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

RECORD Nos. 13-354, 13-356

AND a

BRIEFS IN THE OF THE CLERK

Supreme Court of the Gnited

KATHLEEN SEBELIUS, SECRETARY OF

HEALTH AND HUMAN SERVICES, et al.,

Petitioners,

We

HOBBY LOBBY STORES, INC., et al.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., et al.,

Petitioners,

Vv.

KATHLEEN SEBELIUS, et al.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Tenth and Third Circuits

BRIEF OF AMICI CURIAE THE CENTER

FOR INQUIRY, AMERICAN HUMANIST

ASSOCIATION, AMERICAN ATHEISTS,

MILITARY ASSOCIATION OF ATHEISTS AND

FREETHINKERS, AND THE INSTITUTE

FOR SCIENCE AND HUMAN VALUES,

IN SUPPORT OF THE GOVERNMENT

RONALD A. LINDSAY EDWARD TABASH

NICHOLAS J. LITTLE Counsel of Record

CENTER FOR INQUIRY 433 North Camden Drive

1020 19th Street, NW Suite 600

Washington, DC 20036 Beverly Hills, CA 90210

(202) 629-2403 (310) 279-5120

legal@centerforinquiry.net etabash@centerforinquiry.net

Counsel for Amici Curiae

WILSON-EPES PR Co., | - 789-0086 -— W. D.C

Law Library

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ....................00000.000000+ iii

STATEMENT OF INTEREST ........................00+. 1

SUMMARY OF ARGUMENT ....................:00000004 3

SITET asiccscadiicniinsniieinidicsianieniiatidiidiipsiinisiitlinstiniisaiiinin 6

I. THERE IS NO FREE EXERCISE

CLAUSE RIGHT TO AN EXEMPTION

FROM THE MANDATE .................c000000000 6

A. Generally applicable laws which indi-

rectly affect religious practices do not

violate the First Amendment.............. 6

B. Permissive religious exemptions to

laws of general applicability are

subject to Establishment Clause

Il. GRANTING A RELIGIOUS EXEMP-

TION HERE VIOLATES THE ESTAB-

LISHMENT CLAUSE BY IMPOSING A

BURDEN ON THIRD PARTIES............... 9

A. An exemption would shift a burden

to the employees of Hobby Lobby and

B. This Court has found permissive reli-

gious exemptions that burden third

parties to be unconstitutional............. 11

C. The burden shifted to third parties

here is substantial ............................... 15

(i)

‘i

TABLE OF CONTENTS—Continued

Page

Ill. THE MANDATE IMPOSES NO SUB-

STANTIAL BURDEN ON THE RELI-

GIOUS FREEDOM OF HOBBY LOBBY

AND CONESTOGA WOOD SPECIAL-

A. The finding of a burden by lower

courts is based on flawed reasoning ... 18

B. Any burden that exists for the em-

ployer is voluntarily undertakeo ........ 22

C. This case does not involve a burden

on religious liberty, but rather a com-

plaint about government policy .......... 24

IV. ANY EXEMPTION GRANTED WOULD

BE IMPOSSIBLE TO CONTAIN WITH-

OUT FURTHER VIOLATIONS OF THE

ESTABLISHMENT CLAUSE................... 27

A. The rationale of the Tenth Circuit

would make all claimed religious

burdens substantial............................. 27

B. Exemptions would abound through-

ciauinicameameasaiis 29

I cc ainceniacciectsuiicdsticadiiasaalieticia aisiscanmaiilate 31

TABLE OF AUTHORITIES

CASES Page(s)

Adams v. Commissioner, 170 F. 3d 173 (3d

Cir. 1999), cert. denied 528 U.S. 1117

TTI ihsisitnsnisSestabacindonsiginescaniuiiinsandetinesienioninecininini 24, 25

Autocam Corp. v. Sebelius, 730 F. 3d 618

EEE, SI cinicssiarecnibpemntmeninemenemniedaaiabiiens 16

Bowen v. Roy, 476 U.S. 693 (1986) .............. 25, 26

Church of Lukumi Balalu Aye v. City of

Hialeah, 508 U.S. 520 (1993).............000000 4,7

City of Boerne v. Flores, 521 U.S. 507

En en EE 7, 8,9

Conestoga Wood Specialties Corp. uv.

STE cistindidecisvinsncanaiinciaiiciebeb bipaadaihiaauianiendaioniente 6

Conestoga Wood Specialties Corp. v. Sec’y of

the United States HHS, 2013 U.S. App.

LEXIS 2706 (3d Cir. Feb. 7, 2013)........... 22

Corp. of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327 (1987)...........ccccsesecceee 14, 15

Cutter v. Wilkinson, 544 U.S. 709 (2005) .... 13

Employment Div., Dep’t of Human Res. v.

Smith, 494 U.S. 872 (1990)..............00:0000 passim

Epperson v. Arkansas, 393 U.S. 97 (1968)... i)

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

EP eae Re mee 11, 12, 15, 17

Gilardi v. United States Dep’t of Health &

Human Servs., 733 F. 3d 1208 (D.C. Cir.

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Gonzales v. O Centro Espirita Beneficente

Unaio do Vegetal, 546 U.S. 418 (2006)..... 10, 11

Grote v. Sebelius, 708 F. 3d 850 (7th Cir.

Hernandez v. Comm’r, 490 U.S. 680 (1989) 22

Hobbie v. Unemployment Appeals Comm’n

of Fla., 480 U.S. 136 (1987) .........cccceeneeee 14

Hobby Lobby Stores, Inc. v. Sebelius, 723

F. 3d 1114 (10th Cir. 2013)......0000000000000... passim

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

ili sasiatsctninctnsesiuinnchienncicemmosintiiinpediedalaiiiasilatiig 16

Locke v. Davey, 540 U.S. 712 (2004)............ 15

Lyng v. Northwest Indian Cemetery

Protective Ass’n, 485 U.S. 439 (1988)....... 6

Marbury v. Madison, 5 U.S. 137 (1803)....... 8

Mitchell v. Helms, 530 U.S. 793 (2000) ....... 21

Natl Fed’n of Indep. Bus. v. Sebelius, 567

US. __, 182 S. Ct. 2566 (2012)............... 7,10

Newland v. Sebelius, 2013 U.S. App.

