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

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IN THE

Supreme Court of the Anited States

KATHLEEN SEBELIUS, ET AL., PETITIONERS,

Vv.

HOBBY LOBBY STORES, INC., ET AL., RESPONDENTS.

CONESTOGA WOOD SPECIALTIES CORP., ET AL.,

PETITIONERS,

We

KATHLEEN SEBELIUS, ET AL., RESPONDENTS.

On Writs of Certiorari to the United States Courts

of Appeals for the Third and Tenth Circuits

BRIEF FOR UNITED STATES SENATORS MURRAY,

BAUCUS, BOXER, BROWN, CANTWELL, CARDIN,

DURBIN, FEINSTEIN, HARKIN, JOHNSON, LEAHY,

LEVIN, MARKEY, MENENDEZ, MIKULSKI, REID,

SANDERS, SCHUMER, AND WYDEN AS AMICT

CURIAE IN SUPPORT OF HOBBY LOBBY

PETITIONERS AND CONESTOGA RESPONDENTS

CATHERINE E. STETSON*

SHANNON T. HODGE

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5491

cate.stetson@hoganlovells.com

Counsel for Amici Curiae

*Counsel of Record

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

Libra-y cf Cencress

Hs Law Library

TABLE OF CONTENTS

Page(s)

Aes CO GAA FB Be ovisniccc wens cccccncccévocsessscevccnsces li

STATEMENT OF INTEREST ..................000000c0ee eee 1

SUMMARY OF ARGUMENT .....0........... ccc cccceceeeceee ones 3

FRA EE RN SRE ERR er nt re Rye NAS RAC EYED CNN RE DE TOON 5

I. CONGRESS DID NOT INTEND RFRA

TO EXTEND FREE-EXERCISE

RIGHTS TO SECULAR, FOR-PROFIT

Ce ED a copvnnesnnestcsnevnntocatesmisiovssnenssnessess 5

A. Congress Crafted RFRA Only To

_— The Compelling-Interest .

DUE slnsnsnensanepteninussinaseeseiiainonuiedbnnisnbiantavinunics

B. Congress Could Not Have

Anticipated RFRA’s Application

To Secular, For-Profit

I ii 5 io sscn icinissinintciclaeiaianimaasionisesinawsiie 10

Il. EXEMPTING SECULAR, FOR-

PROFIT CORPORATIONS FROM

THE AFFORDABLE CARE ACT’S

CONTRACEPTIVE-COVERAGE

REQUIREMENT IS NOT

CONSISTENT WITH RFRA......0-..-..ecccccescee0e-- 18

A. The Affordable Care Act And Its

Implementing Regulations Strike

The Proper Balance Between The

Government’s Compelling Interest

And Free Religious Exercise ..................... 18

B. Congress Did Not Understand The

Affordable Care Act To Change

The Scope Of RFRA.............................-..00- 24

TIT siiscnesninnrninidcisaninneecuscctvanestmbpcentinanies 28

il

TABLE OF AUTHORITIES

Page(s)

CASES:

Bob Jones Unw. v. United States,

Be rs Oe A asec cs cesdncenicncevncennsccconnsncoreene 12

Bowen v. Roy,

ev vvnstidnscnnsonsassruncrencascernsnensscens 11

Braunfeld v. Brown,

ID... cenesiamannssnanusrsiasivoukendans 12

Cannon v. Univ. of Ch1.,

BN ee I ric ccicsveaceiuasnnssnnsstesscuvsoceweions 18

Cantwell v. Connecticut,

es I I os sccncdnncecbinvnseressnicunsensonisence 12

Church of the Lukumi Babalu Aye, Inc. v.

Hialeah,

i senpnannaitdawsisesipseeielaenins 11

EEOC v. Townley Eng’g & Mfg. Co.,

859 F.2d 610 (9th Cir. 1988).......00....ccceece cece eee 13

Employment Division, Department of Human

Resources v. Smith,

OE OF re Ce oeisiincnisesincencessssncecorcececces passim

Goldman v. Weinbarger,

I ME EI iene scoscoicinncceaciclavnsunpenesesixeatess 12

Harris v. McRae,

I ee Be CI eeu vbicntdcaccaavdaveevsscccnnnenncensnce 12

Hernandez v. Commr’r,

Oe Or I vo viesiivcncctsecsdcceecectncxcesinscnnssees 11

Lyng v. Nw. Indian Cemetery Protective Ass’n,

BE BF, Be Ce canis cotittscesccsiscscnisnccesescncncenes 11

Minersville Sch. Dist. v. Gobitis,

a ec de tanninitbanancnasiodeun 12

TABLE OF AUTHORITIES

Page(s)

O’Brien v. U.S. Dep’t of Health and Human

Srvs.,

894 F. Supp. 2d 1149 (E.D. Mo. 2012)............... 10

O’Lone v. Estate of Shabazz,

Ee ___, NER 11

Reynolds v. United States,

A icicsinntines-cseresedvini aki hisiieieiae 12

Sherbert v. Verner,

RE SD IIE iv vincdckisnsssvannscncoonusecesesevinn passim

Thomas v. Review Bd., Ind. Emp’t Sec. Div.,

I I IE so inasacosinnsitawsonesovinimaaiaealenliieh 12

Tilton v. Richardson,

I oi acca cacnnnsnnsninlacnunnmnleeai 12

Trailmobile Co. v. Whirls,

I ok a snssansensennineeneumaninnenenenilel 15

United States v. Lee,

RI, I I sc ccsinnsenisanscsvacenamencecinnceil 12,14

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

| 12,14

Wisconsin v. Yoder,

Re MI TI vvsccncecevnnsscscocnsecreconesienses passim

You Vang Yang v. Sturner,

750 F. Supp. 558 (D.R.I. 1990) ....................c000000 6

STATUTES:

Se, Oe MIN oo Ssoccsssancssnnsnsvvesensscniapsasensbin 19

Oe TPA, © Ba DAD a. nissccessceccecccscsccscreeeessscns 20

I I i insisadsbenawhiettiiiieweennaneduninenpinn passim

lv

TABLE OF AUTHORITIES

Page(s)

Health Care and Education Reconciliation Act

of 2010, Pub. L. No. 111-152, 124 Stat.

