Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

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Nos. 13-354, 13-356

Supreme Coun, Ue

mig

JAN 28 2514

~OFFICE OF THE CLEP |

In the Supreme Court of the United States

KATHLEEN SEBELIUS, et al.,

Ve

Petitioners,

HOBBY LOBBY STORES, INC., et ai.,

-—_—- S———- ————-

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., et al.,

Vv.

Petitioners,

KATHLEEN SEBELIUS, et al.,

Respondents.

On Writs of Certiorari to the United States

Courts of Appeals for the Tenth and Third Circuits

BRIEF OF AMERICAN CENTER FOR LAW

& JUSTICE AND TWENTY-ONE FAMILY BUSINESS

OWNERS AS AMICI CURIAE IN SUPPORT

OF HOBBY LOBBY AND CONESTOGA, ET AL.

Francis J. Manion

Geoffrey R. Surtees

AMERICAN CENTER FOR

Law & Justice

PO Box 60

New Hope, KY 40004

(502) 549-7020

Edward L. White ITI

Erik M. Zimmerman

AMERICAN CENTER FOR

Law & Justice

3001 Plymouth Road, Suite 203

Ann Arbor, MI 48105

(734) 680-8007

Jay Alan Sekulow

Counsel of Record

Stuart J. Roth

Jordan A. Sekulow

Colby M. May

Walter M. Weber

AMF?PICAN CENTER FOR

Law & JuSTICE

201 Maryland Ave., N_E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amici Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800. 899.500)

i

TABLE OF CONTENTS

pp Se hg y | > ii

CT MEME 5s bbe pcccesccsesesses 1

ee Geis 3's on 9.665. 0 0.9 006 02s 4

SUMMARY OF ARGUMENT .................. 9

GR or a 11

I. Individuals Do Not Forfeit Their Free

Exercise Rights By Entering the Economic

re ed pee ewes ll

Il. For Some, Owning and Managing a Business

is a Religious Vocation That Not Only

Prohibits Them From Undertaking Certain

Acts, But Inspires Them to Work For the

os as Gk ook 6 WX 00:06 14

III. The Mandate Injures the Religious Exercise

of Religious Business Owners Who Oppose

ay EY A ae 20

IV. The Mandate Substantially Burdens the

Religious Exercise of Religious Business

Owners Like the Hahns, the Greens, and

ee ale ino e 6 a 0 27

V. Recognizing that the Mandate Violates the

Free Exercise Rights of Individuals and their

Businesses Would Not Prompt a Flood of

i id see b es sé see so oe

EE IS aa 35

li

TABLE OF AUTHORITIES

CASES

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

2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec.

cba «boda SPE Re OL ek oe Vase hans 2

Autocam Corp. v. Sebelius,

730 F.3d 618 (6th Cir. 2013), petition for cert.

pending, No. 13-482 (filed Oct. 15, 2013) .. 21, 24

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

No. 4:13-cv-462-AGF (E.D. Mo. Apr. 1, 2013)... 2

Braunfeld v. Brown,

Rr re 11, 12, 30

Cedric Kushner Promotions, Ltd. v. King,

ee Rie PE 5 5 ox bow nee ec sbees bess 22

Conestoga Wood Specialties Corp. v. Secretary of

U.S. Dep’t of Health & Human Servs.,

124 ¥ .3d 377 (3d Cir. 2013) ........... 9, 21, 26

Conestoga Wood Specialties Corp. v. Sebelius,

2013 U.S. App. LEXIS 2706 (3d Cir. Feb. 7,

een aed, ee Sones Ser ree 19

EEOC v. Sunbelt Rentals, Inc.,

521 F.3d 306 (4th Cir. 2006) ........cccceee 26

EEOC v. Townley Eng’g & Mfg. Co.,

859 F.2d 610 (9th Cir. 1988) ............ 32, 33

FCC v. Fox TV,

be Bae gt: : a ]

ill

Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd.,

ee Se Oe OE i bee cairo s ea cees 24, 25

Frost & Frost Trucking Co. v. R.R. Comm’n of Cal.,

ype ik ©. aaa aaa 26

Gilardi v. United States Dep’t of Health & Human

Servs., 733 F.3d 1208 (D.C. Cir. 2013) ... passim

Gillette v. United States,

ee ee wn eee ewe anes 6

Girouard v. United States,

RA ae a . 8

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) ............... 31

Hartenbower v. U.S. HHS,

No. 1:13-cv-2253 (N.D. Ill. Jan. 21, 2014)...... 2

Hein v. Freedom From Religion Found.,

gk Bs) re 1

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ........... 9, 25

Koontz v. St. Johns River Water Mgmt. Dist.,

eee ee ee ED CEE. 6k occ kb rece decvece 26

Korte v. Sebelius,

528 Fed. Appx. 583 (7th Cir. 2012) .......... 28

Korte v. Sebelius,

735 F.3d 654 (7th Cir. 2013) .... 2, 23, 24, 28, 29

Korte v. Sebelius,

3:12-cv-01072-MJR-PMF (S.D. Ill. Jan. 13,

REY <5 diy Manes y's ula k au 6 A wa wa AO oe ee ee 2

iv

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. Mar. 20, 2013) .... 2

O’Brien v. U.S. HHS,

No. 12-3357, 2012 U.S. App. LEXIS 26633 (8th

Cir. Nov. 28, 2012) .................0c00e: 2

Pleasant Grove City v. Summum,

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

Regan v. Taxation With Representation of Wash..,

461 U.S. 540 (1983) ....................4.. 26

Reich v. Sea Sprite Boat Co.,

50 F.3d 413 (7th Cir. 1995) .........--200.0. 22

Robinson v. Cheney,

876 F.2d 152 (D.C. Cir. 1989) .............. 22

Sherbert v. Verner,

374 U.S. 398 (1963) ............. 12, 24, 29, 30

Southern Pac. Co. v. Denton,

oe BOF Me $e) ) ee! 26

Thomas v. Review Bd.,

450 U.S. 707 (1981) ................ 12, 29, 30

United States v. Lee,

€66 U.S. 262 C2962) ... ec cee cee 12, 32

Wisconsin v. Yoder,

LP 88 yy | rr eerie ie 12, 29

CONSTITUTION

RS a Se ae ee passim

Free Exercise Clause. ..... ..... 9, 14, 31, 34

STATUTES

8) 31

Religious Freedom Restoration Act

ee Sa ey ke oe cd dW 0 passim

OTHER AUTHORITIES

A Bill for Establishing Religious Freedom, in THE

FOUNDERS’ CONSTITUTION, Vol. 5 (P. Kurland &

Es 4

Ne ee 8

A Memorial and Remonstrance Against Religious

Assessments (1785), in THE SACRED RIGHTS OF

CONSCIENCE (D. Dreisbach & M.D. Hall eds.

ek 5 vc be 8

Bick Group, Bick Group’ Values,

http://www.bickgroup.com/bick-group-values.

