minorities.

II. Experience Provides Countless Real-World

Examples of How RFRA—Properly Applied—

Can Benefit Religious Minorities.

Experience has shown in practice what could only

be predicted in the years after Smith: “laws ‘neutral’

toward religion may burden religious exercise as

surely as laws intended to interfere with religious

exercise.”42 U.S.C. 2000bb(a)(2). This congressional

finding is as important as it is intuitive. But the truth

it conveys goes further still—just as neutral laws can

burden the free exercise of religion, RFRA’s ability to

prevent substantial government interference with

religious beliefs largely depends on its own broad and

neutral application to major and minority religions

alike. History provides many examples of how

seemingly neutral laws can rob religious minorities of

much needed protection.

A. Strict scrutiny—whether mandated by

RFRA or its state counterparts—benefits

religious minorities.

Cases in which religious exemptions have been

sought are legion, as are cases in which they have been

denied.

1. Consider first the string of cases challenging

the constitutionality of blue laws. These cases provide

some pre-RFRA examples of how the lack of a strictscrutiny requirement can directly interfere with the

religious beliefs and practices of minority religions.

Blue laws were seemingly neutral laws that required

17

all commercial activities to cease on Sundays. These

laws were especially burdensome to religious

minorities who observed their Sabbath day on

Saturday. Under a state’s blue law, a religious

minority would have to refrain from work on Sunday,

and under their religious beliefs, they would be

forbidden from working from sundown Friday to

sundown Saturday evening. McGowan v. Maryland,

366 U.S. 420, 578 (1961) (Douglas, J., dissenting);

Braunfeld v. Brown, 366 U.S. 599, 601 (1961).

In Braunfeld, this Court rejected a free exercise

claim challenging Pennsylvania’s blue law. This

rejection prompted Justice Brennan to dissent, and he

asked directly what “compelling interest” was enough

to justify applying blue laws against Orthodox Jewish

citizens. Id. at 613-614 (Brennan, J., concurring in

part and dissenting in part). In the end, he found the

proffered interests to be “more fanciful than real.” Id.

at 615. Had the compelling-interest test—later

adopted in Sherbert v. Verner, 374 U.S. 398, 406-408

(1963) and then resurrected by Congress in RFRA, 42

U.S.C. 2000bb(b)(1)—been applied, the result could

have been much different: There can be no serious

argument that the government had a compelling

interest in forcing Orthodox Jews to rest on Sunday

when they were already resting—as their faith

required—on Saturday. And by no stretch of the

imagination can a categorical ban on commercial

activities one day of the week be cabined as the “least

restrictive” way to further whatever interest the

government did have.

Another example—this time addressing a

seemingly neutral grooming policy in Texas—further

18

highlights the benefits that strict scrutiny, properly

applied, provides to religious minorities. In A.A. ex rel.

Betenbaugh v. Needville Indep. Sch. Dist., a Native

American boy challenged a grooming policy that

required young boys to keep their hair cut closely. 611

F.3d 248, 253 (5th Cir. 2010). The boy and his family

had a deeply held religious belief that forbade him

from cutting his hair. Id. at 263. Before he started

school, he had never cut his hair. Id. at 254. Naming

hygiene, safety, and security as its justifications, the

school district refused to make an exception to its

policy. Id. at 253-254. Although those same concerns

applied to female students, they were not subject to

the haircutting requirement. Id. at 271-272. Citing

Texas’ Religious Freedom Restoration Act (TRFRA)—

which mirrors the federal RFRA21—the Fifth Circuit

found that the school district lacked a compelling

interest in applying the grooming policy to the

plaintiff. Ibid.

These two examples highlight two different worlds.

In Braunfeld, a generally applicable law burdened the

free exercise of Orthodox Jews. Without a

constitutional or statutory test for exemption, their

challenge failed. Braunfeld, 366 U.S. at 608-609. In

contrast, the Fifth Circuit in Betenbaugh correctly

applied TRFRA in a way that recognized that religious

beliefs do “not invariably fall before generic rules” and

21 Just as RFRA responded to this Court’s decision in Smith,

multiple states enacted statutes like TRFRA in response to City

of Boerne v. Flores, 521 U.S. 507 (1997) and subsequent

congressional actions in its wake. Betenbaugh, 611 F.3d at 259.