SEE 2

Patient Protection and Affordable Care Act,

Pub. L. 111-148, 124 Stat. 119 (2010)............ 2,19

Religious Freedom Restoration Act of 1993,

Pub. L. 103-141, 107 Stat. 1488 (1993)........... 2,3

REGULATIONS:

26 C.F.R. § 54.9815-2713A(a) ...... ee eceeseeeeeeeeeeeeees 21

Tee i ina ticacaidnbbtnniskeeneenwedibecssenssees 21

LEGISLATIVE MATERIALS:

136 Cong. Rec. 35840 (Oct. 26, 1990) ..........0.......0008. 7

139 Cong. Rec. H2356 (daily ed. May 11, 1993)..... 13

139 Cong. Rec. H2357 (daily ed. May 11,

OI Se DE aa 13, 26

139 Cong. Rec. H2360 (daily ed. May 11, 1993)..... 13

139 Cong. Rec. S14350 (daily ed. Oct. 26, 1993) .... 13

139 Cong. Rec. S14351 (daily ed. Oct. 26,

IESE et ES Ce 9,13

139 Cong. Rec. S14461 (daily ed. Oct. 27, 1993).... 13

139 Cong. Rec. S14469 (daily ed. Oct. 27, 1993) ...... 9

155 Cong. Rec. 32847 (2009) -00..........cccceeeeeeeeeeeeeeeeee 19

155 Cong. Rec. $12,033 (daily ed. Dec. 1, 2009)..... 20

155 Cong. Rec. $12,052 (daily ed. Dec. 1, 2009)..... 20

155 Cong. Rec. $12,114 (daily ed. Dec. 2, 2009)..... 20

155 Cong. Rec. $12,265 (daily ed. Dec. 3, 2009)..... 20

Vv

TABLE OF AUTHORITIES

Page(s)

155 Cong. Rec. $12,277 (daily ed. Dec. 3, 2009)..... 20

158 Cong. Rec. H586 (daily ed. Feb. 8, 2012)......... 22

158 Cong. Rec. H625 (daily ed. Feb. 8, 2012)......... 22

158 Cong. Rec. H628 (daily ed. Feb. 8, 2012)......... 22

158 Cong. Rec. H629 (daily ed. Feb. 8, 2012)....25, 26

158 Cong. Rec. S331 (daily ed. Feb. 6, 2012).......... 25

158 Cong. Rec. S370 (daily ed. Feb. 7, 2012).......... 25

158 Cong. Rec. S371 (daily ed. Feb. 7, 2012).......... 25

158 Cong. Rec. S373 (daily ed. Feb. 7, 2012).......... 25

158 Cong. Rec. S375 (daily ed. Feb. 7, 2012).......... 21

158 Cong. Rec. S377 (daily ed. Feb. 7, 2012).......... 21

158 Cong. Rec. S379 (daily ed. Feb. 7, 2012).......... 21

158 Cong. Rec. $1078 (daily ed. Feb. 28,

I creek el cohen ea 8 23

158 Cong. Rec. S1083 (daily ed. Feb. 28,

BIE «sh onsacnascacahesiiarinnishyntahiontmnscntsctoadaihiNniweanonant 23

158 Cong. Rec. $1127 (daily ed. Feb. 29,

Ei RARE Raat Ba ARISE Seb. tn SRNR NU ene ee 22

158 Cong. Rec. $1141 (daily ed. Feb. 28,

RT RAR IE Aa MR 22 A 23

158 Cong. Rec. $1171 (daily ed. Mar. 1,

SIE cciatbinsicetscsisentapteisace ciel cabuitia daa las pebdonbinsineniashioaesieseics 24

158 Cong. Rec. $1172 (daily ed. Mar. 1,

ELLE LAI M TOe C nan rea 24

158 Cong. Rec. $1173 (daily ed. Mar. 1,

niet ikescetalcasisclonadanlsth shee biesccunictosha tastekccnlaaiatioasassboneunice 24

198 Cong. Rec. S13721 (daily ed. Dec. 22,

ARENA Nye ace nN DEPORT es AD ed ON I 19

vl

TABLE OF AUTHORITIES

Page(s)

H.R. 1308 § 2(b)(1), 103d Cong. (1993).........0....... 7,8

H.R. 1308 § 3(c), 103d Cong. (19993)................... 16, 17

H.R. 1308 § 7, 103d Cong. (1999)..................0008 16, 17

H.R. 2797 § 2(b)(1), 102d Cong. (1991)................. 7,8

H.R. 5377, 101st Cong. (1990) .......0.....000:c0000- 7, 8, 14

H.R. Rep. No. 103-88 (1993)..................s.ecssce00. passim

Hearing on H.R. 5377 Before the Subcomm. on

Civil & Constitutional Rights of the H.

Comm. on the Judiciary, 101st Cong.

BNI Lisl Gaucztscanca tick eenucscs cued cea sadeeienctin eau 7,14

S. 578 § 2(b)(1), 103 Cong. (1993) ............cce eee 8

S. 2969 § 2(b)(1), 102d Cong. (1992) 2.20.20... 7,8

S. 3254, 101st Cong. (1990)................ccccceeeeeess 7, 8,14

S. Rep. No. 103-11 (1993) ......0....ceeceeeeeeeeeeee 13, 15, 16

OTHER AUTHORITIES:

Brief of Amici Curiae Senator Orrin G. Hatch,

et al., Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) (No. 12-

3 Peg > Re 16

Douglas Laycock & Oliver S. Thomas,

Interpreting the Religious Freedom

Restoration Act, 73 Tex. L. Rev. 209, 238-

RES aett a 2Y ROR ean Te EOE hie ee ON 15

Institute of Medicine, Clinical Preventive

Services for Women: Closing the Gaps

SETTERS DR EE nT a ee AONE Chee RET ATT 20

Linda Greenhouse, Court Is Urged to Rehear

Case on Ritual Drugs, N.Y. Times, May 11,

RRR See NS a eR ENN URN OR ONE LE ERE OTOP: 6

Vii

TABLE OF AUTHORITIES

Page(s)

Mikulski Amendment Improves Coverage of

Women’s Preventive Health Services and

Lowers Costs to Women,

http-//www.mikulski.senate.gov/_pdfs/Press

/ MikulskiAmendmentSummary.pdf (last

I, We, CE cseiiimsetentcinieciortsrnenaccinees 20

Remarks on Signing the Religious Freedom

Restoration Act of 1993, 2 Pub. Papers

gE

IN THE

Supreme Court of the United States

KATHLEEN SEBELIUS, ET AL., PETITIONERS,

v.

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 Third and Tenth Circuits

BRIEF FOR UNITED STATES SENATORS MURRAY,

BAUCUS, BOXER, BROWN, CANTWELL, CARDIN,

DURBIN, FEINSTEIN, HARKIN, JOHNSON, LEAHY,

LEVIN, MARKEY, MENENDEZ, MIKULSKI, REID,

SANDERS, SCHUMER, AND WYDEN AS AMICI

CURIAE IN SUPPORT OF HOBBY LOBBY

PETITIONERS AND CONESTOGA RESPONDENTS

STATEMENT OF INTEREST’

United States Senators Patty Murray, Max

Baucus, Barbara Boxer, Sherrod Brown, Maria

! No party or counsel for a party authored this brief in whole

or in part. No party, counsel for a party, or person other than

amici curiae, their members, or counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. All parties have given their consent to this filing in

letters that have been lodged with the Clerk.