LEXIS 20223 (10th Cir. Oct. 3, 2013)...... 16

Prince v. Mass., 321 U.S. 158 (1944) ........... 22

T.W.A. v. Hardison, 432 U.S. 63 (1977)....... 12,17

Texas Monthly v. Bullock, 489 U.S. 1

Si itachi cai ctiicncandentadguientaeiiaainabiidale 14

Tony & Susan Alamo Found. v. Sec. of

Labor, 471 U.S. 290 (1985) ..........:cceeeeee 14

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Lee, 455 U.S. 252 (1982).... 13, 25

Univ. of Great Falls v. NLRB, 278 F. 3d

ee 15

Zelman v. Simmons-Harris, 536 U.S. 639

GES 5, 21

CONSTITUTION

I I, Bcc cccsusnseassescoccccsscovecesces passim

STATUTES AND REGULATIONS

EN |”) Ta 10

45 CFR § 147.130(a)(1)ivXA) ....00 ee. 10

Civil Rights Act of 1964, Title VII, § 702,

Se ee OF ND G0 BOIL cnccccccccssencesersceseces 12, 14

“Contraceptive Mandate”, Group Health

Plans and Health Insurance Issuers

Relating to Coverage of Preventive

Service Under the Patient Protect and

Affordable Care Act, 77 Fed. Reg. 8724

Neen a sccnancontnal passim

Patient Protection and Affordable Care

Act, Pub. L. No. 111-148, 124 Stat. 119

NT iirilaclhiiadhaminndanksenestessneaswoncsoncecosed passim

Religious Freedom Restoration Act, 42

i ca tinpncadonnsnsnsensoonneel passim

Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc............... 12,13

vi

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page(s)

Andy G. Olree, The Continuing Threshold

Test for Free Exercise Claims, 17 Wm. &

Mary Bill of Rights J. 103 (2008)............. 22

Frederick M. Gedicks & Rebecca G. Van

Tassell, RFRA Exemptions from the

Contraception Mandate: An Uncon-

stitutional Accommodation of Religion,

49 Harv. C.R.-C.L. L. Rev. ____ (2014),

available online at http-//papers.ssrn.

com/sol3/papers.cfm?Abstract_id=23285

16 or = http//dx.doi.org/10.2139/ssrn.

2328516 (last visited Jan. 21, 2014)... 14, 15, 16

Marci A. Hamilton, The Religious Freedom

Restoration Act is Unconstitutional,

Period, 1 U. Pa. J. Const. L. 1 (1998-99).. i]

Planned Parenthood, JUD: Where can I Get

an IUD? How much does an IUD Cost?,

http//www.plannedparenthood.org/health

-topics/birth-control/iud-4245.htm (last

Ke 16

STATEMENT OF INTEREST’

This amici curiae brief in support of the Government

is being filed on behalf of the Center for Inquiry

(“CFI”), the American Humanist Association, Ameri-

can Atheists, the Military Association of Atheists and

Freethinkers, and the Institute for Science and

Human Values.

CFI is a nonprofit educational organization dedi-

cated to promoting and defending reason, science, and

freedom of inquiry. Through education, research,

publishing, social services, and other activities,

including litigation, CFI encourages evidence-based

inquiry into science, pseudoscience, medicine and

health, religion, and ethics. CFI believes that the

separation of church and state is vital to the

maintenance of a free society that allows for a rea-

soned exchange of ideas about public policy.

The American Humanist Association (“AHA”) is a

national nonprofit organization that advocates for the

rights and viewpoints of humanists. Founded in 1941,

its work is extended through more than 175 local

chapters and affiliates across America. Humanism is a

progressive philosophy of life that, without theism and

other supernatural beliefs, affirms our ability and

responsibility to lead ethical lives of personal

* The Government and Conestoga Wood Specialties have given

blanket consents to the filing of amicus briefs; their written

consents are on file with the Clerk. Counsel of Record for Hobby

Lobby has granted written consent for this brief to be filed; this

consent is also on file with the Clerk. No counsel for a party

authored this brief in whole or in part, and no party or counsel

for a party made a monetary contribution intended to fund its

preparation or submission. No person other than amici and their

counsel made a monetary contribution to the preparation or

submission of this brief.

2

fulfillment that aspire to the greater good of humanity.

The mission of AHA’s legal center is to defend the

constitutional mandate of separation of church and

state.

American Atheists, Inc. (“American Atheists”) is a

New Jersey educational, non-political, nonprofit cor-

poration with members, offices, and/or meeting

locations nationwide and in various municipalities.

American Atheists is a membership organization

dedicated to advancing and promoting, in all lawful

ways, the complete and absolute separation of church

and state and to preserving equal coverage for atheists

under the protections found in the Bill of Rights, and,

in particular, the First Amendment to the United

States Constitution. American Atheists promotes

the stimulation and freedom of thought and inquiry

regarding religious belief, creeds, dogmas, tenets,

rituals and practices. It seeks to collect and dis-

seminate information and literature on all religions in

order to promote a thorough understanding of them.

It encourages the development and public acceptance

of a humane, ethical system that stresses the mutual

sympathy, understanding and interdependence of all

people and the corresponding responsibility of each

individual in relation to society.

The Military Association of Atheists and Free-

thinkers represents active duty and former military

personnel in all branches of service who protect a

nation that does not discriminate on the basis of belief

and does not promote one type of belief to the exclusion

of others.

The Institute for Science and Human Values is

committed to protecting and advancing women’s full

equality and health, with a particular interest in

ensuring that women receive all the benefits of access

3

to paid contraceptive coverage, as provided in the

Affordable Care Act, without regard to the religious

views of their employer.

Amici thereby comprise a diverse array of secular

and humanist organizations that advocate on behalf of

the separation of church and state and offer a unique

viewpoint concerning the importance of religious

freedom in the United States. The granting of

exemptions to religious groups from laws of general

applicability at issue in this case jeopardizes amici’s

core humanist and secular interests in the separation

of church and state. Amici are accordingly deeply

invested in preserving appropriately stringent judicial

scrutiny of exemptions from such generally applicable

laws.

SUMMARY OF ARGUMENT

Both the government and the corporations seeking

exemption focus their arguments on the Religious

Freedom Restoration Act (“RFRA”). 42 U.S.C.

§ 2000bb-1. The government correctly maintains that

there is no substantial burden on the free exercise of

religion of the owners of the corporations, or indeed on

the rights of the corporations themselves, if this Court

were to find that such rights exist. It is the position of

Amici herein that the granting of the requested

exemption is not only not required under RFRA, but is

also unconstitutional, because it would violate the

Establishment Clause.

First, there exists no First Amendment, Free Exer-

cise Clause based right to an exemption from the

Contraceptive Mandate (“Mandate”), 77 Fed. Reg.

8724, 8725 (Feb. 15 2012) of the Patient Protection and

Affordable Care Act (“ACA”). Pub. L. No. 111-148, 124

Stat. 119 (2010). Under controlling Supreme Court

4

precedent, Congress does not impinge on the right to

free exercise of religion when it enacts a law of general

applicability, even if that law impacts an individual’s

ability to practice her religion. Employment Div., Dep’t

of Human Res. v. Smith, 494 U.S. 872, 879 (1990). The

only exception to this rule is where a law targets

the practice of a religious group for discriminatory

treatment, and so is not truly one of general applicabil-

ity. Church of Lukumi Balalu Aye v. City of Hialeah,

508 U.S. 520, 536-37 (1993). As the Mandate is

generally applicable, and does not target religion in

general or any specific religion, any burden it creates on

religious practice is not a violation of the Free Exercise

Clause.