es po RRR Ans ee 16

Douglas Laycock & Oliver S. Thomas, Interpreting

the Religious Freedom Restoration Act,

18 Tex. L. Rev. 209 (1994) ..............2.0.. 9

Farewell Address (Sept. 19, 1796), in THE

FOUNDERS’ CONSTITUTION, Vol. 1 (P. Kurland &

ES Ng 18

Letter from President Thomas Jefferson to the

Society of the Methodist Episcopal Church at

New London, Conn. (Feb. 4, 1809) ........... 4

Cs ee 19

v1

Mark L. Rienzi, God and the Profits, 21 Geo. Mason

ce re SL eh whee Peo eee ee 6

nn, Gy oe a Woe eg Vural es 7

Michael McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

Harvard L. Rev. 1409 (1990) ................ 5

Michael Novak and Jane Novak, WASHINGTON’S

GOD: RELIGION, LIBERTY, AND THE FATHER OF

COE CRITE CHE occ oper keswvccvsessass 4

O’Brien Industrial Holdings, LLC, Explanation of

Mission & Values, http://www.christyco.com/

mission and values details. html .......... 15

O’Brien Industrial Holdings, LLC, Mission &

Values, http://www.christyco.com/mission_

ee eS ae oes oes es 15, 32

Petition for Writ of Certiorari, Gilardi v. Sebelius,

No. 13-567 (filed Nov. 5, 2013) ..... 2, 14,17, 18

Property (March 29, 1792), in THE FOUNDERS’

CONSTITUTION, Vol. 1 (P. Kurland & R. Lerner

AS MNO Rr ae eer aa re met ant aA. Gh tly 4

Saint Benedict Press & TAN Publisher’s Letter,

June 29, 2012, https://books.benedictpress.com

/index.php/page/shop:publisherletter712/ ..... 18

THE UNABRIDGED DEVIL'S DICTIONARY (D. Schultz &

a ae ee, Dg sy ors dg a ee ee 19

Vocation of the Business Leader: A Reflection (Nov.

2012), http://www.stthomas.edu/cathstudies/

cst/VocationBusinessLead/VocationTurksonRe

mar/VocationBk3rdEdition.pdf .............. 7

1

INTEREST OF AMICI’

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 for amici,e.g., FCC

v. Fox TV. 132 S. Ct. 2307 (2012); Hein v. Freedom

From Religion Found., 551 U.S. 587 (2007).

The federal regulation at issue in these cases

requires employers to pay for and provide abortifacient

drugs and devices, contraception, sterilization, and

related patient education and counseling services in

their health insurance plans (“the Mandate”). The

ACLJ has been active in litigation concerning that

Mandate. In total, the ACLJ currently represents

thirty-two individuals and corporations in seven

pending actions against the government, including a

case with a petition for certiorari currently pending

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

person or entity aside from amici curiae, their members, and their

counsel made a monetary contribution to the preparation or

submission of this brief. The government and Conestoga Wood

Specialties have filed notices with this Court consenting to the

filing of amicus curiae briefs, and Hobby Lobby has consented to

the filing of this brief.

2

before this Court.* The ACLJ has obtained preliminary

injunctive relief for its clients in all seven cases.”

Amici, Frank O’Brien, Cyril and Jane Korte, Paul

and Henry Griesedieck, Francis and Philip Gilardi,

Catherine and Milton Hartenbower, William Lindsay,

and the Bick Family‘ are all ACLJ clients in challenges

to the Mandate. These individuals, in addition to Amici

Robert and Jacquelyn Gallagher, are owners of family

businesses with religious objections to paying for and

providing contraceptive services pursuant to the

Mandate.

O’Brien is the sole shareholder and manager of

O’Brien Industrial Holdings in St. Louis, Missouri. The

Kortes, husband and wife, are equal shareholders who

together own a controlling interest in Korte &

“Gilardi v. Sebelius, No. 13-567 (filed Nov. 5, 2013).

* See O’Brien v. U.S. HHS, No. 12-3357, 2012 U.S. App. LEXIS

26633 (8th Cir. Nov. 28, 2012); Am. Pulverizer Co. v. U.S. HHS

2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012); Korte v.

Sebelius, 3:12-cv-01072-MJR-PMF, ECF Doc. 74 (S.D. Ill. Jan. 13,

2014) (granting preliminary injunction pursuant to Korte uv.

Sebelius, 735 F.3d 654 (7th Cir. 2013)); Lindsay v. U.S. HHS, No.

1:13-cv-01210, ECF Docs. 20-21 (N.D. Ill. Mar. 20, 2013); Gilardi

v. U.S. HHS, No. 13-5069 (D.C. Cir. Dec. 11, 2013) (per curiam

order staying issuance of mandate and maintaining injunction

pending appeal); Bick Holdings, Inc. v. U.S. HHS, No. 4:13-cv-462-

AGF, ECF Doc. 19 (E.D. Mo. Apr. 1, 2013); Hartenbower v. US.

HHS, No. 1:13-cv-2253, ECF Doc. 21 (N.D. Ill. Jan. 21, 2014).

* The Bick Family includes Mary Frances Callahan, Mary Clare

Bick, James Patrick Bick, Jr., William Joseph Bick, Mary Patricia

Davies, Joseph John Bick, Francis Xavier Bick, Mary Margaret

Jonz, and Mary Sarah Alexander.

3

Luitjohan Contractors, Inc. in Highland, Illinois. The

Griesedieck brothers together manage and have a

controlling interest in four companies, including

American Pulverizer Co. in St. Louis, Missouri. The

Hartenbowers, husband and wife, together own and

control Hart Electric, LLC and H.I. Cable, LLC in

Lostant, Illinois. William Lindsay owns the controlling

interest in, and is the managing partner of, the law

firm, Lindsay, Rappaport & Postel, LLC in Chicago,

Illinois. The nine brothers and sisters of the Bick

Family together own Bick Holdings, Inc. and the Bick

Group, Inc. in St. Louis, Missouri. The Gallaghers,

husband and wife, together have a controlling interest

in Good Will Publishers, Inc. in Gastonia, North

Carolina.

To date, and except for the Gallaghers, each of these

individuals and the closely-held corporations they own

and control have filed suit against the government

claiming, inter alia, that the Mandate violates their

rights under the Religious Freedom Restoration Act

(“RFRA”). All Amici who have filed suit have been

awarded preliminary injunctive relief from having to

comply with the Mandate.” The future ability of these

Amici to manage their businesses pursuant to their

religious beliefs is directly at stake in these cases.

In addition, this brief is filed on behalf of more than

90,000 supporters of the ACLJ who specifically

requested that they be included in this brief as an

expression of their opposition to the Mandate’s

encroachment on religious civil liberties as protected by

RFRA and the First Amendment.

° See n.3, supra.

4

INTRODUCTION

Amici urge this Court, in its adjudication of the

issues involved in these cases, to be mindful of the

dignity of individual conscience and the right of

religious exercise our forefathers held sacred in the

founding of this country.

