Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Pennsylvania, et al.

No. 19-454

In the Supreme Court of the United States

__________________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

v.

PENNSYLVANIA, ET AL.,

__________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

__________________

AMICUS CURIAE BRIEF OF THE AMERICAN

CENTER FOR LAW AND JUSTICE IN

SUPPORT OF PETITIONERS

__________________

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR

LAW & JUSTICE

P.O. Box 60

New Hope, Kentucky 40052

(502) 549-7020

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

WALTER M. WEBER

JORDAN SEKULOW

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 546-8890

sekulow@aclj.org

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR

LAW & JUSTICE

3001 Plymouth Road, Suite 203

Ann Arbor, Michigan 48105

(734) 680-8007

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Governmental accommodations of religious

exercise, like those granted by the religious

exemption in this case, are a well-established

historical practice of this country . . . . . . . . . . 4

II.

The Religious Freedom Restoration Act:

background and scope . . . . . . . . . . . . . . . . . . . 9

III.

The Third Circuit erred in denying that the

regulatory religious exemption at issue in

this case is not supported by RFRA . . . . . . . 12

A. The religious exemption lifts a

substantial burden on the religious

exercise of those entities who object to the

accommodation. . . . . . . . . . . . . . . . . . . . . 12

B. The lower court’s reliance on the

“undue burden” on nonbeneficiaries is

misguided . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Even if RFRA does not require the

religious exemption, RFRA nonetheless

authorizes it . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF AUTHORITIES

CASES

Am. Pulverizer Co. v. U.S. HHS,

No. 6:12-cv-03459-MDH (W.D. Mo.). . . . . . . . . . . 2

Bick Holdings, Inc. v. U.S. HHS,

No. 4:13-cv-00462-AGF (E.D. Mo.). . . . . . . . . . . . 2

Bd. of Educ. v. Grumet,

512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . . 8, 17

Bhd. of Locomotive Engineers v. Atchison,

Topeka & Santa Fe R.R.,

516 U.S. 152 (1996). . . . . . . . . . . . . . . . . . . . . . . 18

City of Boerne v. Flores,

521 U.S. 507 (1997). . . . . . . . . . . . . . . . . . . . . . . . 5

Comm’r of Internal Revenue v. Kowalski,

434 U.S. 77 (1977). . . . . . . . . . . . . . . . . . . . . . . . 17

Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos,

483 U.S. 327 (1987). . . . . . . . . . . . . . . . . . 9, 17, 18

Employment Div., Dept. of Human Resources of

Ore. v. Smith,

494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . . 9, 14

Geneva Coll. v. Sec’y of U.S. Dep’t of Health &

Human Servs.,

778 F.3d 422 (3d Cir. 2015) . . . . . . . . . . . . . 12, 13

Gilardi v. United States HHS,

733 F.3d 1208 (D.C. Cir. 2013) . . . . . . . . . . . . . . . 2

iii

Gillette v. United States,

401 U.S. 437 (1971). . . . . . . . . . . . . . . . . . . . . 9, 17

Girouard v. United States,

328 U.S. 61 (1946). . . . . . . . . . . . . . . . . . . . . . . . . 9

Goldman v. Weinberger,

475 U.S. 503 (1986). . . . . . . . . . . . . . . . . . . . . . . 22

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal,

546 U.S. 418 (2006). . . . . . . . . . . . . . . . . . . . 11, 12

Hartenbower v. U.S. HHS,

No. 1:13-cv-2253 (N.D. Ill.) . . . . . . . . . . . . . . . . . . 2

Hobby Lobby v. Burwell,

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

Kilby v. CVS Pharm., Inc.,

739 F.3d 1192 (9th Cir. 2013). . . . . . . . . . . . . . . 18

Korte v. Sebelius,

735 F.3d 654 (7th Cir. 2013). . . . . . . . . . . . . . . . . 2

Lamb’s Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . 1

Lindsay v. U.S. HHS,

No. 1:13-cv-01210 (N.D. Ill.) . . . . . . . . . . . . . . . . . 2

Matal v. Tam,

137 S. Ct. 1744 (2017). . . . . . . . . . . . . . . . . . . . . . 1

Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977). . . . . . . . . . . . . . . . . . . . . . . 17

iv

O’Brien v. U.S. HHS,

766 F.3d 862 (8th Cir. 2014). . . . . . . . . . . . . . . . . 2

Pleasant Grove City v. Summum,

555 U.S. 460 (2009). . . . . . . . . . . . . . . . . . . . . . . . 1

Selective Draft Law Cases,

245 U.S. 366 (1918). . . . . . . . . . . . . . . . . . . . . . 8, 9

Sherbert v. Verner,

374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . 18, 19

Thomas v. Review Bd. of Indiana Employment

Security Div.,

450 U.S. 707 (1981). . . . . . . . . . . . . . . . . . . . 14, 15

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017). . . . . . . . . . . . . . . . . . . . . . 1

