Amicus Curiae Brief — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

NO. 24-7

IN THE

Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF OF FOOTHILL CHURCH AND CEDAR

PARK ASSEMBLY OF GOD OF KIRKLAND,

WASHINGTON AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

RORY T. GRAY

Counsel of Record

CHLOE K. JONES

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

rgray@ADFlegal.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT .............................................................. 6

I.

This Court should reverse the D.C.

Circuit’s unsupported standing decision. ........... 6

A. The lower court’s redressability

standard has no basis in this Court’s

standing jurisprudence. ................................ 8

B. California’s redressability argument

failed when the State targeted religious

employers

through

third-party

insurers. ....................................................... 13

II. Affirming the D.C. Circuit would have

catastrophic consequences for religious

liberty. ................................................................ 16

III. Hostile

governments

will

employ

California’s regulatory model to insulate

themselves from judicial review........................ 19

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Bennett v. Spear,

520 U.S. 154 (1997)........................................ 9, 15

California v. Texas,

593 U.S. 659 (2021)............................................ 10

Cedar Park Assembly of God of Kirkland v.

Kreidler,

683 F. Supp. 3d 1172 (W.D. Wash. 2023) ......... 13

Cedar Park Assembly of God of Kirkland v.

Kreidler,

860 F. App’x 542 (9th Cir. 2021) ..........2, 7, 13, 15

Clapper v. Amnesty International USA,

568 U.S. 398 (2013)............................................ 10

Corner Post, Inc. v. Board of Governors of

Federal Reserve System,

603 U.S. 799 (2024).............................................. 6

Department of Commerce v. New York,

588 U.S. 752 (2019).................................... 8–9, 15

Energy Future Coalition v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ...................... 11–12

Food & Drug Administration v. Alliance for

Hippocratic Medicine,

602 U.S. 367 (2024)........................................ 6, 10

Foothill Church v. Rouillard,

2016 WL 3688422 (E.D. Cal. July 11, 2016) ..... 17

iii

Foothill Church v. Watanabe,

623 F. Supp. 3d 1079 (E.D. Cal. 2022) .............. 17

Larson v. Valente,

456 U.S. 228 (1982).............................................. 8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).................................... 6, 8, 11

Massachusetts v. EPA,

549 U.S. 497 (2007)...................................... 10, 12

Murthy v. Missouri,

603 U.S. 43 (2024)................................................ 8

Skyline Wesleyan Church v. California

Department of Managed Health Care,

968 F.3d 738 (9th Cir. 2020) ....2, 7, 13–15, 17, 19

Tozzi v. United States Department of Health &

Human Services,

271 F.3d 301 (D.C. Cir. 2001) ............................ 11

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021).............................................. 8

Utah v. Evans,

536 U.S. 452 (2002).............................................. 8

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021)........................................ 8, 11

Statutes

Wash. Admin. Code § 284-43-7220 .......................... 13

Wash. Rev. Code § 48.43.073 ................................... 13

iv

Other Authorities

California Air Resources Board, Clean Air Act

§ 209(b) Waiver Support Document (May

2012) ................................................................... 10

Regulations

87 Fed. Reg. 14,332 (Mar. 14, 2022) ........................ 10

1

INTEREST OF AMICI CURIAE 1

This Court granted certiorari to determine whether parties may establish redressability by showing the

coercive and predictable effects of government

regulation on third parties. Petitioners rightly say the

answer is yes. Both Petitioners and their supporting

amici emphasize this case’s importance to administrative challenges. But the impact of the Court’s

decision in this case will be far greater. As Amici

Foothill Church and Cedar Park Assembly of God

explain, reaffirming the principle that plaintiffs

directly harmed by third-party regulation have

Article III standing is crucial to upholding

fundamental constitutional rights.

Foothill and Cedar Park have seen California’s

standing arguments before. After California and

Washington required health insurers to insert

abortion coverage in churches’ employee health plans

over Amici’s sincere religious objections, Amici sued

to vindicate their constitutional rights. Both States

sought to evade judicial review by contesting

redressability.

Amici are Christian churches in California and

Washington that believe and teach that humans are

created in the image of God and that every human life

is valuable from the moment of conception. Accordingly, Amici cannot participate in, facilitate, or

indicate approval of abortion in any way.