James Madison, the Father of the Constitution,

opined that “[clonscience 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.” 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.”” Thomas

Jefferson wrote that “[nJo 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.”

° Property (March 29, 1792), in THE FOUNDERS’ CONSTITUTION, Vol.

1, Doc. 23 (P. Kurland & R. Lerner eds. 1987).

7 Michael Novak and Jane Novak, WASHINGTON’S GOD: RELIGION,

LIBERTY, AND THE FATHER OF OUR COUNTRY, p. 111 (2006).

® Letter from President Thomas Jefferson to the Society of the

Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809).

One provision of Jefferson’s Bill for Establishing Religious

Freedom, originally drafted in 1779, has special relevance to the

Mandate challenged in the cases at bar: “to compe] a man to

furnish contributions of money for the propagation of opinions

which he disbelieves is sinful and tyrannical.” A Bill for

Establishing Religious Freedom, in THE FOUNDERS’ CONSTITUTION,

supra n.6, at Vol. 5, Doc. 37.

5

In fact, even before the ratification of the U.S

Constitution in 1788, and even before the signing of the

Declaration of Independence in 1776, the Continental

Congress passed a resolution in 1775 exempting

individuals with pacifist religious convictions from

military conscription:

As there are some people, who, from religious

principles, cannot bear arms in any case, this

Congress intend no violence to their consciences,

but earnestly recommend it to them, to

contribute liberally in this time of universal

calamity, to the relief of their distressed

brethren in the several colonies, and to do all

other services to their oppressed Country, which

they can consistently with their religious

principles.®

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.

Whether this country will continue to preserve the

dignity of conscience and robustly protect religious

freedom in the future largely depends on how this

Court rules in the cases at bar. If the government is

permitted to conscript citizens through their businesses

* Michael McConnell, The Origins and Historical Understanding

of Free Exercise of Religion, 103 Harvard L. Rev. 1409, 1469 (1990).

6

to pay for and provide drugs and services to which they

are religiously and steadfastly opposed in violation of

their conscience, as the government does through the

Mandate, the liberties that our forefathers struggled to

secure will be significantly diminished.

Amici business owners, like the Hahn family in

Conestoga Wood and the Green family in Hobby Lobby,

wish to run their businesses in a manner consistent

with their religious beliefs. This is not a novel concept.

Most, if not all, religious traditions teach that every

dimension of one’s life, whether personal or public, in

the home or in the workplace, should be directed, first

and foremost, by one’s religious commitments. For such

people of faith, religion is not a matter of mere taste,

preference, or inclination that can be set aside or

ignored when materially advantageous to do so. It isa

fundamental and guiding principle that shapes how

they think, act, and live their lives in the world.

This is no less true when it comes to business,

whether working for a company or owning and

controlling one. Judaism, Christianity, and Islam, for

example, all place religious and moral obligations on

how one conducts oneself in business.’ They each

reject the idea that a business owner is insulated,

morally speaking, from the actions of his business.

Each of them “prohibit businesses from providing

harmful products or services that others would use to

engage in harmful conduct.””

‘© See Mark L. Rienzi, God and the Profits, 21 Geo. Mason L. Rev.

59, 67 (2013).

" Td.

7

As the Catholic Church’s Pontifical Council for

Justice and Peace has stated with respect to living

one’s faith and engaging in business:

Dividing the demands of one’s faith from one’s

work in business is a fundamental error which

contributes to much of the damage done by

businesses in our world today... . The divided

life is not unified or integrated; it is

fundamentally disordered, and thus fails to live

up to God’s ca]l.”

This statement reflects the teaching of Jesus Christ,

who, in his Sermon on the Mount uttered words that

have echoed throughout history:

No one can serve two masters, for either he will

hate the one and love the other, or he wiil be

devoted to the one and despise the other. You

cannot serve God and money.

Matthew, 6:24 (ESV).

This admonition makes abundantly and forcefully

clear, at least to those who choose to adhere to the

teachings of Jesus, that one’s obligation to God must

take precedence over all other obligations and

endeavors, including the pursuit of profit. A Christian

business owner, for example, such as any one of the

Amici, faced with a law requiring management of the

company in a way that violates the owner’s religious

beliefs, must answer with the words of St. Peter and

* Vocation of the Business Leader: A Reflection at p. 6, J 10 (Nov.

2012), http://www.stthomas.edu/cathstudies/cst/Vocation

BusinessLead/VocationTurksonRemar/Vocation Bk3rdEdition. pdf.

8

the apostles: “We must obey God rather than men.”

Acts, 5:29 (ESV). Such a stance of conscience is

consistent with James Madison’s position, who wrote

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.”'* Cf. Girouard v. United States,

328 U.S. 61, 68 (1946) (“The 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.”).

Thanks in large part to this countrys “happy

tradition of avoiding unnecessary clashes with the

dictates of conscience,” Gillette v. United States, 401

U.S. 437, 453 (1970), Amici have never before had to

resolve such a conflict in the management of their

businesses. Indeed, until the promulgation of the

Mandate at issue here, no federal law or regulation

compelled Amici to run their businesses in violation of

their religious beliefs or commitments. Amici were free

to practice their respective trades, such as Frank

O’Brien in manufacturing industrial materials, William

Lindsay in practicing law, and the Gallaghers in

publishing Bibles, in a manner consistent with their

religious beliefs. Now, however, as a direct result of the

Mandate, the Hahns, the Greens, and Amici business

owners face a stark choice: abandon their beliefs in

order to stay in business, or abandon their businesses

in order to stay true to their beliefs. That is a choice

that the federal government, bound by the Free

Exercise Clause and RFRA, “the most important

3 A Memorial and Remonstrance Against Religious Assessments

(1785), in THE SACRED RIGHTS OF CONSCIENCE, p. 309 (D.

Dreisbach & M.D. Hall eds. 2009).

)

congressional action with respect to religion since the

First Congress proposed the First Amendment,”** may

not lawfully impose upon them.

In Conestoga Wood Specialties Corp. v. Secretary of

U.S. Dep’t Health & Human Servs., 724 F.3d 377 (3d

Cir. 2013), the Third Circuit held that the Hahns

themselves had no viable RFRA or Free Exercise

claims against the Mandate, and in Hobby Lobby

Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013),

there was no majority decision regarding whether the

Green family had RFRA or Free Exercise claims

against the Mandate. No matter how this Court rules

on whether a closely-held corporation can operate

under religious norms, and thus invoke the protection

of religious exercise afforded by RFRA and the First

Amendment, it should hold that where, as here, a

federal regulation compels owners and managers of

such a corporation to take actions in violation of their

religious beliefs, their religious exercise is substantially

burdened by that regulation and, pursuant to RFRA

and the Free Exercise Clause, these individuals can

challenge it in court.

SUMMARY OF ARGUMENT

According to the government, the owners of a

closely-held corporation who oppose implementing the

Mandate have no legal claim to challenge it because the

Mandate does not injure them, and the corporation

itself has no legal claim because a corporation cannot

exercise religion.