United States v. Lee,

455 U.S. 252 (1982). . . . . . . . . . . . . . . . . . . . . . . 22

Wisconsin v. Yoder,

406 U.S. 205 (1972). . . . . . . . . . . . . . . . . . . . 18, 20

Zorach v. Clauson,

343 U.S. 306 (1952). . . . . . . . . . . . . . . . . . . . . . . . 9

Zubik v. Burwell,

136 S. Ct. 1557 (2016). . . . . . . . . . . . . . . . . . . 2, 13

STATUTES

10 U.S.C. § 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

26 U.S.C. § 3127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

v

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

42 U.S.C. § 2000bb-3(a) . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 2000bb-4 . . . . . . . . . . . . . . . . . . . . . . . . 21

OTHER AUTHORITIES

A. Adams & C. Emmerich, A Heritage of Religious

Liberty, 137 U. Pa. L. Rev. 1559 (1989) . . . . . . . . 7

A Memorial and Remonstrance Against Religious

Assessments (1785), in The Sacred Rights

of Conscience (D. Dreisbach & M.D. Hall eds.

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

David Brang et al., “Apotemnophilia: a neurological

disorder,” 19 NeuroReport 1305 (2008) . . . . . . . 19

Female Genital Mutilation, WHO media centre fact

sheet (Feb. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Travis Gasper, A Religious Right to Discriminate:

Hobby Lobby and “Religious Freedom” as a

Threat to the LGBT Community, 3 TEX. A&M L.

REV. 395 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Douglas Laycock & Oliver S. Thomas, Interpreting

the Religious Freedom Restoration Act, 73 Tex.

L. Rev. 209 (1994) . . . . . . . . . . . . . . . . . . . . . 10, 11

Douglas Laycock, The Supreme Court’s Assault on

Free Exercise, and the Amicus Brief That Was

Never Filed, 8 J.L. & Relig. 99 (1990) . . . . . . 9, 10

Letter to the Annual Meeting of Quakers (1789), in

The Papers of George Washington (Dorothy

Twohig ed. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

vi

Michael W. McConnell, Free Exercise, Revisionism

and the Smith Decision, 57 U. Chi. L. Rev. 1109

(1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Michael McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

Harv. L. Rev. 1409 (1990). . . . . . . . . . . . . . . . . 5, 6

Notes on the State of Virginia, in The Basic Writings

of Thomas Jefferson (Philip S. Foner ed., 1944) . 8

Michael Novak & Jana Novak, Washington’s God

(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Michael Paulsen, A RFRA Runs Through It:

Religious Freedom and the U.S. Code, 56 Mont.

L. Rev. 249 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 11

Michael Stokes Paulsen, “Justice Scalia’s Worst

Opinion,” Public Discourse (April 17, 2015)

(available at: https://tinyurl.com/y553f6ro) . . . . 10

Property (March 29, 1792), in The Founders’

Constitution, Vol. 1, Doc. 23 (P. Kurland & R.

Lerner eds. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jonathan D. Sarna, “Constitutional Dilemma on

Birth Control,” Forward.com (Mar. 16, 2012)18, 19

Brett G. Scharffs, The Autonomy of Church and

State, 2004 B.Y.U.L. Rev. 1217 (2004). . . . . . . . . 5

To the Society of the Methodist Episcopal Church at

New London, Connecticut (Feb. 4, 1809) . . . . . . . 8

1

INTEREST OF AMICUS CURIAE1

Amicus, the American Center for Law & Justice

(“ACLJ”), is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ attorneys

often appear before this Court as counsel for a party,

e.g., Pleasant Grove City v. Summum, 555 U.S. 460

(2009); Lamb’s Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993), or amici curiae, e.g.,

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017); Matal v. Tam, 137 S. Ct. 1744

(2017).

The ACLJ has vigorously opposed the federal

contraception mandate (“mandate”) since it was first

imposed on the country by regulatory fiat over seven

years ago. Through litigation, public advocacy, and in

formal comments filed with federal agencies, the ACLJ

has argued that the mandate, including the numerous

faulty regulatory attempts to accommodate religious

objections to it, violated both the First Amendment and

federal law, most notably, the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.

The ACLJ represented a total of thirty-two

individuals and for-profit corporations in seven legal

1

Counsel of record for the parties received timely notice of the

intent to file this brief and emailed written consent to its filing. No

counsel for any party in this case authored this brief in whole or in

part. No person or entity, aside from Amicus, their members, or

their respective counsel, made a monetary contribution to the

preparation or submission of this brief.

2

actions against the mandate,2 and submitted amicus

briefs with this Court in support of the religious

claimants in both Hobby Lobby v. Burwell, 573 U.S.

682 (2014), and Zubik v. Burwell, 136 S. Ct. 1557

(2016).

