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

RECo=a Nos. 13-354 & 13-356 | “=m con UE]

RIEF IN THE JAN 28 2014

BRIE!

Supreme Court of the Hnes Ses

KATHLEEN SEBELIUS, Secretary of Health and

Human Services, et al.,

Petitioners,

— |

HOBBY LOBBY STORES, INC., et al.,

Respondents.

CONESTOGA WoopD SPECIALTIES CORP., et al.,

Petitioners,

—V. ——

KATHLEEN SEBELIUS, Secretary of Health and

Human Services, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURTS OF APPEALS FOR THE TENTH AND THIRD CIRCUITS

BRIEF OF THE BRENNAN CENTER FOR JUSTICE

AT N.Y.U. SCHOOL OF LAW AS AMICUS CURIAE

IN SUPPORT OF THE GOVERNMENT

BURT NEUBORNE WENDY R. WEISER

Counsel of Record HOONPYO (CHISUN) LEE

NORMAN DORSEN BRENT FERGUSON

HELEN HERSHKOFF DAVID W. EARLEY

40 Washington Square South BRENNAN CENTER FOR

New York, New York 10011 JUSTICE

212-620-0559 AT N.Y.U. SCHOOL OF LAW

burt.neuborne@nyu.edu 161 Avenue of the Americas,

12th Floor

New York, New York 10013

Attorneys for Amicus Curiae Library of Congress

T wmtas ? | ee

QUESTION PRESENTED

Are for-profit business corporations owned by

religious shareholders entitled to a religiously-based

exemption from employee health insurance

obligations imposed by the Affordable Care Act on

employers of 50 or more persons?

TABLE OF CONTENTS

I Gr IIIT Ra ccccnctcacessetsncnaciumisavedesiscominene i

TABLE OF AUTHORITIBG.........0..cccccccocesccssccsscccsosoees iv

INTEREST OF AMICUS CURIAE. .0000...220..20c0cccceseeeees l

RPE GO FAMIIIIIIIIE D seccccsesncnscccccccccscsessancneesess 2

ARGUMENT

I. A FOR-PROFIT BUSINESS CORPORATION

IS INCAPABLE OF “FREELY EXERCISING”

RELIGION WITHIN THE MEANING OF

THE FIRST AMENDMENT ......................02000+0 3

A. The Rationale Underlying this Court's

Recognition of Corporate Free Speech

Protection Cannot Be Extended to

B. The Statutory Exemption of Non-Profit

Religious Corporations, Small

Businesses, and “Grandfathered” Plans

from the Requirements in Question

Does Not Render the Requirements

Unconstitutional as to the

III iccnniinndiscastntecnsasntistetaudssannalsens 11

Il. THE FREE EXERCISE CLAUSE DOES NOT

ENCOMPASS A CONSTITUTIONAL RIGHT

TO SHIFT THE SUBSTANTIAL COSTS OF

RELIGIOUS OBSERVANCE TO THIRD

ais tiseinceinieiccinecteabtiieah agli baiiancinissnitadinirwihdiiniet 16

A. The Free Exercise Clause Does Not

Entitle a Believer to Impose Substantial

Costs on Third Parties........................... 16

B. Free Exercise “Strict Scrutiny” is

Designed to Test Whether the Grant of

a Religiously-Based Exemption Would

C. The Statutory Grant of Certain

Exemptions Does Not Serve to Diminish

the Government’s Interest in the

Challenged Requirements or Undercut

Congress’s Choice of Means................... 26

Ill. CONGRESS REMAINS FREE TO SEEK TO

ACCOMMODATE THE CHALLENGERS’

ILD VITEED occcsessesessssccccscovesessnpsesoses 31

I xesisicisricsennitideiteneunsinilissiensbtiohinidisaiseiteiavbicinpietian 32

i

TABLE OF AUTHORITIES

Cases

Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990), overruled by Citizens United

PECs BEB UD. SIO OID coecccccscccescccsccvccsscsercocese y

Bob Jones Univ. v. United States,

RNa 18, 25

Bolling v. Sharpe, 347 U.S. 497 (1954) ........cccceeeeseee 15

Bowen v. Roy, 476 U.S. 693 (1986) ......ccccccccceseeseeceee 23

Braswell v. United States, 487 U.S. 99 (1988).......... 7

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

ee ET gs gn 8

Citizens Against Rent Control v. City of Berkeley,

ee is seecieeonienebeoneons 12

Citizens United v. FEC,

Ne iy Ne NI iavcictencesevcvesecncss 4, 5, 8,9, 10, 12

Cnty. of Santa Clara v. S. Pac. R.R.,

I uueniecane 6

Cohen v. California, 403 U.S. 15 (1971) ...00000000..0... 10

Corp. of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos,

I PR iaiitiiiniepistceccenbicemiscitstnnssintnss 19, 27

iv

Daimler AG v. Bauman, _ U.S. _, No. 11-965,

2014 WL 113486 (Jan. 14, 2014) 00. 13, 14

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

Be I, Be CI veccsciniciccrtetmmmuniain 18, 19

Estate of Thornton v. Caldor, Inc.,

BP SE FOO CG occccveecccctevscenisicintauenmain 20, 28

FEC v. Mass. Citizens for Life, Inc.,

SE is I CI occ cnscscnsccnencesemmiacenaoamalia 4,12

FEC v. Wis. Right to Life, Inc., .

Ue eh: | SD 12

First Nat7 Bank of Boston v. Bellotti,

EE WNP UII iccncciacsnnstnnsencioansummnal 4, 5, 8,9, 10

Gillette v. United States, 401 U.S. 437 (1971) .. 18, 22

Girouard v. United States, 328 U.S. 61 (1946) ....... 22

Goldman v. Weinberger, 475 U.S. 503 (1986)......... 23

Gonzales v. O Centro Espirita Beneficente Uniao Do

Vegetal, 546 U.S. 418 (2006) .....2...2..2......eseeee 18, 19

Hale v. Henkel, 201 U.S. 43 (1906)...0..0...ccccceceeeees 7,8

Hamilton v. Regents of the Univ. of Cal.,

Se Ss HD SE ncencccnsnemissndniomaneamnmauaaea 18, 22

Hernandez v. Comm’r, 490 U.S. 680 (1989)....... 17, 25

Hobbie v. Unemployment Appeals Comm'n,

Neca cickipibnsheussconsessvons 17

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. EEOC, __ U.S. _,

Cn ais cssensoschenccconcsoes 19, 27

Jimmy Swaggart Ministries v. Bd. of Equalization,

i Is ccncccmsccsnsacenssorccecascecees 18, 25, 30

Johnson v. California, 543 U.S. 499 (2005)............. 21

Kramer v. Union Free Sch. Dist. No. 18,

I sseconevnconsneocbonsonas 21

Lamont v. Postmaster Gen., 381 U.S. 301 (1965)... 10

Locke v. Davey, 540 U.S. 712 (2004) .0.........c.cccceeeeee 28

Minersville Sch. Dist. v. Gobitis,

ee nusdionuccuscouece 22

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)... 5, 8

NAACP v. Ala. ex rel. Patterson,

a 13

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. 23

Prince v. Massachusetts, 321 U.S. 158 (1944) ........ 17

Reynolds v. United States,

Be PR: I Et cdinisnessveccncctecencvvccceinsins 18, 21, 22

Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194 (1993)..............006+- 4

