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

Supreme Court briefApr 8, 2020

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Nos. 19-431 & 19-454

IN THE

Supreme Court of the United States

————

LITTLE SISTERS OF THE POOR SAINTS

PETER AND PAUL HOME,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA

AND STATE OF NEW JERSEY,

Respondents.

————

DONALD J. TRUMP, PRESIDENT OF

THE UNITED STATES, et al.,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA

AND STATE OF NEW JERSEY,

Respondents.

————

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF AMICI CURIAE OF

THE CENTER FOR INQUIRY, INC.,

AMERICAN ATHEISTS, INC., AND THE

AMERICAN HUMANIST ASSOCIATION,

IN SUPPORT OF RESPONDENTS

————

NICHOLAS J. LITTLE

CENTER FOR INQUIRY, INC.

1012 14th St. NW

Suite 205

Washington, D.C. 20005

GEOFFREY T. BLACKWELL

AMERICAN ATHEISTS

718 7th St. NW

Washington, D.C. 20001

EDWARD TABASH

Counsel of Record

11500 West Olympic Blvd.

Suite 400

Los Angeles, CA 90064

(310) 279-5120

etabash@centerforinquiry.org

MONICA L. MILLER

AMERICAN HUMANIST

ASSOCIATION

1821 Jefferson Place, NW

Washington DC 20036

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

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

iii

STATEMENT OF INTEREST ............................

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

ARGUMENT ........................................................

I. THERE IS NO CONSTITUTIONAL

RIGHT TO AN EXEMPTION ..................

A. Permissive religious exemptions to

laws of general applicability are subject to Establishment Clause Review ....

B. The enjoined exemption violates the

Establishment Clause by burdening

third parties .........................................

II. PETITIONER

CANNOT

DEMONSTRATE A SUBSTANTIAL BURDEN

ON ITS RELIGIOUS BELIEFS ...............

A. Any cognizable burden was relieved

by the prior accommodation ................

B. A requirement to inform the government that one has a religious

objection to a regulation is not a

“substantial” burden............................

C. Compliance penalties are not a “substantial burden.” ..................................

III. PETITIONER’S CASE DOES NOT CONCERN A BURDEN ON RELIGIOUS

LIBERTY,

BUT

RATHER

ATTEMPT TO LEGISLATE THROUGH

THE COURTS ...........................................

(i)

TABLE OF CONTENTS—Continued

Page

IV. THE GOVERNMENT HAS A COMPELLING INTEREST IN ENSURING THE

WIDESPREAD AVAILABILITY OF

CONTRACEPTIVE

SERVICES

WOMEN ....................................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Commr.,

170 F. 3d 173 (3d Cir. 1999), cert denied

528 U.S. 1117 (2000) .................................

Bowen v. Roy,

476 U.S. 693 (1986) ....................... 21, 22, 23, 24

Burwell v. Hobby Lobby Stores, Inc.,

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

City of Boerne v. Flores,

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

Edison Co. v. Labor Bd.,

305 U.S. 197 (1938) ...................................

Empl. Div. v. Smith,

494 U.S. 872 (1990) ................................... 3, 5, 6

Epperson v. Arkansas,

393 U.S. 97 (1968) .....................................

7, 8

Est. of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985) ..................................

Geneva College v. Sec. U.S. HHS,

778 F.3rd 422 (3d Cir. 2015).....................

Gonzales v. O Centro Espirita

Beneficente Unaio do Vegetal,

546 U.S. 418 (2006) ........................... 7, 8, 13, 18

Holt v. Hobbs,

574 U.S. 352 (2015) ...................................

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ...................................

Locke v. Davey,

540 U.S. 712 (2004) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Marbury v. Madison,

5 U.S. 137 (1803) .......................................

Penn. v. President United States,

930 F.3d 543 (3rd Cir. 2019).....................

Priests for Life v. U.S. HHS,

772 F.3rd 229 (D.C. Cir. 2014) ................. 14, 16

Richardson v. Perales,

402 U.S. 389 (1971) ...................................

Sherbert v. Verner,

374 U.S. 398 (1963) ...................................

5, 6

T.W.A. v. Hardison,

432 U.S. 63 (1977) .....................................

Thomas v. Review Bd. of Ind. Empl. Sec.

Div., 450 U.S. 707 (1981) ..........................

Trump v. Penn.,

140 S. Ct. 918 (2020) .................................

United States v. Lee,

455 U.S. 252 (1982) ......................... 9, 22, 23, 26

University of Notre Dame v. Burwell,

136 S. Ct. 2007 (2016) ...............................

University of Notre Dame v. Burwell,

575 U.S. 909 (2015) ...................................

University of Notre Dame v. Burwell,

786 F. 3d 606 (7th Cir. 2015) ....................

University of Notre Dame v. Sebelius,

743 F.3d 547 (7th Cir. 2015) ..................... 17, 24

TABLE OF AUTHORITIES—Continued

Page(s)

Welsh v. United States,

398 U.S. 333 (1970) ...................................

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................... 13, 18

Zubik v. Burwell,

136 S. Ct. 1557 (2016) ............................... 14, 17

CONSTITUTION

U.S. Const. amend. I ...................................passim

STATUTES AND REGULATIONS

1 U.S.C. § 1 ...................................................

42 U.S.C. § 300gg-13(a) ................................

2, 8

42 U.S.C. § 300gg-13(a)(4)............................

50 U.S.C. § 3806(j) ........................................

Religious Freedom Restoration Act, 42

U.S.C. § 2000bb et seq. .............................passim

§ 2000bb-1(a) ................................................

§ 2000bb-1(b) .............................................

Wis. Stat. § 118.15 ........................................ 13, 19

21 C.F.R. § 1307.03 ......................................

21 C.F.R. § 1308.11 ......................................

26 C.F.R. § 54.9815-2713 .............................

32 C.F.R. § 1636.2 ........................................

32 C.F.R. § 1636.6 ........................................

32 C.F.R. § 1636.8 ........................................

TABLE OF AUTHORITIES—Continued

Page(s)

45 C.F.R. § 147.130(a)(iv) .............................

45 C.F.R. § 147.131ff ....................................

OTHER AUTHORITIES

Administration issues final rules on

coverage of certain recommended preventive services without cost sharing, HHS

(July. 10, 2015) available at https://way

back.archiveit.org/3926/20170127190158

/https://www.hhs.gov/about/news/2015/0

7/10/administration-issues-final-rules-oncoverage-of-certain-recommended-preve

ntive-services-without-cost-sharing.html

(last visited Apr. 1, 2020) .........................