Now that the government has, at long last, offered

an authentic accommodation of religious exercise with

respect to the mandate, the ACLJ believes the religious

exemption at issue in this case should be upheld and

the lower court’s decision reversed.3

INTRODUCTION AND

SUMMARY OF ARGUMENT

In holding that the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), does not

require or authorize the religious exemption at issue in

this case, the Third Circuit committed profound error

on an issue of national importance, i.e., the protection

of religious freedom.

In accord with our country’s longstanding

commitment to respecting the rights of religious

conscience, Petitioners in this case have, under RFRA,

2

Gilardi v. United States HHS, 733 F.3d 1208 (D.C. Cir. 2013);

Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); O’Brien v. U.S.

HHS, 766 F.3d 862 (8th Cir. 2014); Am. Pulverizer Co. v. U.S.

HHS, No. 6:12-cv-03459-MDH (W.D. Mo.); Lindsay v. U.S. HHS,

No. 1:13-cv-01210 (N.D. Ill.); Bick Holdings, Inc. v. U.S. HHS, No.

4:13-cv-00462-AGF (E.D. Mo.); Hartenbower v. U.S. HHS, No. 1:13cv-2253 (N.D. Ill.).

3

This brief is also submitted on behalf of more than 415,000

supporters of the ACLJ as an expression of their support for the

principles of religious freedom at stake in this case.

3

granted a religious exemption to certain entities whose

religious convictions will not allow them to pay for or

provide contraceptive drugs and services in their

health plans. That exemption does not just allow

objecting entities to decline to pay for drugs they find

morally and religiously objectionable, it allows them to

avoid being morally complicit in providing those same

drugs by executing a “self-certification form” that

would trigger such coverage (the so-called

“accommodation).

The court below incorrectly held that RFRA does not

support Petitioners’ actions.

First, despite well-established precedent forbidding

courts to make theological judgments about a religious

claimant’s understanding of what he can or cannot do

according to his own religious judgment, the Third

Circuit substituted its own judgment of moral

complicity for that of the entities which claim that

executing a “self-certification form” makes them

complicit in wrongdoing.

Second, the court improperly invoked the “burden”

the religious exemption could have on nonbeneficiaries.

Invoking alleged harm on third parties in the religious

freedom context, however, could render RFRA

meaningless. While this Court has previously passed

on the question of whether the contraception mandate

is supported by a compelling governmental interest,

nothing in the Third Circuit’s decision supports the

notion that provision of cost-free contraceptive services

by an objecting religious claimant is a governmental

interest of the highest order.

4

Finally, the court below dodged the question of

whether RFRA authorizes the government to grant a

religious exemption even if RFRA does not require it.

In sum, the Third Circuit has wrongly thwarted the

efforts of Petitioners to truly accommodate the religious

exercise of employers pursuant to RFRA and our

country’s longstanding commitment to the flourishing

of religious freedom. Left undisturbed, the decision of

the court below will impede future governmental

efforts to respect the rights of religious conscience—the

first freedom provided for in the Bill of Rights and the

substantive right protected by RFRA.

The petition should be granted.

ARGUMENT

I.

Governmental accommodations of religious

exercise, like those granted by the religious

exemption in this case, are a wellestablished historical practice of this

country.

The rulemaking at issue in this case provides a

religious exemption to certain entities from having to

comply with the contraception mandate—a mandate

imposed on those very same entities through prior

rulemaking.4 The granting of such exemptions is fully

consistent with the long and well-established history in

this country of governmental accommodation of

religious beliefs and practices.

4

For a comprehensive history of the contraception mandate and

the (previous, faulty) attempts to accommodate employers

objecting to the mandate on religious grounds, see Pet. at 2-8.

5

“The pursuit of religious liberty was one of the most

powerful forces driving early settlers to the American

continent and remained a powerful force at the time of

the founding of the American republic.” Brett G.

Scharffs, The Autonomy of Church and State, 2004

B.Y.U.L. Rev. 1217, 1230 (2004). Even before the

ratification of the Constitution, “tension between

religious conscience and generally applicable laws,

though rare, was not unknown.” City of Boerne v.

Flores, 521 U.S. 507, 557 (1997) (O’Connor, dissenting).

The resolution of conflicts over matters such as “oath

requirements, military conscription, and religious

assessments” demonstrates that “Americans in the

Colonies and early States thought that, if an

individual’s religious scruples prevented him from

complying with a generally applicable law, the

government should, if possible, excuse the person from

the law’s coverage.” Id. Exemptions were understood as

“a natural and legitimate response to the tension

between law and religious convictions.” Michael

McConnell, The Origins and Historical Understanding

of Free Exercise of Religion, 103 Harv. L. Rev. 1409,

1466 (1990).

In 1775, for example, the Continental Congress

passed a resolution exempting individuals with pacifist

religious convictions from military conscription:

As there are some people, who, from religious

principles, cannot bear arms in any case, this

Congress intend no violence to their consciences,

but earnestly recommend it to them, to

contribute liberally in this time of universal

calamity, to the relief of their distressed

6

brethren in the several colonies, and to do all

other services to their oppressed Country, which

they can consistently with their religious

principles.