Cantwell, Benjamin J. Cardin, Richard J. Durbin,

Dianne Feinstein, Tom Harkin, Tim Johnson,

Patrick J. Leahy, Carl Levin, Edward J. Markey,

Robert Menendez, Barbara A. Mikulski, Harry Reid,

Bernard Sanders, Charles E. Schumer, and Ron

Wyden respectfully submit this brief as amici curiae.

Amici were all Members of Congress at the time of

enactment both of the Religious Freedom Restoration

Act of 1993 (RFRA), Pub. L. 103-141, 107 Stat.

1488 (1993) (codified at 42 U.S.C. § 2000bb—

2000bb-4), and the Patient Protection and

Affordable Care Act (Affordable Care Act), Pub. L.

No. 111-148, 124 Stat. 119 (2010), amended by the

Health Care and Education Reconciliation Act of

2010, Pub. L. No. 111-152, 124 Stat. 1029. Because

Amici contributed to the passage of both bills, they

are uniquely positioned to discuss the legislative

history and intent of RFRA—and most qualified to

explain how exempting’ secular, for-profit

corporations from the Affordable Care Act’s

contraceptive-coverage requirement is inconsistent

with the plain language and legislative intent of

RFRA, and undermines the government’s compelling

interest in providing women access to preventive

health care under the Affordable Care Act.

The Tenth Circuit’s overly expansive decision will

permit a secular, for-profit corporation’s owners or

shareholders to impose their religious beliefs on

employees by denying female employees accrss to

preventive health care, including insurance coverage

for contraception. Congress could not have

anticipated, and did not intend, such a broad and

unprecedented expansion of RFRA. Nor did

Congress intend for courts to permit for-profit

corporations and their shareholders to use RFRA to

deny female employees access to health care benefits

to which they are otherwise entitled. The Court

should clarify that RFRA does not allow a secular,

for-profit corporation to deny health coverage to their

employees based on the religious objections of the

corporation’s owners.

SUMMARY OF ARGUMENT

1. The Tenth Circuit in Hobby Lobby grounded its

decision extending free-exercise rights to secular, for-

profit corporations in an erroneous interpretation of

Congressional intent with respect to the Religious

Freedom Restoration Act of 1993 (RFRA), codified at

42 U.S.C. § 2000bb—2000bb-4. As the Tenth Circuit

saw it, Respondents Hobby Lobby and Mardel are

“persons’ under RFRA. The court then found that

the contraceptive-coverage requirement imposed a

substantial burden on Hobby Lobby and Mardell

because they must choose either to compromise their

religious beliefs or to pay significant penalties for

failing to comply with the Patient Protection and

Affordable Care Act (Affordable Care Act). The court

deemed the government’s interest in safeguarding

public health and achieving gender equality not

sufficiently compelling to justify such burdens.

The Tenth Circuit’s decision runs afoul of both a

plain-text reading of RFRA and RFRA’s extensive

and informative legislative history.

Congress passed RFRA to advance a single limited

purpose: to restore the compelling-interest test to

government actions that burden the free exercise of

religion. The test Congress reinstated through

RFRA—which was established and _ repeatedly

articulated by this Court and others prior to RFRA—

extended free-exercise rights only to individuals and

to religious, non-profit organizations. No Supreme

Court precedent had extended free-exercise rights to

secular, for-profit corporations. Thus, in passing

RFRA, Congress had no rational reason to

anticipate, nor could it have contemplated based

upon that well-established precedent, that a court

would later choose to unilaterally extend RFRA’s

protections well beyond those precedential bounds to

secular, for-profit corporations.

2. Congress enacted the Affordable Care Act with

full understanding of RFRA—and of its limited

purpose. Congress also recognized the need to

balance the government’s compelling interest in

extending women’s access to preventive health care

with respect for the traditional free-exercise rights of

individuals and religious organizations, which is why

Congress included the Affordable Care Act’s religious

exemptions for individuals and __ religious

organizations. These exemptions strike such a

balance precisely and accurately, and appropriately

recognize the free-exercise rights Congress intended

for RFRA to protect.

Exempting secular, for-profit corporations from the

Affordable Care Act's contraceptive-coverage

requirement is inconsistent with RFRA’s legislative

history and intent, and undermines the Affordable

Care Act’s carefully crafted balance between a

compelling governmental interest and individual

free-exercise rights.

ARGUMENT

I. CONGRESS DID NOT INTEND RFRA TO EXTEND

FREE-EXERCISE RIGHTS TO SECULAR, FOR-

PROFIT CORPORATIONS.

The Tenth Circuit concluded that RFRA protects

for-profit corporations like Hobby Lobby and Mardell

because nothing before the court suggested that

Congress intended RFRA’s protection of a “person’s”

free-exercise rights to exclude for-profit corporations.

Hobby Lobby, Pet. App. 24a. The corporate parties—

Hobby Lobby, Mardel, and Conestoga Wood

Specialties Corporation and their shareholders—

similarly contend that Congress did not intend to

exclude for-profit corporations from RFRA. Hobby

Lobby, Resp. Br. 24; Conestoga, Pet. Br. 24-25.

The Tenth Circuit and the corporate parties share

an inaccurate understanding of RFRA’s purpose, and

the Tenth Circuit’s conclusion is at odds with the

expectations of the Members of Congress who passed

RFRA. As we explain below, in enacting RFRA,

Congress only intended to restore the compelling-

interest test the Supreme Court had overturned

three years earlier. Congress did not intend to

extend statutory religious-exercise rights to secular,

for-profit corporations that had never before enjoyed

such protections. The text and legislative history of

RFRA show that Congress’ carefully—and

narrowly—drafted RFRA to plainly codify this

intent. And neither RFRA’s text nor its legislative

history suggest that Congress had any reason to

anticipate—much less intend—that twenty years

after RFRA’s enactment, courts would unilaterally

extend its protections to secular, for-profit

corporations or use it to elevate the religious beliefs

of corporate shareholders over the rights of

employees to access preventive health care provided

under the Affordable Care Act.

A. Congress Crafted RFRA Only To Restore The

Compelling-Interest Test.

In Employment Division, Department of Human

Resources v. Smith, 494 U.S. 872 (1990), the

Supreme Court overturned the compelling-interest

test that historically applied to government actions

alleged to burden free-exercise rights. That test,

first set forth in Sherbert v. Verner, 374 U.S. 398

(1963), and further discussed in Wisconsin v. Yoder,

406 U.S. 205 (1972), required the government to

justify any actions that substantially burden the

First Amendment free-exercise right by

demonstrating a compelling governmental interest.