CVS, Plan D One-Step Emergency Contraception Tablet, https://www.cvs.com/

shop/plan-b-one-step-emergency-contrac

eptive-tablet-prodid-876669 (last visited

Apr. 1, 2020) ..............................................

Frederick M. Gedicks & Rebecca G. Van

Tassell, RFRA Exemptions from the

Contraception Mandate: An Unconstitutional Accommodation of Religion, 49

Harv. C.R.-C.L. Rev. 343 (2014) ...............

J.J. Frost, et al., Return on Investment: A

Fuller Assessment of the Benefits and

Cost Saving of the US Publicly Funded

Family Planning Pro-gram, 92 Milibank

Q. 667 (2014) .............................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Marci A. Hamilton, The Religious Freedom

Restoration Act is Unconstitutional,

Period, I U. Pa. J. Const. L. 1 (1998-99). .

Planned Parenthood, IUD, https://www.

plannedparenthood.org/learn/birth-cont

rol/iud (last visited Apr. 1, 2020)..............

Planned Parenthood, Emergency Contraception (Morning-After Pill), https://www.

plannedparenthood.org/get-care/our-ser

vices/emergency-contraceptive (last visited

Apr. 1, 2020) ..............................................

Substantial, Black’s Law Dictionary (11th

Ed. 2019) ...................................................

Substantial, New Oxford Am. Dictionary

(3d Ed., Oxford U. Press 2010) .................

STATEMENT OF INTEREST1

This amici curiae brief in support of the respondents

is being filed on behalf of the Center for Inquiry (CFI),

American Atheists, Inc. (American Atheists), and the

American Humanist Association (AHA).

CFI is a non-profit educational organization dedicated to promoting and defending reason, science, and

freedom of inquiry. Through education, research, publishing, social services, and other activities, including

litigation, CFI encourages evidence-based inquiry into

science, pseudoscience, medicine and health, religion,

and ethics. CFI believes that the separation of church

and state is vital to the maintenance of a free society

that allows for a reasoned exchange of ideas about

public policy.

American Atheists is a national civil rights organization that works to achieve religious equality for

all Americans by protecting what Thomas Jefferson

called the “wall of separation” between government

and religion created by the First Amendment. American Atheists strives to promote understanding of

atheists through education, advocacy, and communitybuilding; works to end the stigma associated with

atheism; and fosters an environment where bigotry

against our community is rejected.

All parties have granted blanket consents to the filing of

amicus briefs. Their consents are on file with the Clerk of the

Court. No counsel for a party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contribution intended to fund its preparation or submission. No person other than amici and their counsel made a monetary contribution to the preparation or submission of this brief.

The AHA is a national nonprofit membership organization based in Washington, D.C. Founded in 1941,

the AHA is the nation’s oldest and largest humanist

organization. The AHA has tens of thousands of members and hundreds of chapters and affiliates across the

country. Humanism is a progressive lifestance that

affirms—without theism or other supernatural beliefs—

our responsibility to lead meaningful and ethical lives

that add to the greater good of humanity. The mission

of the AHA’s legal center is to protect one of the

most fundamental principles of our democracy: the

separation of church and state. To that end, the

AHA has litigated dozens of First Amendment cases

nationwide, including in the U.S. Supreme Court.

SUMMARY OF ARGUMENT

This case concerns a religious-based exemption, currently subject to a national injunction, to the requirement under the Affordable Care Act (ACA) to provide

health insurance which covers contraceptive care at no

cost to employees. 42 U.S.C. § 300gg-13(a). Petitioner,

Little Sisters of the Poor, maintains that the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb

et seq., either requires or permits the exemption

currently enjoined by the Third Circuit. However, any

requirement under the Constitution or legislation was

more than satisfied by the prior accommodation.

Indeed, the enjoined exemption is unconstitutional as

a violation of the Establishment Clause.2

Amici maintain that as regards the new, enjoined, exemption, “the Agencies did not follow the [Administrative Procedures

Act] and that the regulations are not authorized under the ACA.”

Penn. v. President United States, 930 F.3d 543, 556 (3rd Cir.

2019), cert. granted Trump v. Penn., 140 S. Ct. 918 (2020).

First, there exists no Free Exercise Clause right to

the enjoined exemption. Congress does not impinge on

the right to free exercise by enacting a law of general

applicability, even if that law impacts an individual’s

or a group’s ability to practice religion. Empl. Div. v.

Smith, 494 U.S. 872, 879 (1990). Any exemption

granted under RFRA is legislative, not constitutional,

and so must withstand constitutional scrutiny. As this

Court has held on multiple occasions, exemptions to

laws granted in order to protect individual religious

expression are unconstitutional as violative of the

Establishment Clause if they shift the burden from the

religious complainant to a third party. Here, petitioner

seeks to eliminate its alleged religious burden by

creating a burden on its employees who will be denied

the seamless and copayment-free contraceptive benefits guaranteed by the ACA.

Second, petitioner cannot demonstrate that it has

suffered the requisite “substantial burden” on religion

to warrant relief under RFRA. The pre-existing accommodation fully removed any real burden on its religious beliefs.3 What petitioner objects to is the requirement that it must inform the government of its

intention to exercise the accommodation. Such a requirement has never been held to be a burden by

this Court. Recognizing it as a substantial burden, as

petitioner claims, would render the word “substantial”

in RFRA meaningless, and thus rewrite democratically enacted legislation. RFRA has always been held

to require that when a substantial burden on religion

is found that the government cannot justify by a

compelling interest, an accommodation be offered to

parties making a claim of a religious burden. This is

Amici do not accept that the prior accommodation was either

necessary or permissible.

precisely what the government did. This Court has

never held that a requirement to notify the government of a desire to avail oneself of such an accommodation can itself be considered a substantial burden

on religion.

Third, petitioner’s theory of causation, claiming a

religious burden caused by requiring it to notify the

government of a desire to take advantage of an

accommodation, knows no limits. If accepted, it would

not only allow religious groups to refuse to directly

participate in legitimate governmental activities, such

as the regulation of health care, the provision of social

security, or the military draft, but also to demand that

no person replace them to fulfil the government’s

intentions. RFRA was never intended to grant religious groups such an absolute veto over government

policy.