Id. at 1469 (citation omitted).

Thus, even when the country was in dire need of

men to take up arms to fight for independence, our

forefathers knew that conscience is inviolable and must

be honored. They understood that to conscript men into

military service against their religious conscience

would have undermined the very cause of liberty to

which they pledged their lives, fortunes, and sacred

honor.

The care and concern for religious freedom prior to

the ratification of the Constitution was the underlying

and animating principle of the religion clauses of the

First Amendment:

The core value of the religion clauses is liberty of

conscience in religious matters, an ideal which

recurs throughout American history from the

colonial period of Roger Williams to the early

national period of the Founders. All three

traditions of church and state—Enlightenment,

pietistic, and political centrist—regarded

religious liberty as an inalienable right

encompassing both belief and action and as an

essential cornerstone of a free society.

7

A. Adams & C. Emmerich, A Heritage of Religious

Liberty, 137 U. Pa. L. Rev. 1559, 1664 (1989).5

Examples of this truth are seen most clearly in the

writings of the Founding Fathers themselves. James

Madison, the Father of the Constitution, opined that

“[c]onscience is the most sacred of all property,” and

that man “has a property of peculiar value in his

religious opinions, and in the profession and practice

dictated by them.” Property (March 29, 1792), in The

Founders’ Constitution, Vol. 1, Doc. 23 (P. Kurland & R.

Lerner eds. 1987). He understood that one’s duty to the

“Creator . . . . is precedent, both in order of time and in

degree of obligation, to the claims of Civil Society.” A

Memorial and Remonstrance Against Religious

Assessments (1785), in The Sacred Rights of Conscience,

309 (D. Dreisbach & M.D. Hall eds. 2009). “The

Religion . . . of every man must be left to the conviction

and conscience of every man,” preventing efforts to

“degrade[] from the equal rank of Citizens all those

whose opinions in Religion do not bend to those of the

Legislative authority.” Id.

George Washington, the Father of the Country,

noted that “the establishment of Civil and Religious

Liberty was the Motive that induced me to the field of

battle.” Michael Novak & Jana Novak, Washington’s

5

The states at the time of the founding were similarly concerned

with the preservation of religious liberty and conscience. “Between

1776 and 1792, every state that adopted a constitution sought to

prevent the infringement of ‘liberty of conscience,’ ‘the dictates of

conscience,’ ‘the rights of conscience,’ or the ‘free exercise of

religion.’” A Heritage of Religious Liberty, supra, at 1600-01.

8

God, 111 (2006). In his famous 1789 letter to the

Quakers, he wrote:

The conscientious scruples of all men should be

treated with great delicacy and tenderness: and

it is my wish and desire, that the laws may

always be extensively accommodated to them, as

a due regard for the protection and essential

interests of the nation may justify and permit.

Letter to the Annual Meeting of Quakers (1789), in The

Papers of George Washington, 266 (Dorothy Twohig ed.

1993).

Thomas Jefferson observed that “[n]o provision in

our Constitution ought to be dearer to man than that

which protects the rights of conscience against the

enterprises of the civil authority.” To the Society of the

Methodist Episcopal Church at New London,

Connecticut (Feb. 4, 1809). Like Madison, Jefferson

understood the right of conscience to be a pre-political

one, i.e., one that could not be surrendered to the

government as a term of the social contract: “[O]ur

rulers can have authority over such natural rights only

as we have submitted to them. The rights of conscience

we never submitted, we could not submit. We are

answerable for them to our God.” Notes on the State of

Virginia, in The Basic Writings of Thomas Jefferson,

157-58 (Philip S. Foner ed., 1944).

Indeed, “[s]ince the framing of the Constitution,”

this Court “has approved legislative accommodations

for a variety of religious practices.” Bd. of Educ. v.

Grumet, 512 U.S. 687, 723 (1994) (Kennedy, J.,

concurring in judgment) (citing Selective Draft Law

9

Cases, 245 U.S. 366, 389-90 (1918), and Gillette v.

United States, 401 U.S. 437 (1971) (military draft

exemption for religious objectors); Zorach v. Clauson,

343 U.S. 306 (1952) (program permitting public school

children to leave school for one hour a week for

religious observance and instruction); and Corp. of

Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327 (1987)

(exemption of religious organizations from Title VII’s

prohibition of religious discrimination)). Such solicitude

for religious practices “respects the religious nature of

our people and accommodates the public service to

their spiritual needs.” Zorach, 343 U.S. at 314.

In sum, “[t]he victory for freedom of thought

recorded in our Bill of Rights recognizes that in the

domain of conscience there is a moral power higher

than the State.” Girouard v. United States, 328 U.S. 61,

68 (1946). And it is the longstanding commitment to

that principle which has animated the “happy

tradition” in our country “of avoiding unnecessary

clashes with the dictates of conscience.” Gillette, 401

U.S. at 453.