Smith, 494 U.S. at 883. After Smith, however, a

neutral law of general applicability trumped the free-

exercise right—meaning that if a law was both

neutral and generally applicable, no compelling

interest need be shown. Id. at 890. And after Smith,

a plaintiff who claimed impingement of her free-

exercise rights by a neutral and generally applicable

law could prevail only by showing that the

legislature had acted with an inappropriate motive.

See, e.g., You Vang Yang v. Sturner, 750 F. Supp.

558, 560 (D.R.I. 1990).

A diverse coalition of religious organizations, public

interest groups, and _ constitutional scholars

petitioned the Court for rehearing in Smith to

highlight the significant consequences of the Court’s

departure from the previously settled compelling-

interest standard. Linda Greenhouse, Court Is

Urged to Rehear Case on Ritual Drugs, N.Y. Times,

May 11, 1990, at A1l6. The coalition’s petition failed

to persuade the Court to rehear the case, 496 U.S.

913 (1990), but the Court’s decision spurred

Congressional action.

In July 1990, Representative Stephen J. Solarz

introduced the Religious Freedom Restoration Act of

1990 “[t]o protect the free exercise of religion.” H.R.

5377, 101st Cong. (1990). In testimony before the

House Judiciary Committee, Representative Solarz

explained that the bill would “enable States to insist

that their laws of general applicability be applied

even when individuals say this would obligate them

to violate the tenets of their faith if they can

demonstrate they have a compelling interest in doing

so and if they can demonstrate that they’ve chosen

the least restrictive way of achieving that objective.”

Hearing on H.R. 5377 Before the Subcomm. on Civil

& Constitutional Rights of the H. Comm. on the

Judiciary, 101st Cong. (1990). Several months later,

Senator Joseph R. Biden, Jr., introduced similar

legislation that would “protect the free exercise of

religion” by requiring the government to show that

laws of general applicability that discriminate

against religion are essential to furthering a

compelling governmental interest and are the least

restrictive means of doing so. S. 3254, 101st Cong.

(1990). In his statement introducing this legislation,

Senator Biden stated the bill’s limited intent: “to

restore the previous rule of law, which required the

Government to justify restrictions on religious

freedom.” 136 Cong. Rec. 35840 (Oct. 26, 1990).

Congress’s focus on restoring the compelling-

interest test permeates each of six bills “[t]o protect

the free exercise of religion” introduced between 1990

and 1993. See H.R. 5377 § 2(b)(2); S. 3254 § 2(b)(2);

H.R. 2797 § 2(b)(1), 102d Cong. (1991); S. 2969

§ 2(b)(1), 102d Cong. (1992); H.R. 1308 § 2(b){1), 103d

Cong. (1993) (codified at 42 U.S.C. § 2000bb(b)); S.

578 § 2(b)(1), 103 Cong. (1993). The 1990 legislation

introduced in the House by Representative Solarz

and later that year in the Senate by Senator Biden

proposed to permit government restriction of free-

exercise rights only when the application of the

restriction “is essential to further a compelling

governmental interest” and “is the least restrictive

means of furthering that compelling governmental

interest.” S. 3254 § 2(b)(2); H.R. 5377 § 2(b)(2).

The next iterations of the legislation, introduced in

1991 by Representative Solarz and in 1992 by

Senator Edward M. Kennedy, stated that the

purpose of the legislation was “to restore the

compelling interest test as set forth in Sherbert v.

Verner and Wisconsin v. Yoder.” H.R. 2797 § 2(b)(1);

S. 2969 § 2(b)(1). That stated purpose remained in

the religious freedom companion bills that would

become RFRA, introduced in March 1993 by Senator

Kennedy and Representative Charles E. Schumer.

S. 578 § 2(b)(1); H.R. 1308 § 2(b)(1).

Congress passed RFRA in the fall of 1993 with

widespread, bipartisan support—by a 97-3 vote in

the Senate and a voice vote in the House of

Representatives. Democrats and Republicans alike,

including Senators Patty Murray, Max Baucus,

Barbara Boxer, Sherrod Brown, Maria Cantwell,

Benjamin J. Cardin, Richard J. Durbin, Dianne

Feinstein, Tom Harkin, Tim Johnson, Patrick J.

Leahy, Carl Levin, Edward J. Markey, Robert

Menendez, Barbara A. Mikulski, Harry Reid,

Bernard Sanders, Charles E. Schumer, and Ron

Wyden, supported the legislation. Senator Kennedy

noted RFRA’s widespread support: “The act is

supported by a broad coalition of organizations with

differing views on many issues of our day * * *.

These organizations don’t agree on much—but they

do agree on the need to pass the Religious Freedom

Restoration Act.” 139 Cong. Rec. S14351 (daily ed.

Oct. 26, 1993).

Senator Bill Bradley explained that RFRA

“restorles] the legal standard that was applied to the

decisions which preceded Smith, the compelling

interest standard. RFRA simply insures that courts

will protect the fundamental right to freely exercise

one’s religion at an appropriate level of scrutiny.”

139 Cong. Rec. $14469 (daily ed. Oct. 27, 1993).

Senator Kennedy similarly declared that RFRA was

“designed to restore the compelling interest test for

deciding free exercise claims * * * by establishing a

statutory right that adopts the standard previously

used by the Supreme Court.” 139 Cong. Rec. S14351

(daily ed. Oct. 26, 1993). Moreover, he emphasized

RFRA’s limited purpose: “The act creates no new

rights for any religious practice or for any potential

litigant.” Jd. When he signed RFRA, President

William J. Clinton remarked that the Act

“reestablishes a standard that better protects all

Americans of all faiths in the exercise of their

religion * * *.” Remarks on Signing the Religious

Freedom Restoration Act of 1993, 2 Pub. Papers 2001

(Nov. 16, 1993).

This consistent legislative backstory is preserved in

the statute itself, which expressly states that RFRA’s

purpose is “to restore the compelling interest test as

set forth in Sherbert v. Verner, 374 U.S. 398 (1963)

and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to

guarantee its application in all cases where free

exercise of religion is substantially burdened” and “to

provide a claim or defense to persons whose religious

10

exercise is substantially burdened by government.”

42 U.S.C. § 2000bb(b). Thus it is clear that from the

introduction of House Bill 5377 in 1990, through the

introduction of similar bills in 1991 and 1992, and

concluding with RFRA’s passage in 1993, Congress

consistently framed its limited intent and RFRA’s

limited purpose as, first, restoring the compelling-

interest test that Smith had curtailed, and second,

protecting the free exercise of religion by requiring

the government to show a compelling justification for

burdening a person’s religious exercise.

B. Congress Could Not Have Anticipated RFRA’s

Application To Secular, For-Profit Corporations.

