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

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IN THE

Supreme Court of the United States

KATHLEEN SEBELIUS,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Petitioners,

HOBBY LOBBY STORES, INC., ET AL.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., ET AL.,

Petitioners,

KATHLEEN SEBELIUS,

SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Courts of Appeals for the Third and Tenth Circuits

Brief of Religious Organizations

as Amici Curiae Supporting the Government

Ayesha N. Khan

Gregory M. Lipper

Counsel of Record

Caitlin E. O’Connell

AMERICANS UNITED FOR

SEPARATION OF CHURCH

AND STATE

1301 K Street NW, Suite 850E

Washington, DC 20005

(202) 466-3234

lipper@au.org

Counsel for Amici Curiae

ET TT TT TS TT

W£SOn-EPes PrevtinG Co. inc. — (202) 789-0096 — WastincTon,D C. 20002

Litrary of Conpress

Lew Libiary

TABLE OF CONTENTS

ee I isis caceneendneaneinntnnabannencnibenbeseceds ili

I a ee i orkcesoninccstictatssenstcrensencssccvciness 1

Introduction & Summary of Argument...................... 9

| I EIT EES ee Pea Ce NII 12

I. RFRA Should Be Interpreted To Preserve

The Religious Liberty Of Both Employers

ID cits ccssesveianiantrmciasienisedicamobeisdeeenses 12

A. The United States and its workforce

are becoming more religiously diverse........ 12

B. RFRA does not apply to all asserted

burdens, especially when the

requested exemptions would interfere

with the rights of third parties.................... 17

Il. The Contraception Regulations Do Not

Substantially Burden Plaintiffs’ Religious

tian eda acne petcls cieaa ai eee i dsbaebales 21

A. Plaintiffs are not required to provide

any health-insurance plan at all................. 21

B. Even if Plaintiffs elect to provide

health insurance, the contraception

regulations impose at most an

incidental and attenuated burden on

REEL ABNER OTTER 25

1. Employees’ health insurance is

provided not by the individual

owners, but by their secular, for-

PIOME COPPOTATIONG. 2.200000 cceccocccscccccosscccees 26

2. Contraception coverage is just one

benefit within a comprehensive

ail eeailoiia dis 28

Conclusion

Contraception is used and financed

only after an employee's

independent decision .........2.2..2.cececeeeeeeeee

The Court can and should consider

the degree of attenuation between

Plaintiffs’ obligations and

employees’ access to contraception ........

SEE EERE EERE REE EERE EERE EEEEEEEEEEEE EEE

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal,

Se 23

Barium Steel Corp. v. Wiley,

OUI, UID... ....., sccnpessncccsovcccoscecosers 27

Board of Education v. Mergens ex rel. Mergens,

a RE 29

Bowen v. Roy,

EE 35

Braunfeld v. Brown,

a ensscoenses 24

Cedric Kushner Promotions, Ltd. v. King,

cs cesentubnbnoounansoon 26

City of Boerne v. Flores,

ss sincebonse 19

Christ Church Pentecostal v. Tennessee State

Board of Equalization, No. M2012-00625-

COA-R3-CV, 2013 WL 1188949 (Tenn. Ct.

App. Mar. 21, 2013), appl. for permission to

appeal denied (Tenn. Sept. 10, 2013)................. 28

Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327 (1987) .............0.... 20

Cutter v. Wilkinson,

I ceansevannavuessonre 20

Dole v. Shenandoah Baptist Church,

899 F.2d 1389 (4th Cir. 1990).............00000000000000.. 33

Eck v. Parke, Davis & Co.,

256 F.3d 1013 (10th Cir. 2001)........................... 32

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872

ASAE Nei SATS RENE nt ea a ne 36

Estate of Thornton v. Caldor,

Re es Pe I icccsitcdcnctosenasnecsnnisesenseosonees 19, 20

Florida ex rel. Attorney General v. U.S.

Department of Health & Human Services,

648 F.3d 1235 (11th Cir. 2011), affd in part

& rev'd in part, National Federation of

Independent Business v. Sebelius, 132 S.

i, go eaieuaemegbaniceiaiiines 34

Goehring v. Brophy,

94 F.3d 1294 (9th Cir. 1996)......cccccccccceceeeeseseeeees 31

Guidry v. Sheet Metal Workers National

Pension Fund, 493 U.S. 365 (1990)...........-...-.... 30

Hernandez v. Commissioner,

ee i citercccccdccscdativenccnenstnsiiibdneesneees 35

Hosanna-Tabor Evangelical Lutheran Church

& School v. EEOC, 132 S. Ct. 694 (2012)........... 20

Liberty University, Inc. v. Lew,

733 F.3d 72 (4th Cir. 2013),

cert denied, 134 S. Ct. 683 (2013)................. 22, 32

National Federation of Independent Business

v. Sebelius, 132 S. Ct. 2566 (2012) ..................... 23

NLRB v. Greater Kansas City Roofing,

2 F.3d 1047 (10th Cir. 1993)........0.cccccccesceceeeseeees 27

Official Committee of Unsecured Creditors v.

R.F. Lafferty & Co., 267 F.3d 340

SITTIN: SIIIINIIN ic.oiin sanstnciniio apes saucemupomenniainieeniinbseuideta 27

Palsgraf v. Long Island Railroad Co.,

Se ts I E> IID ceicecencscrnsecianiniicnensnnctcunedcuns 31

Robidoux v. O’Brien,

643 F.3d 334 (1st Cir. 2011) .......cccccccccccccsesoocssess 15

Rosenberger v. Rector & Visitors of the

University of Virginia, 515 U.S. 819 (1995)........ 29

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc., 547 U.S. 47

SESS hak Ne ee CN a Mee 30

Sautbine v. Keller,

Be Se Ce, i irccccncssctnsctensnnsscnsonensineii 27

Sherbert v. Verner,

i cictielrcinindlil 19

Thomas v. Review Board of the Indiana

Employment Security Division,

a I I a sccctenninnesnnnileytnnnncipvndneieneiiel 34

Thompson v. Western States Medical Center,

ne eI I io sniaicentisdnctaliestdanntliciaseaninanunbinantiliods 32

Tony & Susan Alamo Foundation v. Secretary

ge ey Gk gE Ee 33

Trans World Airlines, Inc. v. Hardison,

ee es CE iiacsiicusininsiniadeidisniinanindnaiaciuniinile 20

United States v. Crews,

eh SD a vnc ctnitinnsoniieresemisapmiiemeimeunnte 31

United States v. Lee,

SN cs cnisncsincncipsveianmecwideniaienibas 17, 19

United States v. Sandia,

188 F.3d 1215 (10th Cir. 1999)................022.-2.000 28

Voeller v. Neilston Warehouse Co.,

7g RR a eke ne mE nr eee 27

Witters v. Washington Department of Services

for the Blind, 474 U.S. 481 (1986) ............00000000.. 32

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ..........ccccccccecececesecsseeeeceees 30, 31

Statutes, Regulations, and Legislative

Materials

a iremmnbononnenons 22

Neen cas ssntennnoentaonannnsons 22

Nee icici caicnnkusicasshmesonsensneoesesennesee 30

ara a aietseunuiapetittesnsinninnlas 29

ins rencstnansiomesenonennsnnus 1, 10, 17

139 Cong. Rec. E1234-01 (daily ed.

ini nsncaecinnwesconcaccenasensetnensnens 19

139 Cong. Rec. $14350-01 (daily ed.

Neen ei a oa aca ssanneenennanesonies 18, 19

S. Rep. No. 103-111 (1993),

reprinted in 1993 U.S.C.C.A.N. 1892................. 18

Other

William W. Bassett, Private Religious

Hospitals: Limitations Upon Autonomous

Moral Choices in Reproductive Medicine, 17

J. Contemp. Health L. & Pol’y 455 (2001) ......... 15

Emily Berntsen, Note, The Child Medication

Safety Act: Special Treatment for the

Parents of Children with ADHD?,

83 Wash. U. L.Q. 1567 (2005).................. sanieenanaie 16

Thomas Buchmueller et al., Will Employers

Drop Heaith Insurance Coverage Because of

the Affordable Care Act?, 32 Health Affairs

8 a A 33

Dominic J. Campisi et al., Heirs in the Freezer:

Bronze Age Biology Confronts

Biotechnology, 36 ACTEC J. 179 (2010)............. 14

Mary K. Collins, Conscience Clauses and Oral

Contraceptives: Conscientious Objection or

Calculated Obstruction?, 15 Annals Health

Bis Se IIE Sieniceiedidasecacdstestadncenca deed a Liemsaiieuceciennds 15

Catherine Easterbrook & Guy Maddern,

Porcine and Bovine Surgical Products,

143 Archives of Surgery 366 (2008) ................... 16

Gallup News Service, Gallup Poll Social

Series: Values and Beliefs (2012)...............2......2- 15

Hubert Janicki, U.S. Census Bureau,

Employment-Based Health Insurance: 2010

Rachel K. Jones & Joerg Dreweke,

Guttmacher Institute, Countering

Conventional Wisdom: New Evidence on

Religion and Contraceptive Use (2011).............. 14

Letter from James Madison to Edward Living-

ston (July 10, 1822), reprinted in 9 The

Writings of James Madison (Gaillard Hunt

Gs Be ninsnctheneniniiidecahiesutnériccbbisiaeemediius 20—21

Kaiser Family Foundation & Health Research

& Educational Trust, Employer Health

Benefits: 2013 Annual Survey (2013) ........... 22. 28

Open Letter on Family Planning from The

Religious Institute to Religious Leaders

Sc I arenas 11,13

Pew Forum on Religion & Public Life,

“Nones” on the Rise: One-in-Five Adults

Have No Religious Affiliation (2012).................. 12

Vill

Pew Forum on Religion & Public Life,

U.S. Religious Landscape Survey (2008) ..... 12,13

Julie Rovner, Morning-After Pills Don’t Cause

Abortion, Studies Say, All Things

Considered (Feb. 21, 2013),

http://www/npr.org/blogs/health/20 13/02/22

/172595689/morning-after-pills-dont-cause-

I as cusuasacinnennssuaniaiaumaiion 9

S. Pirzada Sattar, Letter to the Editor,

When Taking Medications Is a Sin,

53 Psychiatric Services 213 (2002)..........0...0...... 16

Joseph G. Schenker, Assisted Reproductive

Practice: Religious Perspectives, 10 Reprod.

BioMedicine Online 310 (2005) .............2...0...2224. 14

Sikhism and Birth Control, BBC Ethics Guide,

Contraception (2009),

http://www.bbc.co.uk/religion/religions/

sikhism/sikhethics/contraception.shtml ........... 13

Shubham Singhal et al., McKinsey & Co., How

US Health Care Reform Will Affect

Employee Benefits (2011),

http://www.mckinsey.com/insights/health_

systems_and_services/how_us_health_

care_reform_will_affect_employee_benefits ...... 24

Southern Baptist Convention, Resolution on

Human Embryonic and Stem Cell Research

(1999), http://www.sbc.net/

resolutions/am Resolution.asp?1D=620 .............. 16

Amirrtha Srikanthan & Robert L. Reid,

Religious and Cultural Influences on Con-

traception, 30 J. Obstetrics & Gynaecology

I i enol ards 13, 14

Mathew D. Staver, Liberty Counsel,

Compulsory Vaccinations Threaten

Religious Freedom ...............cccccccccceececeeeeeeecececeeees

Supreme Court Rule 37.6..........000.0....cccccccceceeeeeeeeeeeee

Tanenbaum Center for Interreligious

Understanding, What American Workers

Really Think About Religion: Tanenbaum’s

2013 Survey of American Workers and

Beligion (2013) .........cccccccccscscccccccscsccscccecerscccessees

INTERESTS OF AMICI CURIAE

Amici are religious organizations representing a

variety of faith traditions. !

The Anti-Defamation League (ADL) was orga-

nized in 1913 with a dual mission to stop the defa-

mation of the Jewish people and to secure justice and

fair treatment to all. Today, it is one of the world’s

leading organizations fighting hatred, bigotry, dis-

crimination, and anti-Semitism, and safeguarding

individual religious liberty. A staunch supporter of

the religious rights and liberties guaranteed by both

the Establishment and Free Exercise clauses, ADL

vigorously supported the Religious Freedom Restora-

tion Act, 42 U.S.C. § 2000bb-1, as a means to protect

individual religious exercise, but not as a vehicle to

enable some Americans to impose their religious be-

liefs on others.

Bend the Arc: A Jewish Partnership for Jus-

tice is the nation’s leading progressive Jewish voice

empowering Jewish Americans to advocate for the

nation’s most vulnerable. Bend the Arc mobilizes

Jewish Americans beyond religious and institutional

boundaries to create justice and opportunity for all,

through bold leadership development, innovative civ-

ic engagement, and robust progressive advocacy.

1 Letters of consent to the filing of amicus briefs in support of

either party or neither party have been lodged with the Clerk of

the Court by the government and Conestoga. Counsel for Hobby

Lobby has also consented to the filing of this brief. Pursuant to

Supreme Court Rule 37.6, amici state the following: (1) no par-

ty’s counsel authored this brief in whole or in part, and (2) no

party, party's counsel, or person other than amici, their mem-

bers, or their counsel, contributed money intended to fund the

briefs preparation or submission.

Catholics for Choice (CFC) represents the ma-

jority of Catholics on issues of sexual and reproduc-

tive rights and health, and is the leading voice in de-

bates at the intersection of faith, women’s health, re-

productive choice and religious liberty. Founded in

1973, CFC seeks to shape and advance sexual and

reproductive ethics that are based on justice, reflect

a commitment to women’s well-being, and respect

and affirm the capacity of women and men to make

moral decisions about their lives. CFC’s work pro-

motes respect for the moral autonomy of every per-

son, based on the foundational Catholic teaching that

every individual must follow his or her own con-

science and respect others’ right to do the same.

CORPUS is a faith community affirming an in-

clusive priesthood rooted in a reformed and renewed

Church. It provides not only a ministry of service

open to the diverse ways that people are authentical-

ly called by God, but also seeks sacramental ecumen-

ical collaboration. The community and ministry are

defined not only in traditional and canonical catego-

ries, but also in terms of the needs requiring auton-

omy and pastoral service.

DignityUSA was founded in 1969 and is an or-

ganization of lesbian, gay, bisexual, and transgender

(LGBT) Catholics and supporters. Among the areas

of concern outlined in its Statement of Position and

Purpose is the promotion of “equal access and justice

in all areas of health care and healing.” Dignity USA

is concerned that LGBT people could be denied equal

access to health care services if employers are al-

lowed to restrict health coverage on the basis of the

religious belief of the owners.

Disciples for Choice is a pro-choice organiza-

tion within the Christian Church (Disciples of

Christ). Disciples for Choice believes that a woman

should have full control over her own body and deci-

sions related to reproduction, and that restrictions

on these rights violate the religious liberty and God-

given agency of women. Disciples for Choice stands

alongside people of faith and conscience who work to

defend and preserve these rights.

Disciples Justice Action Network is a net-

work of individuals, congregations, and organizations

within the Christian Church (Disciples of Christ), all

working together to promote greater justice, peace,

freedom, and inclusion in both church and society.

Its mission is to promote a passion for justice in our

churches, provide prophetic Disciples leadership to

ecumenical and interfaith coalitions, and work to-

gether with all people of goodwill to build the Be-

loved Community envisioned by Dr. Martin Luther

King, Jr.

The Global Justice Institute was founded by

Metropolitan Community Churches in 2006 and is an

independent 501(c)(3) organization dedicated to sup-

porting the work of LGBT and human-rights activ-

ists around the globe. Together with The Fellowship

of Affirming Ministries, the Institute offers support

for programs fostering theological reconciliation,

economic development, and the creation of positive

media.

Hadassah, The Women’s Zionist Organiza-

tion of America, Inc. was founded in 1912, and has

over 330,000 Members, Associates, and supporters

nationwide. While traditionally known for its role in

developing and supporting health care and other ini-

tiatives in Israel, Hadassah has longstanding com-

mitments to improving health care access in the

United States and supporting the free exercise of re-

ligion.

The Hindu American Foundation is an advo-

cacy group providing a Hindu American voice. The

Foundation addresses global and domestic issues

concerning Hindus, such as religious liberty, hate

crimes, and human rights.