Sable Commce'ns of Cal., Inc. v. FCC,

gee ERO REER Re ee 21

Sherbert v. Verner,

Be Ors i IR cinevesnscseccecnececaseronss 17, 21, 22, 23

Smyth v. Ames, 169 U.S. 466 (1898), overruled on

other grounds by Fed. Power Comm'n v. Natural

Gas Pipeline Co. of Am., 315 U.S. 575 (1942)........ 6

Stone v. Farmers’ Loan & Trust Co. (Railroad

Commission Cases), 116 U.S. 307 (1886)............... 6

Thomas v. Review Bd. of the Ind. Emp't Sec. Div.,

I i Be i ciseisnscemmectiomsnecanieedaniteden 17, 20, 24

Thompson v. W. States Med. Ctr.,

A RRR ee re 8

Tony and Susan Alamo Found. v. Sec’y of Labor,

Fe Se I ceveicinmonsvnontousssnniamactodens 18, 25, 30

Trans World Airlines, Inc. v. Hardison,

A 20, 28

United States v. Lee, 455 U.S. 252 (1982)... 18, 24, 30

United States v. Macintosh, 283 U.S. 605 (1931),

overruled on other grounds by Girouard v. United

I, Te Ee We HI vo vccestisradsctaccaccdcceecves 18, 22

United States v. Seeger,

Be Ne Re I icseisessiecimcoveronsenetisnnnoinis 17, 19, 25

United States v. White, 322 U.S. 694 (1944)............. 7

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748 (1976) .........cccccceeeeeee 5, 8

W. Va. State Bd. of Educ. v. Barnette,

Re eee Ne i itistcetintatinenssecectavemnninans 16, 17, 22

Welsh v. United States,

Ek eee 17, 19, 25

Williamson v. Lee Optical of Okla.,

ee Se I scintevcisceascesccensveniiesnsiustoarevevevuans 15

Wilson v. United States, 221 U.S. 361 (1911)........... 7

Wisconsin v. Yoder, 406 U.S. 205 (1972)........... 21, 24

Statutes

TEPID TEE ll -sicdleaeapmuanccereaenenmiesdidddcemsindaeciaantainael 4

Other Authorities

Frank H. Easterbrook & Daniel R. Fischel,

The Corporate Contract,

89 Colum. L. Rev. 1416 (1989) ..00.... cece eee 6

Henry Hansmann et al., Law and the Rise of the

Firm, 119 Harv. L. Rev. 1333 (2006)...................... 6

Herbert Hovenkamp, The Classical Corporation in

American Legal Thought,

I I I SII nssenscvesseccssncscssencscoseceonesseces 6

John Dewey, The Historic Background of Corporate

Legal Personality, 35 Yale L.J. 655 (1926).......... 12

Kathleen M. Sullivan, 7wo Concepts of Freedom of

Speech, 124 Harv. L. Rev. 143 (2010) ..........0......... 4

Leonard Levy, The Origins of the Fifth Amendment

EEE TS Oe 7

Zechariah Chafee, Jr., Free Speech in War Time,

BS Haew. L.. Rev. BBB CIGD) ...0.0.0....00ccccecsecccccesse0s- 16

INTEREST OF AMICUS CURIAE

The Brennan Center for Justice at NYU School of

Law is a not-for-profit, non-partisan public policy

and law institute that focuses on issues of democracy

and justice. It was founded in 1995 to honor the

extraordinary contributions of Justice William J.

Brennan, Jr. to American law and society. The

Brennan Center seeks to draw on the abilities of

scholars and practitioners to forge solutions to social

and political issues that lie at the core of Justice

Brennan’s constitutional jurisprudence.

The consolidated cases before the Court pose

important questions concerning the interpretation of

the Free Exercise Clause and its interrelationship

with the Establishment Clause. In the hope that it

will be of assistance in analyzing the complex issues

before the Court, the Brennan Center respectfully

submits the annexed brief amicus curiae.'

1 The parties in 13-356 have filed blanket letters of consent to

amicus briefs in support of either party or neither

party. Petitioners in 13-354 have also filed a blanket letter of

consent. A letter of consent to the filing of this amicus brief

from Respondents in 13-354 has been filed with the Clerk of the

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

part, and no person other than amicus or its counsel made a

monetary contribution to the preparation or the submission of

this brief. This brief does not purport to convey the position of

N.Y.U. School of Law.

SUMMARY OF ARGUMENT

1. For-profit business corporations are legal

abstractions incapable of experiencing or

exercising the intensely personal emotions

associated with religious worship. Accordingly,

they are not entitled to a religious exemption

under the Free Exercise Clause from a

congressionally-imposed duty to provide their

employees with economic benefits.

Respect for the important legal construct of

“corporate separateness” precludes religious

shareholders of for-profit business corporations

from selectively ignoring corporate

separateness for religious purposes, while

simultaneously deriving substantial benefits

from corporate separateness in economic and

regulatory settings.

. Even if for-profit business corporations were

entitled to assert claims to religious exemption

under the Free Exercise Clause, this Court has

never recognized a religious exemption from an

otherwise valid legal duty when its exercise

would impose substantial burdens on third

parties.

. Enforcement of a right to a religious exemption

that imposes substantial burdens on non-

believers would violate the Establishment

Clause.

ARGUMENT

I.