1 No counsel for a party authored this brief in whole or in part,

and no person other than Amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

Consistent with their doctrine and religious

obligations to care for their employees’ physical,

emotional, and spiritual well-being, Foothill and

Cedar Park contracted with insurers to provide

robust healthcare insurance for church employees.

Reflecting their pro-life beliefs, the churches sought

and obtained health plans that provided comprehensive maternity care while excluding abortion

coverage. Washington and Californian insurance

carriers willingly provided this coverage, enabling the

churches to care for the health needs of their staff and

stay true to their religious beliefs.

But California and Washington disagreed with

Foothill and Cedar Park’s pro-life values and

mandated that health insurers insert elective

abortion coverage into the churches’ group health

plans over their staunch religious objections. The

insurers immediately complied with state regulators,

inserting abortion coverage in violation of the

churches’ sincerely held religious beliefs.

Foothill, Cedar Park, and other churches sued

California and Washington to vindicate their First

Amendment rights. But those States attempted to

block judicial review of their actions by contesting the

churches’ Article III standing. E.g., Skyline Wesleyan

Church v. Cal. Dep’t of Managed Health Care, 968

F.3d 738, 745–46 (9th Cir. 2020); Cedar Park

Assembly of God of Kirkland v. Kreidler, 860 F. App’x

542, 543 (9th Cir. 2021). Just as California argues

now, the States claimed that unregulated parties (i.e.,

the churches) had not demonstrated redressability

because redress depended on the actions of third

parties—health insurers. Skyline, 968 F.3d at 749–

50; Cedar Park, 860 F. App’x at 543.

3

The States’ unsupported standing arguments

caused churches significant harm by delaying justice

and prolonging their constitutional injuries. For

instance, Washington has forced Cedar Park’s group

plan to include abortion coverage for five years. And

Washington continues to contest Cedar Park’s

standing via cross-appeal, even though the Ninth

Circuit held that the church had standing three years

ago. Appellees’ Answering Br. at 22–31, Cedar Park

Assembly of God of Kirkland v. Kreidler, No. 23-35560

(9th Cir. Jan 22, 2024).

Because California has a history of using standing

arguments to evade the merits of churches’ freeexercise claims, and Washington continues to do so in

ongoing litigation, Foothill and Cedar Park have a

substantial interest in the Court’s resolution of the

question presented, which will impact their ability to

challenge regulations on third parties that directly

implicate their First Amendment rights.

4

SUMMARY OF THE ARGUMENT

The court below was wrong to require iron-clad

evidence of redressability, defying this Court’s

precedent and commonsense.

The D.C. Circuit’s heightened redressability

requirement erects an additional barrier to courtroom

access nowhere found in Article III. It places higher

litigation costs on plaintiffs by requiring counsel to

convince directly regulated entities to file affidavits

that merely state the obvious and place them firmly

in the crosshairs of government regulators. Religious

organizations like churches are particularly vulnerable to these consequences because of their limited

financial resources. Plus, directly regulated parties

are hesitant to defy government regulators and

cooperate with plaintiffs, especially those with

unpopular religious values.

The D.C. Circuit’s burdensome redressability

standard will either pose an insurmountable bar to

plaintiffs or delay adjudicating the merits of plaintiffs’ claims, postponing justice—often by years—as

the parties litigate and re-litigate straightforward

standing issues. In the interim, unchecked

government action will deprive churches and others

of their constitutional rights.

Affirming the decision below would enable

government entities to insulate their actions from

judicial review. Governments can achieve their

political goals by targeting disfavored entities

through indirect regulation of third-party industries.

Amici know this stratagem’s harm firsthand.

5

To force pro-life churches to provide insurance

coverage for abortion, States like California and

Washington—in concert with organizations like

Planned Parenthood—regulated the insurance

industry, mandating that most health carriers offer

only group plans with abortion coverage. Predictably,

the insurers—whose ability to offer health coverage

in California and Washington was on the line—

complied, injecting abortion coverage into churches’

health plans over the churches’ sincere religious

objections. Then, when churches brought suit to

vindicate their First Amendment rights, the States

contested the churches’ standing, arguing that the

loss of their previous insurance plans was simply a

result of the marketplace and private business

decisions, such that a ruling against the States would

not redress the churches’ injury.