The Interfaith Alliance Foundation is a

501(c)(3) organization that celebrates religious free-

dom by championing individual rights, promoting

policies that protect both religion and democracy,

and uniting diverse voices to challenge extremism.

Founded in 1994, Interfaith Alliance has members

across the country belonging to 75 different faith

traditions as well as to no faith tradition.

Jewish Women International (JWI) has 50,000

members and supporters across the country and is

the leading Jewish organization working to prevent

the cycle of violence and empower women and girls to

realize their full potential. JWI has been an unwa-

vering Jewish voice for comprehensive reproductive

health services, and continues to advocate for access

to reproductive health information and services,

which build a foundation for healthier families and

communities. JWI believes that women should be

able to make private health decisions according to

the dictates of their own faith and conscience.

The Methodist Federation for Social Action

(MFSA) was founded in 1907 and is dedicated to mo-

bilizing the moral power of the faith community for

social justice through education, organizing, and ad-

vocacy. MFSA believes that every child should be a

wanted child and that access to affordable family

planning should be readily available to all people and

not restricted by the government or employers.

Metropolitan Community Church (MCC) was

founded in 1968 to combat the rejection of and dis-

crimination against persons within religious life

based upon their sexual orientation or gender identi-

ty. MCC has been at the vanguard of civil and hu-

man rights movements and addresses the important

issues of racism, sexism, homophobia, ageism, and

other forms of oppression. MCC is a movement that

faithfully proclaims God’s inclusive love for all people

and proudly bears witness to the holy integration of

spirituality and sexuality.

The National Coalition of American Nuns

(NCAN) began in 1969 to study and speak out on is-

sues of justice in church and society. Among other

things, NCAN calls on the Vatican to recognize and

work for women’s equality in civil and ecclesial mat-

ters, to support gay and lesbian rights, and to pro-

mote the right of every woman to exercise her prima-

cy of conscience in matters of reproductive justice.

The National Council of Jewish Women

(NCJW) is a grassroots organization of 90,000 volun-

teers and advocates who turn progressive ideals into

action. Inspired by Jewish values, NCJW strives for

social justice by improving the quality of life for

women, children, and families and by safeguarding

individual rights and freedoms. NCJW’s Resolutions

state that NCJW resolves to work for “comprehen-

sive, confidential, accessible family planning and re-

productive health services, regardless of age or abil-

ity to pay.” NCJW’s principles provide that “religious

liberty and the separation of religion and state are

constitutional principles that must be protected and

preserved in order to maintain our democratic socie-

ty ig

New Ways Ministry represents Catholic lay

people, priests, and nuns who work to ensure that

the human dignity, freedom of conscience, and civil

rights of LGBT people are protected in all circum-

stances, including in making decisions about

healthcare. New Ways Ministry is a national Catho-

lic ministry of justice and reconciliation for people

and the wider Catholic Church. Through education

and advocacy, New Ways Ministry promotes the full

equality of LGBT people in church and society. New

Ways Ministry's network includes Catholic parishes

and college campuses throughout the United States.

The Reconstructionist Rabbinical College

(RRC) is a progressive rabbinical school where people

of all backgrounds engage intensively with Jewish

texts, thought and practice. In 2012, the RRC also

became the center of the Jewish Reconstruction-

ist Communities, which are rooted in Jewish tradi-

tion and committed to egalitarianism and inclusion.

There are over 100 Reconstructionist Communities

in the United States committed to Jewish learning,

ethics, and social justice. The RRC and the Jewish

Reconstructionist Communities believe both in the

importance of the separation of church and state and

that the reproductive rights of women must be pre-

served and protected.

The Religious Coalition for Reproductive

Choice (RCRC) was founded in 1973 and is dedicat-

ed to mobilizing faith support for reproductive

health, rights and justice. With organizational mem-

bers from the Catholic, Protestant, Jewish, and Uni-

tarian Universalist traditions, RCRC seeks to change

culture and policy in accordance with its shared reli-

gious commitment to compassion, equality, respect,

and justice. RCRC’s members hold varying views on

theology and contemporary life, including human re-

production, yet agree that all people deserve access

to the full range of reproductive health services, un-

encumbered by religious doctrines or government co-

ercion. RCRC affirms birth control as morally good

for individuals, families, and society.

The Religious Institute is a multifaith organi-

zation advocating for sexuality education, reproduc-

tive justice, and the full inclusion of women and

LGBT people in faith communities and society.

The Society for Humanistic Judaism (SHU) is

the congregational arm of Humanistic Judaism. The

SHJ mobilizes people to celebrate Jewish identity

and culture, consistent with Humanistic ethics and a

nontheistic philosophy of life. The SHJ is concerned

with protecting religious freedom for all, and espe-

cially for religious, ethnic, and cultural minorities

such as Jews. SHJ members seek to ensure that

they, as well as people of all faiths and viewpoints,

will continue to have the ability to make their own

decisions about health care, including contraceptive

care, based on their personal religious beliefs.

The Union for Reform Judaism, whose 900

congregations across North America include 1.3 mil-

lion Reform Jews; the Central Conference of

American Rabbis, whose membership includes

more than 2000 Reform rabbis; and the Women of

Reform Judaism that represents more than 65,000

women in nearly 500 women’s groups in North Amer-

ica and around the world, come to this issue as long-

time supporters of religious liberty. The United

States’ commitment to principles of religious liberty

has allowed religious freedom to thrive throughout

its history. At the same time, these organizations

strongly support women’s ability to make their own

reproductive health decisions. They are inspired by

Jewish tradition, which teaches that health care is

the most important communal service, and therefore

should be available to all.

The Unitarian Universalist Association

(UUA) comprises more than 1,000 Unitarian Univer-

salist congregations nationwide. The UUA is dedi-

cated to the principle of separation of church and

state, and believes that the federal contraceptive rule

does not substantially burden religious exercise un-

der the Religious Freedom Restoration Act.

The Unitarian Universalist Women’s Federa-

tion has had an abiding interest in the protection of

reproductive rights and access to reproductive health

services since its formation nearly 50 years ago. It

has consistently lifted up the right to have children,

to not have children, and to parent children in safe

and healthy environments as basic human rights.

The Women’s Alliance for Theology, Ethics

and Ritual (WATER) is a non-profit educational or-

ganization made up of justice-seeking people, from a

variety of faith perspectives and backgrounds, who

promote the use of feminist religious values to make

social change. WATER believes that women’s health

decisions are private, and that the community’s re-

sponsibility is to make health care available for eve-

ryone. WATER participates in this amicus brief be-

cause a just society both respects privacy and pro-

motes health.

Women’s Ordination Conference (WOC),

founded in 1975, is the world's oldest and largest na-

tional organization working for the ordination of

women as priests, deacons, and bishops into an in-

clusive and accountable Catholic Church. WOC sup-

ports the notion that all Catholics should participate

in making the decisions that affect their personal

lives. To this end, WOC works to renew church gov-

ernance to be inclusive, accountable and transparent,

bring about justice and equality for Catholic women

in all aspects of their lives, and incorporate women-

centered theologies into everyday Catholicism.

INTRODUCTION &

SUMMARY OF ARGUMENT

Plaintiffs are secular, for-profit corporations (and

the individual owners of these corporations) that sell

goods—-including arts-and-crafts supplies, books, and

wooden parts for kitchen cabinets—for financial prof-

it. As part of their employment compensation, em-

ployees of the Plaintiff corporations receive health

insurance coverage through self-funded group health

plans. See Hobby Lobby Resp. to Pet. 3; Conestoga

C.A. App. 48.

These group health plans currently exclude cov-

erage for certain contraceptives, including emergency

contraception and the IUD, that Plaintiffs’ owners

believe act as “abortifacients” because they may in-

hibit the implantation of an embryo into the uterus.

Conestoga Br. 4; but see Julie Rovner, Morning-After

Pills Don’t Cause Abortion, Studies Say, All Things

Considered (Feb. 21, 2013), http://www.npr.

org/blogs/health/2013/02/22/172595689/morning-

after-pills-dont-cause-abortion-studies-say (all web-

sites last visited Jan. 28, 2014). Plaintiffs argue that

the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb-1, exempts them from the require-

ment that employers who choose to provide health

insurance include coverage for contraception.