Congress responded to Smith by passing RFRA,

imposing a compelling government interest standard

for substantial infringements of free exercise. How-

ever, any exemptions granted under RFRA are legis-

lative, not constitutional protections, so RFRA must

withstand constitutional scrutiny, both facially and as

applied. In particular, any protections given over and

above Smith to religious exercise must not violate the

Establishment Clause.

Second, this Court has held repeatedly that a per-

missive exception to a generally applicable law, such

as that granted under RFRA, violates the Establish-

ment Clause when a government created burden is

shifted from the complaining individual to a third

party. Such a burden shifting would occur, here,

because in order to satisfy the religious concerns of

business owners, individual employees would have

their ability to obtain preventive health services, in

the form of legally approved contraception, adversely

affected.

5

Third, the burden on religious practice claimed by

these employers is a minimal one, if it exists at all.

Despite the ruling of the Tenth Circuit, courts may not

simply take plaintiffs’ allegations of a burden at face

value. Any burden that exists here is a purely self-

imposed one, created by the employer's decisions made

for purely business reasons which are unprotected by

any constitutional right. Moreover, the alleged burden

in this case is contingent on the independent decisions

of nongovernmental third parties, that is, the deci-

sions of employees who may or may not decide to use

the forms of contraception to which the employers

object. As this Court has repeatedly found in

Establishment Clause cases, actions of third parties

cannot be attributed to the government. E.g. Zelman

v. Simmons-Harris, 536 U.S. 639, 650-51 (2002).

Fourth, any such exemption granted here could not

be controlled without violating the First Amendment

by preferring one religion over another, or religious

belief, generally, over nonbelief. Any exemption would

be followed by a series of further exemptions, as

almost any medical procedure could be seen as

violating the religious beliefs of one or more religious

groups or sects.

The exemption sought here by Hobby Lobby, Con-

estoga Wood, and their respective owners is therefore

not required by the Free Exercise Clause, and, in fact,

would violate the Establishment Clause. As such, it

must be rejected by this Court.

6

ARGUMENT

I. THERE IS NO FREE EXERCISE CLAUSE

RIGHT TO AN EXEMPTION FROM THE

MANDATE

A. Generally applicable laws which indi-

rectly affect religious practices do not

violate the First Amendment

The various Circuits that have considered the

Mandate have spent little to no time on the merits of

the claims asserted under the First Amendment

except to opine on whether the Free Exercise Clause

even protects for-profit corporations as opposed to

individuals and nonprofit religious corporations. The

reason for this is clear. This Court has ruled that

there is no violation of the Free Exercise Clause’s

protections when Congress enacts “a valid and neutral

law of general applicability on the ground that the law

proscribes (or prescribes) conduct that [a plaintiffs]

religion prescribes (or proscribes).” Conestoga Wood

Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 409

(E.D. Pa. 2013) (citing Smith, 494 U.S. at 879).

That laws applying to all will affect an individual’s

religious beliefs is an unavoidable part of living in a

modern, diverse society with a functioning government.

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439, 452 (1988) (“[Glovernment simply could

not operate if it were required to satisfy every citizen’s

religious needs and desires.”) The rule as set out in

Smith prevents such incidental burdens on religion,

that may come with broad reaching legislation, from

rising to the level of a constitutional violation. Where

such a burden occurs, “it does not follow that the

persons affected have been burdened any more than

other citizens, let alone burdened because of their

7

religious beliefs.” City of Boerne v. Flores, 521 US.

507, 535 (1997).

The Free Exercise Clause is implicated only when

the objective of a law is to single out and impose a

burden on a particular religion’s practices. Legislation

that specifically targets a religious practice, unless

meeting the compelling interest test, would violate the

First Amendment. Smith, 494 U.S. at 878. (“It would

doubtless be unconstitutional . . . to prohibit bowing

down before a golden calf.”) Such a law targeted at a

religious practice was struck down by this Court in

City of Hialeah, 508 U.S., at 540-41, where a local

ordinance was held to be written in a fashion such as

to prohibit the killing of animals only by practitioners

of Santeria. Significantly, even if the objective of a law

is to burden a particular religious practice, it may still

be upheld if it satisfies the compelling interest test.

The ordinance in City of Hialeah was unconstitutional

because the true purpose of the legislation, as

evidenced by the ordinance’s legislative history, was to

push Santerians out of the city. 508 U.S. at 540-41.

There is no credible argument that such targeting of

religion is occurring here with the Mandate. The

Mandate applies to all employers covered by the

Affordable Care Act, with the exception of a broad

range of religious nonprofit corporations fully exempted

or granted accommodations by executive action. Not

only is the Affordable Care Act one of general

applicability, it is a validly enacted law, as determined

by this Court in Nat? Fed’n of Indep. Bus. v. Sebelius,

567 U.S. __, 182 S. Ct. 2566, 2608 (2012).

8

B. Permissive religious exemptions to

laws of general applicability are subject

to Establishment Clause review

In his majority opinion in Smith, Justice Scalia

noted that while the First Amendment did not require

religious exemptions from laws of general applicabil-

ity, they were permissible. 494 U.S. at 890. In

response to that decision, Congress enacted RFRA,

with the express purpose of making the compelling

interest test the standard of review for government-

imposed burdens on religion. Hobby Lobby Stores, Inc.

v. Sebelius, 723 F. 3d 1114, 1133 (10th Cir. 2013).

This Court, in Smith, determined the extent to

which the Free Exercise Clause protected individuals

from burdens on their religious practice. RFRA, as a

legislative enactment, granted protections beyond

those constitutional rights. Such permissive rights

granted by act of Congress are subject to constitutional

scrutiny by this Court. When an exemption sought

under RFRA violates the Establishment Clause, it is

not permitted. Congress does not have the authority

to violate the Constitution, nor can Congress overrule

a Supreme Court determination of the extent of

constitutional protections, short of the passage of an

actual constitutional amendment. Marbury v. Madison,

5 U.S. 137, 177 (1803) (the Constitution is “superior,

paramount law, unchangeable by ordinary means...

{It is not] alterable when the legislature shall please

to alter it.”)

Any exemption claimed under RFRA, such as that

sought by Hobby Lobby and Conestoga Wood Special-

ties here, must, therefore, pass constitutional review

under the Establishment Clause. RFRA was ruled

unconstitutional as applied to the states by this Court

in City of Boerne, 521 U.S. at 536. However, it has

9

been treated as facially constitutional regarding the

federal government.” Facial constitutionality does not

end the scrutiny, as laws may still be applied in ways

which violate the constitution.