“* Douglas Laycock & Oliver S. Thomas, Interpreting the Religious

Freedom Restoration Act, 73 Tex. L. Rev. 209, 243 (1994).

10

This Court should reject the government’s “heads I

win; tails you lose” formula for prevailing in these

cases.

When family members, like Amici business owners,

incorporate a business, they do not surrender the right

to manage that business according to their religious

beliefs. For them, running their business in a manner

that reflects their religious values and ideals is part

and parcel of their identity as people of faith. Pursuant

to their religious beliefs, they measure success in

business not only in terms of profit, but in how they

serve God and others.

Unlike the multitude of state and federal

regulations that Amici direct their businesses to

comply with, the Mandate crosses the line, and they

cannot, in good conscience, implement it without

violating their religious beliefs. Contrary to the

government’s assertion, the Mandate imposes a very

real and palpable injury on such owners and managers.

A corporation can only act through its agents, and

when those agents are also the owners of a closely-held

corporation, like Conestoga Wood Specialties, Hobby

Lobby, or Mardel, it is plainly wrong to argue they are

not harmed or injured by a regulation that, like the

Mandate, forces them to manage that corporation in

violation of their religious conscience.

Not only does the Mandate injure such owners, it

substantially burdens their religious exercise. It

imposes on them a Hobson’s choice of either

(1) complying with the Mandate and violating their

religious beliefs, or (2) not complying and likely losing

their companies due to ruinous penalties. Even if the

Mandate’s burden on the owners’ religious exercise is

11

characterized as indirect, because the Mandate is

directly imposed upon the corporation, it is nonetheless

a substantial one.

Finally, this Court should reject any argument that

ruling in favor of the religious claimants here will

unleash an onslaught of challenges to various

government regulations by businesses and their

owners. RFRA itself provides two limiting principles to

prevent a hypothetical flood of employer challenges to

various regulations: (1) most regulations do not even

arguably burden anyone’s religious exercise, and

(2) RFRA provides no exemption when a regulation is

the least restrictive means of achieving a compelling

governmental interest. In addition, any religious

exercise must be sincere, i.e., not falsely conjured up for

the sole purpose of avoiding the regulation. This Court

should not reject the valid RFRA claims asserted here

due to any speculative or unfounded fear of future

RFRA litigation.

ARGUMENT

I. Individuals Do Not Forfeit Their Free

Exercise Rights By Entering the Economic

Arena.

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

Stewart wrote:

Pennsylvania has passed a law which compels

an Orthodox Jew to choose between his religious

faith and his economic survival. That is a cruel

choice. It is a choice which I think no State can

constitutionally demand. For me this is not

something that can be swept under the rug and

forgotten in the interest of Sunday togetherness.

12

J think the impact of this law upon these

appellants grossly violates their constitutional

right to the free exercise of religion.

Id. at 616 (Stewart, J., dissenting).

Who were the petitioners in Braunfeld? A group of

Orthodox Jewish merchants engaged in the obviously

for-profit business of selling clothes and furniture. And

while a majority of the Court in this pre-Sherbert and

Yoder case rejected, on other grounds, the merchants’

free exercise challenge to Pennsylvania’s Sunday

closing law, no member of the Court questioned the

right of those for-profit business owners to bring a free

exercise challenge to a law that—quite indirectly—had

an adverse economic impact on their businesses.

Old Order Amish farmer Lee was also engaged in a

for-profit business. United States v. Lee, 455 U.S. 252

(1982). And while the Court ultimately held that his

free exercise claim had to yield to a compelling state

interest in a uniform Social Security tax system, no

member of the Court expressed any doubt about the

right of this for-profit business owner to bring a free

exercise claim. Similarly, the pursuit of economic gain

did not foreclose otherwise meritorious free exercise

claims in this Court’s unemployment benefit cases. See,

e.g., Thomas v. Review Bd., 450 U.S. 707 (1981);

Sherbert v. Verner, 374 U.S. 398, 402 (1963).

One would think that these cases close the door on

the notion that one who engages in commercial activity

must abandon the statutory and constitutionally

protected right to exercise religion. Yet, the

government argues that Braunfeld, Lee, and similar

cases are categorically different from the cases

13

challenging the Mandate, and for one reason: the

corporate form. The government asserts that when

religious persons incorporate a business, they forfeit

any right to challenge a law that compels their

corporation to act in violation of their own religious

beliefs. This, in turn, leads to the government’s “heads

I win, tails you lose” argument that neither a for-profit

corporation nor its owners can challenge a law under

RFRA that burdens the religious exercise of the

corporation or its owners when the corporation is the

object of the regulation. According to the government,

the owners cannot bring the claim because they are

legally distinct from the corporation and thus are not

injured by the regulation, and the corporation itself

cannot bring the claim because a corporation is not a

person capable of exercising religion.

The practical result of such an argument is as

alarming as it is extraordinary: a shop owned by

Seventh-day Adventists that does not open on Saturday

for religious reasons would have to comply with a law

requiring certain businesses to remain open seven days

a week. A deli run by a Jewish family that does not sell

pork for religious reasons would have to comply with a

regulation that requires food establishments to sell

pork. A medical practice operated by Catholics who do

not conduct abortions for religious reasons would be

forced to do so by a law requiring all OB/GYN medical

practices to offer abortion services. No court would be

able to reach the merits of any religious freedom claim

brought by these or similar parties.

This Court should reject the government’s attempt

to evade review of the merits of such RFRA claims. As

argued herein, owners of closely-held corporations have

14

a right under RFRA to pursue a claim against a

regulation that compels them to manage that

corporation in violation of their religious beliefs. This

is seen most clearly in the cases under review, where

the Mandate requires business owners to do just that.

Il. For Some, Owning and Managing a

Business is a Religious Vocation That Not

Only Prohibits Them From Undertaking

Certain Acts, But Inspires Them to Work

For the Good of Others.

Regardless of whether a for-profit or secular

corporation is a “person” capable of exercising religion,

and thus able to invoke the protections of RFRA or the

Free Exercise Clause, there can be no doubt that

individual owners of closely-held corporations, like the

Hahns, the Greens, and Amici, are “persons” under

both federal law and the First Amendment.” There can

also be no dispute that such individuals are able to

exercise religion and invoke the protections of RFRA

and the Free Exercise Clause. Finally, there can be no

dispute that, as a factual matter, some employers

choose to manage their corporations in a manner that

reflects their religious beliefs as a distinct way of

fulfilling a religious vocation.

Amicus Frank O’Brien’s choice, for example, to

commit O’Brien Industrial Holdings (“OIH”) “to make

© To be clear, Amici believe that a for-profit or secular corporation

can invoke the protections of RFRA and the Free Exercise Clause

in their own right. In addition to arguing this very point in the

lower courts, see supra, n.3, it is the issue on which Amicus ACLJ

has filed a petition for a writ of certiorari. See Gilardi v. Sebelius,

No. 13-567 (filed Nov. 5, 2013).