Endorsing California’s theory of standing here

would catastrophically harm houses of worship and

other religious entities. Hostile governments will

weaponize this newly heightened standing requirement to evade judicial review of policies designed to

suppress religious exercise. And because regulated

industries are reluctant to participate in third-party

litigation and churches often have limited resources,

the harms imposed by States like California and

Washington will often go unchecked.

To ensure the courthouse doors remain open to

churches seeking to vindicate their First Amendment

rights, this Court should reject the D.C. Circuit’s

novel rule and reverse.

6

ARGUMENT

I.

This Court should reverse the D.C. Circuit’s

unsupported standing decision.

Standing doctrine “serves to identify those disputes which are appropriately resolved through the

judicial process.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992) (cleaned up). Article III’s “irreducible

constitutional minimum” requires “an injury in fact,”

“a causal connection between the injury and the

conduct complained of,” and a likelihood “that the

injury will be redressed by a favorable decision.” Id.

at 560–61 (cleaned up). Oftentimes, the causality and

redressability elements are “flip sides of the same

coin.” Food & Drug Admin. v. All. for Hippocratic

Med., 602 U.S. 367, 380 (2024) (cleaned up).

The circumstances in this case are not unique.

Unregulated entities suffering from “adverse downstream effects” often challenge unlawful government

action. See Corner Post, Inc. v. Bd. of Governors of

Fed. Rsrv. Sys., 603 U.S. 799, 826 (2024) (Kavanaugh,

J., concurring); accord All. for Hippocratic Med., 602

U.S. at 384 (“[W]hen the government regulates (or

under-regulates) a business, the regulation (or lack

thereof) may cause downstream or upstream

economic injuries to others in the chain, such as

certain manufacturers, retailers, suppliers, competitors, or customers.”). In such cases, redressability

depends “on the response of the regulated (or

regulable) third party to the government action.”

Lujan, 504 U.S. at 562.

7

What is unique about this case is the lower

court’s unsupported requirement that the plaintiff

proffer definitive proof of a future third-party

decision. Despite Petitioners’ unrebutted declarations

explaining how California’s waiver will increase

electric vehicle sales, thereby reducing oil

consumption, the court stated it had “no basis to

conclude” that the companies’ claims were

redressable. Pet.App.19a–20a, 29a. The court said

that Petitioners failed to show redressability, faulting

them for “offer[ing] only assertions, not facts, … about

the [third-party manufacturers’] likely response” to

the waiver’s vacatur. Pet.App.29a (cleaned up). The

only evidence that might have satisfied the D.C.

Circuit is affidavits from the regulated automakers

themselves, declaring precisely what their price and

production models would be absent the waiver—

something the automakers themselves may not know

and would be unlikely to share in advance if they did.

Were this Court to affirm that heightened evidentiary requirement, government regulators would have

a free pass to target houses of worship through thirdparty regulation. Indeed, such approval would

sanction the standing arguments rejected by the

Ninth Circuit and upend that court’s sound determination that the churches’ claims against California

and Washington’s abortion mandates were redressable. Whereas the D.C. Circuit’s holding defies this

Court’s standing jurisprudence, the Ninth Circuit

correctly rejected California’s and Washington’s

redressability arguments and did not require

affidavits that health insurers would respond to a

government mandate by complying with it. Skyline,

968 F.3d at 742; Cedar Park, 860 F. App’x at 543.

8

A. The lower court’s redressability standard has no basis in this Court’s standing

jurisprudence.

The lower court’s decision flouts settled

precedent. To be sure, standing is more difficult to

establish “when the plaintiff is not himself the object

of the government action.” Lujan, 504 U.S. at 562. But

that simply means an unregulated plaintiff cannot

base its standing theory on “mere speculation about

the decisions of third parties.” Dep’t of Com. v. New

York, 588 U.S. 752, 768 (2019) (emphasis added).

Article III standing exists where plaintiffs articulate

“the predictable effect of Government action” on

regulated parties. Ibid. (emphasis added); accord

Murthy v. Missouri, 603 U.S. 43, 57–58 (2024)

(“Rather than guesswork, the plaintiffs must show

that the third-party platforms will likely react in

predictable ways to the defendants’ conduct.”)

(cleaned up; emphasis added).

Under this Court’s precedents, it is enough for

plaintiffs to show “the injury would likely be

redressed by judicial relief.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021) (emphasis added).

Iron-clad certainty has never been required. Utah v.