Fourth, even if this Court determines that a substantial burden on religion exists, the interest of the

government in the widespread provision of contraceptive services to women at zero copayment cost is a

compelling one, sufficient to overcome any burden on

petitioner.

The enjoined exemption is therefore not required by

the Free Exercise Clause or by RFRA, and, in fact,

would violate the Establishment Clause, by creating a

burden for third parties. Accordingly, it must be

rejected by this Court.

ARGUMENT

I. THERE IS NO CONSTITUTIONAL RIGHT

TO AN EXEMPTION.

A. Permissive religious exemptions to

laws of general applicability are subject to Establishment Clause Review.

For many years, the availability of exemptions for

religious groups or individuals from laws which did

not specifically target those religions was governed

by the Sherbert Test, expounded by this Court in

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

granted exemptions to laws that placed substantial

burdens on the ability to practice religion based on the

First Amendment right to free exercise of religion. In

Sherbert, a factory worker was terminated for refusing

to work on Saturday, the Sabbath for her religion of

Seventh Day Adventism. Id. at 399. South Carolina

denied her unemployment benefits, claiming she was

voluntarily unavailable for work. Id. at 401. This

Court ruled that the state could not, absent a compelling government interest, condition access to a governmental program such as unemployment benefits by

placing a substantial burden on a person’s religious

freedom–here the right to observe the Sabbath as that

person saw fit. Id. at 403-04.

Twenty-seven years later, however, in Smith, the

Court ruled that a law which did not specifically target

religion, but which had the incidental effect of burdening religious adherents, did not require an exemption. 494 U.S. at 878-79 (“We have never held that

an individual’s religious beliefs excuse him from

compliance with an otherwise valid law prohibiting

conduct that the State is otherwise free to regulate.”).

Consequently, the state had no obligation to show that

the law served a compelling government interest.

In response, Congress enacted RFRA with the

express purpose of restoring the Sherbert Test and

applying the compelling interest test once again to

government-imposed burdens on religion. Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 746 (2014)

(Ginsburg, J. dissenting, internal citations omitted)

(“RFRA’s purpose is specific and written into the

statute itself. The Act was crafted to ‘restore the

compelling interest test as set forth in Sherbert v.

Verner.’”). Importantly, this grants a legislative, not a

constitutional right. This Court in Smith, 494 U.S. at

880-81, determined the extent to which the Free

Exercise Clause protects individuals from burdens on

religious practice imposed by laws of general applicability. RFRA, as a legislative enactment, granted protections beyond those constitutional rights. Such

permissive rights granted by an Act of Congress are

subject to constitutional scrutiny by this Court. An

exemption sought under RFRA which violates the

Establishment Clause is not permitted. Congress does

not have the authority to violate the Constitution. Nor

can Congress overrule a Supreme Court determination of the extent of constitutional protections, short of

the passage of an actual constitutional amendment.

Marbury v. Madison, 5 U.S. 137, 177 (1803) (The Constitution is “superior, paramount law, unchangeable

by ordinary means . . . [It is not] alterable when the

legislature shall please to alter it.”) Any exemption

claimed under RFRA must therefore pass constitutional review under the Establishment Clause.

Despite being ruled unconstitutional as applied to

the states by this Court, City of Boerne v. Flores,

521 U.S.507, 536 (1997), RFRA has been treated as

facially constitutional regarding the federal government.4 Facial constitutionality does not end the scrutiny, as laws may still be applied in ways which violate

the constitution. The Establishment Clause “mandates government neutrality between religion and

religion, and between religion and non-religion.”

Epperson v. Arkansas, 393 U.S. 97, 104 (1968). To

decide that merely giving notice in order to obtain an

exemption from a law of general applicability, in itself,

substantially burdens religion would make a mockery

both of RFRA and of real burdens on religious practice

and belief.

B. The enjoined exemption violates the

Establishment Clause by burdening

third parties.

As discussed, supra, the expressed purpose of RFRA

is to defend the freedom of an individual or group

to practice religion against restrictions imposed by

government. For example, in Gonzales v. O Centro

Espirita Beneficente Unaio do Vegetal, 546 U.S. 418,

423 (2006), members of a Brazilian church located in

New Mexico were denied permission to use a tea

brewed from plants unique to the Amazon Rainforest,

because the tea contained a hallucinogen controlled

under federal law. Church members drank the tea as

part of a religious ritual. This Court ruled unanimously that because the government did not demonstrate a compelling interest in denying the church

Amici do not concede the constitutionality of RFRA, noting

that it grants special privileges to religion which violate the

Establishment Clause. Marci A. Hamilton, The Religious Freedom

Restoration Act is Unconstitutional, Period, I U. Pa. J. Const. L.

1, 19 (1998-99). Without conceding this, amici emphasize that

RFRA should not be extended to legitimize further violations of

the Constitution.

access to the plants, it must, under RFRA, accommodate the religious exercise of the church. Id. at 439.

The fundamental difference between the exemption

requested by the religious group in O Centro and that

enjoined here lies in the impact on third parties. When

the New Mexico church members were permitted an

exemption from the Controlled Substances Act to

drink hallucinogenic tea as part of a religious ceremony, no other party was harmed, or indeed impacted

at all.5 The government imposed the burden on the

church and could remove it without impacting the

rights of other people. Petitioner, on the other hand,

now seeks to remove from its employees a right

guaranteed to them by the ACA – the right to receive

contraceptive coverage with zero copayments. 42 U.S.C.

§ 300gg-13(a).6 RFRA permits the government to

remove a burden on religious practices created by

government action. Shifting a burden from petitioner

to third parties, in order to accommodate petitioner’s

religious beliefs, however, represents a preference that

is being granted to those religious beliefs over and

above the beliefs, or lack thereof, of the employees.

Such a preference strikes at the very heart of the

Establishment Clause. Epperson, 393 U.S. at 104.

When this Court has considered religious exemption

requests which impose a burden on a third party, it

has rejected those requests. A Connecticut law requir5

As noted, amici maintain all such religious exemptions are

a violation of the Establishment Clause. Supra, n.4. Where

exemptions are granted, however, a plain reading of the Constitution mandates that they do not impose harmful burdens on third

parties.