Amuci are faith-based organizations representing

a variety of religious traditions. They support a ro-

bust interpretation of RFRA that safeguards the

deeply personal right to the free exercise of religion.

But amici also believe that if accepted, Plaintiffs’ ar-

guments would undermine—not promote—religious

liberty, by allowing employers to impose their own-

ers’ religious beliefs on employees, many of whom

will hold different moral and religious views on the

use of contraception. This result would be especially

unwelcome as the United States and its workforce

become more religiously diverse.

Nor is there any good reason to allow this result:

application of the contraception regulations to Plain-

tiffs would not substantially burden religious exer-

cise. First, Plaintiffs are under no obligation to pro-

vide their employees with health insurance. If they

object to certain types of coverage that must be in-

cluded in employee health policies, they may stop of-

fering insurance and pay a modest tax to the gov-

ernment instead; this tax is likely to be much cheap-

er than the cost of buying health insurance. Plain-

tiffs could pass along the savings to their employees

in the form of higher salary, and Plaintiffs’ employ-

ees would be eligible to obtain health insurance—

including coverage for contraception—on the public

exchanges, often with government subsidies. What

Plaintiffs may not do is hold their employees hos-

tage: refusing to include coverage for contraception,

but also blocking their employees from obtaining

comprehensive, subsidized insurance elsewhere.

Second, even if Plaintiffs wish to continue offering

insurance to their employees as part of their com-

pensation, the contraception regulations do not sub-

stantially burden religious exercise. For several rea-

sons, any connection between Plaintiffs and contra-

ception is incidental and attenuated—and thus fails

to produce a burden that is “substantial” as a matter

of law. The contraception regulations fall on secular,

for-profit corporations, which are legally and practi-

cally distinct from the individual owners who hold

religious beliefs about contraception. Contraception

coverage is just one of many types of medical cover-

age that must be included in a comprehensive group

health plan. And contraception is used only after the

independent decision of the employee, often in con-

sultation with her physician. This analysis requires

no second-guessing of Plaintiffs’ religious views or

moral calculus; rather, it requires a judgment about

the types of burdens that RFRA recognizes as a mat-

ter of law.

Plaintiffs have no legal interest in restricting the

manner in which their employees choose to use their

compensation, including their health benefits. Many

of Plaintiffs’ employees do not share their employers’

owners religious beliefs about contraception, and

should retain the freedom to make their own

healthcare decisions, consistent with “their culture,

faith tradition, religious beliefs, conscience, and

community.” Open Letter on Family Planning from

The Religious Institute to Religious Leaders 2 (Feb.

25, 2013) (“Religious Institute, Letter on Family

Planning’), available at http://www.religious

institute.org/wp-content/uploads/2012/09/Open-

Letter-on-Family-Planning-with-endorsers.pdf.

ARGUMENT

I. RFRA Should Be Interpreted To Preserve

The Religious Liberty Of Both Employers

And Employees.

A. The United States and its workforce are

becoming more religiously diverse.

RFRA should be interpreted in a manner that re-

spects religious diversity, including the religious di-

versity of the nation’s workforce. The United States

is a pluralistic society with an “increasingly diverse

religious landscape.” Pew Forum on Religion & Pub-

lic Life, U.S. Religious Landscape Survey 2 (2008)

(“Religious Landscape Survey”), available at http://

religions.pewforum.org/pdf/report-religious-land

scape-study-full pdf. Less than half (48%) of Ameri-

cans identify as Protestant, and less than a quarter

(22%) identify as Catholic; six percent identify as

Jewish, Buddhist, Muslim, or another faith, and

nearly one in five (19.6%) do not affiliate with any re-

ligion. Pew Forum on Religion & Public Life, “Nones”

on the Rise: One-in-Five Adults Have No Religious

Affiliation 13 (2012), available at http://www.pew

forum.org/files/2012/10/Noneson theRise-full.pdf.

This diversity exists not only across religious tra-

ditions, but within them. The Protestant population,

for example, “is characterized by significant internal

diversity and fragmentation, encompassing hundreds

of different denominations”; minority religions, such

as Judaism and Buddhism, also “reflect considerable

internal diversity.” Religious Landscape Survey, su-

pra, at 5, 6. Moreover, the religious affiliations of

American adults are “extremely fluid,” with twenty-

eight percent “hav[ing] left the faith in which they

were raised in favor of another religion—or no reli-

gion at all.” /d. at 5.

In addition, “[rjeligious diversity is a fact of the

American workplace.” Tanenbaum Center for Inter-

religious Understanding, What American Workers

Really Think About Religion: Tanenbaum’s 2013

Survey of American Workers and Religion 6 (2013),

available at http://op.bna.com/dircases.nsf/id/bpen-

9b7pks/$File/2013Tanenbaum WorkplaceAndReligion

SurveyEmail pdf. Approximately half of American

workers “ha[ve] contact with people from diverse be-

liefs and identities at work—often with considerable

frequency.” Jd. As the country becomes more reli-

giously diverse, workplaces will become more diverse

as well.

This diversity of religious belief extends to views

about contraception. No single religious leader or

group can speak for all faith traditions on this issue.

Indeed, “[mlJillions of people ground their moral

commitment to family planning in their religious be-

liefs. Most faith traditions accept modern methods of

contraception, and support it as a means of saving

lives, improving reproductive and public health, en-

hancing sexuality, and encouraging intentional

parenthood.” Religious Institute, Letter on Family

Planning, supra, at 1. Other religions take the posi-

tion that contraception is a decision for individuals to

make according to their own consciences.”

2 See, e.g., Sikhism and Birth Control, BBC Ethics Guide,

Contraception (2009), http://www.bbc.co.uk/religion/religions/

sikhism/sikhethics/contraception.shtml (according to Sikh reli-

gion, use and form of contraception “is a matter for the couple

concerned”); Amirrtha Srikanthan & Robert L. Reid, Religious

and Cultural Influences on Contraception, 30 J. Obstetrics &

Not only do different religious leaders have dif-

ferent views about contraception, but attitudes about

contraception vary even within individual religious

denominations. “Within every major religion there

are sects or traditions with diametrically opposed

views on each of the major areas of bioethics,” includ-

ing contraception. Dominic J. Campisi et al., Heirs in

the Freezer: Bronze Age Biology Confronts Biotech-

nology, 36 ACTEC J. 179, 202—03 (2010).

e Among Catholic women who have had sex, 98%

have used a contraceptive method prohibited by

the Vatican.

e The leadership of most mainline Protestant de-

nominations believes that decisions about con-

traception are properly committed to the con-

sciences of the individual woman and her part-

ner, though other denominations oppose the use

of contraception.4

e Most Reform and Conservative Jews fully em-

brace contraception, and even Orthodox Judaism

Gynaecology Can. 129, 133 (2008) (“Hinduism regards the deci-

sion to use contraception as a personal matter for women that

is not usually within the scope of religious injunction.”).

3 See Rachel K. Jones & Joerg Dreweke, Guttmacher Institute,

Countering Conventional Wisdom: New Evidence on Religion

and Contraceptive Use 4 (2011), available at www.guttmacher.

org/pubs/Religion-and-Contraceptive-Use.pdf.

4 See Joseph G. Schenker, Assisted Reproductive Practice: Re-

ligious Perspectives, 10 Reprod. BioMedicine Online 310, 310

(2005); see also Srikanthan & Reid, supra, at 131 (although bib-

lical literalism “has resulted in disapproval of contraception

among conservative Protestants,” “[vjirtually all liberal Chris-

tian communities accept the use of contraception within mar-

riage for the purpose of exercising responsible parenthood, en-

hancing marital love, and protecting women’s health”).

permits the use of oral contraception in some cir-

cumstances.

Nationwide, contraception is viewed as morally ac-

ceptable by 89% of adults. Gallup News Service, Gal-

lup Poll Social Series: Values and Beliefs 10 (2012),

available at http://www.gallup.com/poll/154799/

americans-including-catholics-say-birth-control-

morally.aspx (click on link at bottom of page).

Many employees, then, will have different reli-

gious beliefs about contraception than their employ-

ers’ owners. If Plaintiffs’ arguments were to prevail,

however, employees would find it more difficult to

make personal decisions about healthcare and con-

traception in accordance with their own consciences.