II.

The Religious Freedom Restoration Act:

background and scope.

After this Court reconfigured the First

Amendment’s Free Exercise Clause in the oft-criticized

decision of Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U.S. 872 (1990),6

6

See, e.g., Michael W. McConnell, Free Exercise, Revisionism and

the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990); Douglas

Laycock, The Supreme Court’s Assault on Free Exercise, and the

10

Congress acted decisively. Pursuant to the country’s

longstanding history of protecting the rights of

religious exercise, it adopted the Religious Freedom

Restoration Act. In a display of unanimity seldom seen

in our current day, the Senate passed RFRA by a 97-3

vote, after the House passed a similar bill by a

unanimous voice vote.7 The lead sponsors in the Senate

were Senators Edward Kennedy and Orrin Hatch.8

The coalition of forces that supported RFRA

involved a diverse group of religious and political

organizations, including “Christians, Jews, Muslims,

Sikhs, Humanists, and secular civil liberties

organizations,” as well as groups “from the political left

and the political right.”9 In fact, according to one

commentator, “the groups most active in pushing for

passage of the 1993 RFRA were ideologically left of

center.”10 Though it’s more than doubtful that that

same coalition exists today, what cannot be doubted is

that RFRA was inspired by a broadly supported desire

to protect religious believers, organizations, and

entities from being burdened by the government in the

Amicus Brief That Was Never Filed, 8 J.L. & Relig. 99 (1990);

Michael Stokes Paulsen, “Justice Scalia’s Worst Opinion,” Public

Discourse (April 17, 2015) (available at:

https://tinyurl.com/y553f6ro).

7

Douglas Laycock & Oliver S. Thomas, Interpreting the Religious

Freedom Restoration Act, 73 Tex. L. Rev. 209, 210 (1994).

8

Id. at 211.

9

Id. at 210-11.

10

Travis Gasper, A Religious Right to Discriminate: Hobby Lobby

and “Religious Freedom” as a Threat to the LGBT Community, 3

TEX. A&M L. REV. 395, 416 (2015)

11

exercise of their sincerely held beliefs—a principle that

finds its roots in the founding of the country and the

Constitution.

RFRA—described as “the most important

congressional action with respect to religion since the

First Congress proposed the First Amendment”11—

authorizes religious exemptions from complying with

any federal law, or any implementation thereof, that is

not specifically excluded from RFRA’s reach. 42 U.S.C.

§ 2000bb–3(a) (the statute “applies to all Federal law,

and the implementation of that law, whether statutory

or otherwise, and whether adopted before or after

November 16, 1993”). The sweeping breadth of RFRA

is why it has been described as a “super-statute.”12

While RFRA is not necessitated by the Free Exercise

Clause as this Court has interpreted it—in fact, it was

adopted in the wake of a prior decision of this Court

limiting the Clause’s reach and scope, see Hobby Lobby,

573 U.S. at 693-96 (discussing RFRA’s history)—the

law furthers, and expands upon, the same underlying

interests, i.e., the preservation and protection of

religious exercise. “By enacting RFRA, Congress went

far beyond what this Court has held is constitutionally

required.” Id. at 706. This was well within the federal

government’s authority and purview.

While the courts are charged with adjudicating

private claims under the statute—see Gonzales v.

O Centro Espirita Beneficente Uniao do Vegetal, 546

11

12

Laycock & Thomas, at 243.

Michael Paulsen, A RFRA Runs Through It: Religious Freedom

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

12

U.S. 418, 434 (2006) (RFRA “plainly contemplates that

courts would . . . consider whether exceptions are

required under the test set forth by Congress”)—the

executive branch, bound by RFRA, is charged with the

authority (in fact, the obligation) to see to it that the

“implementation” of federal law meets RFRA’s

demands. Indeed, the executive branch’s duty to

operate in line with RFRA is no different than its duty

to comply with other federal laws, including, of course,

constitutional commands.

III.

The Third Circuit erred in denying that the

regulatory religious exemption at issue in

this case is not supported by RFRA.

Notwithstanding RFRA’s sweeping restrictions on

federal action that substantially burden religious

exercise—a law firmly grounded in our country’s

longstanding tradition of honoring religious beliefs and

practice—the court below held that the religious

exemption at issue in this case is neither authorized

nor compelled by RFRA. The Third Circuit was wrong.

A. The religious exemption lifts a

substantial burden on the religious

exercise of those entities who object to

the accommodation.

First, with respect to RFRA’s substantial burden

prong, the Third Circuit is incorrect that religious

claimants who object to the so-called “accommodation,”

based on their sincerely held religious beliefs, are not

substantially burdened by it. Relying on a Third Circuit

decision vacated by this Court, Geneva Coll. v. Sec’y of

U.S. Dep’t of Health & Human Servs., 778 F.3d 422 (3d

13

Cir. 2015), vacated and remanded sub nom. Zubik, 136

S. Ct. 1557, the court below held that because third

parties are charged with providing the contraceptive

coverage, and not the objecting employer, “the

submission of the self-certification form does not make

the [employers] ‘complicit’ in the provision of

contraceptive coverage.” Pet. App. 39a.