Petitioner here seeks not only to refuse to pay for insurance

coverage for contraceptives, but also to prevent insurance companies from providing it free of charge.

ing businesses to honor requests from their employees

not to work on their Sabbath day was struck down

as violative of the Establishment Clause because it

“took no account of the convenience or interests of the

employer or those of other employees who do not

observe a Sabbath.” Est. of Thornton v. Caldor, Inc.,

472 U.S. 703, 709 (1985) (emphasis added). Similarly

a Sabbatarian airline employee was not entitled to

a change in the shift structure at his place of

employment to accommodate his religious preference

for not working on Saturdays, as granting that request

would “deprive another employee of his shift preference at least in part because he did not adhere to a

religion that observed the Saturday Sabbath.” T.W.A.

v. Hardison, 432 U.S. 63, 81 (1977). And Amish employers were required to continue to pay social security

contributions for their employees despite their sincere

religious objections because granting such an exemption would harm the interests of the employees who

should be free to make their own choices as to the

moral implications of involvement in a government

run retirement savings program. United States v. Lee,

455 U.S. 252, 261 (1982) (An exemption would “operate[]

to impose the employer’s religious faith on the employees.”). Most recently, an exemption allowing a beard

for religious purposes was granted to a prisoner where

“accommodating petitioner’s religious beliefs . . . would

not detrimentally affect others.” Holt v. Hobbs, 574

U.S. 352, 370 (2015) (Ginsburg, J., concurring).

This Court’s decision in Hobby Lobby, 573 U.S. at

682, that the contraceptive mandate could not be

imposed on for-profit, closely held corporations that

expressed a religious view that conflicted with providing certain types of contraception, does not change this

analysis. Hobby Lobby does not imply any retreat from

this Court’s longstanding refusal to grant religious

exemptions where there will be a burden shifted onto

a third party. Key to the willingness of this Court to

grant Hobby Lobby its requested exemption was the

existence of the very accommodation for non-profits

that this petitioner now deems unacceptable. Id. at

692 (Kennedy, J. concurring) (“[T]he Government has

not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections

under this established framework.”). By allowing forprofit religiously owned corporations to access the

same exemption that non-profit religious corporations

could access, the burden would not be placed on the

third party employees, who would still receive their

coverage. Petitioner, here, however, demands a complete and total exemption that will create obstacles to

its employees’ ACA rights, without any consideration

of whether those employees will continue to receive

the promised benefit and the degree of increased

burden they will suffer seeking to obtain it.7

The enjoined exemption therefore replaces any

alleged burden on petitioner with a significant burden

on a third party: petitioner’s employees. Imposing

such a burden violates the Establishment Clause, and

The baseline from which we must consider whether a burden

has been imposed on a third party is the situation that would

exist absent the exemption. Locke v. Davey, 540 U.S. 712, 726

(2004) (Scalia, J., dissenting) (“[W]hen the State makes a public

benefit generally available, that benefit becomes part of the

baseline against which burdens on religion are measured.”)

Therefore the benefit, the availability of contraception without

copayment, is considered the baseline for employees. Granting

this exemption, and thus removing the benefit from those employees, cannot be seen in any way other than imposing a burden on

those third parties in order to accommodate the religion of petitioner. Infra § II.

cannot therefore be required by or permitted under

RFRA.

II. PETITIONER CANNOT DEMONSTRATE

A SUBSTANTIAL BURDEN ON ITS RELIGIOUS BELIEFS.

A. Any cognizable burden was relieved by

the prior accommodation.

For the purposes of this brief, amici assume that

the contraceptive mandate does impose a substantial

burden on petitioner’s religious beliefs. What petitioner fails to acknowledge, however, is that the

government had already met any requirement it might

have under RFRA to ease that burden, by providing

religious objectors with an accommodation which

permitted them to opt out from covering contraception.

Religious organizations cannot demonstrate that a

requirement that they merely give notice of their

religious objection to the contraception coverage requirement represents a substantial burden on their

religious exercise. Absent a demonstration of a substantial burden, no exemption under RFRA is allowed.

In the final analysis, petitioner is not claiming there

remains a burden on its religious beliefs. It claims that

it dislikes the method the government provided for

avoiding that burden. RFRA guarantees a religious

plaintiff the right to an exemption in certain limited

situations. It does not, however, guarantee to a religious plaintiff the right to dictate to the government

the method for accepting that exemption.

As part of regulations established by the Department of Health and Human Services (“HHS”) under

the ACA, employer group health plans are required to

provide “preventive care and screenings” for women

per the Women’s Health Amendment and “shall not

impose any cost sharing requirements.” 42 U.S.C.

§ 300gg-13(a)(4). This preventive care requires employers to provide coverage for all forms of contraceptive

methods approved by the Food and Drug Administration. 26 C.F.R. § 54.9815-2713; 45 C.F.R. § 147.130(a)(iv).

But HHS also provided a religious accommodation

to the contraception coverage requirement that is

available to religious entities and to for-profit closely

held corporations with a religious objection to the

mandate. 45 C.F.R. § 147.131ff; Hobby Lobby, 573

U.S. at 682. Under that accommodation, all that was

required was to affirm that such organizations were

eligible, via a form to their insurer or third-party

administrator (TPA) or a letter to the HHS Secretary,

including a list of which forms of contraception the

employer objected to providing. The notice was required to specify the name and type of the plan, and

the contact information of the plan issuer or TPA.

There were no further requirements of the employer.

RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion

even if the burden results from a rule of general

applicability” unless the government “demonstrates

that application of the burden to the person—(1) is

in furtherance of a compelling governmental interest;

and (2) is the least restrictive means of furthering

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

§§ 2000bb-1(a), (b). As this Court has determined that

the contraceptive mandate imposes a substantial

burden on religious exercise, within the meaning of

RFRA, and ruled against the government, Hobby

Lobby, 573 U.S. at 682, it is necessary to see what

solution has been held to satisfy the requirements of

RFRA.

Courts have been satisfied when the government

has provided a successful plaintiff with an accommodation to the objected to aspects of the law. E.g. 21

CFR 1307.03 (after O Centro, 546 U.S. 418, government created accommodation allowing a person to file

for an exception to the Controlled Substances Act);

Wis. Stat. § 118.15 (after Wisconsin v. Yoder, 406 U.S.

205 (1972), accommodation allowing parents to

remove students from school before age 18 for religious

reasons upon notice to school officials.).