The Establishment Clause “mandates government

neutrality between religion and religion, and between

religion and non-religion.” Epperson v. Arkansas, 393

US. 97, 104 (1968). The granting of an injunction

to Hobby Lobby and Conestoga Wood Specialties,

exempting those profit-making corporations from

obeying a generally applicable law on religious

grounds, would be a breach of such neutrality, burden-

ing the employees of those corporations in order to

further the religious interests of the corporate entities

and their owners.

Il. GRANTING A RELIGIOUS EXEMPTION

HERE VIOLATES THE ESTABLISHMENT

CLAUSE BY IMPOSING A BURDEN ON

THIRD PARTIES

A. An exemption would shift a burden to

the employees of Hobby Lobby and

Conestoga Wood Specialties

The express purpose of RFRA is to defend the free-

dom to practice religion against restrictions imposed

* Amici do not concede the constitutional validity of RFRA, as

it grants privileges to religion which violate the Establishment

Clause. See The Religious Freedom Restoration Act is Unconsti-

tutional, Period, Marci A. Hamilton, 1 U. Pa. J. Const. L. 1, 19

(1998-99). As Justice Stevens noted in his concurrence in City of

Boerne, “Whether the Church would actually prevail under the

statute or not, the statute has provided the Church with a legal!

weapon that no atheist or agnostic can obtain. This governmen-

tal preference for religion, as opposed to irreligion, is forbidden

by the First Amendment.” 521 U.S. at 537 (Stevens, J., concur-

ring). However, for purposes of this brief, amici assume the facia!

constitutionality of RFRA.

10

by the government. Where RFRA has traditionally

been applied, the government can remove the burden

on religious practice through the creation of an

exemption that affects only the complaining party.

For example, in Gonzales v. O Centro Espirita Benefi-

cente Unaio do Vegetal, 546 U.S. 418, 423 (2006),

members of a Brazilian church located in New Mexico

were denied permission to use a tea brewed from

plants unique to the Amazon Rainforest, because the

tea contained a hallucinogen controlled under federal

law. Noting the government already provided exemp-

tions to such drug laws for sacramental purposes,

546 U.S. at 436-37, a unanimous court ruled in favor

of the church. No burden was placed on third parties

through the grant of an exemption to the church.

The case presented here is wholly different. Unlike

the members of the Brazilian church, Hobby Lobby

and Conestoga Wood Specialties seek an exemption

that will have a direct adverse impact on third parties,

namely the employees of those companies. The rights

and interests of these employees must also be

considered in ruling on the companies’ RFRA claims.

Under the ACA, these employees are legally entitled

to health insurance through their employers that

covers a range of “preventive healthcare services”

without copay or extra cost. 42 U.S.C. § 300gg-13(a).

These services have been defined by executive agencies

to include contraception. 45 CFR § 147.130(aX1XivA).

The ACA has been passed by Congress, signed by the

president and ruled constitutional by this Court. Nat

Fed’n of Indep. Bus., 132 S. Ct. at 2608. It is now

in effect. The employees of these companies, like

employees of all other covered companies, are

therefore legally entitled to this coverage and any

11

exemption would negatively affect them by removing

that entitlement.’

B. This Court has found permissive

religious exemptions that burden third

parties to be unconstitutional

As explained, supra, Hobby Lobby and Conestoga

Wood Specialties are seeking a permissive accommo-

dation. As found in Smith, Congress has the power to

grant such an accommodation, but only when it is

consistent with other constitutional requirements. 494

U.S. at 890. This Court has held that when granting

such a religious accommodation imposes burdens on

third parties, it violates the Establishment Clause and

is, therefore, unconstitutional.

This can be seen most clearly in cases dealing with

Sabbath observance. When presented with a Con-

necticut law requiring businesses to honor requests

from their employees not to work on their Sabbath

day, this Court held that the law violated the Estab-

lishment Clause. Estate of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985).* This Court noted that it was the

absolute nature of the requirement that made it

unconstitutional, as it took “no account of the conven-

ience or interests of the employer or those of other

employees who do not observe a Sabbath.” 472 U.S. at

* As courts have stressed, such a removal would be tantamount

to a reduction in wages. “But consider that health insurance is

an element of employee compensation.” Grote v. Sebelius, 708 F.

3d 850, 861 (7th Cir. 2013). An exemption for the company can

therefore truly be characterized as a reduction in compensation

for the affected employees.

* While Thornton predates the enactment of RFRA, this Court

has repeatedly noted that RFRA seeks to return jurisprudence to

the pre-Smith standard, and prior precedent is therefore

applicable. E.g. Gonzales, 546 U.S. at 424, 431.

12

709 (emphasis added). Accommodating the religious

interests of those who sought to take their Sabbath off

would create a burden on those who did not share

those religious beliefs. Such a rule could not stand, as

it “would require the imposition of significant burdens

on other employees required to work in place of the

Sabbath observers.” Jd. at 709-10.

This Court has reached the same conclusion in Title

VII employment discrimination cases. 42 U.S.C. §

2000e et seg. When a Sabbatarian airline employee

claimed the right to an accommodation of his religious

requirement for Saturdays off work, this Court

rejected his claim. T7.W.A. v. Hardison, 432 U.S. 63, 85

(1977). While this Court did not dispute the sincerity

of the employee’s religious convictions, it noted that

there was no requirement to provide such an

accommodation, as the effect would have been “to

deprive another employee of his shift preference at

least in part because he did not adhere to a religion

that observed the Saturday Sabbath.” Jd. at 81.

An identical standard to that in RFRA is applied to

alleged burdens on the religious exercise of prisoners

under the Religious Land Use and Institutionalized

Persons Act (RLUIPA).® 42 U.S.C. § 2000cc. In apply-

ing that standard, this Court has confirmed that

permissive accommodations will be held to be uncon-

stitutional if they create burdens on third parties.

When incarcerated members of minority religions

sued the Ohio Department of Corrections claiming a

right to accommodations under RLUIPA, this Court

upheld their claims, but noted that “[pJroperly applying

RLUIPA, courts must take adequate notice of the

burdens a requested accommodation may impose on

® See Hobby Lobby Stores, Inc., 723 F. 3d at 1138 n.13.

13

non-beneficiaries.” Cutter v, Wilkinson, 544 U.S. 709,

720 (2005). Where such requests for accommodation

would “impose unjustified burdens on other institu-

tionalized persons, or jeopardize the effective func-

tioning of an institution,” id. at 726, they are not only

not required under RLUIPA, they could violate the

Establishment Clause. “In that event, adjudication in

as applied challenges would be in order.” Jd.