A FOR-PROFIT BUSINESS CORPORATION IS

INCAPABLE OF “FREELY EXERCISING”

RELIGION WITHIN THE MEANING OF THE

FIRST AMENDMENT

The challengers? in these consolidated cases

argue that for-profit business corporations owned by

religious shareholders are constitutionally entitled to

a religiously-based exemption from an otherwise

valid duty imposed by the Affordable Care Act to

provide certain insurance benefits to _ their

employees. The challengers seek to establish a one-

way legal regime that: (1) insulates for-profit

shareholders from economic liability and government

regulatory power by insisting upon the separate

legal existence of a corporation; but (2) ignores a

corporation’s separate legal existence when religious

shareholders wish to merge themselves with the

corporation for personal reasons.

Challengers seek to justify such a one-way

corporate legal mirror on _ constitutional and

2 Amicus refers to the individual and corporate petitioners in

Conestoga Wood Specialties Corp. and the individual and

corporate respondents in Hobby Lobby Stores, Inc. as “the

challengers,” reflecting their common objection to the failure of

the Affordable Care Act to afford them a religiously-based

exemption from certain legal duties of a for-profit business

corporation employing 50 or more persons.

3

statutory grounds.’ They support their demand for

constitutional relief:

(1) by analogy to the ability of for-profit

business corporations to invoke free speech

protection under First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978), and Citizens United v.

FEC, 558 U.S. 310 (2010);

(2) as a logical consequence of the decision in

FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986), to permit a non-profit “grassroots”

corporation to assert the free speech rights of the

individuals who constitute the non-profit entity; and

3 Challengers assert protection under the Religious Freedom

Restoration Act (“RFRA”), arguing that the term “person” in

RFRA, by reference to the Dictionary Act, authorizes for-profit

corporations to seek “strict scrutiny” protection for their

religious observances. However, while the Dictionary Act

presumptively equates “persons” with “corporations,” it does so

only “unless the context indicates otherwise.” 1 U.S.C. § 1.

Here, where the “context” involves a question of religious

observance, the “context” precludes equating “persons” with

“corporations” unless and until it is known whether for-profit

corporations are legally capable of asserting claims to religious

freedom. See Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 201-09 (1993) (declining to

treat association of prisoners as a “person” under the

Dictionary Act, because the “context” required performance of

acts requiring human characteristics). Whether “the context

indicates otherwise” thus turns on whether a corporation is

capable of asserting a claim of religious conscience. In short, the

challengers’ argument under RFRA begs the essential question

raised by this litigation.

VX ae

(3) with a claim that statutory exemptions in

the Affordable Care Act for non-profit religious

organizations, coupled with a transitional exemption

for certain pre-existing grandfathered insurance

plans, and a decision to confine the statute’s

obligations to employers with 50 or more employees,

render it unconstitutional to enforce the statute

against for-profit business corporations employing 50

or more employees owned by religious shareholders.

None of the arguments in favor of recognizing

corporate free exercise of religion is persuasive.

A.

The Rationale Underlying this Court’s Recognition of

Corporate Free Speech Protection Cannot Be

Extended to Support Corporate Free Exercise Claims

In support of their argument that for-profit

business corporations may assert First Amendment

claims sounding in the free exercise of religion, the

challengers seek to draw an analogy to this Court’s

decisions recognizing the ability of business

corporations to assert constitutional rights,

especially First Amendment claims sounding in the

free speech and free press clauses. Bellotti, 435 U.S.

765; Citizens United, 558 U.S. 310; see also Va. State

Bd. of Pharmacy v. Va. Citizens Consumer Council,

Inc., 425 U.S. 748, 773 (1976) (striking down ban on

pharmacists advertising drug prices); N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 279-80 (1964) (requiring

proof of actual malice to hold a newspaper liable for

libel of a public official).

The bulk of the Court’s cases recognizing the

ability of corporations to assert constitutional claims

provide no support for the challengers’ proposed

analogy, because they protect economic rather than

dignitary interests. The triumph of the business

corporation in the United States and Great Britain

during the 19t Century is one of the great success

stories of economic history. Since the very purpose of

recognizing a business corporation as a separate

legal entity with unlimited life, limited liability,

entity-shielding, and negotiability of ownership was

to provide an efficient means of aggregating and

exploiting investment capital, it made perfect sense

to insulate the pool of capital invested in corporate

form from improper government regulation by

permitting corporations to raise Due Process,

Takings, and Equal Protection claims against

improper government regulation. See, e.g. Cnty. of

Santa Clara v. S. Pac. R.R., 118 U.S. 394, 396, 409-

10 (1886) (Equal Protection); Stone v. Farmers’ Loan

& Trust Co. (Railroad Commission Cases), 116 U.S.

307, 331 (1886) (Takings); Smyth v. Ames, 169 U.S.

466, 526 (1898) (Due Process), overruled on other

grounds by Fed. Power Comm’n v. Natural Gas

Pipeline Co. of Am., 315 U.S. 575 (1942).4

4 See generally Henry Hansmann et al., Law and the Rise of the

Firm, 119 Harv. L. Rev. 1333 (2006); Frank H. Easterbrook &

Daniel R. Fischel, The Corporate Contract, 89 Colum. L. Rev.

1416 (1989); Herbert Hovenkamp, The Classical Corporation in

American Legal Thought, 76 Geo. L.J. 1593 (1988).

6

Such a functionally defensible application of

constitutional law to corporations as distinct legal

entities does not, however, justify expanding

corporate constitutional protection into non-economic

areas where constitutional rights flow, not from

concern with economic efficiency, but from respect

for human dignity. Recognizing the distinction, this

Court has refused to afford corporations

constitutional protection under __—i the self

incrimination clause of the Fifth Amendment,

precisely because the privilege against self

incrimination is rooted, not in efficiency, but rather

in respect for human dignity. Hale v. Henkel, 201

U.S. 43, 75 (1906) (declining to recognize corporate

privilege against self-incrimination); Wilson v.

United States, 221 U.S. 361, 380-86 (1911) (same):

United States v. White, 322 U.S. 694, 698-704 (1944)

(declining to recognize unincorporated labor union

privilege against self-incrimination); Braswel/ v.

United States, 487 U.S. 99, 105, 116, 117-18 (1988)

(reaffirming Hale v. Henkel and applying it to a

single shareholder corporation).

The privilege against self-incrimination initially

evolved as a protection of religious conscience,

shielding individuals from being subjected to a “test

oath” that would force them to choose between

adherence to their religious beliefs and avoidance of

serious criminal sanctions including death. Sce

Leonard Levy, The Origins of the Fifth Amendment

1-5 (1968). Thus, a corporate entity that, under Ha/e

and Braswell, lacks the attributes of human dignity

needed to assert the privilege against self-

incrimination, cannot possibly be thought to possess

the dignitary right to freely exercise religion.