Evans, 536 U.S. 452, 464 (2002). Similarly, plaintiffs

need not show that total victory is within reach, as “a

partial remedy satisfies the redressability requirement.” Uzuegbunam v. Preczewski, 592 U.S. 279, 291

(2021) (cleaned up); accord Larson v. Valente, 456

U.S. 228, 243 n.15 (1982) (“a favorable decision” need

not “relieve [plaintiffs’] every injury”). In the case of

the churches, it was both “predictable” and “likely”

that health insurers would do what the government

ordered them to do on threat of license revocation.

9

The decision below turns these “relatively

modest” conditions, Bennett v. Spear, 520 U.S. 154,

171 (1997), into a practically insuperable bar that

exceeds this Court’s standard of predictability and

probability. Consider this Court’s decision in Department of Commerce. Various government and nongovernmental organizations challenged a citizenship

question about citizenship, asserting that fewer

noncitizens would respond if the government included

that inquiry. Dep’t of Com., 588 U.S. at 764–66. This

Court ruled for the plaintiff organizations because

their standing theory did “not rest on mere speculation about the decisions of third parties.” Id. at 768.

This was true even though a noncitizen’s decision not

to respond to the census would be unlawful, and even

though the government had mitigated any fears by

mandating individual answers’ confidentiality. Ibid.

This Court didn’t require third-party affidavits from

noncitizens explaining how they planned to respond

(or not respond) to the census. Rather, the Court said

plaintiffs had “met their burden of showing that third

parties will likely react in predictable ways ….” Id. at

767–68. That makes eminent sense.

If there was no impermissible speculation in

Department of Commerce, where the predicted thirdparty decision was unlawful and assumed that the

government itself would break the law by revealing

confidential information, there is certainly no

impermissible guesswork here. See id. at 767.

Redressability is especially obvious in cases like this

one, where the government explicitly predicts—and

designs the regulation to achieve—the injurious

effects that nonregulated parties seek to challenge.

Id. at 768.

10

California’s own waiver application said its

heightened emissions standards and “increased use of

electricity” would result in “concomitant reductions in

fuel production.” 87 Fed. Reg. 14,332, 14,336, 14,364

(Mar. 14, 2022). In support, California cited EPA

reports concluding that electric and hybrid vehicle

production “can dramatically reduce petroleum

consumption” and lead to “decreased gasoline

production.” California Air Resources Board, Clean

Air Act § 209(b) Waiver Support Document 2, 6, 16

(May 2012), https://tinyurl.com/3ca8mf7s.

A government’s explicit findings and designs in

implementing its programs are highly indicative of

the predictable effects of government action. Accord

Massachusetts v. EPA, 549 U.S. 497, 526 (2007).

Indeed, if the manufacturers would produce more

electric vehicles absent the waiver, the state “would

presumably not bother” applying for the waiver in the

first place. Ibid. (cleaned up).

Petitioners’ theory of standing here is predictable

and clear-cut. It is not “counterintuitive,” “rest[ing] on

a ‘highly attenuated chain of possibilities’” that

“would require far stronger evidence.” California v.

Texas, 593 U.S. 659, 678 (2021) (quoting Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 410–11 (2013)).

Rather, it is based on basic economics and common

sense. It is hardly speculative that ordering

automakers to manufacture more non-gasolinepowered vehicles will “likely” lead to decreased

demand for gasoline-related products. All. for

Hippocratic Med., 602 U.S. at 384–85. That’s

precisely the reason why California issued the order

in the first place.

11

All this makes it “likely” that vacating the waiver

will redress some of Petitioners’ economic harms.

Lujan, 504 U.S. at 561. At minimum, vacating the

waiver would remove a regulatory hurdle to selling at

least “one dollar” more of their products, and that is

sufficient for standing, Uzuegbunam, 592 U.S. at 292;

accord Energy Future Coal. v. EPA, 793 F.3d 141,

144–45 (D.C. Cir. 2015) (Kavanaugh, J.).

The lower court’s decision here is also at odds with

its own precedent. For example, in Tozzi v. United

States Department of Health & Human Services, 271

F.3d 301, 303–04 (D.C. Cir. 2001), the D.C. Circuit

considered whether a PVC manufacturer had

standing to challenge HHS’s decision to label dioxin—

a compound emitted by burning PVC—as a known

carcinogen. The manufacturer in Tozzi argued that, if

the federal government removed the label, “State and

local governments would be less likely to regulate

dioxin, and healthcare companies would in turn be

less likely to stop using PVC plastic.” Id. at 310.