In the case with claims most analogous to those

presented by Hobby Lobby and Conestoga Wood

Specialties, United States v. Lee, 455 U.S. 252 (1982),

this Court unqualifiedly enforced the rule that

religious accommodations which impose burdens on

third parties would not be permitted. In Lee, an Amish

employer sought an exemption permitting him to

avoid paying required social security contributions for

his employees. This Court refused, noting that

granting such an exemption “operates to impose the

employer's religious faith on the employees.” 455 U.S.

at 261. This Court acknowledged that Congress had

exempted self-employed Amish from paying social

security contributions for themselves, but refused to

extend the exemption to contributions for employees,

who might not share the same religious convictions.

Id. Importantly, this Court stressed that if religious

individuals enter the world of business, they volun-

tarily accept that some regulations may conflict with

their religion. “When followers of a particular sect

enter into commercial activity as a matter of choice,

the limits they accept on their own conduct as a matter

of conscience and faith are not to be superimposed on

the statutory schemes which are binding on others in

that activity.” Id.

Similarly, this Court has denied exemptions to

religious organizations from minimum wage laws,

14

stating that their religious character does not justify

depriving employees of minimum wage protection.

Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S.

290, 306 (1985). This Court also found that exempting

religious materials from sales tax, thereby increasing

the tax burden on secular materials, violated the

Establishment Clause. Texas Monthly v. Bullock, 489

U.S. 1, 14 (1989).®

This Court’s decision in Corp. of the Presiding

Bishop of the Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327 (1987), is not inconsistent

with this analysis. In Amos, this Court upheld Section

702 of Title VII, 42 U.S.C. § 2000e et seg., which

exempts religious organizations from that statute’s

ban on employment discrimination based on religion.

In upholding this exemption, this Court made clear

that religion was not a constitutional carte blanche

for demanding exemptions. “At some point, accom-

modation may devolve into ‘an unlawful fostering

of religion.” 438 U.S. at 334-35 citing Hobbie

v. Unemployment Appeals Comm’n of Fla., 480 U.S.

136, 145 (1987). Moreover, the concurrences by

Justices Brennan and O’Connor stress the importance

of permitting the church leeway in determining how it

fulfills its nonprofit community service role. Amos,

483 U.S. at 344 (Brennan, J., concurring) (“The risk of

chilling religious organizations is most likely to arise

with respect to nonprofit activities.”) (emphasis in

* For a more complete analysis of these cases, see Frederick M.

Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the

Contraception Mandate: An Unconstitutional Accommodation of

Religion, 49 Harv. C.R.-C.L. L. Rev. __ (2014), at 19-20, 27-28

available online at http/papers.ssrn.com/sol3/papers.cfm?

Abstract_id=2328516 or http//dx.doi.org/10.2139/ssrn.2328516

(last visited Jan. 21, 2014).

15

original); Univ. of Great Falls v. NLRB, 278 F. 3d

1335, 1344 (D.C. Cir. 2002) (stressing the importance

of nonprofit status for the holding in Amos). The

instant case, involving for-profit corporations, does not

raise the same concerns.

C. The burden shifted to third parties here

is substantial

The baseline from which we must consider whether

a burden has been imposed on a third party is the

situation that would exist absent the exemption.

Locke v. Davey, 540 U.S. 712, 726 (2004) (Scalia, J.,

dissenting) (“When the State makes a public benefit

generally available, that benefit becomes part of the

baseline against which burdens on religion are meas-

ured.”).’? For instance, in Thornton, 472 U.S. at 709-

10, the baseline was a situation prior to the Sabbath

leave law, where nonreligious employees were not

required to bear the burden of covering for their co-

workers’ religiously motivated days off. In the instant

case, the baseline would be that the employees of

Hobby Lobby and Conestoga Wood Specialties are

covered under the Mandate, and are able to obtain

these prescription contraceptive services without co-

payment. The burden can therefore be seen as the

harm done to employees of these corporations in not

receiving the full benefits granted to them under the

ACA, a burden created as a direct result of the reli-

gious exemption sought by their employer.

It may be difficult to quantify such a burden pre-

cisely, but there can be no doubt that the burden is

substantial. Studies by Planned Parenthood have

shown that the cost of an intrauterine device (IUD),

1 See also Gedicks & Van Tassell, supra note 6, at 34-35.

16

including the fees for the required medical examina-

tion, insertion, and ongoing follow up visits, ranges

from $500 to $1,000. While Hobby Lobby and Cones-

toga Wood Specialties claim no religious objection to

covering oral contraceptives, the most commonly used

drug covered under the Mandate, the Tenth Circuit in

Newland v. Sebelius, 2013 U.S. App. LEXIS 20223, at

*7 (10th Cir. Oct. 3, 2013), affirmed a district court

injunction allowing a for-profit corporation to exclude

all forms of contraception from its health plan.’ For

these forms of contraception, the annualized cost is

between $180 and $960, with the cheaper, generic

contraceptives often being reported as causing

unpleasant side effects. See Gedicks and Van Tasszell,

supra note 6, at 38-43.

The direct costs of purchasing contraception which

the Mandate provides as free would therefore place a

significant burden on many employees. A religiously

based exemption for employers could realistically cost

female employees, who do not share their employers’

religious convictions, around $1,000 a year. But this

monetary amount, while significant, underestimates

the true burden of such exemptions. The determina-

tion not to cover emergency contraception may place

women in a situation where they cannot afford the out-

of-pocket payment for necessary drugs, leading either

® See Planned Parenthood, JUD: Where can I Get an IUD? How

much does an IUD Cost?, http//www.plannedparenthood.org/hea

Ith-topica/birth-control/iiud-4245 htm (last visited Jan. 21, 2014).

* Attempts by for-profit corporations to be completely exempt

from coverage of all forms of contraception can also be seen in

cases before other Circuits. E.g. Korte v. Sebelius, 735 F. 3d 654,

662-63 (7th Cir. 2013); Gilardi v. United States Dep’t of Health &

Human Servs., 733 F. 3d 1208, 1210 (D.C. Cir. 2013); Autocam

Corp. v. Sebelius, 730 F. 3d 618, 621 (6th Cir. 2013).

17

to unwanted pregnancy or a more expensive later

abortion. Employees who desire such coverage would

be presented with the dilemma of leaving their jobs

and seeking employment elsewhere or paying for the

religious predilections of their employer. When Hobby

Lobby and Conestoga Wood Specialties present this

case as a matter of the alleged rights of the for-profit

corporation to be free from government interference in

religion, they are presenting a distorted view of the

dispute. What is truly at stake is the right of

individual workers not to have their health care

benefits determined by the religious beliefs of their

employer.

As controlling precedent of this Court shows, where

such a substantial burden will be imposed on a third

party, granting an exemption violates the Establish-

ment Clause. Thornton, 472 U.S. at 709-10; 7.W.A.,

432 U.S. at 81. While the individual owners of Hobby

Lobby and Conestoga Woods Specialties undoubtedly

have deeply felt and sincere religious beliefs,’° these

beliefs do not grant them the right to shift the burden

of a law of general applicability onto their workforce,

who do not share the same convictions. To do so would

be to privilege religion, and the religion of the

particular owners, over the rights of those who do not

share those beliefs. Such discrimination has no place

in the United States.