Those effects would be especially pervasive because

most Americans receive their health insurance as

part of their employment compensation. See Hubert

Janicki, U.S. Census Bureau, Employment-Based

Health Insurance: 2010 1 (2013), available at

http://www.census.gov/prod/2013pubs/p70-134.pdf.

As the country becomes more diverse, a regime

that allows a corporation’s owner to limit the

healthcare options of employees will inevitably lead

to the withholding of coverage for healthcare other

than contraception. Some companies might wish to

exclude coverage for blood transfusions. See, e.z.,

Robidoux v. O’Brien, 643 F.3d 334, 341 (1st Cir.

2011) (Jehovah’s Witnesses may oppose blood trans-

6 Mary K. Collins, Conscience Clauses and Oral Contracep-

tives: Conscientious Objection or Calculated Obstruction?, 15

Annals Health L. 37, 44-45 (2006); William W. Bassett, Private

Religious Hospitals: Limitations Upon Autonomous Moral

Choices in Reproductive Medicine, 17 J. Contemp. Health L. &

Pol’y 455, 510 (2001).

fusions even where doctors say this is essential.”).

Others might refuse to include coverage for psychiat-

ric care. See, e.g., Emily Berntsen, Note, The Child

Medication Safety Act: Special Treatment for the Par-

ents of Children with ADHD?, 83 Wash. U. L.Q.

1567, 1583 (2005) (“[T]he Church of Scientology

holds a disbelief in psychiatry and in treating mental

disorders with pharmaceuticals.”). Others might de-

ny coverage for routine medical care associated with

stem-cell trials for disorders such as Parkinson’s

Disease. See, e.g., Southern Baptist Convention, Res-

olution on Human Embryonic and Stem Cell Re-

search (1999), http://www.sbc.net/resolutions/am

Resolution.asp?ID=620. Yet others might withhold

coverage for medically necessary hysterectomies, or

vaccinations against chicken pox, Hepatitis A, and

Rubella. See, e.g., Mathew D. Staver, Liberty Coun-

sel, Compulsory Vaccinations Threaten Religious

Freedom, available at http://www.lc.org/media/9980/

attachments/memo_vaccination.pdf. Still others

might refuse to provide coverage for prescription

drugs or surgical procedures using medical devices

that contain pig or cow products—including anesthe-

sia, intravenous fluids, prostheses, sutures, and pills

coated with gelatin. See Catherine Easterbrook &

Guy Maddern, Porcine and Bovine Surgical Prod-

ucts, 143 Archives of Surgery 366, 367-68 (2008); S.

Pirzada Sattar, Letter to the Editor, When Taking

Medications Is a Sin, 53 Psychiatric Services 213,

213 (2002).

If employers were permitted to withhold, from

employees’ compensation, insurance coverage for

these or other medical treatments—based on the re-

ligious views of the companies’ owners—it would

“operate[ ] to impose the employer’s religious faith on

the employees.” United States v. Lee, 455 U.S. 252,

261 (1982). That result is untenable in the commer-

cial marketplace, especially as the workplace be-

comes more and more diverse. Ultimately, “[w]hen

followers of a particular sect enter into commercial

activity as a matter of choice, the limits they accept

on their own conduct as a matter of conscience and

faith are not to be superimposed on the statutory

schemes which are binding on others in that activi-

ty.” Id.

B. RFRA does not apply to all asserted

burdens, especially when the requested

exemptions would interfere with the

rights of third parties.

Because unfettered application of RFRA would

interfere with the religious freedom and free exercise

of others, a RFRA plaintiff does not establish a sub-

stantial burden on religious exercise merely by alleg-

ing one. Rather, the Court must make an independ-

ent legal determination about whether the asserted

burden, even if sincerely held and intensely felt, is

“substantial” as a matter of law.

1. Congress and the Court have made clear that

not all asserted burdens are substantial burdens.

The statute prohibits the federal government from

“substantially burden[ing] a person’s exercise of reli-

gion” unless the governmert demonstrates that the

burden is justified by a compelling interest and is the

least restrictive means of furthering that interest. 42

U.S.C. § 2000bb-1(b).

The use of the word “substantially” was no acci-

dent. While RFRA’s first draft prohibited the gov-

ernment from imposing any burden whatsoever,

Congress added “substantially” to make clear that

“the compelling interest required by the Religious

Freedom Act applies only where there is a substan-

tial burden placed on the individual free exercise of

religion,” and that RFRA “does not require the Gov-

ernment to justify every action that has some effect

on religious exercise.” 139 Cong. Rec. S14350—01

(daily ed. Oct. 26, 1993) (statement of Sen. Hatch).

Congress reiterated that RFRA “would not require [a

compelling governmental interest] for every govern-

ment action that may have some incidental effect on

religious institutions.” S. Rep. No. 103-111, at 9

(1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898.

Without a rigorous inquiry into whether a burden

is “substantial” as a matter of law, strict scrutiny

would apply to even the slightest asserted burden on

religious exercise, however minor or incidental. Lest

the entire federal code submit to strict scrutiny,

Plaintiffs must establish that the challenged federal

requirement burdens religious exercise in a manner

that the law recognizes as substantial, rather than

incidental and attenuated.

2. A decision exempting Plaintiffs from the con-

traception regulations would impose significant costs

on Plaintiffs’ employees. These employees would be

required to compromise their own medical care—or

to pay substantially more for it—to accommodate the

religious preference of their employers’ owners.

RFRA does not authorize, let alone require, exemp-

tions that harm the interests and burden the reli-

gious exercise of third parties.

During debates over RFRA, the accommodations

contemplated by Congress would not have imposed

substantial costs or burdens on third parties. In ad-

dition to concerns about the impact of zoning and

historical-preservation regulations on houses of wor-

ship, “much of the discussion centered upon anecdo-

tal evidence of autopsies performed on Jewish indi-

viduals and Hmong immigrants in violation of their

religious beliefs.” City of Boerne v. Flores, 521 U.S.

507, 530-31 (1997); see also, e.g., 1389 Cong. Rec.

F.1234-01 (daily ed. May 12, 1993) (statement of Rep.

Cardin) (allowing burial of veterans in “veterans’

cemeteries on Saturday and Sunday ... if their reli-

gious beliefs required it”); id. (precluding autopsies

“on individuals whose religious beliefs prohibit au-

topsies”); 139 Cong. Rec. S$14350—01 (daily ed. Oct.

26, 1993) (statement of Sen. Hatch) (allowing par-

ents to home school their children); id. (allowing in-

dividuals to volunteer at nursing homes). None of

those accommodations would have required third

parties to forfeit federal protections, including those

governing employment compensation.

The Court has long taken the same approach. In

Sherbert v. Verner, 374 U.S. 398 (1963), the Court

granted the requested accommodation because it

would not “abridge any other person’s religious liber-

ties.” Id. at 409. In Lee, the Court rejected an em-

ployer’s request for a religious exemption from pay-

ing social-security taxes; the requested exemption,

the Court explained, would “operate[ ] to impose the

employer's religious faith on the employees.” 455

U.S. at 261. In Estate of Thornton v. Caldor, 472 U.S.

703 (1985), the Court invalidated a statute requiring

employers to accommodate sabbatarians in all in-

stances, because “the statute takes no account of the

convenience or interests of the employer or those of

other employees who do not observe a Sabbath.” Id.

at 709. In rejecting an Establishment Clause chal-

lenge to accommodations for prisoners’ religious ex-

ercise, the Court observed that prison officials would

need to “take adequate account of the burdens a re-

quested accommodation may impose on nonbenefi-

ciaries.” Cutter v. Wilkinson, 544 U.S. 709, 720

(2005). And in the context of Title VII of the Civil

Rights Act, the Court held that the statute’s reason-

able-accommodation requirement did not authorize

an exemption that would have burdened other em-

ployees, including “the senior employee [who] would

... have been deprived of his contractual rights under

the collective-bargaining agreement.” Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 80 (1977).

The only exception to these rules protecting third-

parties’ interests has arisen in the context of laws af-

fecting church autonomy and the selection of church

representatives. See Hosanna-Tabor Evangelical Lu-

theran Church & Sch. v. EEOC, 132 S. Ct. 694

(2012); Corp. of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.