The D.C. Circuit agreed with that commonsense

prediction of the regulatory action’s effect: if HHS’s

label was vacated, “dioxin activists could no longer

point to an authoritative determination” that PVC is

known to cause cancer. Ibid. The court reached this

unremarkable conclusion without affidavits or direct

testimony about how state and local governments, or

healthcare entities, would respond to a change in the

label because “reclassifying dioxin would redress at

least some of [the company’s] economic injury.” Ibid.

Applying the D.C. Circuit’s reasoning below in the

present case, Tozzi would have been decided the

opposite way for lack of evidence showing how the

market would react.

12

The D.C. Circuit reached a similar conclusion in

upholding competitor standing in Energy Future

Coalition v. EPA. There, biofuel producers challenged

an EPA regulation requiring fuels to be “commercially

available” before automotive manufacturers could use

them to test their products. Energy Future Coal., 793

F.3d at 144. Though “vehicle manufacturers may

have valid business reasons other than EPA’s test fuel

regulation for not seeking to use” the biofuel

producers’ fuel, then-Judge Kavanaugh reasoned that

the petitioners had standing because the regulation

denied them “an opportunity to compete in the

marketplace.” Ibid.

Specifically, the court held that the biofuel

producers’ injury was redressable because “[i]nvalidating the ‘commercially available’ requirement

would remove a regulatory hurdle to the use of௘”

petitioners’ fuel. Ibid. Because petitioners didn’t need

to “show that a favorable decision will relieve” their

“every injury,” they had standing to challenge the

EPA’s regulation imposed upon a third party. Id. at

145 (quoting Massachusetts, 549 U.S. at 525). The

same is true here.

In short, the D.C. Circuit violated this Court’s

precedent—as well as its own—by assuming that

“speculation” occurs in the absence of concrete

evidence of a third-party’s likely response to

government action. To the contrary, redressability is

satisfied based on California’s regulatory design and

its conclusions throughout the application process.

Vacating the waiver will have predictable and

commonsense market repercussions. Admissible

evidence is unnecessary to show that.

13

B. California’s redressability argument

failed when the State targeted religious

employers through third-party insurers.

The oil and gas industry is not California’s only

target when it comes to evading or delaying judicial

review through meritless standing challenges. As

Petitioners and other amici have highlighted,

California distorts the law to achieve political ends in

the environmental realm. Amici testify to another

hot-button issue in which States like California use

the same litigation tactics to achieve their political

ends—abortion coverage.

In 2014, the California Department of Managed

Health Care directed health insurers to remove any

limitations on abortion coverage from employers’

plans, including those of religious employers. Skyline,

968 F.3d at 742. In 2018, Washington passed a similar

law that required nearly all group health plans to

include coverage for abortions and abortifacients.

Cedar Park Assembly of God of Kirkland v. Kreidler,

683 F. Supp. 3d 1172, 1176–78 (W.D. Wash. 2023);

Wash. Rev. Code § 48.43.073(1); Wash. Admin. Code

§ 284-43-7220(2). Insurers promptly complied with

these clear-cut government directives, inserting

abortion coverage into churches’ health plans over

their religious objections. Skyline, 968 F.3d at 744–

45; Cedar Park, 683 F. Supp. 3d at 1177–78. When

churches contacted their insurers to re-obtain coverage tailored to their religious beliefs, the insurers

predictably said they could no longer provide an

abortion-excluding plan due to the States’ mandates.

Skyline, 968 F.3d at 745; Cedar Park, 860 F. App’x at

543.

14

Foothill, Cedar Park, and other churches sued to

vindicate their constitutional rights. E.g., Foothill

Church v. Rouillard, No. 2:15-CV-02165 (E.D. Cal.

complaint filed Oct. 16, 2015); Cedar Park Assembly

of God of Kirkland v. Kreidler, No. 3:19-cv-05181

(complaint filed Mar. 8, 2019). But instead of complying with the Religion Clauses and exempting houses

of worship, California and Washington attempted to

dodge judicial review by contesting the churches’

standing. Like California’s argument here, the States

argued that the free-exercise harm to churches wasn’t

redressable because relief depended on the “action by

a non-party health care insurer in the form of

furnishing [the churches] with a plan containing the

exemption it desires.” Skyline, 968 F.3d at 746

(cleaned up); accord Appellees’ Answering Br. at 22–

23, Cedar Park Assembly of God of Kirkland v.