1. When Congress began laying the groundwork

for RFRA in 1990, it did so against the backdrop of

centuries of jurisprudence applying the First

Amendment’s protection of the freedom to exercise

religion to individuals and to non-profit religious

institutions. Against this backdrop—and in the

marked absence of any statutory expansion of free-

exercise protections—Congress had no reason to

believe that secular, for-profit corporations could

“exercise religion” when it drafted and enacted

RFRA, or that courts would permit shareholders of

such corporations to wield RFRA as a sword to force

their religious beliefs on others.

2 See O’Brien v. U.S. Dep't of Health and Human Srvs., 894

F. Supp. 2d 1149, 1169 (E.D. Mo. 2012) (“RFRA is a shield, not

a sword. It protects individuals from substantial burdens on

religious exercise that occur when the government coerces

action one’s religion forbids, or forbids action one’s religion

requires; it is not a means to force one’s religious practices upon

others.”).

11

The hearings and committee reports for House Bill

1308, which Congress enacted as RFRA, and Senate

Bill 578, the corresponding bill in the Senate, reveal

the scope of RFRA’s intended reach. Of nineteen

Supreme Court cases cited in the House and Senate

Judiciary Committee reports accompanying the

legislation, none so much as suggest that secular,

for-profit corporations might possess free-exercise

rights. See Church of the Lukumi Babalu Aye, Inc.

v. Hialeah, 508 U.S. 520, 524-525 (1993) (church’s

challenge to city ordinance’ regarding ritual

slaughter of animals); Smith, 494 U.S. at 874

(individuals’ challenge to a _ state controlled-

substance law); Hernandez v. Comm’r, 490 U.S. 680,

683-684 (1989) Gindividuals’ challenge to denial of tax

deduction for payments made to churches for

training courses); Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 443 (1988) (challenge

by “an Indian organization, individual Indians,

nature organizations and individual members of

those organizations, and the State of California” to

government harvesting and construction in a portion

of a National Forest used for religious purposes);

O’Lone v. Estate of Shabazz, 482 U.S. 342, 344-345

(1987) (prison inmates’ challenge to policies that

prevented their attendance at a weekly Muslim

congregational service); Bowen v. Roy, 476 U.S. 693,

695 (1986) (individual’s free-exercise challenge to

statutory requirement of use of social security

3 This case list does not include those cited in the separate

legislative discussions on whether RFRA should apply to

prisoners.

12

number); Goldman v. Weinbarger, 475 U.S. 503, 504

(1986) (individual’s challenge to air force regulation

preventing wearing yarmulke while in uniform); Bob

Jones Univ. v. United States, 461 U.S. 574, 577

(1983) (religious, nonprofit school’s challenge to

denial of tax-exempt status); United States v. Lee,

455 U.S. 252, 254 (1981) (individual employer's

challenge to social security and unemployment

insurance taxes); Thomas v. Review Bd., Ind. Emp’t

Sec. Div., 450 U.S. 707, 709 (1981) (individual’s

challenge to denial of unemployment compensation);

Harris v. McRae, 448 U.S. 297, 320 (1980)

individuals’ free-exercise challenge to Hyde

Amendment); Yoder, 406 U.S. at 208-211

(individuals’ challenge to compulsory _ school-

attendance law); Tilton v. Richardson, 403 U.S. 672,

676-677 (1971) (individuals’ challenge to federal aid

for church-related colleges and _ universities);

Sherbert, 374 U.S. at 399 (individual’s challenge to

state unemployment compensation statute);

Braunfeld v. Brown, 366 U.S. 599, 600-601 (1961)

(individuals’ challenge to state criminal statute

proscribing the retail of “certain enumerated

commodities” on Sundays.); W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 629 (1943) (individuals’

challenge to regulation requiring public school

students to salute the American flag); Minersville

Sch. Dist. v. Gobitis, 310 U.S. 586, 591-592 (1940)

(individuals’ challenge over expulsion for refusal to

salute national flag); Cantwell v. Connecticut, 310

U.S. 296, 300-301 (1940) Gndividuals’ free-exercise

challenge to convictions for solicitation of money and

inciting a breach of peace); Reynolds v. United

States, 98 U.S. 145, 146 (1878) (individual's

13

challenge to bigamy statute); H.R. Rep. No. 103-88

(1993); S. Rep. No. 103-11 (1993).4

Similarly, all of the pre-Smith Supreme Court free-

exercise cases mentioned in the House and Senate

floor speeches during consideration of RFRA involved

the free-exercise rights of individuals or of religious,

non-profit organizations. See 139 Cong. Rec. S14461

(daily ed. Oct. 27, 1993); 139 Cong. Rec. $14350

(daily ed. Oct. 26, 1993); 139 Cong. Rec. H2356 (daily

ed. May 11, 1993). So, too, did the examples of post-

Smith infringements on the free-exercise right

mentioned in the House and Senate floor speeches:

autopsies of deceased Hmong and Jewish people:

challenges to the practices of the Amish; a federal

investigator fired because investigating a pacifist

organization was against his. religion; and

evangelical churches being zoned out of commercial

areas. See 139 Cong. Rec. S14351 (daily ed. Oct. 26,

1993); 139 Cong. Rec. H2357, H2360 (daily ed. May

11, 1993).

4 Seven members of the House who offered their additional

views on whether RFRA would be effective to reinstate the pre-

Smith standard cited, in a footnote providing authority for an

unrelated point about the effectiveness of free-exercise

protections, one Title VII case in which the Ninth Circuit

adverted to a for-profit corporation’s “religious exercise.” See

H.R. Rep. No. 103-88, at 16 n.6 (citing EEOC v. Townley Eng’g

& Mfg. Co., 859 F.2d 610 (9th Cir. 1988)). But even the

Townley panel found it “unnecessary to address the abstract

issue whether a for profit corporation has rights under the Free

Exercise Clause independent of those of its shareholders and

officers.” 859 F.2d at 619-620.

14

2. Congress could have explicitly included secular

for-profit corporations in RFRA. It did not. Indeed,

even the earliest iterations of RFRA reveal a

consistent lack of intent to break new ground by

extending free-exercise protections to secular, for-

profit corporations. See, e.g, Hearing on H.R. 5377

Before the Subcomm. on Civil & Constitutional

Rights of the H. Comm. on the Judiciary, 101st Cong.

(1990) at 2, 28-29, 32-33, 35, 57 (referencing Smith,

494 U.S. at 874 Gndividuals’ challenge); Lee, 455

U.S. at 254 (individual's challenge); Yoder, 406 U.S.

at 208-211 Gndividuals’ challenge); Sherbert, 374

U.S. at 399 (individual's challenge); Barnette, 319

U.S. at 629 (individuals’ challenge)).