327 (1987). But that concern about church autonomy

is not implicated in these cases brought by for-profit

corporations.

By declining to interpret RFRA in a manner that

would allow for-profit corporations to shift the costs

of their owners’ religious beliefs onto third parties,

the Court would vindicate not only congressional in-

tent, but the concerns of the Founding Fathers, who

themselves recognized the need to cabin religious ex-

emptions that would harm third parties. In the

words of James Madison, “I observe with particular

pleasure the view you have taken of the immunity of

Religion from civil jurisdiction, tn every case where it

does not trespass on private rights or the public

peace.” Letter from James Madison to Edward Liv-

ingston (July 10, 1822), reprinted in 9 The Writings

of James Madison 98, 100 (Gaillard Hunt ed. 1910),

available at http://press-pubs.uchicago.edu/founders/

documents/amendI_religions66.html (emphasis add-

ed). At a time of even greater religious diversity,

Madison’s concerns carry even greater weight.

II. The Contraception Regulations Do Not

Substantially Burden Plaintiffs’ Religious

Exercise.

Plaintiffs’ arguments, if accepted, would enable

even for-profit, corporate employers to impose on

workers the costs of their employers’ owners’ reli-

gious beliefs. Conversely, application of the contra-

ception regulations to Plaintiffs would not substan-

tially burden the exercise of religion.

A. Plaintiffs are not required to provide any

health-insurance plan at all.

Plaintiffs mistakenly assert that they must either

violate their religious convictions or incur “ruinous

fines.” Conestoga Br. 3; see also Hobby Lobby Resp.

to Pet. 5. But Plaintiffs are not required to provide

employees with any health-insurance plan. They

may choose instead to pay a modest tax, which for

virtually all employers will be cheaper than sponsor-

ing an insurance plan. Plaintiffs could pass those

savings along to their employees in the form of high-

er wages, and their employees would be able to ob-

tain coverage, often heavily subsidized, on the public

exchanges. This coverage would be comprehensive—

employees would not have to forfeit coverage for con-

traception, or other vital care, due to the religious be-

hefs of their employers’ owners.

1. Large employers like Plaintiffs were offered

two alternatives: (1) they can provide, as part of their

employees’ compensation, an insurance plan with

minimum essential coverage, as defined by 26 U.S.C.

§ 5000A(f), or (2) they can pay a tax to assist in sub-

sidizing the provision of healthcare on the govern-

ment exchanges. In other words, employers have a

“choice for complying with the law—provide ade-

quate, affordable health coverage to employees or

pay a tax.” Liberty Univ., Inc. v. Lew, 733 F.3d 72, 98

(4th Cir. 2013), cert. denied, 134 S. Ct. 683 (2013).

Employers who choose the latter option must

make a modest “shared responsibility” payment to

the Internal Revenue Service. 26 U.S.C. § 4980H(a).

The regulations describe this payment as a tax, id. §

4980H(c)(7), and it helps to finance subsidies for

workers who are not receiving the required compre-

hensive coverage from their employers. As a result of

this system, employees are able to obtain compre-

hensive coverage in one of two ways: either as part of

their employment compensation, or on the exchang-

es.

The shared responsibility payment will almost

always be cheaper than sponsoring a health insur-

ance plan. An employer who does not offer coverage

to workers is required to make an annual payment of

$2,000 per full-time employee (minus the first 30

employees). See id. §§ 4980H(c)(1), 4980H(c)(2)(D).

On the other hand, in 2013 the average health in-

surance premium was $5,884 for single employees

and $16,351 for families. Kaiser Family Foundation

& Health Research & Educational Trust, Employer

Health Benefits: 20132 Annual Survey 12 (2013),

available at _http://kaiserfamilyfoundation files.

wordpress.com/2013/08/8465-employer-health-

benefits-20131.pdf. Even after subtracting premium

contributions from employees, employers paid an av-

erage of $4,885 for coverage of each single employees

and $11,786 for coverage of each family. See id. at 72,

73.

Because the shared responsibility payment will

inevitably cost “far less than the price of insurance,”

“lijt may often be a reasonable financial decision to

make the payment rather than [provide] insurance.”

Nat! Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.

2566, 2595-96 (2012). And if Hobby Lobby and Con-

estoga declined to offer coverage and made the

shared responsibility payments instead, their em-

ployees could buy comprehensive health insurance

policies—including coverage for contraception—on

the exchanges, often with significant subsidies.

2. Plaintiffs have not alleged any specific facts

establishing that they are substantially pressured to

continue including health insurance in their employ-

ees’ compensation. Hobby Lobby’s complaint is con-

clusory, asserting only that “[t]he Mandate exposes

Plaintiffs to substantial competitive disadvantages,

in that they may no longer be permitted to offer

health insurance.” Hobby Lobby C.A. App. 42a.

Although Conestoga suggests in its bnef that declin-

ing to offer coverage would “violate[ } [its] religious

principles,” Conestoga Br. 9, it alleged no such thing

in its complaint. See Conestoga C.A. App. 38a—70a.

Even in its brief, Conestoga relies on a conclusory

assertion that if the company refrained from provid-

ing coverage, it would face “a competitive disad-

vantage in the marketplace.” Conestoga Br. 39—40.

Far from establishing a likelihood of success on the

merits necessary to support a preliminary injunction,

“the conclusory nature of [Plaintiffs’] allegations ...

disentitles them to the presumption of truth.” Ash-

croft v. Iqbal, 556 U.S. 662, 681 (2009).

Indeed, Plaintiffs are fully able to increase sala-

ries and other benefits, to defray the cost for employ-

ees of purchasing insurance on the exchanges, with-

out incurring costs above those necessary to sponsor

an insurance plan. Many employers “would gain eco-

nomically from dropping coverage even if they com-

pletely compensated employees for the change

through other benefit offerings or higher salaries.”

Shubham Singhal et al., McKinsey & Co., How US

Health Care Reform Will Affect Employee Benefits,

(2011), bttp:/Awww.mckinsey.com/insights/health_sys

tems_and_services/how_us_health care _reform_will_

affect_employee_benefits. Although most employees

would expect an increase in salary, “more than 85

percent—and almost 90 percent of higher-income

ones—say they would remain with an employer that

dropped [employer-sponsored insurance}.” /d.

Even if Plaintiffs had alleged in sufficient detail

that replacing health insurance with higher salaries

would hurt their ability to recruit certain employees,

that type of indirect competitive effect does not con-

stitute a “substantial burden” within the meaning of

RFRA. In Braunfeld v. Brown, 366 U.S. 599 (1961),

the Court rejected a free exercise challenge to a regu-

lation prohibiting businesses from operating on Sun-

days. Because the plaintiff was an observant Jew, he

could not operate his business on Saturday either,

and the plurality observed that business owners in

his shoes might face “some financia: sacrifice in or-

der to observe their religious beliefs.” Id. at 606. But

the option to keep his job and “incur[ ] economic dis-

advantage” was “wholly different than when ... legis-

lation attempts to make a religious practice itself un-

lawful.” Id. Here, any competitive disadvantage—

even if one had been properly alleged and actually

substantiated—would pale in comparison to the bur-

den at issue in Braunfeld.

Plaintiffs have two ways to comply with the law

while allowing their employees to make their own

healthcare decisions consistent with their own reli-

gious beliefs. The companies may offer health insur-

ance as part of their employees’ compensation, so

long as that health insurance includes all of the re-

quired medical coverage, including coverage for con-

traception. Or they may make the modest shared re-

sponsibility payment and allow their employees to

obtain subsidized insurance, including coverage for

contraception, on the exchanges. But Plaintiffs insist

on a third option: they want to deny their workers

access to coverage for contraception and act in a

manner that prevents their employees from obtain-

ing subsidies to buy full coverage elsewhere. RFRA

does not entitle for-profit corporations to put their

employees in such a bind.

B. Even if Plaintiffs elect to provide health

insurance, the contraception regulations

impose at most an incidental and

attenuated burden on religious exercise.