That approach, however, conflicts with Hobby

Lobby. In that case, the government agencies argued

that the “connection between what the objecting parties

must do . . . and the end they find to be morally

wrong . . . is simply too attenuated” to constitute a

substantial burden. 573 U.S. at 723. Specifically, the

government asserted, “[c]overage would not itself result

in the destruction of an embryo,” and insisted that

“[t]hat would occur only if an employee chose to take

advantage of the coverage and to use one of the four

methods [of contraception] at issue.” Id.

This Court, however, rejected the government’s

second-guessing of the religious claimants’ analysis of

their complicity, holding that this approach “dodges the

question RFRA presents”: namely, evaluating the

substantial burden imposed by the government on the

objecting parties’ ability to exercise “their religious

beliefs”—not what a court or executive agency considers

their religious beliefs to entail. Id. at 724 (emphasis in

original). The complicity analysis used by “HHS . . . in

effect tell[s] the plaintiffs that their beliefs are flawed,”

but “the federal courts have no business addressing

whether the religious belief asserted in a RFRA case is

reasonable.” Id.

14

Indeed, what this Court wrote in Hobby Lobby

applies with equal force here: “in these cases, the

[religious claimants] sincerely believe that [the

submission of the self-certification form] demanded by

the HHS regulations lies on the forbidden side of the

line, and it is not for us to say that their religious beliefs

are mistaken or insubstantial. Instead, our ‘narrow

function . . . in this context is to determine’ whether the

line drawn reflects ‘an honest conviction,’ and there is

no dispute that it does.” Id. at 725 (citation omitted)

(emphasis added).

That courts have no business scrutinizing a

religious objector’s understanding of his own moral

complicity is hardly a new proposition. “Repeatedly and

in many different contexts, we have warned that courts

must not presume to determine . . . the plausibility of

a religious claim.” Id. at 724 (quoting Smith, 494 U.S.

at 887). The religious claimants who oppose the

accommodation have drawn a line between actions they

find “to be consistent with [their] religious beliefs” and

actions they believe to be “morally objectionable.” Id. at

725 (citing Thomas v. Review Bd. of Indiana

Employment Security Div., 450 U.S. 707, 715 (1981)). It

is not for the Third Circuit, or any other court, “to say

that the line [they] drew was an unreasonable one.’” Id.

(quoting Thomas, 450 U.S. at 715).

For these reasons, the Third Circuit’s observation

that “under Free Exercise jurisprudence, we examine

the “conduct of the objector,” and not what “follows

from” that conduct, is meritless. Pet. App. 40a. As this

Court noted in Hobby Lobby, “the circumstances under

which it is wrong for a person to perform an act that is

15

innocent in itself but that has the effect of enabling or

facilitating the commission of an immoral act by

another,” is “a difficult and important question of

religion and moral philosophy,” that the Third Circuit

was without authority to decide under RFRA. 573 U.S.

at 724 (emphasis added).

In sum, the court below paid little heed to a

multitude of precedents in holding that a religious

objection to complying with the contraception mandate

by means of the “accommodation” cannot, as a matter

of law, amount to a substantial burden under RFRA.

An employer that fails to comply with the contraception

mandate directly (through provision of objectionable

drugs and services in the employer’s health plan) or

indirectly (by submitting the self-certification form)

faces steep monetary penalties that could eventually

drive it out of existence.13 That is more than enough to

demonstrate a substantial burden in this context, and

Petitioners’ efforts to lift that burden through the

religious exemption challenged in this case is more

than justified under RFRA.

B. The lower court’s reliance on the

“undue burden” on nonbeneficiaries is

misguided.

The second flaw in the Third Circuit’s RFRA

analysis lies in its assertion that a religious exemption

“would impose an undue burden on nonbeneficiaries—

13

See Thomas, 450 U.S. at 718 (“While the compulsion may be

indirect, the infringement upon free exercise is nonetheless

substantial.”).

16

the female employees who will lose coverage for

contraceptive care.” Pet. App. 41a.14

As an initial matter, the notion that an exemption

under RFRA can never tolerate a burden on third

parties was squarely rejected by this Court in Hobby

Lobby. In that case, the government suggested that “a

plaintiff cannot prevail on a RFRA claim that seeks an

exemption from a legal obligation requiring the

plaintiff to confer benefits on third parties.” 573 U.S. at

729 n.37. The Court responded that while burdens on

nonbeneficiaries can be taken into account in

evaluating governmental interests and the means to

further those interests, it “could not reasonably be

maintained that any burden on religious exercise, no

matter how onerous and no matter how readily the

government interest could be achieved through

alternative means, is permissible under RFRA so long

as the relevant legal obligation requires the religious

adherent to confer a benefit on third parties.” Id.