Some of the earliest versions of the bill that gave

rise to RFRA defined person to include “both natural

persons and religious organizations, associations, or

corporations.” See H.R. 5377 § 4(4) (introduced by

Rep. Solarz in 1990, and defining “person” to

“include[] both natural persons and _ religious

organizations, associations, or corporations”

(emphasis added)); S. 3254 § 4(4) (introduced by Sen.

Biden in 1990, and defining “person” to include

“natural persons, religious organizations,

associations, and corporations” (emphasis added)).

But the final version of the bill passed by Congress

does not include such language. Thus, no one

subsequently debated whether the “person”

contemplated in RFRA went beyond the scope of

those who were at that time entitled to claim the

benefit of a free-exercise contention. Even if a single

member of Congress may have fleetingly

contemplated in 1990 the idea of some separate

corporate personhood capable of exercising religion,

that idea was left on the cutting-room floor, without

15

further explanation. See Trailmobile Co. v. Whirls,

331 U.S. 40, 61 (1947) (“The interpretation of

statutes cannot safely be made to rest upon mute

intermediate legislative maneuvers.”).

3. Moreover, during its consideration of RFRA,

Congress repeatedly relied upon the longstanding

view, based on existing jurisprudence, that free-

exercise rights were limited to individuals and

religious organizations. The House Judiciary

Committee “expectled] that the courts [would] look to

free exercise of religion cases decided prior to Smith

for guidance * * *.” H.R. Rep. No. 103-88, at 6-7.

That jurisprudence has never extended free-exercise

rights to secular, for-profit corporations. See Hobby

Lobby, Pet. App. 115a (Briscoe, C.J., concurring in

part and dissenting in part); Conestoga, Pet. App.

28a (“Our conclusion that a for-profit, secular

corporation cannot assert a claim under the Free

Exercise Clause necessitates the conclusion that a

for-profit, secular corporation cannot engage in the

exercise of religion. Since Conestoga cannot engage

in the exercise of religion, it cannot assert a RFRA

claim.”).

RFRA’s limited scope also ensured it would not

disturb the law governing “cases determining the

appropriate relationship between religious

organizations and government.” H.R. Rep. No. 103-

88, at 8 S. Rep. No. 103-111, at 12; see Douglas

Laycock & Oliver S. Thomas, Interpreting the

Religious Freedom Restoration Act, 73 Tex. L. Rev.

209, 238-239 (1994). Jurisprudence on religious

organizations’ “participatlion] in publicly funded

social welfare and educational programs” was of

particular to concern to Congress, as were prior

precedents addressing’ religious organizations’

16

exemption from income taxes and other laws. H.R.

Rep. No. 103-88, at 8; S. Rep. No. 103-111, at 12.

Responding to this concern, the House Judiciary

Committee explained that courts rely on the

Establishment Clause—not the Free Exercise

clause—to decide such cases. H.R. Rep. No. 103-88,

at 8; see S. Rep 103-11, at 12-13. The committee

report then identified two sections of RFRA that

enforce this position that the free-exercise legislation

would not change the relationship between religious

organizations and government: the section requiring

RFRA claimants to have Article III standing, H.R.

1308 § 3c) (codified at 42 U.S.C. § 2000bb—1(c)), and

the section providing that RFRA does not affect

Establishment Clause jurisprudence, H.R. 1308 § 7

(codified at 42 U.S.C. § 2000bb-4). H.R. Rep. No.

103-88, at 8. The Senate Judiciary Committee

Report includec s:nilar reassurances. See S. Rep.

No. 103-11, at 12-13. Thus, as Congress understood

the legislation before it, not even a_ religious

organization would be in a position to claim new free-

exercise rights as a result of RFRA.

Despite all this, certain contributing amici in the

court below sought to characterize RFRA, after the

fact, as a “superstatute” providing “heightened,

across-the-board protection for the free exercise of

religion.” Brief of Amici Curiae Senator Orrin G.

Hatch, et al., at *6, Hobby Lobby Stores, Inc. v.

Sebelius, 723 F.3d 1114 (10th Cir. 2013) (No. 12-

6294), 2013 WL 773280. That is not the statute

Congress passed. And that reimagining of RFRA is

inconsistent with the text of the statute, the

interests of the diverse coalitions that supported it,

and the members of Congress who drafted and

passed it. Indeed, even the members of Congress

17

who expressed concerns about whether RFRA was

sufficient to protect free exercise’ rights

acknowledged that the law was simply “seeking to

replicate, by statute, the same free exercise test that

was applied prior to Smith.” H.R. Rep. No. 103-88, at

16 (additional view).

Thus, despite the “unique opportunity presented by

this legislation” to extend the reach of free-exercise

protections, id., Congress recognized, over and over

again, that RFRA’s purpose and scope were limited.

RFRA’s text clearly expresses the legislation’s return

to pre-Smith jurisprudence. The statute further

contains provisions assuring that it would not

expand or _ restrict the rights of religious

organizations. See H.R. 1308 § 3(c) (codified at 42

U.S.C. § 2000bb— 1(c)); H.R. 1308 § 7 (codified at 42

U.S.C. § 2000bb-4). The debates and hearings on

RFRA further confirm that Congress was not

deviating from decades of precedents and its own

history of restricting free-exercise protections to

individuals and non-profit, religious organizations.

Consequently, Congress had no _ reason’ to

contemplate in 1993 that courts would interpret the

Act as expansively as the Tenth Circuit did for the

first time in 2013. And nothing in the legislative

history suggests they intended this «»plication of

RFRA. The foundation on which the Tenth Circuit

built its decision is fundamentally flawed because it

is based on a text that does not direct the result it

reached there, and on a legislative history that does

not exist.

18

Il. EXEMPTING SECULAR, FOR-PROFIT

CORPORATIONS FROM THE AFFORDABLE

CARE ACTS CONTRACEPTIVE COVERAGE

REQUIREMENT IS NOT CONSISTENT WITH

RFRA.

Throughout the debate on the Affordable Care

Act—before and after passage—Congress carefully

considered how to further the government’s

compelling interest in health care, and specifically in

women’s preventive care, while respecting the

religious exercise rights protected by RFRA. A

combination of statutory and regulatory exemptions

for individuals and religious organizations ensures

that the Act and its implementing regulations are

the least restrictive means of furthering the

government's compelling interest in access to

preventive health care. Nothing in the Affordable

Care Act altered the scope of RFRA, and there is no

indication that the legislators who passed the

Affordable Care Act ever contemplated extending

RFRA’s protections to secular, for-profit corporations.

A. The Affordable Care Act And Its

Implementing Regulations Strike The Proper

Balance Between The Government's

Compelling Interest And Free Religious

Exercise.

Congress carefully and deliberately structured the

Affordable Care Act in accordance with RFRA’s focus

on “striking sensible balances between religious

liberty and competing prior governmental interests”

and its requirement that the government use “the

least restrictive means of furthering [a] compelling

governmental interest.” 42 U.S.C. §§ 2000bb(a)(5),

2000bb-I(b)(2). Cf Cannon v. Univ. of Chi., 441 U.S.