” Amici note, however, that the idea of a for-profit corporation

being held to possess such beliefs, and thereby having Free

Exercise Clause rights, is one which has no support in case law.

But this issue is adequately addressed in other briefs before this

Court and will not be discussed further here.

18

Ill. THE MANDATE IMPOSES NO SUBSTAN-

TIAL BURDEN ON THE RELIGIOUS

FREEDOM OF HOBBY LOBBY AND CON-

ESTOGA WOOD SPECIALTIES

As shown, supra, this Court has never allowed

religious exemptions from laws of general applicability

where such accommodation would create a burden on

a third party. However neither Hobby Lobby and

Conestoga Wood Specialties, nor their respective

owners, the Greens and the Hahns, will suffer any

legally significant injury if the injunction sought here

is denied. This is true even if the for-profit corpora-

tions concerned are required to fulfill the require-

ments of the ACA and provide insurance coverage to

their employees for a full range of preventive medical

care.

A. The finding of a burden by lower courts

is based on flawed reasoning

The Tenth Circuit, in Hobby Lobby, renounced any

role for the court system in determining whether a

burden is a real or an imagined one. In summarily

dismissing the government’s claim that no burden

existed because the employee’s independent decision

in conjunction with a doctor’s prescription triggered

the offending act — the payment for and use of certain

types of contraceptive — that court held that its “only

task is to determine whether the claimant’s belief is

sincere, and if so, whether the government has applied

substantial pressure on the claimant to violate that

belief.” 723 F. 3d at 1137. Such a definition of

substantial burden essentially removes any limit on

claims of religious based exemptions to laws of general

applicability. However attenuated or counterfactual

the burden alleged may be, the Tenth Circuit found

that, provided a belief in its effects was genuine, then,

19

under RFRA, the government would be required to

show that it acted in the furtherance of a compelling

governmental interest, and, moreover, used the least

restrictive means possible to further that interest.

When the decisions of this Court are examined,

however, it becomes clear that the Tenth Circuit erred

in using such a broad definition of religious harm to

dismiss the government’s defense of the Mandate. It

is not permissible for an individual, let alone a for-

profit corporation, to define its own reality. If evidence,

as here, demonstrates that a law of general applic-

ability does not in any way directly involve a person in

the action which they believe, however sincerely, is

religiously forbidden, then it cannot create the kind of

burden required for a RFRA case to succeed. A belief,

however sincere, that the government is requiring one

to consume pork does not create a burden on one’s

religious practices of eschewing pork if the govern-

ment can demonstrate that it does not, in fact, force

one to consume pork. In Hobby Lobby, the Tenth

Circuit erred by refusing to consider the government’s

argument that no burden existed on the corporation

(that it was not, in essence, required to eat pork), and

by instead taking the word of the allegedly injured

party that such an injury had occurred. 723 F. 3d at

1138-40.

As the government noted in Hobby Lobby, id., the

Mandate does not require owners or corporations to

use contraceptives, nor does it require them to

purchase contraceptives for their employees. Instead,

the Mandate requires that the health insurance plan

‘| The spread of such a standard would lead to an uncontrol-

lable expansion of claims for religious exemptions under RFRA.

See, infra TV A-B.

20

offered by the corporation covers a range of preventive

health services, including FDA approved contracep-

tives, without copayment, which contraceptives may

or may not be utilized by employees. The conceptual

distance over which any burden has to travel is,

therefore, vast. For instance, the first step is for the

individual Christian employers to inform their for-

profit corporation that it must provide a health care

plan that conforms with the law of the land. This

corporate entity, established to earn profits, and which

acts as a shield against liability for the individual

owners, then chooses whether to offer a third party

provided health plan, such as from Blue Cross or Blue

Shield, or to self-insure, providing health coverage

through the corporation, with the plan administered

by a third party administrative service. It is that third

party, either administrator or insurance company,

that informs the employee of their coverage. The

employee, then, acting independently, chooses

whether to visit a doctor, whether to request and

receive a prescription for a particular type of

contraceptive method, whether to fill that prescription

at a pharmacy, and whether to use the prescribed

contraceptive.

It strains credibility that this possible independent

action by an employee can be considered an infringe-

ment on the religious free exercise rights of the

individual owners, let alone any as-yet-to-be-

discovered free exercise rights of the corporation. A

burden under RFRA cannot be created by the fear that

some third party may act in a way that the objecting

party would not itself act.

Indeed, this Court has repeatedly decided cases

where it has observed that the greater the conceptual

distance, and greater the number of independent

21

decisions that occur in a chain of causation, the less

plausible is the claim of causation, especially in

matters of religious entanglement.” For example, in

Mitchell v. Helms, 530 U.S. 793 (2000), this Court

found constitutional a program permitting govern-

ment aid to private schools that aided both secular and

parochial education. Holding that such a program

did not constitute an unconstitutional endorsement of

religion, Justice Thomas’ majority opinion noted

that as the aid was “neutrally available, and, before

reaching or benefiting any religious school, first pass[ed]

through the hands... of numerous private citizens who

are free to direct the aid elsewhere, the government

has not provided any support of religion.” 530 U.S. at

816 (internal citations omitted). If a single private

decision by a single family is sufficient to prevent

taxpayers’ money from being characterized as govern-

ment support for a religious school, then surely the

attenuated path of decision-making involved in the

process at issue here must remove any connection

between the individual employer, or profit-making

corporate entity, and the final decision of an employee

to use contraception.

Two years later this Court again held that inter-

vening independent decisions as to where money was

spent removed any suggestion that the initial source

of funding, the government, was responsible for its

final use, which was providing support for parochial

schools. Zelman, 536 U.S. at 654-55 (“[Wle have

repeatedly recognized that no reasonable observer

would think a neutral program of private choice,

where state aid reaches religious schools solely as a

2 This principle is a basic cornerstone of tort law in the United

States - liability attaches only when proximate cause can be

demonstrated.

22

result of the numerous independent decisions of pri-

vate individuals, carries with it the imprimatur of

government endorsement.”)

B. Any burden that exists for the employer

is voluntarily undertaken

Despite claims by Hobby Lobby and Conestoga

Wood Specialties to the contrary, the fact that those

corporations choose to self-insure, rather than provide

their employees with the option of purchasing an

insurance policy through a third party, to remove any

possible link between the owners and the contracep-

tion decision, is of no significance in determining

whether an actionable burden on religious expression

exists. Such a decision is one wholly within the uni-

verse of choices of the corporation. It “is a decision

made by the employer, likely in part or in whole for

economic reasons.” Grote, 708 F. 3d at 863. As noted

by the Third Circuit, “the purpose — and only purpose —

of the plaintiff Conestoga [and Hobby Lobby] is to

make money!” Conestoga Wood Specialties Corp. v.