15

our labor a pleasing offering to the Lord while

enriching our families and society,” in addition to

requiring it to act in accordance with the Golden Rule

and the Ten Commandments,” cannot be described as

anything but a religious act, imbuing the company with

an ethos and purpose beyond that of simply making a

profit.

O’Brien’s mission statement for OIH is hardly an

abstract platitude. Following the exhortation of St.

Paul to “[wJork hard and willingly but do it for the Lord

and not for the sake of men,” O’Brien has made it a

goal of OIH “for all of our people to have the ability to

own their own home,” through a salary and an annual

profit sharing bonus."’ It is a goal of the company “for

all of our people to have the ability to send their

children to college,” through a scholarship program. It

is a further goal of OJH “for all of our people to have

the opportunity to retire with dignity,” through a

retirement plan. It was Frank O’Brien’s religious

beliefs that motivated and inspired him to establish

these goals for OIH.

Furthermore, Frank O’Brien’s religiously inspired

charitable work goes beyond the four walls of his

business. In his desire for OIH to play a role in

enriching society, O’Brien initiated the St. Nicholas

Fund in 2008, named after the fourth century bishop of

*° O’Brien Industrial Holdings, LLC, Mission & Values,

http://www.christyco.com/mission_and_values.html.

'? O’Brien Industrial Holdings, LLC, Explanation of Mission &

Values, http://www.christyco.com/mission_and_values_ details.

html.

16

Myra.” This fund, supported in part by tithing based

on earnings of the company, offers monetary support to

those in need, and OIH employees are encouraged to

“keep their eyes open” to identify where such support

might be necessary.

Thus, for a business owner like Frank O’Brien,

managing the business is not just a way of putting food

on the table for himself, his employees, and their

families. It is a vocation; an answer to a call to use his

talents, resources, and abilities to serve God and others

through his company. Asking someone like Frank

O’Brien to set aside his religious beliefs in how he

manages his own corporation would be tantamount to

asking him to stop running his company entirely.

Frank O’Brien is not alone in this regard. Amicus

the Bick Family has chosen to adopt and incorporate a

specifically religious standard with respect to its

business practices:

We believe in the Christian principles that form

the societal mores the founders of our country

believed necessary for our Democracy to work.

In our dealings with customers, employees,

owners, and all members of the community, we

must above all strive to act in a manner which

adheres to the Judeo-Christian principles of

ethical behavior."

~ oe.

'® Bick Group, Bick Group Values, http//www.bickgroup.com/ bick-

group-values.asp.

17

For owners of closely-held corporations like the

Bicks, it would be unfathomable to run a business in a

manner that is inconsistent with the Golden Rule or

the Judeo-Christian idea that all persons are created in

the image of God and thus deserving of respect. For

this reason, a government regulation compelling the

Bicks to direct their company to undertake actions in

violation of their understanding of Christian morality

would undermine the very ethics upon which their

corporation was founded.

For employers like Amici Frank and Phil Gilardi,

owners of Freshway Foods and Freshway Logistics, it

is their religious beliefs that inspire them to direct

their companies to undertake any number of charitable

activities within their community, such as making food

and monetary donations to the YMCA, Holy Angel’s

Soup Kitchen, United Way, Habitat for Humanity,

American Legion, Bill McMillian’s Needy Children,

Elizabeth’s New Life Center, and local schools.”

Examples of such charitable deeds further demonstrate

a key principle of religious practice: it not only

proscribes certain actions, it prescribes works of

goodness, kindness, and generosity.

In fact, at the direction of the Gilardis, and as

motivated by their religious beliefs, the Freshway

companies provide their Muslim employees with space

to pray during breaks and lunches, and adjust break

periods during Ramadan to allow their Muslim

employees to eat after sundown pursuant to their

” Pet. at 6, Gilardi v. Sebelius (No. 13-567).

18

religion.*’ Whether state or federal law requires such

an accommodation of religious exercise in the

workplace is irrelevant to the Gilardis; they do so

because, in light of their religious beliefs, it is the right

thing to do.

Amici Robert and Jacquelyn Gallagher are owners

of Good Will Publishers, Inc., which publishes Bibles

and works of Catholic spirituality and instruction

through its St. Benedict Press. While the business

could always earn extra profits by publishing any

number of books, the Gallaghers have limited the

company, and thus its profits, to publishing only books

the Gallaghers believe are consistent with the Catholic

faith.” To print or publish anything else, even if it

meant a substantial increase in profits, would undercut

a purpose and mission of the company that cannot be

reduced to dollars and cents. Thus, for the Gallaghers,

Good Will Publishers and St. Benedict Press are not

only profit-making endeavors, they are a religious

undertaking.

Just as George Washington famously opined that

“religion and morality are indispensable supports” for

“political prosperity,” business owners like Amici view

morality and religion as indispensable supports for

their commercial prosperity. While, most certainly, a

1 Id.

” Saint Benedict Press & TAN Publisher’s Letter, June 29, 2012,

https://books.benedictpress.com/index.php/page/shop:

publisherletter7 12/.

* Farewell Address (Sept. 19, 1796), in THE FOUNDERS’

CONSTITUTION, supra n.6, at Vol. 1, Doc. 29.

19

business can earn profits without a view to religion and

morality—perhaps more easily so—Amici believe that

wealth obtained at the expense of these commitments

is not true or authentic prosperity at all, but a spiritual

poverty for which no amount of profit-making can

substitute. These employers adhere to the words of

Jesus, who asked, “For what does it profit a man to

gain the whole world and forfeit his soul?” Mark, 8:36

(ESV).

For these reasons, Amici are justly alarmed at

statements suggesting that for-profit businesses, no

matter their motivating religious mission or purpose or

commitment to ethical principles, should be devoted to

making money and nothing else. See, e.g., Conestoga

Wood Specialties Corp. v. Sebelius, 2013 U.S. App.

LEXIS 2706, at *15 (3d Cir. Feb. 7, 2013) (Garth, J.,

concurring) (“[T]he purpose—and only purpose—of the

plaintiff Conestoga is to make money!”). A mentality

like this is what undoubtedly gave rise to Ambrose

Bierce’s definition of “Corporation”: “An ingenious

device for obtaining individual profit without individual

responsibility.”

While some for-profit corporations may be “different

from religious non-profits in that they use labor to

make a profit, rather than to perpetuate a religious

values-based mission,” some for-profit corporations,

like those owned by Amici, are owned and operated

with a view toward more than just earning a profit.

Gilardi v. United States Dep’t of Health & Human

Servs., 733 F.3d 1208, 1242 (D.C. Cir. 2013) (Edwards,

* THE UNABRIDGED DEVIL'S DICTIONARY, p. 43 (D. Schultz & A.J.

Joshi eds. 2000).

20

J., concurring in part and dissenting in part). For

many employers, it is an important part of how they

carry out and fulfill their personal and religious

vocations and of how they serve God and others.

Ill. The Mandate Injures the Religious

Exercise of Religious Business Owners

Who Oppose the Mandate.