677, 698 (1979) (Congress is presumed to legislate

19

with knowledge of court precedents). Among other

things, the Senate debates prior to the Act’s passage

include an analysis from the O’Neill Institute

advising that RFRA “prevents the federal

government from enacting a law that substantially

burdens an individual’s exercise of religion, unless

the government has a compelling interest.” See, e.g.,

155 Cong. Rec. 32847 (2009). The O’Neill Institute

also encouraged Congress to add a measure of

protection for religious freedom. 198 Cong. Rec.

S13721 (daily ed. Dec. 22, 2009).

Congress addressed concerns about potentially

burdening religious exercise by including religious

exemptions in the statute. Individuals who are

members of recognized religious sects or divisions

and adherents of the religion’s established tenets are

exempt from the Act’s individual responsibility

requirement. Pub. L. 111-148 § (d)(2)(A), 124 Stat.

119, 246 (codified at 26 U.S.C. § 5000A(d)(2)(A)).

Similarly, the Act exempts individuals belonging to

health care sharing ministries, defined as nonprofit

organizations whose members “share a common set

of ethical or religious beliefs and share medical

expenses.” Pub. L. 111-148 § (d)(2)(B), 124 Stat. 119,

246 (codified at 26 U.S.C. § 5000A(d)(2)(B)).

The Affordable Care Act also includes an

amendment demonstrating Congress’ intent to

ensure and protect women’s access to preventive

health care, including contraception. During the

2009 debates leading up to the Act’s passage,

Senator Barbara Mikulski proposed an amendment

to require health plans to cover comprehensive

women’s preventive care and screenings. That

amendment, which came to be called the Women’s

Health Amendment, relied on comprehensive

20

guidelines developed by the independent Institute of

Medicine and adopted by the Department of Health

and Human Services. It required insurance coverage

for “preventive care and screenings” for women to

ensure “essential protection for women’s access to

preventive health care not currently covered in other

prevention sections of the [Affordable Care Act}.”

Mikulski Amendment Improves Coverage of

Women’s Preventive Health Services and Lowers

Costs to Women, http://

www.mikulski.senate.gov/_pdfs/Press/ Mikulski

AmendmentSummary.pdf (last visited Dec. 7, 2013);

see Institute of Medicine, Clinical Preventive

Services for Women: Closing the Gaps (2011). As

Senator Feinstein explained, the Women’s Health

Amendment “will require insurance plans to cover at

no cost basic preventive services and screenings for

women. This may include mammograms, Pap

smears, family planning, screenings to detect

postpartum depression, and other annual women’s

health screenings.” 155 Cong. Rec. $12,114 (daily ed.

Dec. 2, 2009) (statement of Sen. Feinstein). See also

155 Cong. Rec. S12,033, $12,052 (daily ed. Dec. 1,

2009) (statement of Sen. Franken) (“[Alffordable

family planning services must be accessible to all

women in our reformed health care system.”). The

Senate adopted the Women’s Health Amendment by

a vote of 61 to 39. See 155 Cong. Rec. S12,265,

S12,277; 42 U.S.C. § 300gg-13(a)(4).

The inclusion of contraception among the

preventive services guidelines required under the

Affordable Care Act prompted additional attention to

potential burdens on religious exercise from the

Executive branch as well. The Act’s implementing

regulations include exemptions for religious

21

employers and _ eligible nonprofit religious

organizations with religious objections

demonstrating that the Executive branch understood

Congress's intent to strike a careful balance between

the government’s interest in women’s preventive

health furthered by the Affordable Care Act, and

RFRA-protected religious freedoms. See 26 C.F.R.

§ 54.9815-2713A(a) (eligible organizations); 45 C.F.R.

§ 147.131(a) (religious employers and_ eligible

organizations). The regulations exempt more than

335,000 religious organizations, including churches

and synagogues, from the contraceptive-coverage

requirement. 45 C.F.R. § 147.131(a) (defining

“religious employers”); 158 Cong. Rec. S375, 377, 379

(daily ed. Feb. 7, 2012). The regulations also include

an “accommodation” for non-profit organizations that

hold themselves out as religious and oppose birth

control for religious reasons. 45 C.F.R. § 147.131(b).

Such non-profit organizations do not have to provide

contraceptive coverage in their health insurance

plans; instead, their employees will receive this

benefit directly from their insurance company.

Women who work in some religiously affiliated

organizations, as Senator Jeanne Shaheen explained,

thus may choose to use birth contro] or access the

Act’s preventive health measures in spite of the

religious affiliation of their employer. 158 Cong. Rec.

S375. “That is their decision. It is not their

employer's.” Id.

By adding these exemptions to those Congress

passed in the statute, the Administration furthered

the balance Congress sought to strike in the Act

between the beliefs of non-profit religious

organizations and women’s access to critical

preventive health care. As one Member noted, the

22

Administration’s regulations respect the rights of

religious institutions without “tramplling] on the

rights of others.” Id. at H628 (daily ed. Feb. 8, 2012)

(statement of Representative Eleanor Holmes

Norton). See also id. at H586 (statement of

Representative Gwen Moore that the exemption

“represents a respectful balance between religious

persons and institutions and individual freedom”); id.

at H625 (statement of Representative Nita Lowey

that the exemption “strikes a delicate balance

representing the rights of both religions ideologically

opposed to birth control and American women”).

When considered together, the statutory religious

exemptions for individuals and health sharing

ministries and the administrative exemptions for

religious employers and eligible nonprofit religious

organizations collectively demonstrate how the

Affordable Care Act strikes a balance between

Congress’ interest in women’s right to access

preventive health care and the free-exercise rights of

individuals and religious organizations under RFRA.

In 2012, the Senate directly weighed in on the

question whether secular non-profit corporations

should be able to refuse to comply with the

contraceptive coverage requirement when it

considered—and rejected—an expansive application

of religious free-exercise rights by voting down an

amendment to the Affordable Care Act that would

have enabled any secular employer or insurance

provider to deny coverage based on religious beliefs

or moral convictions. Senator Mikulski

characterized this so-called “conscience” amendment,

introduced by Senator Roy Blunt, as “puti{ting] the

personal opinion of employers and insurers over the

practice of medicine.” 158 Cong. Rec. $1127 (daily

23

ed. Feb. 29, 2012). Senator Richard Durbin similarly

recognized the potential reach of the amendment:

“[I]t would allow employers to deny coverage for any

health service. * * * The Blunt amendment will have

a harmful effect on all people and would undermine

our Nation’s effort to ensure that everyone in this

country has access to a basic standard of health

coverage.” Id. at S1078 (daily ed. Feb. 28, 2012).