In the present case, the government had already

provided an accommodation for those non-profit

employers who object on religious grounds to the

contraceptive coverage requirement. Administration

issues final rules on coverage of certain recommended

preventive services without cost sharing, HHS (July

10, 2015) available at https://wayback.archive-it.

org/3926/20170127190158/https://www.hhs.gov/about/

news/2015/07/10/administration-issues-final-rules-oncoverage-of-certain-recommended-preventive-serviceswithout-cost-sharing.html (last visited Apr. 1, 2020).

These employers may opt out of the requirement, and,

by self-certifying their religious objection, they are

guaranteed to be granted their accommodation.

This is a much less rigorous process than applying

for a religious exemption for hoasca tea under

the statutorily imposed process of the Controlled

Substances Act where there is no guarantee that the

accommodation would be granted to all applicants. 21

C.F.R. § 1307.03.

HHS provided a regulatory accommodation allowing

a religious employer, who objected to paying or

participating in the ACA’s contraceptive coverage

requirement, to avoid doing so. Petitioner, though,

demands an exemption from the exemption, claiming

that filing the paperwork to indicate it does not

wish to participate in the contraceptive mandate for

religious reasons, itself constitutes an unacceptable

religious burden. Such an exemption is not only not

required under RFRA, it is constitutionally impermissible.

B. A requirement to inform the government that one has a religious objection

to a regulation is not a “substantial”

burden.

RFRA does not outlaw any and all burdens on

religious freedom which cannot be justified by a

compelling government interest implemented in the

least restrictive manner possible. It outlaws substantial burdens on religious freedom which cannot be

sufficiently justified. Congress included the word

“substantial,” and we must assume that when Congress writes a statute, it does so giving deliberate

meaning to the words it uses. INS v. Cardoza-Fonseca,

480 U.S. 421, 432 (1987) (“[W]e have considered ourselves bound to ‘assume that the legislative purpose

is expressed by the ordinary meaning of the words

used.’”) (citations omitted). “In other words, if the law’s

requirements do not amount to a substantial burden

under RFRA, that is the end of the matter.” Priests for

Life v. U.S. HHS, 772 F.3rd 229, 244 (D.C. Cir. 2014),

vacated by, remanded by Zubik v. Burwell, 136 S. Ct.

1557 (2016).

In Hobby Lobby, 573 U.S. at 707, this Court was

faced with determining the meaning of the word

“person” in RFRA. It noted that the first step to be

taken was to look to the Dictionary Act, “which we

must consult ‘[i]n determining the meaning of any Act

of Congress, unless the context indicates otherwise.”

Id. (citing 1 U.S.C. § 1). Nothing in that Act, however,

provides a definition of the word “substantial.” Courts

have, however, interpreted the word frequently and its

meaning is apparent. Turning to dictionary definitions, we see a common thread. Substantial means

“[r]eal and not imaginary; having actual, not fictitious

existence. . . . Important, essential, and material; of

real worth and importance.” Substantial, Black’s Law

Dictionary (11th Ed. 2019). It is that which is “[o]f

considerable importance, size, or worth.” New Oxford

Am. Dictionary (3d Ed., Oxford U. Press 2010).

A substantial burden, then, stands in stark comparison to a de minimis one. It is a burden which carries

a certain degree of weight or impact, one that is

considered real and significant, as opposed to minor

and trivial. Where this Court has been required to

determine the meaning of substantial in similar

situations, it is this element of importance which is

emphasized. For example, when determining the

meaning of “substantial evidence,” this Court found

that it is evidence which is “more than a mere scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971). To be

substantial, evidence must be enough so as to convince

a reasonable person of the conclusion it is put forward

to support. Edison Co. v. Labor Bd., 305 U.S. 197, 229

(1938).

Petitioner relies on a fundamental misunderstanding of RFRA. It claims that the court system has no

place in determining whether a burden on religious

practice is substantial. While it is true that courts

cannot determine religious doctrine, and must therefore accept a sincere claim of a burden on religious

belief, the word “substantial” has a meaning, and it is

the role of the court system to determine if a particular

burden reaches that level.

In the present case, petitioner has stated that

providing the government notice of its religious objection is in and of itself a substantial burden on its

religious exercise. Pet.’s Br. Little Sisters, 36-38. But

providing written notice of an objection is merely “the

written equivalent of raising a hand in response to the

government’s query as to which religious organizations want to opt out.” Priests for Life, 772 F.3d at 235.

This Court can accept that the religious employer

believes that providing this notice is against its religious beliefs without finding that doing so is in fact a

substantial burden on its religious exercise.

While the courts may allow religious organizations

to determine for themselves if an activity or prohibition of an activity constitutes a burden for the purposes of that religion, the courts maintain a responsibility to determine if the burden proclaimed by the

religious groups rises to the level of “substantial,”

triggering protection under RFRA.8 With regard to the

burden imposed by signing a piece of paper to indicate

that a religious non-profit is seeking an exemption

Indeed, petitioner’s argument, by rendering the word “substantial” superfluous, would reduce any initial decision to be

made under RFRA to a determination as to whether a belief is

sincere. This is a highly subjective exercise and one which, outside of the rights of prisoners to religious exercise, both the courts

and the government are wary of wading into. All that would be

left is a determination of whether the government had a compelling interest which had been implemented in the least restrictive

manner possible. Congress determined that plaintiffs should have

to show a substantial burden before their claim was cognizable

under RFRA. Petitioner should not be permitted to rewrite an Act

of Congress–that is the responsibility of the elected branch of

government.

from the requirements of the contraceptive mandate of

the ACA, circuit courts found, rightly, that any such

complicity with a future alleged sin undertaken by a

third party after numerous intervening steps was too

attenuated to rise to the level of being a substantial

burden under RFRA. Geneva College v. Sec. U.S. HHS,

778 F.3rd 422, 442 (3d Cir. 2015), vacated by, remanded by Zubik, 136 S. Ct. 1557 (“[W]here the actual

provision of contraceptive coverage is by a third party,

the burden is not merely attenuated at the outset but

totally disconnected from the appellees.”); University

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

2015), vacated by, remanded by University of Notre Dame

v. Burwell, 575 U.S. 909 (2015) (“The accommodation

in this case consists in the organization’s (that is,

Notre Dame’s) washing its hands of any involvement

in contraceptive coverage, and the insurer and thirdparty administrator taking up the slack under compulsion of federal law.”). Indeed, were such an extended

and tortured view of causation by distant complicity to

be accepted by this Court, it would lead to illogical and

unacceptable consequences. Infra § IV.