While the government may not question the

sincerity of the religious beliefs of business owners like

Amu, it directly questions—in fact, seeks to

eradicate—their ability to run their businesses

according to these beliefs, specifically, on an issue of

what they believe to be of supreme importance: the

dignity and sanctity of human life, in its creation and

transmission.

Each of the Amici not only have religious beliefs

with respect to the mission of their businesses, and the

manner in which they conduct those businesses, they

have deeply held religious beliefs regarding the drugs

and services that they are required to pay for and

provide by the Mandate challenged in these cases.

Some business owners, like the Hahns and the Greens,

religiously oppose only drugs or services that have an

abortifacient mechanism of action; others, such as most

Amici, oppose contraceptives and sterilization as well.

For these employers, the fundamental issue is not just

the use of such abortifacient and/or contraceptive

methods, it is the requirement that they arrange for

their company to pay for and provide such methods in

the first place.

It is important to note that the same religious faith

that compels employers like Amici to care for the needs

21

of their employees, to provide charitable goods and

services to their local communities, and to conduct

their business dealings according to the Golden Rule,

also compels them not to manage their companies in a

way dictated by the Mandate. Amici employers cannot

in good conscience pick and choose which religious

beliefs to adhere to and which to ignore or violate. They

form a seamless garment. And though employers like

Amici direct and manage their companies to comply

with any number of laws, rules, and regulations, they

cannot do so with respect to the Mandate.

Nonetheless, the government maintains that none

of these business owners are injured, let alone their

religious exercise substantially burdened, by the

Mandate. It argues that because the Mandate only

applies to the group health plan a corporation sponsors,

the owners of that corporation are not required to do

anything, let alone anything that violates their

religious beliefs or conscience. As the Third Circuit

held in its decision below, “. .. the Mandate does not

actually require the Hahns to do anything. All

responsibility for complying with the Mandate falls

on Conestoga.” 724 F.3d at 388 (emphasis in original).

Similarly, the Sixth Circuit held that “[t]he decision to

comply with the mandate falls on Autocam [the

company}, not the Kennedys [its owners].” Autocam

Corp. v. Sebelius, 730 F.3d 618, 622 (6th Cir. 2013),

petition for cert. pending, No. 13-482 (filed Oct. 15,

2013).

Although it is true that a closely-held corporation is

legally distinct from its owners and controllers, the

government critically ignores the reality that a

corporation cannot comply with a regulation, or take

22

any steps toward compliance, unless its owners and

controllers choose to have it comply. See Robinson v.

Cheney, 876 F.2d 152, 159 (D.C. Cir. 1989) (“[A]

corporation cannot act except through the human

beings who may act for it.”); see also Reich v. Sea Sprite

Boat Co., 50 F.3d 413, 417 (7th Cir. 1995)

(“(I]Jncorporeal abstractions act through agents.”).

Indeed, because a corporation is not a self-willing, self-

thinking automaton that can operate independently of

human agency, a corporation cannot do anything in the

absence of those who control it. The corporation cannot

define itself or its mission on its own (religious or not),

or establish or implement policies on its own (religious

or not). Any regulation that compels a corporation to do

X, Y, or Z, concomitantly and necessarily requires the

human agents of that corporation to implement X, Y, or

Z, either under the explicit or implicit authority of

those who own the corporation.

Normally, of course, there is no need to state the

obvious reality that “a corporation acts only through its

directors, officers, and agents.” Cedric Kushner

Promotions, Ltd. v. King, 533 U.S. 158, 165 (2001).

Owners and managers of corporations routinely ensure

that their corporations comply with any number of

local, state, and federal regulations. But where, as

here, those owners must violate their own religious

beliefs in the course of ensuring that their corporation

complies with a regulation, it is absurd to suggest that,

because of the corporate form, they are not harmed in

the exercise of their religion.”

** As Judge Randolph noted, in the case of subchapter S

corporations (as are many of the businesses of Amici) the corporate

form is disregarded for purposes of corporate taxation. Gilardi v.

23

The Seventh Circuit described the Mandate’s

impact on the religious exercise of owners of closely-

held corporations this way:

Complying with the mandate requires them to

purchase the required contraception coverage (or

self-insure for these services), albeit as agents of

their companies and using corporate funds. But

this conflicts with their religious commitments;

as they understand the requirements of their

faith, they must refrain from putting this

coverage in place because doing so would make

them complicit in the morally wrongful act of

another.

Korte v. Sebelius, 735 F.3d 654, 668 (7th Cir. 2013).

And this is how the D.C. Circuit described what the

government incorrectly thinks does not amount to any

injury: “The contraceptive mandate demands that

owners like the Gilardis meaningfully approve and

endorse the inclusion of contraceptive coverage in their

companies’ employer-provided plans, over whatever

objections they may have. Such an endorsement—

procured exclusively by regulatory ukase—is a

‘compel|[led] affirmation of a repugnant belief.” Gilardi,

United States Dep’t of Health & Human Servs., 733 F.3d 1208,

1225 (D.C. Cir. 2013) (Randolph, J., concurring). Why, Judge

Randolph asked, would Congress have “disregarded the corporate

form for subchapter S corporations but then wanted it imposed to

prevent their owners from asserting free-exercise rights under

RFRA. There is no good answer, or at least we have received none.

It would be incongruous to emphasize the corporate veil in rigid

form for RFRA purposes while disregarding it for tax purposes

under subchapter S.” Id.

24

733 F.3d at 1217-18 (quoting Sherbert v. Verner, 374

U.S. 398, 402 (1963)).

It is therefore incorrect to say that the Mandate’s

injury to the owners of a corporation is purely

derivative of the injury to the corporation, as though

the owners are mere uninvolved shareholders with only

a monetary interest in its financial success. Although

the failure to comply with the Mandate would have

financially ruinous results for the owners, the harm

that they assert is not merely financial. The harm,

rather, is the coercion to violate their own consciences

as the individuals who make the corporation act. In

other words, the specter of financial ruin is a source of

substantial pressure placed upon the Hahns, Greens,

and Amici business owners personally to take actions

that are prohibited by their faith.

For these reasons, and contrary to the Sixth

Circuit’s decision in Autocam, 730 F.3d at 623, the

shareholder standing rule does not and cannot preclude

owners like the Hahn and Green families from

challenging the Mandate. A well-established exception

to this rule allows “a shareholder with a direct,

personal interest in a cause of action to bring suit even

if the corporation’s rights are also implicated.”

Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd.,

493 U.S. 331, 336 (1990). As the Seventh Circuit held

in Korte, the owners “fall comfortably within [this]

exception; they have a direct and personal interest in

vindicating their individual religious-liberty mnghts,

even though the rights of their closely held

corporations are also at stake.” 735 F.3d at 669; see

also Gilardi, 733 F.3d at 1216 (“[T]he Gilardis’ injury

. is ‘separate and distinct,’ providing us with an

25

exception to the shareholder-standing rule.”). In fact,

as Judge Gorsuch noted, because the Mandate requires

the Greens to “direct the corporations to comply with

the mandate and do so in defiance of their faith,” they

have “a quintessentially ‘direct’ and ‘personal’ interest

protected even under the shareholder standing rule.”