Indeed, “[b]y framing any Government regulation as

benefiting a third party, the Government could turn all

regulations into entitlements to which nobody could

14

The court below stated that Petitioners “downplayed this burden

on women, contradicting Congress’s mandate that women be

provided contraceptive coverage.” Pet. App. 41a. But Congress did

not mandate contraceptive coverage in the Affordable Care Act. It

was the Health Resources and Service Administration, a division

of the Department of Health and Human Services, which

promulgated the “Women’s Preventive Services Guidelines”—

guidelines which require “nonexempt employers . . . to provide

‘coverage, without cost sharing’ for ‘[a]ll Food and Drug

Administration approved contraceptive methods, sterilization

procedures, and patient education and counseling.’” Hobby Lobby,

573 U.S. at 697.

17

object on religious

meaningless.” Id.

grounds,

rendering

RFRA

Thus, even to the extent third party “burdens” are

relevant—a standard never fully articulated by this

Court in the RFRA context—the standard for what

burdens are “undue” must be high, given RFRA’s

imposition of strict scrutiny. For example, the third

party suffering religious discrimination in Amos, did

not negate the religious exemption of the employer.

Being required to serve (in place of a conscientious

objector) in the military in wartime, at risk of life and

limb, as in Gillette, did not negate the religious

exemption. See Grumet, 512 U.S. at 724-25 (Kennedy,

J., concurring in judgment) (citing Amos and Gillette as

upholding laws under the Establishment Clause

despite these “substantial” burdens on third parties).

Declining to provide cost-free contraceptive services

through an employer’s health insurance plan falls well

below the third-party burdens at issue—and

tolerated—in those, and other, cases.

Moreover, any alleged burdens placed on employees

of employers who claim a religious exemption must be

considered in their proper context, namely, that

inconveniences and burdens to employees are part and

parcel of the employment context. A dress code denies

the freedom to dress as one chooses. E.g., Mt. Healthy

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 282

(1977) (employee criticizing workplace dress code).

Finite salaries deny employees money beyond their

agreed upon pay. E.g., Comm’r of Internal Revenue v.

Kowalski, 434 U.S. 77, 81 (1977) (amount of salary

subject to labor negotiation). Fixed work shifts deny

18

employees the freedom to work the hours they choose.

E.g., Bhd. of Locomotive Engineers v. Atchison, Topeka

& Santa Fe R.R., 516 U.S. 152, 158 (1996) (noting

fatigue likely to result from 12-hour shifts). The

physical layout of an office will deny employees the

space, window views, or furniture arrangements they

might prefer. E.g., Kilby v. CVS Pharm., Inc., 739 F.3d

1192, 1194 (9th Cir. 2013) (noting role of “business

judgment” in determining the “physical layout of the

workplace”). That employees do not always get what

they deem to be optimum benefits and conditions is not

remarkable, but rather a fact of life.15

Furthermore, it is a mischaracterization (see Amos,

483 U.S. at 337 n.15) to describe religious exemptions

as imposing burdens upon third parties. This charge

knows no limits. The employee who refuses a Sabbath

shift imposes upon his employer or, perhaps, coworkers who need to fill in. But see Sherbert v. Verner,

374 U.S. 398 (1963). The parents who remove their

Amish child from formal high school education deny

that child the instruction that would otherwise be

given. But see Wisconsin v. Yoder, 406 U.S. 205 (1972).

The owners of a kosher deli who refuse to sell pork

deny their patrons the option of a ham sandwich. But

see Jonathan D. Sarna, “Constitutional Dilemma on

15

And this fact of life takes on special relevance here, where

employees of a religious non-profits, for example, must know that

their employer is committed to arranging their operations

according to the religious principles and convictions. If those

employees know that they can be fired at will on the basis of

religion, as in Amos, surely they wouldn’t be shocked to learn that

their employer wishes to have no part in being complicit in the

provision of drugs and services to which their employer objects on

religious grounds.

19

Birth Control,” Forward.com (Mar. 16, 2012) (“We all

might agree that kosher delis should not be coerced

into selling ham”). And the physician who refuses to

perform a “female circumcision,” see Female Genital

Mutilation, WHO media centre fact sheet (Feb. 2014),

or an unnecessary amputation, see David Brang et al.,

“Apotemnophilia: a neurological disorder,” 19

NeuroReport 1305 (2008) (disorder characterized by

intense desire for amputation of healthy limb),

“imposes” upon the would-be recipients of those

procedures (or their parents).

Finally, the alleged “undue burden” on

nonbeneficiaries is hard to square with the fact that a

great number of other employers already do not have to

provide contraceptive coverage under the Affordable

Care Act. See Hobby Lobby, 573 U.S. at 698-99.