19

“must respond to specific circumstances.” Betenbaugh,

611 F.3d at 272-273.

These examples are not unique—neutrally

applicable

laws

regularly

burden

religious

minorities.22 And while religious adherents may not

always come across as sympathetic or as deserving as

the Native American boy, RFRA, its state

counterparts, or statutes like the Religious Land Use

and Institutionalized Persons Act (RLUIPA), 42

U.S.C. 2000cc et seq.,23 where applicable—protect

their right to follow their faiths. As others have aptly

said, “Free exercise belongs not only to nobles but also

to rascals; when it is possible, we should accommodate

22 See, e.g., Goldman v. Weinberger, 475 U.S. 503, 504 (1986)

(military rule banning headgear burdened practice of wearing

yarmulkes); see also O’Lone v. Estate of Shabazz, 482 U.S. 342,

345 (1987) (neutrally applicable prison rules burden multiple

aspects of Muslim faith); Benning v. Georgia, 864 F. Supp. 2d

1358, 1360, 1365-1366 (M.D. Ga. 2012) (rule forbidding facial

hair in prison substantially burdened Orthodox Jews).

RLUIPA, like RFRA, similarly applies the compellinginterest test. 42 U.S.C. 2000cc-1(a); Holt v. Hobbs, 135 S. Ct. 853,

860, 864 (2015). The need to apply statutorily mandated

exemptions to religious minorities does not turn on the applicable

statute. As a string of cases addressing RLUIPA claims brought

by incarcerated persons shows, religious minorities are

vulnerable no matter their status. Yellowbear v. Lampert, 741

F.3d 48 (10th Cir. 2014) (Gorsuch, J.) (religious use of a sweat

lodge); Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010)

(denial of halal diet to Islamic prisoner); Baranowski v. Hart, 486

F.3d 112, 123 (5th Cir. 2007) (failure to provide kosher menu to

“Torah-observant Jew”). Although in prison the interest is often

more compelling and the least-restrictive means more restrictive

that does nothing to absolve the relevant parties—including the

Courts—of the need to apply the test neutrally and fairly.

23

20

even those who do not make it easy for us.”24 RFRA’s

central promise protects even religious minorities

from statutes or regulations that substantially burden

their religious beliefs or practices.

B. To adequately protect the religious beliefs

of religious minorities, courts and the

executive agencies must both provide

RFRA’s required exemptions.

As mentioned above, nothing in RFRA forbids the

executive branch from affirmatively granting

exemptions from statutes, rules, and regulations. But

far too often, federal agencies fail to do so, requiring

instead that litigants go through the expensive

process of affirmatively asserting their rights in

federal court.25

It does not have to be this way. Instead, a better

path for believers everywhere would be for executive

agencies always to do what HHS did here: provide an

exemption where the failure to do so would, in court,

likely result in a loss for the government.

1. Consider the experience of Amicus Pastor Robert

Soto, a member of the Lipan Apache Tribe of Texas.

24 Lund, supra note 16, at 170.

25 Tagore v. United States, 735 F.3d 324, 326 (5th Cir. 2013)

(remanding for RFRA consideration of Sikh belief requiring IRS

employee to wear a “kirpan” with a blade longer than federal law

allowed); Ghailani v. Sessions, 859 F.3d 1295 (10th Cir. 2017)

(remanding for further consideration of RFRA claim about an

inmate’s participation in group prayer in high-security prison).

See also Bean, supra, note 8, at 38-40 (providing more than fifty

examples of RFRA cases addressing by the depth of strictscrutiny analysis).

21

McAllen Grace Brethren Church v. Salazar, 764 F.3d

465, 468 (5th Cir. 2014). Soto’s religious practices

include worship using eagle feathers. Id. at 472. As a

general rule, federal law prohibits the taking or

possessing of any part of a bald or golden eagle. 16

U.S.C. 668. That law, however, does provide an

exception “for the religious purposes of Indian tribes.”