The challengers argue, despite Hale, that since

business corporations may assert First Amendment

dignitary interests sounding in the free speech

clause, Bellotti, 435 U.S. 765; Citizens United, 558

U.S. 310, they necessarily must be entitled to assert

First Amendment claims sounding in freedom of

religion. But such an argument ignores this Court’s

unbroken rationale for permitting corporations to

assert free speech rights. None of the Court's

decisions addressing corporate political spending

endowed corporations with the dignitary status

needed to anchor a free speech right. Instead, the

Court has been careful to locate the source of the

First Amendment right in third-party hearers,

because “[pJolitical speech is indispensable to

decisionmaking in a democracy.” Citizens United,

558 U.S. at 349, 354 (citations omitted); Bellotti, 435

U.S. at 783; Va. State Bd. of Pharmacy, 425 U.S. at

756.5

* In NY. Times Co. v. Sullivan and ite progeny, the

corporation's free speech mghts arose under the Free Press

Clause, with its intimate connection with the interests of

hearers. See N.Y. Times Co. v. Sullivan, 376 U.S. at 269-70.

The Court's commercial speech jurisprudence is overtly hearer-

centered, both in inception and application. Thompson v. W.

States Med. Ctr., 535 U.S. 357, 366-67 (2002): Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563

(1980).

Bellotti first established the legal framework for

analyzing speech interests in the context of corporate

political spending, instructing courts to ask not

whether corporations themselves have First

Amendment rights, but rather whether the First

Amendment was meant to protect the delivery of the

speech in question to others. 435 U.S. at 775-77. The

Bellotti Court focused on the value of the speech in

question to the voting public, not on any

corporation’s right to express itself. The Court acted

“to prohibit government from limiting the stock of

information from which members of the public may

draw.” Id. at 783.

Citizens United followed suit, purporting to

protect against “the loss for democratic processes

resulting from the restrictions upon free and full

public discussion.” 558 U.S. at 344 (citation omitted).

The Citizens United Court drew this democratic-

process rationale from the Federalist Papers,

concluding that “[flactions should be checked by

permitting them all to speak and by entrusting the

people to judge what is true and what is false.” /d. at

355 (citation omitted). In overruling Austin v.

Michigan Chamber of Commerce, 494 U.S. 652

(1990), the Court opined that Austin’s holding

“interfereld] with the ‘open marketplace’ of ideas

protected by the First Amendment.” 558 U.S. at 354

(citation omitted).®

® See also Kathleen M. Sullivan, Two Concepts of Freedom of

Speech, 124 Harv. L. Rev. 143, 158 (2010) (stating that the

Citizens United opinion “views free speech as a system

9

Unlike cases involving individual free speech

rights, neither Citizens United nor Bellotti discussed

the “individual dignity and choice” that underlies the

personal right to self-expression. Cohen v. California,

403 U.S. 15, 24 (1971). Rather, the Court’s corporate

political speech decisions focused squarely on the

First Amendment interests of the hearer.

It is impossible to transfer such a hearer-centered

rationale to the intensely personal world of religious

conscience. As with the privilege against self-

incrimination, constitutional protection of religious

conscience is rooted in the heart, mind, and soul of

the believer, not in some third party who is allegedly

benefitted by the believer’s religious observance.

Thus, even if this Court was correct in effectively

expanding Lamont v. Postmaster General, 381 U.S.

301, 306-07 (1965)—which permitted hearers to

assert an independent First Amendment right to

know—to settings where corporations rely

derivatively on a hearer’s right to know information

that is assumed to be of use to a hearer, and

unavailable without the corporate speaker,’ such a

involving the free flow of information rather than as a set of

rights possessed by individual speakers”).

7 In Bellotti, in the context of a referendum without opposing

candidates, this Court justified permitting a business

corporation to borrow the First Amendment rights of hearers by

speculating that potential voters likely would not receive a full

spectrum of information without corporate participation.

Amicuss reliance on the reasoning of Citizens United and its

dictum applying Be//ott: to contested elections, for purposes of

10

rationale cannot support a corporate free exercise

claim. When the Court protects religious conscience

(or the privilege against self-incrimination), there

are no third parties upon whose rights the

corporation can rely. In the absence of such a third-

party anchor, for-profit business corporations, as

soulless legal abstractions, simply lack the dignitary

status needed to assert rights to religious toleration

rooted in respect for human dignity.

B.

The Statutory Exemption of Non-Profit Religious

Corporations, Smal] Businesses, and

“Grandfathered” Plans from the Requirements in

Question Does Not Render the Requirements

Unconstitutional as to the Challengers

All corporations are not created equal and

endowed by their Creator with certain inalienable

rights. The statutory exemption from the challenged

requirements for non-profit religious corporations

merely tracks the special associational interests this

Court has long accorded non-profit corporations

formed to pursue religious or social purposes. The

Court has recognized that the non-profit corporate

form often functions as nothing more than a useful

device to facilitate the ability of individual members

to associate together to advance commonly-held

distinguishing the instant challenge, does not amount to an

endorsement of that untested assumption.

11

political or socia] ideals.* In such settings, the Court

has recognized that the First Amendment rights of

individuals who have joined together in political or

social association may be asserted in the name of the

non-profit corporation.®

In FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238, 241-42 (1986), for example, this Court

permitted a grassroots non-profit corporation to

assert the First Amendment rights of its members.

In Citizens United, this Court exempted a non-profit

corporation formed to advance political ideas from

the reach of the McCain-Feingold Act. 558 U.S. at

393-94 (Stevens, J., concurring in part and

dissenting in part) (“Even more misguided is the

notion that the Court must rewrite the law relating

to campaign expenditures by for-profit corporations

and unions to decide this case.”); see also FEC v.

Wis. Right to Life, Inc., 551 U.S. 449, 480-81 (2007)

(upholding right of non-profit corporation to

disseminate issue ads); Citizens Against Rent

® Historically, different categories of corporations have been

accorded different legal attributes, depending upon their social

function. See generally John Dewey, The Historic Background

of Corporate Legal Personality, 35 Yale L.J. 655 (1926). Dewey

suggests that the divergence between the treatment of for-profit

business and non-profit, eleemosynary corporations may date

from Pope Innocent IV’s (1243-1254) conception of ecclesiastical

corporations. /d. at 665-69.