Kreidler, No. 20-35507 (9th Cir. Dec. 2, 2020).

According to the States, insurers’ inability to offer

abortion-excluding plans wasn’t a result of government mandates requiring the insurers to include

abortion coverage in all polices but instead a product

of the marketplace. Like California here, they argued

the churches hadn’t “show[n] that an insurer would

likely agree to offer coverage consistent with” their

beliefs if the mandates were enjoined, Skyline, 968

F.3d at 749, either by “depos[ing]” or “obtain[ing] a

sworn declaration” from the insurer, Appellees’

Answering Br. at 24–25, Cedar Park, No. 23-35560

(9th Cir. Jan. 22, 2024). In other words, the States

insisted that admissible evidence was required before

a court could assume that regulated entities would

comply with a government mandate that applied to

their activities.

15

The Ninth Circuit disagreed with the States’

arguments—twice. Correctly construing this Court’s

precedent, the Ninth Circuit held that “a plaintiff does

have standing when the defendant’s actions produce

injury through their ‘determinative or coercive effect

upon the action of someone else.’” Skyline, 968 F.3d at

749 (quoting Bennett, 520 U.S. at 169); accord Cedar

Park, 860 F. App’x at 543. Indeed, before the States

mandated abortion coverage, insurers had offered

plans consistent with the churches’ pro-life beliefs.

After the States mandated abortion coverage, the

insurers predictably and immediately complied,

amending those plans. Skyline, 968 F.3d at 747;

Cedar Park, 860 F. App’x at 543.

That the insurers previously offered abortion-free

plans was “strong evidence” that a favorable court

decision would redress the churches’ injuries. Skyline,

968 F.3d at 750; accord Cedar Park, 860 F. App’x at

543. And though it was theoretically “possible no

insurer” would re-offer a tailored plan, the Ninth

Circuit recognized that it “need not be certain how

insurers would respond.” Skyline, 968 F.3d at 750.

Instead, the churches satisfied the redressability

element because “the predictable effect of an order

granting the [requested] relief௘” would be “that at least

one insurer would be willing to sell it a plan that

accords with its religious beliefs.” Ibid. Because their

theory of harm relied “on the predictable effect of

Government action on the decisions of third parties,”

the Ninth Circuit rightly held that the churches had

standing to challenge the State mandates. Id. at 749

(quoting Dep’t of Com., 588 U.S. at 768); accord Cedar

Park, 860 F. App’x at 543 (citing Skyline, 968 F.3d at

750).

16

II. Affirming the D.C. Circuit would have catastrophic consequences for religious liberty.

Adopting the lower court’s heightened redressability requirement would profoundly harm religious

organizations. Houses of worship and other religious

organizations are vulnerable for three reasons: (1) an

exponential increase in litigation costs, (2) prolonging

of First Amendment injuries during the years spent

litigating clear-cut standing issues, and (3) directly

regulated industries’ reluctance to participate in

litigation because of the risks of offending state

overseers and public backlash. A redressability ruling

against Petitioners here would exacerbate each of

those problems.

1. Churches like Foothill and Cedar Park seek to

honor God and their members’ trust by faithfully

stewarding their financial resources. The D.C.

Circuit’s high evidentiary bar for redressability would

prolong expensive litigation, demanding needless

third-party affidavits and expert evidence before a

court could even consider the merits of churches’

constitutional claims.

Unlike oil and gas companies that can front high

litigation costs, few non-profit churches possess the

necessary resources to engage in drawn-out discovery

battles and the creation of evidence. Even if churches

could reorganize their finances, doing do would

necessarily force them to divert significant resources

from their religious ministries, exacting even greater

First Amendment harm and irreparably injuring the

communities they serve.

17

2. Foothill, Cedar Park, and other churches

prevailed on jurisdiction in the Ninth Circuit. But the

States’ unfounded standing arguments significantly

prolonged their injuries—litigating straightforward

standing issues consumed several years, delaying

consideration of the merits of their First Amendment

claims. E.g., Skyline, 968 F.3d at 745, 754 (ruling in

the church’s favor on standing but remanding for

consideration on the merits over four years after the

lawsuit began); accord Foothill Church v. Rouillard,

No. 2:15-cv-02165, 2016 WL 3688422, at *6–7 (E.D.