Churches, their auxiliaries, and associations of

churches do not have to. Id. at 698. Employers with

grandfathered plans do not have to. Id. at 699.

Employers with less than 50 employees do not have to.

Id. at 699. If the provision of cost-free contraceptive

coverage were as dire a governmental interest as the

Third Circuit seems to think it is, then it is more than

an oddity that Congress did not impose the mandate

across the board, on all employers. In the Free Exercise

context, “only the gravest abuses, endangering

paramount interests, give occasion for permissible

limitation.” Sherbert, 374 U.S. at 406. The government

must demonstrate “some substantial threat to public

20

safety, peace, or order” to deny exempting the claimant.

Yoder, 406 U.S. at 230.16

In sum, the alleged “undue burden” on third parties

in this context does not override the government’s

efforts to provide meaningful accommodation to

religious claimants that object, on sincerely held

religious grounds, to executing the self-certification

form as a way of complying with the contraception

mandate.

C. Even if RFRA does not require the religious

exemption, RFRA nonetheless authorizes

it.

A third and final error in the Third Circuit’s

decision regarding RFRA is that it failed to address a

critical question: does the government have the

authority under RFRA to promulgate the religious

exemption at issue in this case, even if RFRA does not,

at least according to some courts, require it? Because

RFRA imposes a floor, not a ceiling, on religious

accommodation, the answer to that question must be

yes.

The executive branch is charged with complying

with federal law—including of course the

Constitution—in promulgating and implementing

federal regulations. Here, in broadening the religious

exemption to include entities beyond churches and

16

While Hobby Lobby observed that features of the Affordable Care

Act weighed against the argument that the mandate serves a

compelling governmental interest, it did not need to adjudicate

that issue, finding instead that the mandate failed RFRA’s leastrestrictive-means component. 573 U.S. at 727-32.

21

houses of worship, the government has done nothing

more than apply its own understanding of RFRA’s

purposes and goals to those entities whose religious

exercise the government has itself substantially

burdened by imposition of the contraception mandate.

Given our country’s longstanding commitment to

accommodating religious beliefs and practices—a

commitment largely codified in RFRA itself—it would

be a dereliction of the federal agencies’ duty in this case

not to provide a religious exemption when those same

agencies have come to the conclusion that the mandate,

as well as the so-called “accommodation” to complying

with it, substantially burden the religious exercise of

objecting entities.

No one doubts that the government, facing an

individual RFRA claim against the contraception

mandate and its “accommodation” in federal court,

would have the authority to agree with the arguments

posed by the religious claimant and consent to a

permanent injunction barring the government from

applying the mandate against the claimant. By

creating the religious exemption challenged in this

action, the government has, in essence, proactively

established that litigation position as policy through its

rulemaking. So long as governmental actions do not

violate the Establishment Clause, see 42 U.S.C.

§ 2000bb-4 (“Granting government funding, benefits, or

exemptions, to the extent permissible under the

Establishment Clause, shall not constitute a violation

of this chapter”), nothing in RFRA impedes the

government in affording additional religious freedom in

the implementation of federal regulations, such as

22

here, than might be afforded through a judicial remedy

in an individual RFRA case.

Indeed, just as the executive branch should not

apply, implement, or enforce a federal regulation that

could possibly jeopardize free speech or free exercise

liberties protected in the Bill of Rights, it should not

apply, implement, or enforce a federal regulation that

could jeopardize the protections afforded by RFRA. And

just as Congress has been free to act to protect religious

practice after this Court denied relief under the Free

Exercise Clause,17 executive agencies should be free

under RFRA to act to protect religious practice even

where courts have held that RFRA does not require it.

In proactively exempting certain entities that

cannot comply with the contraception mandate by

executing the self-certification form, Petitioners have

furthered the interests of RFRA’s goals and

purposes—a law they are duty-bound to obey—as well

as furthering religious freedom more generally. The

government here has lifted a substantial burden on

religious exercise it was responsible for imposing in the

first place.

17

For example, after this Court in United States v. Lee, 455 U.S.

252 (1982), denied a free exercise claim by an adherent of the

Amish faith over the payment of social security taxes, Congress

adopted 26 U.S.C. § 3127, granting the Amish (and others) such an

exemption. Also, following this Court’s rejection of a free exercise

right of an Air Force serviceman to wear a yarmulke while in

uniform, Goldman v. Weinberger, 475 U.S. 503 (1986), Congress

enacted 10 U.S.C. § 774, allowing members of the armed services

to wear “religious apparel.”

23

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

WALTER M. WEBER

JORDAN SEKULOW

AMERICAN CENTER FOR LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 546-8890

sekulow@aclj.org

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW & JUSTICE

P.O. Box 60

New Hope, Kentucky 40052

(502) 549-7020

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW & JUSTICE

3001 Plymouth Road

Suite 203

Ann Arbor, Michigan 48105

(734) 680-8007

Counsel for Amicus Curiae