Sec’y of the United States HHS, 2013 U.S. App. LEXIS

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

Such a voluntary, economic based decision cannot be

the basis of a violation of free exercise rights. E.g.

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (denial

of deduction for monies paid for auditing by a

Scientologist was not a free exercise violation as “[a]ny

burden imposed on auditing or training .. . derives

solely from the fact that, as a result of the deduction

denial, adherents have less money available to gain

access to such sessions.”); see also Andy G. Olree, The

Continuing Threshold Test for Free Exercise Claims,

17 Wm. & Mary Bill of Rights J. 103, 112 (2008)

(discussing Prince v. Mass., 321 U.S. 158 (1944). “In

essence, the threshold test requires that when such a

23

path is open [complying with both religious convictions

and child labor laws without significant inconven-

ience], the believer must take [that path].”)

If the choice of self-insurance or third party insur-

ance does not impact whether a burden exists, where

then is its source? This burden also cannot be found

in any subsidy given to employees to purchase insur-

ance, whereby corporate money, through private

decision making, would end up paying for such

coverage. Once again, there is no requirement in

either the Constitution or the ACA for an employer to

subsidize an employee’s health care benefits. Any

choice to do so is an economic one, made by a profit-

making entity on business grounds. Hobby Lobby and

Conestoga Wood Specialties could simply remove any

subsidy, and replace it with a pay increase to permit

the employees to purchase their own insurance at the

same cost. Once the money leaves the coffers of the

corporation, there can be no plausible claim that the

corporation is responsible in any cognizable sense for

how it is spent — to find otherwise would suggest that

a corporation could prevent its employees from

spending their salaries on items which the owners felt

were religiously objectionable. An Islamic owner of a

corporation cannot claim that a religious burden was

imposed by the government if, for example, his

employees choose to purchase pork and alcohol with

their salaries, when the government allows such

products to be legally sold.”

' As the Seventh Circuit noted in Grote, health insurance is

very much a part of an American employee’s package of com-

pensation, and “how an employee independently chooses to use

that insurance arguably may be no different in kind from the

ways in which she decides to spend her take-home pay.” 708 F.

3d at 861.

24

C. This case does not involve a burden on

religious liberty, but rather a complaint

about government policy

The source of the religious burden allegedly imposed

by the Mandate can then neither be the voluntary

decision to self-insure, nor the voluntary decision to

contribute financially to the purchase of insurance.

This case does not involve any real burden on religious

beliefs at all. Rather, this case is no more than a

complaint about government policy. Simply put,

Hobby Lobby and Conestoga Wood Specialties do not

want to participate in a scheme established by the

government for the provision of certain types of health

care services. The history of the United States has

seen many such attempts by individuals and corpora-

tions to avoid participation in government schemes on

religious grounds, but this Court has repeatedly

concluded that such claims have no merit, finding

individual] religious disapproval of government policy

to be entitled to no more deference than political

disapproval.

It has never been found that a corporation has the

right not to participate in government policy based on

the religious concerns of its owners. In many situa-

tions, even individuals are expected to place their

religious convictions aside, when the participation

required in an activity is sufficiently attenuated.

While conscientious objectors may not be compelled to

serve in the military, a similarly sought exemption

from paying taxes to support the military has been

repeatedly denied, even to Quakers whose sincere

religious belief in pacifism is unquestioned. Adams uv.

Commissioner, 170 F. 3d 173 (3d Cir. 1999), cert.

denied 528 U.S. 1117 (2000). In, Adams, the Third

Circuit found that, despite the feasibility of exempting

25

individuals from tax payments, the government had a

compelling interest in uniform collection of taxes, and

refused to permit the sincere beliefs of Adams to

excuse her from participation in societal responsibili-

ties such as tax payments. 170 F.3d at 180-82.

Most commonly, this Court has faced these ques-

tions in the area of Social Security Administration. As

described, supra, while Congress chose to grant an

exemption from such taxes to self-employed Amish,

whose religious beliefs required them to take care of

their communities’ elderly, such an exemption was not

provided for Amish business owners to refuse to pay

for the contributions to Social Security for their

employees, Lee, 455 U.S. at 257, noting that “not all

burdens on religion are unconstitutional.” This Court

denied the exemption, because “to maintain an

organized society that guarantees religious freedom to

a great variety of faiths requires that some religious

practices yield to the common good.” Jd. at 259. There,

as here, the government instituted a scheme of general

applicability and carved out certain exemptions on

religious grounds. This Court recognized that the

government was entitled to draw a line and limit the

exceptions. Jd. at 260. (“Congress has accommodated,

to the extent compatible with a comprehensive

national program, the practices of those who believe it

is a violation of their faith to participate in the social

security system.”) Congress here has provided generous

exemptions for churches and nonprofits with religious

missions. It is not required to exempt everyone who

desires to be exempted.

Participation in a government scheme to which a

plaintiff had religious opposition was also required by

this Court in Bowen v. Roy, 476 U.S. 693 (1986).

Native American parents claimed that obtaining a

26

social security number for their daughter, Little Bird

of the Snow, would violate their religion, and they

should be able to continue receiving welfare benefits

on her behalf without such a number. 476 U.S. at 695.

Chief Justice Burger was dismissive of the idea that

actions undertaken by the government, even when

attached to the plaintiffs name, could create a

religious burden. Jd. at 700. (“Roy may no more prevail

on his religious objection to the Government’s use of a

Social Security number for his daughter than he could

on a sincere religious objection to the size or color of

the Government’s filing cabinets.”) The use of the

number by the government “d[id] not itself in any

degree impair Roy’s freedom to believe, express, and

exercise his religion.” Jd.

Like Roy, Hobby Lobby and Conestoga Wood Spe-

cialties seek an exemption from a generally applicable

legal requirement. Like Roy’s, their involvement in

the allegedly religiously burdensome activity can only

be seen as de minimis. Roy was required to provide

his daughter’s social security numbers on forms to

claim food stamps. Hobby Lobby and Conestoga Wood

Specialties are required to make available a third

party insurance program where employees may spend

their own wages and benefits, which may, at an

indeterminate future date, result in a doctor issuing,

and a pharmacist filling, a prescription for con-

traception methods opposed by the corporation’s

owners. If a burden on religion was not created in

Bowen, id., despite the undisputed sincerity of the

religious beliefs, it is very difficult to see how, in this

more attenuated situation, an actionable burden can

be found. As Justice Stevens noted, “the Free Exercise

Clause does not give an individual the right to dictate

the Government’s method of recordkeeping.” 476 U.S.

at 716-17 (Stevens, J., concurring). Nor does it give

27

the right to dictate what legal products one’s employ-

ees may purchase with their salaries, or to refuse to

participate in a scheme where employees may make

that choice.