* Unlike for shareholders of a for-profit business corporation,

the principal benefit to members of such non-profit ideological

or religious corporations is increased efficacy in the

advancement of their ideals.

12

Control v. City of Berkeley, 454 U.S. 290, 300 (1981)

(invalidating contribution limit imposed on

unincorporated association opposing ballot measure);

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 463-

66 (1958) (upholding out-of-state non-profit

corporation’s right to resist demand for membership

lists).

In this case, Congress has responded to such a

constitutional tradition by exempting non-profit

religious corporations from the insurance

requirements at issue, viewing certain non-profit

religious institutions as proxies for individuals

associated together for religious purposes. But the

decision to treat non-profit corporations as

associations of individuals who have banded together

to advance political or social ideals neither requires,

nor justifies, identical treatment of the shareholders

of for-profit business corporations.

In order to enable the economic efficiencies

promised by the for-profit business corporation, this

Court has deemed it necessary to erect and maintain

a wall of legal separation between the corporation

and its shareholders. For example, in Daimler AC v.

Bauman, _ U.S. _, No. 11-965, 2014 WL 113486, at

*4, *10 (WJan. 14, 2014), this Court declined to

recognize general jurisdiction over a wholly-owned

corporate subsidiary as the equivalent of general

jurisdiction over the corporate parent.!° It matters

‘© The Bauman Court left open the prospect that specific

jurisdiction could be imposed by treating a wholly-owned

subsidiary as the agent of the parent for the purpose of claims

13

little whether the for-profit business corporation is a

large, multi-shareholder entity or a closely-held

family corporation. In both settings, shareholders

reap significant economic and regulatory benefits

from the legal abstraction of separate corporate

status, such as unlimited corporate life; limited

liability; entity-shielding; negotiability of ownership:

and the power to avoid regulation by a particular

sovereign. Having derived substantial economic

benefits by treating business corporations as

freestanding legal constructs, religious shareholders

such as the challengers may not elect to ignore the

legal construct when it suits their personal

preference. They cannot have it both ways.

The challengers further argue that the combined

effect of exempting non-profit religious corporations,

smal] businesses with fewer than 50 employees, and

“grandfathered” plans already in place when the law

went into effect (as long as they remain unchanged),

demonstrates that it is unnecessary to burden for-

profit corporations with 50 or more employees with a

duty to engage in activity deemed immoral by

religious shareholders.

The short answer to this argument is that, it

wrongly presupposes that for-profit business

corporations (or their religious shareholders) are

entitled to invoke the highly protective jurisprudence

of free exercise strict scrutiny on behalf of the

corporation. In the absence of such an antecedent

related to the forum. See id. at *10. But the Court never even

considered ignoring the principle of corporate separateness.

14

finding by this Court, the corporate challengers are

entitled to the far less searching “rational basis”

protection of the implied Equal Protection provisions

of the Fifth Amendment. Williamson v. Lee Optical

of Okla., 348 U.S. 483, 487-89 (1955); Bolling v.

Sharpe, 347 U.S. 497, 498-99 (1954). The challengers

do not seriously dispute that Congress acted

rationally to exempt small businesses as a matter of

economic necessity, and to authorize transitional

“grandfather clause” exemptions as a matter of

administrative necessity.

15

Il.

THE FREE EXERCISE CLAUSE DOES NOT

ENCOMPASS A CONSTITUTIONAL RIGHT TO

SHIFT THE SUBSTANTIAL COSTS OF

RELIGIOUS OBSERVANCE TO THIRD PARTIES

On a more profound level, the challengers are not

entitled to a religiously-based exemption even if they

possess the legal capacity to demand one. This Court

has never granted a believer a religiously-based

exemption from an otherwise valid legal duty when

the grant of such an exemption would impose

significant costs on third parties.

A.

The Free Exercise Clause Does Not Entitle a

Believer to Impose Substantial Costs on Third

Parties

Zechariah Chafee once observed that the right to

swing your fist ends at the other fellow’s nose.

Zechariah Chafee, Jr., Free Speech in War Time, 32

Harv. L. Rev. 932, 957 (1919). Nowhere is this

aphorism truer than in this Court’s free exercise

jurisprudence.

Where’ recognition of a_ religiously-based

exemption from an otherwise valid legal duty would

not impose substantial costs on third parties, this

Court has forged a proud heritage of constitutionally-

mandated religious tolerance. See W. Va. State Bd.

16

of Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(recognizing religiously-based exemption from duty

to salute the flag);!! Sherbert v. Verner, 374 U.S.

398, 408-09 (1963) (recognizing religiously-based

exemption from conditions for receipt of

unemployment compensation in the absence of proof

of substantial third-party costs); Thomas v. Review

Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 719-20

(1983) (same); Hobbie v. Unemployment Appeals

Comm'n, 480 U.S. 136, 146 (1987) (same).

Where, however, as here, judicial enforcement of

a religiously-based exemption would impose

substantial costs on third parties, this Court has

uniformly denied a free exercise claim. For instance,

in denying a free exercise exemption sought by

Jehovah’s Witnesses from a child labor law, the

Court explained that “(t]he right to practice religion

freely does not include liberty to expose the .. child

to... il health or death.” Prince v. Massachusetts,

321 U.S. 158, 166-67 (1944). More recently the Court

denied a free exercise exception from tax exemption

rules, because to grant it would have endangered the

public fisc: “[E]ven a substantial burden [on religious

exercise] would be justified by the broad public

interest in maintaining a sound tax system.”

\! Barnette is, of course, an important free speech case as well,

recognizing that the demands of secular conscience may be as

compelling as the commands of religious conscience. See also

United States v. Seeger, 380 U.S. 163, 176 (1965) (upholding

conscientious objectors’ exception from draft based on secular

conscience); Welsh v. United States, 398 U.S. 333, 339-40

(1970) (same).

17

Hernandez v. Comm'r, 490 U.S. 680, 699-700 (1989)

(citation omitted); see also Reynolds v. United

States, 98 U.S. 145, 166-67 (1878) (denying

religiously-based exemption from ban on bigamy);

Hamilton v. Regents of the Univ. of Cal, 293 U.S.

245, 265 (1934) (denying religiously-based exemption

from military obligations); United States v.