Hobby Lobby, 723 F.3d at 1156 (Gorsuch, J. concurring)

(quoting Franchise Tax Bd. 493 U.S. at 336 (1990)

(emphasis supplied)).

Religious owners and controllers of closely-held

corporations, like Amici, sincerely believe that they are

religiously and morally responsible for how they

manage the assets and resources of their businesses. In

addition to the legal obligations imposed upon all

owners and managers by corporate law, these

individuals are subject to religious and moral

obligations as they own and manage their companies.

For these individuals, the intricacies of corporate law

do not absolve them of the moral culpability they would

bear by managing their corporations to comply with the

Mandate against their religious beliefs—and it is

wrong for the government to suggest otherwise.”

Indeed, Amici business owners cannot assuage their

consciences by operating under the fiction that what

they do in their capacities as owners and managers of

* The government knows that the corporate form cannot shield

corporate malefactors like Kenneth Lay of Enron from criminal

responsibility, and yet it contends that the same corporate form

somehow shields owners and managers from religious and moral

responsibility. Even aside from the constitutional incompetence of

the government and the courts to make religious judgments, this

profound inconsistency of reasoning exposes the inadequacy of the

government’s “logic”.

26

the corporation, such as complying with the Mandate,

is legally distinct from what they do in their individual

capacities as religious believers. Amici strive to act

consistently with their religious beliefs not only in their

personal or individual capacities, but in all dimensions

of their lives, including as owners, officers, directors, or

managers of the corporation. As the Fourth Circuit

noted in a different context, “Free religious exercise

would mean little if restricted to places of worship or

days of observance, only to disappear the next morning

at work.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,

319 (4th Cir. 2008).

No one disputes that “[t]he corporate form offers

several advantages ‘not the least of which was

limitation of liability, but [that] in return, the

shareholder must give up some _ prerogatives.”

Conestoga Wood, 724 F.3d at 388 (citation omitted).

But this Court has never held that one prerogative that

must be surrendered is the ability to own and operate

one’s corporation consistent with one’s religious beliefs.

In fact, as this Court reiterated last term, in the

context of unconstitutional conditions, “the government

may not deny a benefit to a person because he exercises

a constitutional right.” Kooniz v. St. Johns River Water

Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013) (quoting

Regan v. Taxation With Representation of Wash., 461

U.S. 540, 545 (1983)); see also Frost & Frost Trucking

Co. v. R.R. Comm’n of Cal., 271 U.S. 583, 592-593

(1926) (invalidating regulation that required the

petitioner to give up a constitutional right “as a

condition precedent to the enjoyment of a privilege”);

Southern Pac. Co. v. Denton, 146 U.S. 202, 207 (1892)

(invalidating statute “requiring the corporation, as a

condition precedent to obtaining a permit to do

27

business within the State, to surrender a right and

privilege secured to it by the Constitution”).

Stated more directly: citizens do not sign away their

religious freedoms when they sign and submit articles

of incorporation to a secretary of state. The Mandate

imposes a distinct and palpable injury on owners of

closely-held corporations who oppose implementing the

Mandate and, as discussed in the next section, that

injury is substantial.

IV. The Mandate Substantially Burdens the

Religious Exercise of Religious Business

Owners Like the Hahns, the Greens, and

Amici.

In an attempt to avoid strict scrutiny in these cases,

the government not only tries to keep corporations and

their owners from asserting any religious freedom

claims at all, it tries to convince this Court that the

Mandate does not substantially burden their religious

exercise. Regardless of whether a for-profit corporation

can engage in religious exercise, it is clear that the

Mandate substantially burdens the religious exercise

of owners like the Hahns, the Greens, and Amici family

business owners.

The Mandate requires non-exempt group health

plans to cover a range of abortifacient, contraceptive,

and sterilizing drugs, devices, and services. Employers

like Amici business owners object on religious grounds

to paying for such services in their health plans, which

must be included whether or not any employee avails

herself of them. The religious claimants’ objection is not

based or dependent upon the extent to which

employees may use these services, it is triggered by the

28

requirement that they pay for and provide these

services in the first place. Any argument, therefore,

that the religious burden is somehow “attenuated” by

choices of third parties is actually an attempt to

rewrite the specific religious objection and burden

asserted in these cases.

The government failed to persuade the D.C. Circuit

on this score:

The burden on religious exercise does not occur

at the point of contraceptive purchase; instead,

it occurs when a company’s owners fill the

basket of goods and services that constitute a

healthcare plan. In other words, the Gilardis are

burdened when they are pressured to choose

between violating their religious beliefs in

managing their selected plan or paying onerous

penalties.

Gilardi, 733 F.3d at 1217.

The Seventh Circuit similarly rejected the

government’s attenuation argument:

“The religious-liberty violation at issue here

inheres in the coerced coverage of contraception,

abortifacients, sterilization, and related services,

not—or perhaps more precisely, not only—in the

later purchase or use of contraception or related

services.”

Korte, 735 F.3d at 685 (quoting Korte v. Sebelius, 528

Fed. Appx. 583, 587 (7th Cir. 2012) (granting injunction

pending appeal)) (emphasis in original).

29

If the government through a rule or regulation

requires one to do X or pay a fine or penalty, but one

cannot do X without violating one’s religious beliefs, a

substantial burden on religious exercise is readily

apparent—.it puts “substantial pressure on an adherent

to modify his behavior and to violate his beliefs.”

Thomas, 450 U.S. at 717-18. The manner in which the

Mandate substantially burdens religious exercise is

just as obvious. It requires that employers manage

their companies to comply with the Mandate or expose

their companies to financial ruin, but these employers

cannot do so without violating their religious beliefs.

The Mandate thus “affirmatively compels them... to

perform acts undeniably at odds with fundamental

tenets of their religious beliefs.” Wisconsin v. Yoder,

406 U.S. 205, 218 (1972).

Quite simply, “|t}he contraception mandate forces

[the objecting business owners] to do what their

religion tells them they must not do.” Korte, 735 F.3d

at 685. It forces them to choose between following the

precepts of their religion and incurring huge penalties

on the one hand, or abandoning a precept of their

religion on the other hand. See Sherbert, 374 U.S. at

404. Governmental imposition of such a choice puts the

same kind of burden upon the free exercise of religion

as would a fine imposed against Amici for objecting to

personally participating in, or facilitating, abortion or

contraception. Id.

As the D.C. Circuit explained, the Mandate imposes

a substantial burden on Amici, the Gilardis,

because the government commands compliance

by giving the Gilardis a Hobson’s choice. They

can either abide by the sacred tenets of their

30

faith, pay a penalty of over $14 million, and

cripple the companies they have spent a lifetime

building, or they become complicit in a grave

moral! wrong. If that is not “substantial pressure

on an adherent to modify his behavior and to

violate his beliefs,” we fail to see how the

standard could be met.