16 U.S.C. 668a. To any reasonable person, Soto, a

member of an Indian tribe seeking to use eagle

feathers for religious purposes, is a member of the very

group to which the exemption applies by design.

But the federal government disagreed. Despite the

Lipan Apache Tribe’s more than 300-year history in

Texas, the federal government does not recognize it

and interpreted the religious-purposes exception to

apply only to “federally recognized Indian tribes.”

Salazar, 764 F.3d at 470, 473 (emphasis added). Soto

challenged

the

government’s

discriminatory

interpretation of the feather prohibition. Id. at 468.

Fortunately, the Fifth Circuit did not sanction this

discrimination. But by limiting the application of the

religious-purposes exception to federally recognized

Indian tribes before it was overturned in Soto’s case,

the federal agency effectively eliminated a statutorily

mandated exception and implicitly told Soto that his

religious group was disfavored.

2. Soto’s case is far from unique. As mentioned

above, our history is filled with examples of state

actors failing to adequately recognize and protect the

importance of minority religious practices. Any

examination of the intersection of religious beliefs

with government action highlights the need for the

government itself to provide exemptions under RFRA,

22

and, where appropriate, RLUIPA. These examples are

illustrative.

•

In Gonzales v. O Centro Espirita Beneficente Uniao

Do Vegetal, the government failed to provide Uniao

do Vegetal (UDV)—a religion that uses hoasca,

a regulated, hallucinogenic tea in its religious

practices—with an exception to the Controlled

Substances Act ban on all uses of Schedule I drugs.

546 U.S. 418, 430 (2006). The government claimed

that the Act “simply admits of no exceptions.” Ibid.

No one was fooled. As the Court recognized, “an

exception has been made to the Schedule I ban for

religious use”—the Native American Church at

issue in Smith was given an exemption to use

peyote in its religious services. Id. at 433 (emphasis

added). Applying RFRA neutrally, this Court saw

no reason to deny the UDV the same exemption it

applied to the Native American church. Ibid. The

Court held that RFRA protected the UDV from the

discrimination among religious groups that led to

the denial of an exemption granted to other

believers. See id. at 433-437.

•

In United States v. Hoffman, a group of volunteers

“with a charitable organization affiliated with the

Unitarian Universalist Church” were charged with

entering the Cabeza Prieta National Wildlife

Refuge (CPNWR) “without a permit” and

“abandoning property”—chiefly food and water—in

the refuge. 2020 WL 531943, at *1 (D. Ariz. 2020).

CPNWR borders Mexico and has “numerous trails

used by migrants.” Id. at *2. Because of the

23

harshness of the environment, many migrants

have died crossing CPNWR. Id. at *1-*2. The

volunteers, guided by their religious beliefs, began

leaving food, water, and medical supplies in the

desert. Id. at *1. Here too, the government failed to

provide religious exemptions to conduct the

volunteers believed their religion required: to “try

and save as many lives as possible.” Id. at *3, *10

(cleaned up). Applying RFRA neutrally to the case

before it, the district court found that the

government had (1) no compelling interest in

applying the regulations against the volunteers

and (2) failed to show that it employed the leastrestrictive means of furthering whatever interest it

did have. Id. at *10-*12.

•

In Singh v. McHugh, a member of the Sikh faith

sought a religious exemption from “Army uniform

and grooming standards.” 185 F. Supp. 3d 201, 204

(D.D.C. 2016). Before seeking judicial assistance,

he unsuccessfully sought an accommodation that

would have allowed him to “enroll in ROTC with

his articles of faith intact”—“his turban, unshorn

hair, and beard.” Id. at 204-205. The district court

ultimately held that the defendants failed to

satisfy strict scrutiny, and the accommodation was

granted. Id. at 232-233. Even then, however, the

Army failed to change its regulations, and Singh

had to bring at least two more lawsuits before they

did. Singh v. Carter, 168 F. Supp. 3d 216 (D.D.C.

2016); Singh v. McConville, 187 F. Supp. 3d 152

(D.D.C. 2016).