Macintosh, 283 U.S. 605, 623-24 (1931) (same),

overruled on other grounds by Girouard v. United

States, 328 U.S. 61, 63 (1946); Gillette v. United

States, 401 U.S. 437, 461-63 (1971) (same); United

States v. Lee, 455 U.S. 252, 260-61 (1982) (denying

religiously-based exemption from payment of Social

Security taxes); Bob Jones Univ. v. United States,

461 U.S. 574, 602-04 (1983) (denying religiously-

based exemption from anti-discrimination norms);

Tony and Susan Alamo Found. v. Sec’y of Labor, 471

U.S. 290, 303 (1985) (denying religiously-based

exemption from minimum wage and recordkeeping

rules imposed by Fair Labor Standards Act); Jimmy

Swaggart Ministries v. Bd. of Equalization, 493 U.S.

378, 389-92 (1990) (denying religiously-based

exemption from payment of sales taxes).!?

12 In Employment Division, Department of Human Resources v.

Smith, 494 U.S. 872, 890 (1990), the Court declined to grant a

religiously-based exemption from drug laws for the use of

peyote in Native American religious ceremonies. The majority

reasoned that it was unnecessary to conduct a meaningful

inquiry into third-party costs because the interference with

religious observance was not “intentional.” One could make a

similar argument here. Amicus believes, however, that Smith

was an unfortunate departure from the Court’s traditional

protection of religious freedom absent knowledge of a

significant third-party cost. In Gonzales v. O Centro Espirita

18

Our commitment to religious freedom does not

stop, however, with judicially enforceable

constitutional rights. Where judicial enforcement of

a claimed constitutionally-mandated free exercise

right is barred because it would shift burdens to

third parties, this Court has recognized a limited

legislative power to advance free exercise values. It

has upheld legislative efforts to accommodate the

demands of religious conscience by balancing

relatively insignificant costs to third parties against

the demands of religious conscience. Corp. of the

Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 339-40

(1987) (upholding statutory right of non-profit

religious group to limit employment to church

members); Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, __ U.S. __, 1382 S. Ct. 694,

706 (2012) (upholding “ministerial exemption” from

Title VII in order to preserve the free exercise values

of members of congregation); see also Seeger, 380

U.S. at 176 (upholding conscientious objectors’

exception from draft based on secular conscience);

Welsh, 398 U.S. at 339-40 (same). But when a so-

called accommodation statute actually compelled

third parties to bear substantial economic and social

costs generated by religious exemptions, this Court

Beneficente Uniao Do Vegetal, 546 U.S. 418, 423 (2006), the

Court granted an exemption in a virtually identical setting

under RFRA because of the lack of a demonstrated third-party

cost. Unlike in Smith or O Centro Espirita, in the consolidated

cases currently before the Court, grant of a religious exemption

unquestionably would impose very substantial third-party

costs.

19

has invalidated the statute as an establishment of

religion. Estate of Thornton v. Caldor, Inc., 472 U.S.

703, 709-10 (1985) (invalidating law mandating

time-off for religious Sabbath, because law required

co-workers to work on weekend); Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 84-85 (1977)

(construing Title VII to require _ religious

accommodation only where substantial costs are not

imposed on owner or co-workers).

Thus, under this Court’s settled free exercise

jurisprudence, not only would a judicially-mandated

religious exemption from the obligations of the

Affordable Care Act be completely unprecedented—

because it would impose substantial economic

burdens on competitors and employees—but it might

well violate the Establishment Clause by forcing

third parties to bear the substantial economic costs

of the challengers’ religious observance.

B.

Free Exercise “Strict Scrutiny” is Designed to Test

Whether the Grant of a Religiously- Based

Exemption Would Shift Unacceptable Costs to Third

Parties

Strict judicial scrutiny under the Free Exercise

Clause requires the government to demonstrate a

“compelling state. interest” that is advanced by “the

least restrictive means’ in order to justify the denial

of a demand for a religiously-based exemption from

20

an otherwise valid legal duty.!3 Thomas, 450 U.S. at

718; see also Wisconsin v. Yoder, 406 U.S. 205, 214-

15 (1972). In a free exercise setting, application of

the strict scrutiny formula has always turned on

whether grant of a religious exemption would shift a

substantial burden to others. While this Court

formally applied the elements of strict scrutiny in a

free exercise setting for the first time in Sherbert v.

Verner, 374 U.S. at 406-07, to search for third-party

costs, it had applied the substance of the inquiry for

nearly a century. In case after case, the Court denied

free exercise exemptions where substantial costs

imposed by a particular religious observance would

be borne by third parties, but granted religious

exemptions when zo substantial cost would be borne

by a third party. For example in Reynolds, 98 U.S.

145, the Court denied the request of a Mormon for a

religiously-based exemption from territorial laws

criminalizing bigamous marriage. The Court

reasoned that society had an important interest in

protecting vulnerable women forced into plural

marriage, and that the grant of a religious exemption

would force women and children to bear the costs of

13 Strict judicial scrutiny is also applied by this Court in certain

equal protection contexts involving discrete and insular

minorities and the selective apportionment of “fundamental

rights,” as well as free speech settings involving efforts to

censor “pure” speech. See, e.g., Johnson v. California, 543 U.S.

499, 505 (2005) (applying strict scrutiny to racial classification):

Sable Commce'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)

(applying strict scrutiny to regulation of content of speech);

Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627

(1969) (applying strict scrutiny to voting restriction).

21

the husband’s religious observance. 98 U.S. at 164-

68. In Hamilton, 293 U.S. at 265, and Macintosh,

283 U.S. at 623-26, the Court rejected demands for

constitutionally-mandated religious exemptions from

democratically-defined military obligations.'14 The

two cases were reaffirmed subsequent to Sherbert in

Gillette, which rejected a free exercise claim to

decline to serve in an “unjust war” because to grant

it would force third parties to bear the burden of

serving instead. 401 U.S. at 461-63.

On the other hand, where granting a religiously-

based exemption would impose de minimis or no

costs on others, the pre-Sherbert Court recognized

religiously-based claims to exemption. Memorably, in

Barnette, the Court exempted a Jehovah’s Witness

child from compulsory flag salutes in school. 319 U.S.

at 642. The difference between Barnette and the case

that it overruled, Minersville School District v.

Gobitis, 310 U.S. 586 (1940), was the Barnette

Court’s’ realization that exempting religious

schoolchildren from compulsory flag salutes imposes

little or no cost on anyone else. Barnette, 319 U.S. at

640-42.

14 Hamilton arose out of California’s requirement that students

attending Land Grant colleges enroll in military training

courses. The Court analyzed the case under the “liberty”

provision of the Due Process Clause because the Free Exercise

Clause had not yet been clearly applied to the states. Macintosh

involved a religiously-based reluctance to take the oath of

naturalization promising to defend the nation by force of arms.