C. Compliance penalties are not a “substantial burden.”

Petitioner claims that refusing to provide the

required notice of its religious objection would lead to

the imposition of fines which constitute a substantial

burden. But the presence of a government sanction of

some sort cannot in and of itself make compliance with

the law a substantial burden. If all it takes for a

burden on religion to be substantial is the claim of the

religious group allegedly impacted, and a penalty for

non-compliance, then the word “substantial” in RFRA

loses all meaning.

All government requirements to act, or to refrain

from acting, carry some sort of penalty for noncompliance. Any refusal to obey the requirements of

government is punishable. If a government requirement is not accompanied by such threat of penalty,

that is, if a person is simply told to take an action, or

refrain from an action, but is not penalized for ignoring the government mandate, then there is no burden

on the individual, as refusal to participate would have

no cost. Without a cost for refusal, there simply is no

burden, substantial or otherwise, on religion.

Moreover, petitioner’s argument fails because of one

simple, yet unavoidable, fact – the government provided an accommodation, and the accommodation

provided a way for the petitioner to avoid the involvement and the penalties it finds objectionable. All

petitioner needed to do was let the government know

it wished to avail itself of the accommodation.

It has never been held that a religious group is

permitted to simply ignore a statute. A conscientious

objector cannot simply refuse to turn up when drafted,

but must instead file a claim of religious or philosophical objection to combat and may still be required to

serve in a noncombatant role. 50 U.S.C. § 3806(j). The

religious adherents in O Centro, 546 U.S. 418, who

continue to drink hoasca tea ceremonially, as this

Court ruled was their constitutional right, must still

file for an exemption under the federal Controlled

Substances Act or face substantial criminal penalties

of up to 20 years in prison or $5 million for a first

trafficking offense. 21 C.F.R. § 1308.11. Likewise, looking

back to Yoder, 406 U.S. 205, parents who wish to

remove their children from school on religious grounds

are still required by law to inform school officials of

this fact or may be charged with a misdemeanor. Wis.

Stat. § 118.15.

The government is not barred by RFRA from creating a rational, efficient mechanism for implementing

a religious exemption, and requiring those seeking

the exemption to notify the government of their desire

is indisputably rational and efficient. Petitioner was

granted a method of exempting itself from a requirement it claims burdens its religious beliefs. RFRA does

not under any reasonable interpretation require that

petitioner be additionally given the right to refuse to

inform the government of its desire to be exempted.

The nature of the exemption to the draft offered to

conscientious objectors is instructive. In order to

qualify for status as a conscientious objector, whether

available for non-combatant service only (Class 1-A-O)

or not available for any form of military service, and

therefore only available for civilian alternative service

(Class 1-O), a registrant must submit a claim to the

government. This claim “must be made by the registrant in writing” and is only cognizable “after the

registrant has received an order to report for induction.” 32 C.F.R. § 1636.2. The individual then appears

before a board which considers the request, looking

at the documentation submitted, the oral statements

of the claimant, any oral statements from witnesses

presented, and the demeanor of the claimant. 32

C.F.R. § 1636.8. The board then determines which

draft classification to give to the claimant. In order to

be exempted, claimants are required to demonstrate

their beliefs and show sincerity. 32 C.F.R. § 1636.6.

Were petitioner to be successful in achieving its

requested exemption, this entire structure of seeking

conscientious objector status would need to be altered.

Petitioner’s requested relief would not only permit

draftees to prevent the military’s replacing them if

exempted, but also allow them to claim that even filing

a written claim or explaining their grounds for objection to the draft board itself would trigger a future sin

and thus was a burden on their religious practices.

Infra § III.

III. PETITIONER’S CASE DOES NOT CONCERN A BURDEN ON RELIGIOUS LIBERTY, BUT RATHER AN ATTEMPT TO

LEGISLATE THROUGH THE COURTS.

As shown, supra, petitioner has failed to demonstrate a substantial burden on its religious beliefs.

Indeed, this case represents a concerted effort, including petitioner, to rewrite RFRA itself. If successful,

Congressional intent in passing the law will be overridden. Rather than having to show a substantial

burden, any plaintiff claiming religious harm will

simply be able to state that a burden is substantial,

and this view will be unchallengeable in the courts,

however attenuated and unconnected the government

required action and the alleged sin may be. Petitioner

has made clear in its briefing that it believes that

courts have no place in determining whether a burden

is substantial. Pet.’s Br. Little Sisters, 38-39. By so

doing, petitioner seeks to eliminate the word substantial from the text of RFRA, acting as if Congress never

included it in the first place.

This case does not involve any real, substantial

burden on religious beliefs. Instead, this case represents no more than a complaint about government

policy. Simply put, petitioner does not want its

employees to participate in a scheme established by

the government for the provision of certain types of

health care services. Opposing the use of contraception

is petitioner’s fundamental right under the First

Amendment. However, seeking to prevent insurance

companies from providing such services to its employees on asserted religious grounds interferes with the

rights of those employees. This Court and lower courts

have repeatedly concluded that such claims founded

on dislike for a policy have no merit. Religious disapproval of government policy is entitled to no more

deference than political disapproval.

Frequently, individuals and employers have been

expected to put their own personal disapproval of a

policy aside, even when based on sincerely held

religious convictions, and participate in a scheme of

which they disapprove, when their participation is

sufficiently remote from the outcome. While a conscientious objector may not be compelled to serve in the

military, for example, a similarly sought exemption

from paying taxes to support the military has been

definitively denied, even to Quakers whose sincere

religious belief in pacifism is unquestioned. Adams v.

Commr., 170 F. 3d 173, 180-82 (3d Cir. 1999), cert

denied 528 U.S. 1117 (2000) (despite feasibility of

exempting individuals from tax payments, sincere

beliefs do not exempt an individual from participation

in societal responsibilities such as the payment of tax)

Participation in a government scheme to which a

plaintiff had sincerely held religious opposition was

also required by this Court in Bowen v. Roy, 476 U.S.