Even if Plaintiffs were actually or practically re-

quired to offer insurance coverage, the burden from

including contraception coverage in employee health

insurance policies would not be substantial under

RFRA. For several reasons, the relationship between

Plaintiffs and the contraception regulations is inci-

dental and attenuated: The insurance policies must

be purchased by Plaintiffs’ secular, for-profit corpo-

rations, rather than by the corporations’ owners per-

sonally. Plaintiffs’ secular, for-profit corporations

must provide coverage for a comprehensive set of

healthcare services, not contraception alone. And the

corporations’ group health plans would cover the cost

of contraception only if an employee elected to pur-

chase contraception, often after receiving a prescrip-

tion from her physician.

Each of these intervening steps distances Plain-

tiffs from the ultimate purchase or use of contracep-

tion by their employees, and each prevents Plaintiffs

from establishing a substantial burden under RFRA.

Nothing about this analysis requires the Court to

second-guess Plaintiffs’ moral calculations; instead,

the Court need only assess whether the burden as-

serted by Plaintiffs is one that RFRA recognizes as a

matter of law.

I. Employees’ health insurance is

provided not by the individual owners, but

by their secular, for-profit corporations.

If Plaintiffs choose to include health insurance in

the compensation paid to their employees, any pur-

chase of comprehensive health insurance would be

paid for not by individuals who hold religious beliefs

about contraception, but instead by secular, for-profit

corporations. The individual owners are “distinct

from the corporation itself, a legally different entity

with different rights and responsibilities due to its

different legal status.” Cedric Kushner Promotions,

Ltd. v. King, 533 U.S. 158, 163 (2001). The individual

owners’ religious beliefs are one step removed from

the regulations, which apply only to the secular, for-

profit corporations. And the corporations, in turn, are

not themselves exercising religion.

The legal difference between an individual owner

and a for-profit corporation is no mere technicality.

The laws of Pennsylvania and Oklahoma, where the

Plaintiff companies are incorporated, recognize that

for-profit corporations are separate legal entities

from the corporations’ individual owners. See Official

Comm. of Unsecured Creditors v. R.F. Lafferty & Co.,

267 F.3d 340, 348 (3d Cir. 2001); NLRB v. Greater

Kan. City Roofing, 2 F.3d 1047, 1051 (10th Cir.

1993). This distinction between owner and corpora-

tion applies even to companies that are closely held

or family owned. See Sautbine v. Keller, 423 P.2d

447, 451 (Okla. 1966); Barium Steel Corp. v. Wiley,

108 A.2d 336, 341 (Pa. 1954).

Nor may the owners of Hobby Lobby and Cones-

toga enjoy corporate benefits while shedding un-

wanted corporate obligations. They have taken ad-

vantage of the unique benefits offered by the corpo-

rate form, and they have used that corporate form to

make money in the secular marketplace for craft

supplies, books, and specialty wood products. Be-

cause they have done so, they must “accept the dis-

advantages of the corporate system along with its

advantages.” Voeller v. Neilston Warehouse Co., 311

U.S. 531, 536 (1941).

Further, although churches and other houses of

worship may be subject to a different analysis, the

corporations here engage in secular activity (the op-

eration of craft and book stores, and the manufacture

of wooden parts for kitchen cabinets) for secular ends

(financial profit). Hobby Lobby argues that the com-

pany exercises religion because, among other things,

its statements of purpose reflect commitment to bib-

lical principles, and its stores play Christian music,

avoid promoting alcohol, and are closed on Sundays.

Hobby Lobby Resp. to Pet. 2-3. Conestoga similarly

contends that the company has contributed to un-

specified charities, adheres to a mission statement

referencing “Christian principles,” and—just before

filing suit—adopted “The Hahn Family Statement on

the Sanctity of Human Life.” Conestoga Br. 5, 16.

But these company statements and incidental chari-

table contributions do not make Plaintiffs’ day-to-day

commercial transactions, including the payment of

compensation to employees, any less secular.

Plaintiffs also cannot establish a religious identi-

ty for Mardel, which “primarily sells Christian mate-

rials.” Hobby Lobby Resp. to Pet. 2. Mardel operates

to make financial profit, and courts have refused to

ascribe religious significance to for-profit commercial

activity, even when that activity is conducted by a

house of worship. See, e.g., United States v. Sandia,

188 F.3d 1215, 1218 (10th Cir. 1999) (rejecting RFRA

challenge to endangered species law where defend-

ant sold protected bird “for pure commercial gain”);

Christ Church Pentecostal v. Tenn. State Bd. of

Equalization, No. M2012-00625-COA-R3-CV, 2013

WL 1188949, at *10 (Tenn. Ct. App. Mar. 21, 2013),

appl. for permission to appeal denied (Tenn. Sept. 10,

2013) (religious-accommodation law did not require

property tax exemption for church’s “retail estab-

lishment housed within the walls of the [church

building], complete with paid staff, inventory control,

retail pricing, and a wide array of merchandise for

sale to the general public”). The connection between

Mardel and religious exercise is likewise attenuated

by Mardel’s decision to sell religious publications for

“pure commercial gain.” Sandia, 188 F.3d at 1218.

2. Contraception coverage is just one benefit

within a comprehensive insurance plan.

Plaintiffs are required to provide their employees

with a comprehensive insurance policy that covers

contraception as one item within a wide range of

healthcare products and services. Among other

things, groups health plans must cover an extensive

list of preventive services, including “immuniza-

tions,” “evidence-informed preventive care and

screenings’ for infants and children, and “evidence-

based items or services that have in effect a rating of

‘A’ or ‘B’ in the current recommendations of the

United States Preventive Services Task Force.” 42

U.S.C. § 300gg-13(a). In a plan this comprehensive,

there is r connection between Plaintiffs and any

particular benefit.

The Court has held that an entity authorizing a

range of expenditures does not necessarily promote

any particular item obtained with those funds. In

Rosenberger v. Rector & Visitors of the University of

Virginia, 515 U.S. 819 (1995), the Court concluded

that a public university would not endorse religion

by funding religious-student-group publications to

the same extent that the university funded the pub-

lications of non-religious groups. See id. at 841—43.

Similarly, in Board of Education v. Mergens ex rel.

Mergens, 496 U.S. 226 (1990), the Court concluded

that the Establishment Clause permitted student re-

ligious groups to meet on public-school premises dur-

ing non-instructional time, under the same terms as

non-religious groups, in part because even “second-

ary school students are mature enough and are likely

to understand that a school does not endorse or sup-

port student speech that it merely permits on a non-

discriminatory basis.” Jd. at 250.

The provision of a comprehensive insurance poli-

cy, rather than coverage for contraception alone, sim-

ularly stretches the connection between Plaintiffs and

any particular medical procedure or service that is

ultimately covered by the insurance plan. This is es-

pecially true where, as here, Plaintiffs “remain{ ] free

to disassociate [themselves]” from the purchase or

use of contraception by refraining from using contra-

ception and encouraging others to do the same.

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47, 65 (2006).

Nor does the decision to self-insure mean that

Hobby Lobby or Conestoga directly provides contra-

ception to their employees. Under the Employee Re-

tirement Income Security Act, even a company-

funded group health plan is considered to be legally

distinct from the company itself. See 29 U.S.C. §

1132; Guidry v. Sheet Metal Workers Natl Pension

Fund, 493 U.S. 365, 373 (1990). Plaintiffs, moreover,

can at any time contract with a third-party insur-

ance company to provide insurance coverage, such

that any reimbursement for contraception would be

made by the third-party insurance company, not by

Hobby Lobby or Conestoga’s group health plans.

3. Contraception is used and financed only

after an employee’s independent decision.

Any reimbursement for the purchase of contra-

ception takes place only after one or more of Plain-

tiffs’ employees chooses to use contraception. That

independent conduct—a private medical decision

made by doctor and patient—further distances Hob-

by Lobby and Conestoga from any purchase or use of

contraception.

In addressing First Amendment claims, the Court

has held that intervening private, independent ac-

tion breaks the causal chain between the original

funding source and the ultimate use of such funds. In

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the

Court rejected an Establishment Clause challenge to

an Ohio school-voucher program, under which par-

ents could use their vouchers at religious or non-

religious schools, in part because “[w]here tuition aid

is spent depends solely upon where parents who re-

ceive tuition aid choose to enroll their child.” Jd. at

646. In these circumstances, any incidental ad-

vancement of religion was “reasonably attmbutable

to the individual recipient, not to the government,

whose role ends with the disbursement of benefits.”