24

•

In LaPlant v. Mass. Dep’t of Corr., 89 F. Supp. 3d

235, 244 (D. Mass. 2015), a Wiccan inmate sought

to have communal Wiccan prayer with other

Wiccan inmates “on the actual days of the New,

Waxing, and Waning Moons.” The defendants, who

would have allowed such worship “at a time

different than the one mandated by the faith,”

failed to show a compelling interest in allowing

that practice only on the days they offered. Ibid.

Each of these cases required court intervention

before the government allowed a RFRA exemption.

But the court order did not by its own force turn

acceptable conduct into a RFRA violation. Instead, the

violation predated the order. Slightly adjusting the

facts in each of these cases shows the wisdom in

letting government agencies accommodate religious

minorities—be

it

through

an

individual

accommodation requested by a particular religion or a

regulatory exemption—from the start. In each case,

the government should have recognized its obligations

under RFRA and afforded the religious groups an

exemption. Instead, the agency’s insistence on

applying otherwise applicable laws to those acting as

their religious beliefs required led to costly litigation

that burdened the litigants, the courts, and the federal

government itself.

3. Here, the government’s decision to exempt

religious groups from the contraceptive mandate is

commendable. But it does not present a one-time

issue. To protect the rights of religious minorities,

federal agencies should police their own conduct to

determine if it violates RFRA whenever it seeks to

25

substantially burden religious conduct. 42 U.S.C.

2000bb-1(a).26

To be sure, Amici are not suggesting that all

religious conduct should be free from government

regulation. But where applying an applicable law

against a person would substantially burden her

rights, the government should at least pause and

apply the RFRA test. If the government truly has a

compelling reason to apply federal law in that

instance, and there is no less-restrictive means of

furthering that interest, then the law will be enforced.

But if not, governments should take the steps

necessary to protect the religious beliefs so as to avoid

violating RFRA.

Under the Third Circuit’s new theory, the

executive branch is foreclosed from following that path

absent explicit statutory authority. This is wrong. A

more rational reading of RFRA would allow

governments the ability to affirmatively avoid RFRA

violations in the first place. At very least, this Court

could recognize that RFRA allows the executive

branch to exercise its discretion to not enforce a law

against a religious minority if the enforcement of that

law would substantially burden free exercise rights.

And this point is even more pressing when, as here,

the burden that the agency is trying to lift comes not

from a statute, but from guidance imposed by the

agency.

26 After seeking to apply RFRA in good faith, agencies may

still reach the wrong result. In those instances, costly litigation

may well be necessary after all. The risk of this, however, is

lowered by agencies seeking to accommodate religious conduct at

the outset.

26

But RFRA goes much further. As others have aptly

argued,27 the fact that RFRA applies to the

“implementation” of all federal law is itself direct

authorization for exemptions such as the one here. 42

U.S.C. 2000bb-3(a).

In sum, stripping federal agencies of the authority

to prevent their own RFRA violations will have

dramatic and injurious effects on religious minorities.

To protect the continued ability of religious minorities

to live their religions free from government-imposed

substantial burdens, this Court should reverse the

decision below.

27 Gov’t. Br. 27 (RFRA authorizes agencies to “modify [their]

implementation [of federal law] to avoid a violation of RFRA”);

Little Sisters Br. 4 (“[I]f a federal law or regulation imposes a

substantial burden on a claimant’s exercise of religion, RFRA

obligates the government to refrain from imposing the burden”

unless it can satisfy the compelling-interest test.) (emphasis

added); Amicus Br. of 92 Members of Congress at 15-17.

27

CONCLUSION

Before the Third Circuit’s novel theory, RFRA

served both as a sword—by allowing governments to

make exceptions to applicable statutes and

regulations—and as a shield, by allowing religious

organizations and people of faith to invoke it in

individual adjudications. By hampering one of RFRA’s

vital ways to protect religious expression, the Third

Circuit has endangered the rights of religious

minorities. This Court should correct that grave error.

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

JOSHUA J. PRINCE*

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

*Not yet admitted in D.C.

Practicing under the

supervision of D.C.

attorneys under rule

49(c)(8).

March 9, 2020