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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 571 U.S. 1067

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A25. Public record. Not legal advice.