693, 712 (1986). Native American parents claimed

that obtaining a social security number for their

daughter violated their religion, and therefore they

should be exempted from the requirement to produce

such a number to qualify for welfare benefits. Id. at

695. Chief Justice Burger was dismissive of the idea

that actions undertaken by the government, even

when attached to the plaintiff’s name in this fashion,

could create a religious burden. Id. at 700. (“Roy may

no more prevail on his religious objection to the

Government’s use of a Social Security number for his

daughter than he could on a sincere religious objection

to the size or color of the Government’s filing cabinets.”) The use of the number by the government “d[id]

not itself in any degree impair Roy’s freedom to

believe, express, and exercise his religion.” Id.

This Court has been clear that simply because a

religious group claims substantial harm, “not all

burdens on religion are unconstitutional.” Lee, 455

U.S. at 257. In Lee, this Court unqualifiedly enforced

the rule that religious accommodations sought by

an employer, where granting the exemption to the

employer would impose burdens on third parties,

would not be permitted. This Court refused to grant

an Amish employer an exemption permitting him to

avoid paying social security contributions for his

employees, which would “operate[] to impose the

employer’s religious faith on the employees.” Id. at

261. Importantly, this Court acknowledged that Congress had exempted self-employed Amish from paying

social security contributions for themselves, but

refused to extend that exemption to contributions for

employees, who might not share the same religious

convictions. Id.

These cases reveal the weakness of petitioner’s

argument. In Lee, this Court made clear that the

existence of one or more exemptions does not require

further exemptions, even when the religious belief

involved is similar. That self-employed Amish were

exempted from social security payments did not allow

Amish employers to refuse to pay contributions for

their employees. This Court recognized that the

government was entitled to draw a line and limit such

exemptions. Id. at 260 (“Congress has accommodated,

to the extent compatible with a comprehensive

national program, the practices of those who believe it

is a violation of their faith to participate in the social

security system.”). In this case, as in Lee, the government had already provided generous exemptions for

churches and an accommodation for religious nonprofits. It was not required to tailor the exemption

process to suit every individual or group claiming an

exemption. Nor is the government permitted to broaden the scope of the exemption such that the accommodation has an adverse effect on the rights of third

parties.

Bowen, 476 U.S. 693, demonstrates that petitioner

here simply does not have a sufficient interest at stake

in how the government chooses to administer its

program. The plaintiff sincerely believed that giving

his daughter a social security number harmed her

spirit, much as petitioner believes that providing the

government with a form indicating its unwillingness

to participate in a program that provides contraception involves it in sin. But, as the Seventh Circuit has

noted, this belief did not entitle Roy to an accommodation that removed the burden of his providing that

social security number on an application for welfare.

University of Notre Dame v. Burwell, 786 F. 3d 606, 618

(7th Cir. 2015), vacated by, remanded by University of

Notre Dame v. Burwell, 136 S. Ct. 2007 (2016). Like

Roy’s claim, petitioner’s objection is, in the final analysis, a complaint about how the government administers

a program. Just like Roy’s desire to stop the government from issuing a social security number for his

daughter, petitioner’s objection to complying with the

notice requirement, in order to exempt itself from

providing contraceptive coverage, is no more the basis

for an exemption than “a sincere religious objection to

the color of the Government’s filing cabinets” in which

such a form would be stored. Bowen, 476 U.S. at 700.

Petitioner’s claims that the court system is powerless to even consider the nature of the chain-of-events

objection, claimed by a religious group seeking an

exemption, lead inevitably to illogical and unacceptable results. The United States has a long history of

granting exemptions to conscientious objectors who

oppose taking part in military action.9 However, were

petitioner’s theory of causation to become accepted,

pacifists would have the right not only to insist that

they themselves not be sent into combat, but also that

the military not be permitted to draft someone in their

place. University of Notre Dame, 743 F. 3d at 556. It is

inconceivable that such a theory of causation is what

the drafters of RFRA had in mind. Id. at 557. (“What

makes this case and others like it paradoxical and

virtually unprecedented is that the beneficiaries of the

religious exemption are claiming that the exemption

process itself imposes a substantial burden on their

religious faiths.”). It would allow individual conscientious objectors to not only remove themselves from

selection for the military, but also to permanently

deprive the military of a replacement out of a belief

that their refusal triggered someone else to be inducted,

and that would be equally as sinful. This would grant

religious individuals and groups not only the power to

seek exemptions for themselves, but also the power to

For many years, these exemptions were available only to

those whose objections to war were based on religious beliefs, as

opposed to other, philosophical objections to armed conflict. This

Court in Welsh v. United States, 398 U.S. 333, 343 (1970) recognized this was a violation of the constitutional rights of nonbelievers.

legislate unconstitutional government actions from

the pulpit.

The breadth of perverse results of such causation is

unbounded. In Thomas v. Review Bd. of Ind. Empl.

Sec. Div., 450 U.S. 707, 709 (1981), a Jehovah’s

Witness was found to have been wrongly denied

unemployment benefits after quitting his job in a roll

foundry when he was transferred to a department

where he would be producing turrets for tanks for the

military, a use he found incompatible with his religious beliefs. Petitioner here would have us extend

Thomas’ exemption further. Not content with a right

for Thomas to seek a transfer to another position that

did not challenge his religious beliefs, petitioner’s

arguments would grant him the right to ensure that

no other employee could take over the position he had

left, and the spot on the production line for tank

turrets would be permanently empty, in order to spare

Thomas the religious burden of having triggered

someone else’s now making tank turrets, however

willing that next person might be.

While a Muslim employee may have a religious right

to be transferred from a job that involves the sale of

alcohol, it is implausible to suggest that the employee

possesses an equal right to seek to have that position

remain unfilled on the ground that some other cashier

scanning a bottle of Cabernet Sauvignon is only in that

position because the Muslim employee refused to fill

it. Jewish employers may choose not to purchase pork

products, and it would violate their religious rights to

require them to do so. Yet no court could hold that such

employers have the right to insist that their employees

refrain from using what these employers pay them to

purchase bacon. And, as noted supra, the Amish who

were self-employed were permitted to refrain from

paying their own social security contributions, as such

contributions would potentially undermine the Amish

religious principle of self-reliance. This did not, however, allow them to avoid such payments for their

employees. Lee, 455 U.S. at 261. That employees, who

did not share their employers’ beliefs, might possibly

be triggered to move away from self-reliance was not

held to be a burden sufficient to require an exemption.