Senator Durbin further explained that the Affordable

Care Act and its implementing regulations struck

the proper “balance between respecting the

conscience and religious values of certain institutions

while still protecting the freedom of individuals.” Id.

Senator Al Franken descnbed the amendment as

“violatling] a core belief in our society that our

religious doctrines are our own and that each of us,

every woman and man in our society, has the right to

make decisions about our own health for ourselves

and for our families.” Jd. at $1083. And Senator

Carl Levin also spoke out against the amendment; he

explained that it would “codify infringement on

personal healthcare decisions, would grant an

employer the mght to substitute his moral

convictions for those of his employees, and would

effectively deny access to critical healthcare

services.” Id. at $1141.

The Senators who opposed the amendment were

not only concerned about the amendment’s proposed

infringements on personal decisions about

contraception but also about the doors that passage

of the amendment would open. Senator Patrick

Leahy explained that the “amendment would allow

any employer or insurer to refuse contraceptive

coverage, annual well-women visits, gestational

diabetes screening and domestic violence

24

screenings.” Jd. at S1171. Similarly, Senator Patty

Murray described the amendment as a “radical

assault on the comprehensive preventive health care

coverage” that would allow employers to eliminate

coverage for children’s immunizations and prenatal

care for children born to unmarried parents based on

personal objections. Id. at $1172.

The Senate voted down the amendment 51-48. Id.

at S1172-1173 (daily ed. Mar. 1, 2012).

B. Congress Did Not Understand The Affordable

Care Act To Change The Scope Of RFRA.

Congress passed the women’s preventive services

provision to advance the health and equality of

women in this Nation. Congress also acknowledged

the need to balance the Affordable Care Act’s broad

goals with respect for the religious beliefs of

individuals and some_ religious organizations.

Nowhere did Congress go so far as to suggest that

this balance should reach secular, for-profit

corporations—indeed, the Senate explicitly rejected

such an attempt to do so when it rejected an

amendment on this very subject.

The Tenth Circuit’s decision, however, authorizes

an even more extreme situation than the one Senator

Levin posed when he spoke out against the 2012

amendment—one in which shareholders of a secular,

for-profit corporation deny their employees access to

critical healthcare services as a result of their own

religious convictions. The Congress that passed the

Affordable Care Act could not have anticipated such

a vast extension of RFRA.

The free exercise rights of individuals and religious

organizations were a focus of debates about the

Affordable Care Act, just as they had been for RFRA.

25

Most notably, there was no focus on—or even any

discussion of—secular, for-profit corporations.

During debate on the _ contraceptive-coverage

requirement and related administrative regulations

and policy, Senator Mike Johanns offered the view

that “religious organizations are forced to face two

options: act against their convictions or drop health

care coverage altogether.” 158 Cong. Rec. S331

(daily ed. Feb. 6, 2012) (emphasis added). Similarly,

Senator Dan Coats claimed that “[a] wide variety of

religious institutions and organizations across the

country will resist providing insurance coverage for

birth control.” Id. at S370 (daily ed. Feb. 7, 2012)

(emphasis added). And Senator John Boozman

expressed concern about “protectling) religious

organizations’ from the effects of the implementing

regulations. [d. at S371 (emphasis added). See id. at

S373 (statement of Senator Kelly Ayotte arguing

that the contraceptive-coverage “mandate places

religious institutions’ in an untenable position)

(emphasis added).

The concurrent debate in the House even more

directly addressed the application of the

contraceptive-coverage requirement for employers.

As Representative Jerrold Nadler explained, “The

liberty of the church must be protected in its

churchly function and in its function as a religious

institution. In its function as an employer, the

liberty belongs to the employees.” 158 Cong. Rec.

H629 (daily ed. Feb. 8, 2012). He further noted,

“(Wle must not confuse the religious liberty of the

church to propagate its views and to conduct its

religious affairs as it sees fit with the liberty of

employees in a secular institution affiliated with the

church to have the normal protections against

26

discrimination and the normal rights that we afford

all people.” Id.

These debates, and the regulations that prompted

and followed them, demonstrate that the free-

exercise rights that Congress considered during the

debate over the Affordable Care Act’s implementing

regulations were those of individuals and religious

organizations. Nothing in the Affordable Care Act

altered the scope of RFRA, and there is no

indication—none—that the lemslators who passed

the law, debated the contraceptive-coverage

mandate, and examined the mandate’s implementing

regulations, ever contemplated extending RFRA’s

protections to secular, for-profit corporations.

The Tenth Circuit, however, saw things quite

differently. Over the objections of the dissenting

judges, the Tenth Circuit broadly equated the

religious beliefs of a corporation’s shareholders with

those of the corporation itself. This effectively allows

a secular, for-profit corporation’s shareholders,

through the corporation, to impose their religious

beliefs on their employees and to deny employees

health benefits and rights to which they are entitled

based on those corporate shareholder beliefs. That

holding is flatly contrary to the text and intent of

RFRA. And that court-created exemption for

secular, for-profit corporations will only widen the

gap in women’s health care that the Affordable Care

Act sought to close.

RFRA’s supporters represented an unusual

convergence of interests: an “unprecedented coalition

of religious denominations and civil rights groups

*** united” in the name of religious liberty. 139

Cong. Rec. H2357 (daily ed. May 11, 1993). And

RFRA was enacted by a wide margin by a bipartisan

27

Congressional group with full understanding of the

rights—the rights of individuals and_ religious

institutions—they sought to restore through that

statute. It is not correct—indeed, it is not

fathomable—that the bipartisan group of legislators

who worked to enact it would intentionally have

advanced legislation to transform free exercise from

an individual right to a corporate benefit, from an

individual’s shield to an employer’s sword. Yet that

is precisely what the Tenth Circuit’s decision

suggests: that a highly celebrated, and widely

shared, vision of the importance of the right to free

exercise instead opened the door to allowing

corporate shareholders to impose their religious

beliefs on others, by virtue of their control of secular,

for-profit corporations.

This gross misapplication of RFRA creates a

situation where a person’s right to freely exercise her

religion is freed from the undue interference of

government—but is newly subjected to the undue

interference of her employer. Nothing in RFRA’s

text or legislative history supports such an

application. Congress’s carefully crafted response to

Smith does not license a_ secular, for-profit

corporation or its shareholders to disregard the

government's compelling interest in ensuring women

employees’ access to health care.

28

CONCLUSION

For the foregoing reasons, and those in the

respective party briefs amici support, the Tenth

Circuit's decision should be reversed and the Third

Circuit's decision should be affirmed.

Respectfully submitted,

CATHERINE E. STETSON®

SHANNON T. HODGE

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5491

cate .stetson@hoganlovells.com

Counsel for Amici Curiae

“Counsel of Record

January 2014