Cal. July 11, 2016). Cedar Park’s case is a prime

example, as Washington still contests the church’s

standing on appeal, even though the Ninth Circuit

ruled in Cedar Park’s favor on the issue three years

ago and is now the law of the case. Appellees’

Answering Br. at 22–31, Cedar Park, No. 23-35560

(9th Cir. Jan 22, 2024).

All the while, the States’ unconstitutional mandates have remained in effect, forcing churches to

fund health plans that violate their religious beliefs.

For example, Washington has forced Cedar Park to

include abortion and abortifacient-contraceptive

coverage in its health plan for the last five years. First

Br. of Appellant/Cross-Appellee at 5, 23, Cedar Park

Assembly of God of Kirkland v. Kreidler, Nos. 2335560, 23-35585 (9th Cir. Nov. 22, 2023). But see

Foothill Church v. Watanabe, 623 F. Supp. 3d 1079

(E.D. Cal. 2022). So even if churches could afford to

fight for their First Amendment rights in court,

California’s redressability standard would allow

states to inflict First Amendment harms on churches

for years during pending standing litigation.

18

3. Even if churches could front these sky-high

costs, directly regulated parties are unlikely to

willingly participate in the litigation. Such participation in a challenge to government mandates would

place the third party directly in government regulators’ bullseye. Many third parties will resist providing

affidavits or giving testimony that supports plaintiffs

in challenges to government mandates out of fear of

antagonizing their regulators.

This is especially true when—as in religious

liberty cases—regulated third parties have little-tonothing to gain and much to lose from cooperating.

Plus, the reluctance to challenge a government

mandate may be heightened in the religious-freedom

context. Third parties may deem a church’s values too

“controversial” if they contradict popular culture.

Abortion is a prime example. Seeking to avoid the

consequences of widespread “cancel culture,” third

parties will likely decline to assist groups seeking a

religious exemption from an abortion mandate out of

fear of public backlash—especially in States like

California and Washington, where activism is a

cottage industry.

Under the D.C. Circuit’s onerous redressability

standard, the opportunity for a church to have its day

in court will become vanishingly small. The rule will

not only require cash-strapped churches to bear

unnecessary and mounting litigation costs, but also to

convince third parties to participate in high-risk

litigation on hot-button issues that could alienate

their regulators and the public alike.

19

III. Hostile governments will employ California’s regulatory model to insulate themselves from judicial review.

If this Court affirms the D.C. Circuit’s extreme

view of redressability, California is sure to replicate

its regulatory model beyond mandating electric

vehicle production and abortion coverage. Other

states will follow suit, crafting regulations to achieve

desired political ends, while skirting judicial

accountability. Plaintiffs who are harmed by those

regulations—whose injuries range from financial to

constitutional—will only have their day in court if

their pocketbook and the whims of directly regulated

parties allows. With no guaranteed check by the

judicial branch, the sky’s the limit. Hostile governments may expand mandated health care coverage

beyond abortion services to include coverage that

many religious organizations morally oppose, such as

elective sterilization, transgender procedures, and

even euthanasia and assisted suicide.

States will undoubtedly use this regulatory tactic

for purely political purposes. The California abortioncoverage mandate is a perfect example. California

issued the mandate as a direct response to “media

outlets report[ing] that two Catholic universities in

California … had taken steps to exclude coverage for

what the universities termed ‘elective’ abortions.”

Skyline, 968 F.3d at 743. In response, proponents of

expanded abortion access—who sought to eliminate

“religious restrictions”—met with state officials and

pressured them to “rescind its approval of plans that

include an abortion.” Appellant’s Opening Br.,

Skyline, 968 F.3d 738 (No. 18-55451), 2018 WL

4443727, at *10–11 (cleaned up).

20

One of those opposition organizations, Planned

Parenthood, warned the state that if it failed to “fix”

the churches’ plans, the organization would promote

its own legislative “solution.” Id. at *11.

Though the State’s mandate regulated insurers,

California’s real target was religious employers like

the Catholic universities. Making the lower court’s

heightened redressability standard the law of the

land gives governments a blank check to target

religious entities, inflicting direct constitutional

injuries through indirect regulation.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

JANUARY 2025

RORY T. GRAY

Counsel of Record

CHLOE K. JONES

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

rgray@ADFlegal.org