This then is the logical end of petitioner’s theory of

causation. If signing a piece of paper indicating a

religious-based opposition to providing contraceptive

health services, and thereby taking advantage of an

exemption to a requirement to provide such services,

is in and of itself a substantial burden on religion

through an attenuated “trigger” theory, then so would

countless other actions become substantial burdens.

Employers would find themselves unable to replace a

worker they reassigned to accommodate that individual’s religious belief system. The military would find

itself unable to fill its ranks in times of conscription

as religious objectors could not be replaced, even by

individuals without a religious objection to being

drafted. A juror excused from duty on a capital case

because of a religious opposition to capital punishment

could not be replaced with a substitute, as the presence of a substitute juror’s voting in favor of the death

penalty was in some way triggered by the initial

person’s refusal to serve on the panel. Such an

outcome was never the goal of RFRA, and would be

unconstitutional, even if it were the intention.

IV. THE GOVERNMENT HAS A COMPELLING INTEREST IN ENSURING THE

WIDESPREAD AVAILABILITY OF CONTRACEPTIVE SERVICES TO WOMEN.

There are enormous benefits that accrue to society

from the widespread availability of no-cost contraception to women in society. There can be no doubt

regarding either the central role that preventive and

reproductive health care plays in enabling women to

participate fully in society, or the cost of the provision

of such care if the individual has to pay for it. Under

the ACA, millions of women were, for the first time,

given a legal guarantee that their health insurance

would cover the cost of all FDA approved contraceptive

services. Petitioner seeks to remove that legislative

right not only from their own employees, but also, by

extension, from millions of other women who are

employed by corporations which may seek such a

religious-based exemption.

The cost of contraceptive care is far from de minimis.

Studies by Planned Parenthood have shown that the

cost of an intrauterine device (“IUD”), one of the most

reliable forms of contraception available, including the

fees for the required medical examinations, insertion,

and ongoing follow up visits, may reach as high as

$1,300.10 Oral contraceptives, the most commonly covered form of contraception used under the mandate,

are less expensive up front, but require an ongoing

payment. These drugs cost, on an annualized basis,

between $180 and $960, with the cheaper, generic

contraceptives often being reported as causing un-

Planned Parenthood, IUD, https://www.plannedparenthood

.org/learn/birth-control/iud (last visited Apr. 1, 2020)

pleasant side effects. Emergency contraception, such

as the “Morning After Pill,” ranges in cost from $30 to

$65 per dosage.12

The direct costs of purchasing contraception fall

largely upon women. Women of child-bearing age

pay 68% more than men of the same age in out-ofpocket medical costs. Hobby Lobby, 573 U.S. at 742

(Ginsburg, J., dissenting). A significant part of this

cost can be attributed to the cost of contraception.

Removal of this disparity between health care costs for

men and women is, in and of itself, a compelling

interest for the government. The government interest,

however, goes beyond the desire to seek greater

equality for women. The widespread availability of

contraception without copayments benefits the government and society by reducing the numbers of

unplanned and unwanted pregnancies. This, in turn,

reduces the burden on medical facilities, reduces the

burden on schools and social services, and even

reduces the number of abortions performed.13 Studies

Frederick M. Gedicks & Rebecca G. Van Tassell, RFRA

Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. Rev. 343,

376 (2014) (noting also that the lower cost contraceptive pills

were less effective in preventing conception).

Planned Parenthood, Emergency Contraception (MorningAfter Pill), https://www.plannedparenthood.org/get-care/our-ser

vices/emergency-contraceptive (last visited Apr. 1, 2020); purchasing one brand of Emergency Contraception, Plan B, manufactured by Teva Pharmaceuticals, over the counter costs around

$50 per use. E.g. CVS, Plan D One-Step Emergency Contraception

Tablet,

https://www.cvs.com/shop/plan-b-one-step-emergencycontraceptive-tablet-prodid-876669 (last visited Apr. 1, 2020)

While amici fully defend a woman’s right to a legal and safe

abortion, they also believe that the availability of low and no cost

contraception, combined with effective education as to its use,

have indicated that each dollar spent on helping

women avoid unwanted pregnancy reduces Medicaid

expenditure by $7.09.14 These savings, combined with

the increased ability of women to control their own

bodies and make their own reproductive choices,

enabling them to fully participate in society on an

equal basis, represent a compelling interest for the

government in ensuring the widespread availability of

contraception without copayments.

Petitioner argues repeatedly that the existence

of exemptions for some groups indicates that the

government interest cannot be considered compelling.

This, however, misrepresents the governmental and

societal interest at stake in the contraceptive mandate. It is fallacious to suggest that unless the

mandate can cover everyone, the government has no

interest in enforcing it. The compelling interest here is

not necessarily that all women in the United States

should have access to contraception without copayments, but that as many women as possible should

have such access. Government programs are not all or

nothing efforts. The governmental interest in preventing malnutrition among poor children through the

SNAP program is not diminished when the program

does not reach every child in need. Furthermore, if

petitioner’s logic were followed through to its end, then

no exemption, religious or otherwise, could be offered

to any group, because offering it would immediately

indicate that there was no compelling interest behind

would prevent many unwanted or high risk pregnancies, thus

reducing the need for abortions.

J.J. Frost, et al., Return on Investment: A Fuller Assessment

of the Benefits and Cost Saving of the US Publicly Funded Family

Planning Program, 92 Milibank Q. 667, 668 (2014).

the law in the first place.15 The government, as is its

right, has drawn the line for exemptions. This in no

way diminishes the compelling nature of the interests

at stake.

CONCLUSION

For the above reasons, this Court should affirm the

judgment of the U.S Court of Appeals for the Third

Circuit.

Respectfully submitted,

NICHOLAS J. LITTLE

CENTER FOR INQUIRY, INC.

1012 14th St. NW

Suite 205

Washington, D.C. 20005

GEOFFREY T. BLACKWELL

AMERICAN ATHEISTS

718 7th St. NW

Washington, D.C. 20001

EDWARD TABASH

Counsel of Record

11500 West Olympic Blvd.

Suite 400

Los Angeles, CA 90064

(310) 279-5120

etabash@centerforinquiry.org

MONICA L. MILLER

AMERICAN HUMANIST

ASSOCIATION

1821 Jefferson Place, NW

Washington DC 20036

Counsel for Amici Curiae

April 8, 2020

While amici maintain religious exemptions are unconstitutional, supra n.4, their existence does not diminish the compelling

nature of the government interest.

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.