The Court overruled Macintosh in Girouard after reinterpreting

the relevant statute. 328 U.S. at 63.

22

In Sherbert itself, the birthplace of the current

strict scrutiny formula, the idea of a “compelling”

interest was deployed to require South Carolina to

demonstrate that granting the religious exemption

at issue would, in fact, impose substantial costs on

others. When South Carolina failed to do so, the

exemption was granted. 374 U.S. at 406-09.

In the years since Sherbert, free exercise strict

scrutiny has operated to require government to

identify a substantial third-party cost that would be

imposed by granting a religiously-based exemption.

Often, as in the aforementioned cases denying

religious exemptions from bigamy laws, payment of

Social Security taxes, anti-discrimination

requirements, protective labor laws, military

obligations, and child welfare duties, the third

parties who would bear the costs of a religious

exemption are readily identifiable. Occasionally, as

in cases like Goldman v. Weinberger, 475 U.S. 503,

509-10 (1986) (denying a religious exemption from

indoor military headgear regulations); OZone v.

Estate of Shabazz, 482 U.S. 342, 353 (1987) (denying

religiously-based work exemptions in prison

settings); and Bowen v. Roy, 476 U.S. 693, 709-12

(1986) (denying a religious exemption from the use of

Social Security numbers as identifying criteria), the

third-party costs are more difficult to associate with

known individuals, and are expressed by the Court

as risks to the efficient and safe administration of

government programs affecting a wide array of

unknown individuals. But whether the third parties

who would bear the costs of a religious exemption

23

are identifiable individuals or unknown victims of an

administrative breakdown, government

demonstrates a “compelling” interest in denying a

religiously-based exemption by showing that

granting the exemption would substantially risk

imposing significant costs on third parties.

The second half of the strict scrutiny test,

requiring that the challenged law represent the least

restrictive means of achieving the government’s goal,

obliges the government to demonstrate that any

infringement on religious exercise cannot be

minimized without significant cost to third parties.

Thomas, 450 U.S. at 718: see also Yoder, 406 U.S. at

214-15.

In this case, the government’s denial of the

challengers’ demand for a_ religiously-based

exemption clearly satisfies free exercise strict

scrutiny. Granting a religiously-based exemption

from the health insurance provisions of the

Affordable Care Act would impose significant costs

on at least two categories of third parties—non-

religious competitors, who would be placed at an

economic disadvantage by being forced to incur the

full cost of employee health insurance; and the

challengers’ employees, who would be deprived of

valuable employment benefits important for their

health. In fact, the third-party costs that would be

imposed by a religious exemption from the health

insurance obligaticn imposed by the Affordable Care

Act are analytically identical to the costs that

justified denials of religious exemptions in Lee, 455

24

U.S. at 260-61 (denying religiously-based exemption

from payment of Social Security taxes); Bob Jones

University, 461 U.S. at 602-04 (denying religiously-

based exemption from anti-discrimination norms);

Alamo Foundation, 471 U.S. at 303 (denying

religiously-based exemption from minimum wage

and recordkeeping rules imposed by Fair Labor

Standards Act); and Jimmy Swaggart Ministries,

493 U.S. at 389-92 (denying religiously-based

exemption from payment of sales taxes).

Moreover, short of subsidizing the exemption

with taxpayer funds (a technique that was rejected

in Lee, Alamo Foundation, Hernandez, and Jimmy

Swaggart Ministries and that would risk violating

the Establishment Clause by requiring taxpayer

support of religion) or forcing insurance companies

or competing employers to bear additional costs, no

less restrictive means exist to avoid asking third

parties to bear the substantial cost of the religiously-

based exemption that the challengers seek.

It is no answer to point to the relatively minor

cost of granting a religiously-based exemption to a

single challenger. Once such a for-profit corporate

exemption is granted to one believer, it must be

granted to all. Indeed, once granted for purely

religious reasons, a similar exemption would be

granted to employers with similarly intense non-

theological conscientious scruples. Seeger, 380 U.S.

at 176 (recognizing statutory conscientious exception

from draft based on non-theological beliefs); Welsh,

398 U.S. at 339-40 (same).

25

C.

The Statutory Grant of Certain Exemptions Does

Not Serve to Diminish the Government’s Interest in

- the Challenged Requirements or Undercut

Congress’s Choice of Means

The challengers argue that if providing health

insurance coverage really were “compelling,” as that

term is used in the strict scrutiny inquiry, Congress

never would have limited coverage to employers with

50 or more employees; would not have exempted

certain non-profit religious employers; and would not

have temporarily exempted certain “grandfathered”

pre-existing insurance plans. But such an argument

misunderstands the meaning of the “compelling

interest” concept as it is used in the free exercise

strict scrutiny formulation.

It is not for this Court to decide whether assuring

health insurance coverage for employees is truly a

compelling government obligation. In a democracy,

that decision is for the people through their elected

representatives. As uniformly applied in this Court’s

free exercise jurisprudence to date, the government’s

“compelling interest” has not been tested by a case-

by-case judicial inquest into the relative importance

of a given government program, but by the need to

prevent the imposition of substantial costs associated

with a religious exemption on third parties. Since, in

this case, substantial costs would unquestionably be

borne by the challengers’ competitors and employees,

26

no doubt exists concerning the “compelling” nature of

the government’s interest in denying a religious

exemption that would impose substantial costs on

third parties.

Moreover, even if one were to accept the

challengers’ invitation to treat the _ existing

exemptions as evidence that the government itself

does not view health insurance coverage as truly

“compelling,” the argument fails because the

exemptions support no_ such inference. The

exemption for non-profit religious employers engaged

in religious activities may well be required by the

Free Exercise Clause. At a minimum, it reflects

Congress’s desire to accommodate the free exercise

values of non-profit religious entities engaged in

religious activities. It cannot be the law that if

Congress grants such an accommodation to non-

profit religious entities, it must also exempt for-

profit business corporations owned by religious

shareholders, or by shareholders motivated by

similarly intense non-theological objections. Taken

seriously, the challengers’ argument would require

the existing grant of religious exemptions from the

reach of Title VII to be extended to for-profit

business corporations owned by _ religious

shareholders. Corp. of the Presiding Bishop, 483 U.S.

at 339-40 (upholding statutory. right of non-profit

religious group to limit employment to church

members); Hosanna-Tabor Evangelical Lutheran

Church & Sch., 132 S. Ct. at 706 (upholding

“ministerial exemption” from Title VII in order to

preserve the free exercise values of members of

27

congregation); see also Locke v. Davey, 540 U.S. 712,

718-19 (2004) (denying religiously-based

constitutional exemption from restriction on use of

government scholarship funds, but acknowledging

power to provide state law exemption).