Gilardi, 733 F.3d at 1218 (quoting Thomas, 450 US. at

718).

In fact, even if one were to characterize the

Mandate’s burden on the religious exercise of owners

and managers as “indirect,” because the Mandate is

technically imposed on the corporation, and not its

owners or managers, that is of no moment. Under the

substantial burden test enunciated by this Court,

courts are to examine the substantiality of “the coercive

impact” on the claimants’ religious exercise, Thomas,

450 U.S. at 717, not how direct or indirect that coercive

impact is. Jd. at 718 (“While the compulsion may be

indirect, the infringement upon free exercise is

nonetheless substantial”); see also Braunfeld, 366 U.S.

at 607 (a rule may be “constitutionally invalid even

though the burden may be characterized as being only

indirect”) (emphasis added).

Indeed, the religious claimants in Sherbert and

Thomas were not forced by law to work on the Sabbath

and produce armaments, and yet this Court found that

their religious exercise was nonetheless substantially

burdened through the denial of unemployment

benefits, which indirectly pressured them to violate

their religious beliefs. Here, however, the burden

imposed by the Mandate is even more direct than in

Sherbert or Thomas, it affirmatively compels Amici

31

business owners to undertake actions in direct

violation of their religious beliefs. As far as these

owners are concerned, the Mandate operates like a law

requiring Adell Sherbert to work on her Sabbath, or

Eddie Thomas to help manufacture arms, backed by

the sanction of ruinous penalties for non-compliance.

In short, the Mandate imposes a substantial burden

on the religious exercise of objecting business owners

like Amici, the Hahns, and the Greens.

V. Recognizing that the Mandate Violates the

Free Exercise Rights of Individuals and

their Businesses Would Not Prompt a Flood

of RFRA Litigation.

Any argument that respecting the rights of owners

to act consistently with their religious beliefs in how

they manage their company would somehow allow

them to escape the reach of various federal laws

governing the workplace is simply untenable. Under

RFRA, where a law substantially burdens a sincere

religious exercise, that is only the beginning of the

analysis, not its conclusion. See Gonzales v. O Centro

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

428 (2006) (a “prima facie case under RFRA” exists

where a law “(1) substantially burden[s] (2) a sincere

(3) religious exercise”) (emphasis supplied). The

government can justify the burden by demonstrating

that the law serves a compelling governmental interest

and is the least restrictive means of furthering that

interest. 42 U.S.C. § 2000bb-1(b).

This limiting principle built into the framework of

RFRA itself is enough to ensure, for example, that

owners of closely-held corporations will not be able to

32

invoke the statute to avoid paying social security taxes,

see, e.g., United States v. Lee, or to force employees to

violate their own religious beliefs, see, e.g., EEOC uv.

Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir.

1988).

In point of fact, and consistent with state and

federal laws, none of Amici discriminate in employment

based on religion, nor have any desire to do so. Amicus,

Frank O’Brien, a Catholic, has stated as a key value for

his family of companies: “We will not discriminate

based on anyone’s personal belief system.””’ And, as

previously described, the Gilardi brothers see to it that

the religious beliefs of their employees are generously

accommodated, even beyond what state and federal

laws require.

With respect to the services required by the

Mandate, while each Amicus business owner

strenuously opposes the Mandate and the manner in

which it requires them to violate their religious beliefs,

none of these employers prohibit or otherwise limit

their employees from accessing or paying for any

contraceptive services with the salaries they have

earned. Just as the employers in these cases seek to

have their freedom of conscience respected in how they

allocate their companies’ resources, they respect their

employees’ freedom of conscience to spend their

salaries how they choose.

If a page of history is worth a volume of logic,

history is most persuasive here in showing that

religious owners of corporations are not using their

*’ Mission & Values, supra, n. 16.

33

religious freedoms in some oppressive or irresponsible

way. RFRA was passed just over twenty years ago, and

yet there is a veritable dearth of case law involving

employers invoking RFRA to circumvent or seek

exemptions from laws pertaining to health, safety, or

discrimination in the workplace.

In addition, it has been the law in the Ninth Circuit

for twenty-five years, per its decision in Townley, that

corporations can, at times, assert the religious rights of

their owners. See id. at 619-20. And yet, here too, there

is no widespread evidence of employers within the

states of the Ninth Circuit invoking this doctrine to

unleash an onslaught of challenges to government

regulations.

The point of the matter is that employers, like

Amici, the Hahns, and the Greens, are content to

manage their corporations in a way that complies with

thousands of state, local, and federal laws and

regulations that, unlike the Mandate, do not require

them to violate their religiously-formed consciences.

And in light of the fact that it is the religious beliefs of

many such employers that motivates them to provide

their employees with a decent wage, an accommodating

workplace, and a health plan to begin with, it is

unsurprising that employees of such corporations

rarely object to their employers’ incorporation of

religious tenets in the management of their businesses.

Should this Court adopt the government’s position

that owners of closely-held corporations have no

cognizable right to manage their businesses according

to their religious beliefs, this will not only harm the

employers themselves, it stands to harm their

employees, their dependents, and society in general. A

34

business owner, for example, who cannot in good

conscience allow his company to comply with the

Mandate will face financial penalties so steep that he

will be forced to shut down the company completely.”

Such a result would negatively impact every person

with something at stake in the viability of the

company—even the government, which has an obvious

interest in sustaining businesses and encouraging job

growth.

Directly at stake in the cases at bar is the right of

citizens, like Amici family business owners, to manage

their businesses consistent with the dictates of their

religious beliefs. If, as the government argues, neither

a family-owned corporation nor the family members

themselves can challenge a regulation like the Mandate

on RFRA or Free Exercise grounds, then such

individuals will have no legal recourse or remedy when

forced by the government to act against their religious

conscience. They must necessarily kowtow, now and in

the future, to any government edict that compels them

to run their family business in violation of their

religious beliefs.

No constitutional principle permits this. Our

country’s longstanding respect for freedom of religion

and conscience prohibits it. This Court cannot allow it.

* In the case of Amici Frank and Phil Gilardi, for example, those

penalties would total $14 million per year. See Gilardi, 733 F.3d

at 1218.

35

CONCLUSION

For the foregoing reasons, Amici respectfully ask

this Court to hold that the Mandate imposes a distinct

legal injury on the Hahns and the Greens, and that it

substantially burdens their religious exercise.

JANUARY 28, 2014

36

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Stuart J. Roth

Jordan A. Sekulow

Colby M. May

Walter M. Weber

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Francis J. Manion

Geoffrey R. Surtees

AMERICAN CENTER FOR

LAW & JUSTICE

PO Box 60

New Hope, KY 40004

(502) 549-7020

Edward L. White III

Erk M. Zimmerman

AMERICAN CENTER FOR

LAW & JUSTICE

3001 Plymouth Road

Suite 203

Ann Arbor, MI 48105

(734) 680-8007