Id. at 652. Similarly, in Goehring v. Brophy, 94 F.3d

1294 (Sth Cir. 1996), the Ninth Circuit rejected a

RFRA challenge to a public university’s mandatory

student-activity fee, part of which subsidized student

health-insurance plans that covered abortion ser-

vices; although plaintiffs’ “sincerely held religious be-

liefs prevent{ed] them from financially contributing

to abortions,” the insurance subsidy was “distributed

only for those students who elect to purchase Uni-

versity insurance.” Id. at 1298, 1300.

In other settings, courts have likewise recognized

that the chain of causation may become interrupted

and thus too remote to support lability. Under tort

law, for example, an act is not the proximate cause of

a plaintiffs injury if an intervening act breaks the

causal chain, as then-Chief Judge Cardozo recog-

nized in Palsgraf v. Long Island Railroad Co., 162

N.E. 99 (N.Y. 1928). When considering whether to

suppress evidence under the Fourth Amendment,

courts must determine whether “the unlawful con-

duct has become so attenuated or has been inter-

rupted by some intervening circumstance so as to

remove the ‘taint’ imposed upon that evidence by the

original illegality.” United States v. Crews, 445 U.S.

463, 471 (1980). Here, too, the intervening decisions

of individual employees attenuate the connection be-

tween Plaintiffs and the provision of contraception.

Because Plaintiffs object to covering certain forms

of prescription contraception, there is yet another in-

tervening influence: the employee's physician, who

must prescribe such contraception before the em-

ployee can obtain it. See Thompson v. W. States Med.

Ctr., 535 U.S. 357, 374 (2002) (rejecting “the ques-

tionable assumption that doctors would prescribe

unnecessary medications”). As reflected in virtually

all states’ product-liability laws, prescribing physi-

cians act as learned intermediaries with independent

responsibility for evaluating medical risks in light of

the patient’s needs. See, e.g., Eck v. Parke, Davis &

Co., 256 F.3d 1013, 1017 (10th Cir. 2001). Ultimate-

ly, then, there is no reimbursement for the purchase

of contraception by a group health plan without the

independent decision of a covered employee and, in

many cases, the covered employee’s physician.

Plaintiffs cannot point to any decision that grants

employers a religious-liberty interest in the way that

employees use their compensation. The health bene-

fits provided by Hobby Lobby and Conestoga are

“part of an employee’s compensation package.” Liber-

ty Univ., 733 F.3d at 91. In upholding a state-issued

tuition grant to a student who used the grant to at-

tend a religious school to become a pastor, the Court

explained that “a State may issue a paycheck to one

of its employees, who may then donate all or part of

that paycheck to a religious institution, all without

constitutional barrier; and the State may do so even

knowing that the employee so intends to dispose of

his salary.” Witters v. Wash. Dep't of Servs. for the

Blind, 474 U.S. 481, 486—87 (1986).

No matter what their owners’ religious beliefs,

Hobby Lobby and Conestoga could not decide to pay

their employees below the minimum wage—or to pay

women less than men—to reduce the risk that em-

ployees would use their wages to buy contraception.

The Court has rejected free exercise challenges by a

religious foundation to minimum wage and overtime

requirements of Fair Labor Standards Act, and ob-

served that “[ljike other employees covered by the

Act, [the relig’ous foundation’s employees] are enti-

tled to its full protection.” Tony & Susan Alamo

Found. v. Sec’y of Labor, 471 U.S. 290, 303—05, 306

(1985). Courts have also refused to authorize reli-

gious exemptions to the law requiring equal pay for

men and women; compliance with this law, notwith-

standing a religious school’s belief that males were

the “head of the house,” imposed “at most, a limited

burden” on free exercise rights. Dole v. Shenandoah

Baptist Church, 899 F.2d 1389, 1392, 1398 (4th Cir.

1990).

Plaintiffs have no greater right to deprive their

employees of required non-cash compensation, in-

cluding health benefits. Employees work for wages,

which are subject to minimum wage laws; and for

non-cash benefits such as health insurance, which is

subject to minimum coverage requirements. One

form of compensation affects the other: “Economists

are in near-unanimous agreement that workers ul-

timately pay for health insurance through lower

wages...." Thomas Buchmueller et al., Will Employ-

ers Drop Health Insurance Coverage Because of the

Affordable Care Act?, 32 Health Affairs 1522, 1523

(2013), available at http:/www.dbhs.state.nh.us/sme/

documents/article-aca-1522.full pdf.

Just as an employer may not control how employ-

ees use their wages, an employer may not supervise

employees’ use of their health-benefits compensation.

Indeed, even when employers choose to self-finance

employee group health plans, federal regulations

“protect the privacy of employees’ health information

against inquiries by their employers.” Fla. ex rel.

Att’y Gen. v. U.S. Dep't of Health & Human Seruvs.,

648 F.3d 1235, 1335 (11th Cir. 2011) (Marcus, J.,

concurring in part and dissenting in part) (citing 45

C.F.R. § 164.102 et seq.), affd in part & rev'd in part,

Nat'l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566

(2012). Whether to buy or use birth control is an em-

ployee’s own decision, using her own compensation,

in consultation with her own physician, and guided

by her own religious beliefs.

4. The Court can and should consider the

degree of attenuation between Plaintiffs’

obligations and employees’ access to con-

traception.

Relying on Thomas v. Review Board of the Indi-

ana Employment Security Division, 450 U.S. 707

(1981), Plaintiffs argue that RFRA “does not ask

whether [the corporations’ owners’} religious exercise

or moral calculus is substantial.” Conestoga Br. 34.

Plaintiffs are of course entitled to their own moral

calculus, but here the relevant calculation is purely

legal: whether Plaintiffs’ religious objections amount

to a burden that is “substantial” as a matter of law.

The Court’s observation in Thomas—that “Thomas

drew a line, and it is not for us to say that the line he

drew was an unreasonable one”—refuted the state’s

argument that Thomas “had made a merely personal

philosophical choice rather than a religious choice.”

450 U.S. at 714-15 (quotation marks omitted). But

Thomas did not instruct the Court to abdicate the re-

sponsibility to assess whether, in light of a plaintiffs

religious beliefs, the challenged requirement produc-

es a burden that is substantial as a matter of law.

Even after Thomas, the Court has continued to

assess whether an asserted religious objection

amounts to a substantial burden as a matter of law.

See, e.g., Hernandez v. Commissioner, 490 U.S. 680,

699 (1989) (notwithstanding plaintiffs religious ob-

jections to certain provisions of tax code, court must

determine “whether the alleged burden imposed by

the deduction disallowance on the Scientologists’

practices is a substantial one”); Bowen v. Roy, 476

U.S. 693, 701 n.6 (1986) (no substantial burden de-

spite parent’s religious objection to government’s use

of child’s Social Security number: “for the adjudica-

tion of a constitutional claim, the Constitution, ra-

ther than an individual’s religion, must supply the

frame of reference”). Most importantly, Thomas did

not involve a plaintiff that sought to deprive someone

else of compensation to which the law entitled her.

If the Court were not permitted to draw legal

lines, then employers could intrude on a broad range

of employees’ personal decisions; virtually any law

governing employee compensation could be construed

to facilitate behavior offensive to an employer’s own-

er’s religious beliefs. Plaintiffs here object to offering

insurance policies that cover certain types of contra-

ception. Plaintiffs in another case might object to

paying minimum wage to workers who might use the

money to purchase these forms of contraception.

Plaintiffs in yet another case might object to com-

pensating workers who might use their wages to do

research about contraception.

Each of these objections, moreover, could trans-

cend the issue of contraception. Other employers’

owners might object to even the incidental facilita-

tion of other medical procedures or treatments, no

matter how remote the connection between the em-

ployer and the conduct, and no matter how directly

the requested exemption would burden the affected

employees and hinder their rights to the free exercise

of religion. Especially when the rights and interests

of others are at stake, RFRA should not be read to

make each company’s owner “a law unto himself.”

Empi DNiv., Dep’t of Human Res. of Or. v. Smith, 494

U.S. 872, 885 (1990).

CONCLUSION

The juagment of the Tenth Circuit should be re-

versed, and the judgment of the Third Circuit should

be affirmed.

Respectfully submitted,