The challengers’ effort to parlay the grant of

exemptions to certain non-profit religious entities

into a general exemption for for-profit business

corporations owned by religious’ shareholders

misunderstands the tripartite nature of this Court’s

free exercise jurisprudence. Where the grant of a

religiously-based exemption would impose

substantial costs on third parties, this Court has

uniformly refused to recognize a judicially-enforced

constitutional right to a religious exemption. But

where government regulation impinges on religious

values, the Court has recognized a legislative (as

opposed to judicial) power to accommodate the

exercise of religious values by providing religious

exemptions in particularly compelling circumstances

when the cost to third parties is relatively minor.

But even such a power is limited if it shifts onerous

costs to third parties. Estate of Thornton, 472 U.S. at

709-10 (invalidating law mandating time off for

religious Sabbath because law operated to require co-

workers to work on weekend); Trans World Airlines,

Inc., 432 U.S. at 84-85 (construing Title VII to

require religious accommodation only where

substantial costs are not imposed on owner or co-

workers). Ironically, therefore, if the challengers’

claim is correct that the grant of limited exemptions

to non-profit religious entities automatically entitles

28

for-profit corporations owned by _ religious

shareholders to a similar exemption, it would render

it impossible for legislatures to provide limited

exemptions designed to accommodate religious

values without setting off an inexorable expansion of

the exemption that would violate the Establishment

Clause.

Nor can the challengers argue that the decision to

provide a temporary exemption to pre-existing

“grandfathered” health insurance plans

demonstrates the non-compelling nature of health

insurance coverage. The administratively sensible

decision to phase in a massive program altering the

health care structure of the nation by temporarily

exempting certain pre-existing insurance plans

during the transitional period proves no such thing.

Nor does Congress’s decision to limit the health

insurance mandate to employers with 50 or more

employees. A judgment about the ability of small

businesses to bear the economic costs of a

government program has little or nothing to do with

its compelling nature. It speaks to economic

necessity and tragic choices, not the importance of

health insurance.

Finally, the challengers’ suggestion that

extending already existing exemptions to for-profit

business corporations is the “least restrictive means”

misunderstands the role of “least restrictive means”

within this Court’s free exercise jurisprudence. In a

free exercise context, the “least restrictive means”

element requires the government to demonstrate the

29

absence of practicable alternatives that would avoid

infringing on religious exercise without imposing

significant costs on third parties. If such readily-

available mechanisms exist, respect for principles of

religious tolerance requires the government to utilize

them as the “least restrictive means” of avoiding the

imposition of unfair costs on third parties. But no

such mechanisms exist in this case. Expanding

existing exemptions to for-profit business

corporations owned by religious shareholders would

not avoid the imposition of unfair costs on third

parties; it would exacerbate them. Either the

employees would bear the additional costs of losing

insurance coverage, or the costs of supplying the

insurance would be shifted to insurance companies

or to the public fisc.

Thus, as long as the existing administrative and

economic exemptions are justified by substantial

government interests, there is no constitutional duty

under the Free Exercise Clause to extend them to

for-profit business corporations. Taken seriously, the

challengers’ conceptualization of the infinitely

expandable nature of exemptions under the Free

Exercise Clause would cause the fact of limited

exemptions from the Social Security taxes at issue in

Lee, the fair labor standards at issue in A/amo

Foundation, and the sales taxes at issue in Jimmy

Swaggart Ministries to require reversal of those

bedrock cases.

30

ITT.

CONGRESS REMAINS FREE TO SEEK TO

ACCOMMODATE THE CHALLENGERS’

RELIGIOUS VALUES

The challengers’ inability to assert a persuasive

free exercise claim for exemption ends this case, but

it need not end the controversy. Under this Court’s

tripartite jurisprudence, Congress retains the power

to seek to accommodate the challengers’ sincere

religious scruples as long as the accommodation does

not impose unfair costs on third parties. The nation’s

treatment of conscientious exemptions from military

service provides a roadmap.

Since the grant of religiously-based conscientious

exemptions from military service would have

imposed a direct cost on third parties forced to serve

in place of the religious objectors, this Court has

repeatedly refused to recognize a free exercise-based

exemption from the draft. But, since World War I,

the nation’s commitment to respect for individual

conscience has persuaded Congress to provide a

statutory substitute that respects conscience, but

requires conscientious objectors to perform

alternative service designed to minimize the cost to

third parties. Finally, to prevent the accommodation

from violating the Establishment Clause, this Court

has carefully construed the Selective Service Act to

provide for exemptions on the basis of non-religious

conscience as well, rendering the exemptions a

neutral effort to respect conscience.

31

It is not beyond the ability of Congress to

replicate the conscientious objection model in the

context of the Affordable Care Act. Free exercise-

based exemptions are barred because they would

shift unfair costs to third parties. But a program that

freed challengers from a conscientious dilemma,

while minimizing the costs to third parties, remains

possible. However, under the tripartite free exercise

jurisprudence of this Court, the search for an

accommodation that does not shift unfair costs to

third parties is the province of Congress, not this

Court.

CONCLUSION

For the foregoing reasons, the decision of the

Tenth Circuit in Hobby Lobby Stores, Inc. v.

Sebelius, 723 F.3d 1114 (10th Cir. 2013), should be

reversed, and the decision of the Third Circuit in

Conestoga Wood Specialties Corp. v. Secretary of the

U.S. Department of Health and Human Services, 724

F.3d 377 (3d Cir. 2013), should be affirmed.

Dated: January 28, 2014

New York, New York

Respectfully submitted,

BURT NEUBORNE

Counsel of Record

32

NORMAN DORSEN

HELEN HERSHKOFF

40 Washington Square South

New York, New York 10011

212-620-0559

burt.neuborne@nyu.edu

WENDY R. WEISER

HOOnpyYO (CHISUN) LEE

BRENT FERGUSON

DAVID W. EARLEY

BRENNAN CENTER FOR JUSTICE

AT N.Y.U. SCHOOL OF LAW

161 Avenue of the Americas,

12% Floor

New York, New York 10013

33