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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A67

## Record

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

## Text

RECORD

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0929%3A67. Public record. Not legal advice.