IV. ANY EXEMPTION GRANTED WOULD BE

IMPOSSIBLE TO CONTAIN WITHOUT

FURTHER VIOLATIONS OF THE ESTAB-

LISHMENT CLAUSE

A. The rationale of the Tenth Circuit

would make all claimed religious bur-

dens substantial

The Tenth Circuit dramatically shifted the burden

of proof for cases under RFRA when it reinterpreted

the meaning of the phrase “substantial burden.” It

created a false dichotomy when it described the

alternative definitions that could apply: either a

theological inquiry into whether a person’s religion

required or prohibited an activity; or an examination

of “the intensity of the coercion applied by the

government contrary to those beliefs.” Hobby Lobby,

723 F. 3d at 1137. This arbitrary and unnecessary

dichotomy creates major problems for analysis.

These are not the only two routes of investigation a

court can undertake. While the Tenth Circuit was

correct in its assertion that it is not the role of the

judicial system to investigate the inherent truth or

falsity of religious claims, this does not permit the

logical leap that the only role for the court “is to

determine whether the claimant’s belief is sincere, and

if so, whether the government has applied substantial

pressure .. . to violate that belief.” 723 F.3d at 1138.

What the Court of Appeals here ignores, and what the

government requested, is that the judicial system

must investigate whether the belief is actually

28

affected by the government’s action. As explained,

supra, it is not. Limiting the court’s investigation of

‘substantial pressure,’ as here, to a look at the

penalties involved, 723 F.3d at 1141, while refusing to

examine whether the government action at stake

actually does involve the plaintiff in behavior that

violates the asserted belief, is a recipe for chaos. Any

and all government prohibitions would face challenge,

and courts would be unable to reject such claims as

long as the beliefs were found to be sincere, regardless

of whether an objective observer would see any

connection between the government’s actions and the

religious burden alleged.

Equally erroneous is the Tenth Circuit’s analysis

that “the interest here cannot be compelling because

the [Mandate] presently does not apply to tens of mil-

lions of people.” 723 F. 3d at 1143. This creates a

Catch 22 for the government. On the one hand, RFRA

requires it to create exemptions where substantial

religious burdens are affected. Moreover, this Court

has made clear that Congress has the authority to

create such exemptions. Smith, 494 U.S. at 890. On

the other hand, the creation of such an exemption for

one group, according to the Tenth Circuit, indicates

that the government never had a strong interest in the

first place. A plaintiff could argue that similarly placed

individuals were granted an exemption, thereby

entitling that plaintiff to one. The Tenth Circuit,

however, opens the door for that plaintiff to argue that

because other, differently situated individuals and

corporations (non-profits, small employers, those

grandfathered in) have been granted an exemption,

everyone is entitled to the same exemption.

29

B. Exemptions would abound throughout

health care

The interaction between health care and religious

beliefs is a common theme. As medical science and its

techniques have developed, the areas where they can

come into conflict with long standing religious tenets

have expanded. Religious beliefs about the origin of

personhood and end-of-life matters frequently come

into conflict with rapidly changing medical capabili-

ties. If this Court were to find a right under RFRA to

an exemption for the profit-making corporations and

their owners, here, the areas which will be impacted

in health care are potentially unlimited.

This is particularly the case if, as the Tenth Circuit

suggests, courts should look only to the sincerity of the

individual’s claimed belief. There is no doubt as to the

sincerity of the beliefs that cause opposition to a wide

range of medical treatment for people of varying

religions. Jehovah’s Witnesses, for example, have

strong doctrinal opposition to blood transfusions.

Under the same argument advanced by Hobby Lobby

and Conestoga Wood Specialties, a business owner of

that faith could request that his corporation be exempt

from providing insurance that covers such transfu-

sions. While, as here, the government could argue a

compelling interest in the provision of insurance for

such treatment, as it indeed has, it is hard to see how

such an interest differs from the one in this case.

Contraception and blood transfusions both provide a

critically important role in overall health care, and

individual employees would be equally put to the

expense of obtaining private insurance policies were

their employers’ insurance not to cover them.

The list of potential exemptions to medical care does

not stop with blood transfusions and contraceptives.

30

Adherents of the Church of Scientology oppose the

use of psychiatry and many psychotropic medications,

and could therefore seek exemptions to being required

to cover such treatments. Many different religions

oppose the use of all or some vaccines. While

currently, the law frequently permits religious

exemptions for individuals and their families from

compulsory vaccine laws, a decision for Hobby Lobby

and Conestoga Wood Specialties would permit

corporations to refuse to cover such treatments for

their employees. In areas where such vaccinations are

compulsory, this would require employees to pay out

of pocket for vaccinations in order to stay within the

law. A Jewish or Islamic employer could seek to deny

coverage for all medications containing pork-based

gelatin products, provided the belief was sincere,

regardless of the fact that Jewish and Islamic

authorities have declared such medication to be

religiously acceptable. As a most extreme possibility,

a Christian Scientist employer could use any

precedent set here to refuse to cover almost any

medical care. As exemption after exemption piles up,

the entire purpose of the ACA — reducing the number

of underinsured and uninsured Americans — would be

drastically undercut.

The sole defense the Tenth Circuit would grant the

government to such a patchwork quilt of religious

based exemptions is a case-by-case defense of compel-

ling government interest. However, granting an

exemption to anti-contraceptive Christian employers,

and not to members of other religions or sects, for their

personal religious based objections to health care,

would itself fall foul of the Establishment Clause. It

would be prioritizing one set of beliefs over others, the

very behavior that the constitution forbids the

government to undertake. To avoid such constitutional

31

violations, courts would be compelled to recognize any

and all religious based objections to the provision of

health insurance, leaving coverage for employees at

the whim of their employers’ chosen religion.

If the Tenth Circuit’s argument on existing

exemptions were taken to its logical conclusion, any

religious group could point to the existing exemptions

for any type of treatment, and use them to justify any

exemption for any sincere religious belief whatsoever.

CONCLUSION

For the above reasons, this Court should affirm the

judgment of the U.S. Court of Appeals for the Third

Circuit and reverse the judgment of the U.S. Court of

Appeals for the Tenth Circuit.

Respectfully submitted,

RONALD A. LINDSAY EDWARD TABASH

NICHOLAS J. LITTLE Counsel of Record

CENTER FOR INQUIRY 433 North Camden Drive

1020 19th Street, NW Suite 600

Washington, DC 20036 Beverly Hills, CA 90210

(202) 629-2403 (310) 279-5120

legal@centerforinquiry.net etabash@centerforinquiry.net

Counsel for Amici Curiae

January 28, 2014