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

Supreme Court, US.

FILED

JAN 2.8 2014

OFFICE OF THE CLERK

= 8 Nos. 13-354 & 13-356.

IN THE : |

Supreme Court of the Gnited States

KATHLEEN SEBELIUS, ET AL., Petitioners,

Vv.

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

CONESTOGA WOOD SPECIALTIES, 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 OF 38 PROTESTANT THEOLOGIANS,

SOUTHEASTERN BAPTIST THEOLOGICAL _

SEMINARY, COALITION OF AFRICAN AMERICAN

PASTORS, MANHATTAN DECLARATION,

AND INSTEP INTERNATIONAL. _

AS AMICI CURIAE IN SUPPORT OF HOBBY LOBBY

AND CONESTOGA, ET AL.

JAY T. THOMPSON

Counsel of Record

MILES COLEMAN

BRANDON SMITH

NELSON MULLINS RILEY &

SCARBOROUGH, LLP

1320 Main Street

Columbia, SC 29201

jay.thompson@nelsonmullins.com

(803) 799-2000

Counsel! for Amici Curiae

A li OT CLE T AT EOE RIED TAD DEE.

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

TABLE OF CONTENTS

Page

Te Ge AEF Te Ho ivccisivesinncessnsessonrvensenensenen iii

INTEREST OF AMICI CURIAE.................00:cc0c:0000000 1

SUMMARY OF ARGUMENT .....0......... eee ceeceeeeeeeeeees 4

ET sins vicistisninicinnncensheilinichiutdiaeiaicasinmascaieimednsaee 6

I, Christian doctrine requires that faith

govern every aspect of a Christian’s life ......... 6

Il. Christian doctrine teaches that an

individual’s vocation is ordained by God

as a spiritual enterprise in which

Christians must serve in accordance with

their spiritual callings .........00:.sccccsccccsssssesseees 10

A. The Christian doctrine of vocation

teaches that all work is spiritual

B. The Christian theology of vocation

encompasses both overtly sacred and

seemingly secular occupations............... 13

C. The Christian doctrine of vocation

teaches that Christians are called by

God to specific occupations and

ELS NI NEON Re 17

D. The Christian doctrine of vocation

requires that Christians act in their

vocations in accordance with their

I NN isc itetccnsuancanusasnens 20

i

III. Christian doctrine states it is a sin for a

Christian to enable or aid another in

doing what the Christian believes to be

DR RESAN See ta ONE PAGAN EST RESIS RE ASTER

IV. Requiring a Christian to choose between

violating the Government’s regulations or

violating his sincerely held religious

beliefs substantially burdens his exercise

Sass ccvctels anies-ctiecasieintinenbnninialianaigseneniign neaaibleens

eT aiiiosixationescsinieniitaiemnennnaneetinneheinuienniabaheineaientniits

TABLE OF AUTHORITIES

Page

CASES

Attorney Gen. v. Desilets,

636 N.E.2d 233 (Mass. 1994) .......................... 26

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

es ED inticstsikcccectiniaintcnstienseninpsontamne 29

Employment Division, Department of Human

Resources v. Smith, 3

ee MI vi cicinciistenincecddbiatbeatnanbispenenens 27

Gilardi v. U.S. Dept. of Health and Human

Serucs

733 F.3d 1208 (D.C. Cir. 2013) .ccccccceccssssseeoeeee 24

Hanna v. Secretary of the Army,

8 oe EE 8. CTR 25

Hernandez v. C.LR.,

I ee 28

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

es CI CI veieiccicincninencnionsacscsserousios 6,17

Korte v. Sebelius,

735 F.3d 654 (7th Cir. 2013) ............ccccc-eeeee 8, 11

O'Bryan v. Bureau of Prisons,

349 F.3d 399 (7th Cir. 20038) .............cccceeeeeceee 28

Sherbert v. Verner,

I 27, 30

iv

Spencer v. World Vision, Inc.,

633 F.3d 723 (Sth Cir. 2011) ......22...ccccccssecoscocees 6

State by Cooper v. French, 460 N.W.2d 2

RL UI aa eo as 26

Thomas v. Anchorage Human Rights

Comm'n,

165 F.3d 692 (9th Cir. 1999) ..................seeeeeee. 26

Thomas v. Review Bd. of Indiana

Employment Sec. Div.,

i Pe RED wivtcicctsatninantcknanesnecesinis 28, 29, 30

United States v. Lee,

I I sco cs cli cusnantnebaciisannniiaes 28

United States v. Seeger,

I SI vissikcisincticseninthicinndssimncuitnalancesonaniins 28

Wisconsin v. Yoder,

SN, SII inc cin cehecuntiiahabentni 27, 28

TATUTES

SE | nn OE 27

. vsisicacccninsnnnssenncsnecavevensti 28

NE a cena canna lin ealauiiadasaaeniatd 25

ee INT ckicsinccicnteninssseccbidensdidntintesstcasobannuinta 25

42 U.S.C. §§ 2000bb ef seq. ..........20020ecereeeeeeceeeeeees 27

es I, Ot I ohn ncsisinsenicronsincisinnannnceiiconienn 25

EG TIONS

Be ails Se Ge Oe Ci cicntcccnnctcnscescccsenesesscencs 30

78 Fed. Reg. 39870 (July 2, 2013) ........... eee 30

SCRIPTURE - ENGLISH STANDARD VERSION

oe oa cesieailansiaienbe 7

I TUE ictal sietalicsnnccudiinasnseiinsiionsinaneniaics 17

I ios in caccdnaslonsncnbwaniicenivonsicens 24

eT 5 ae en 14

EES CR a ant ee en Re amr 9

SP ili leat eta isinaadianaansaneieeuunadahs 9

5 SE ere Oa eRe 7

i 7,11

aah isc umemnaneabonianene 9

i lead aiinet dete ceclaieusNinonsesslans 7

I an incrdniss selsistnonclianicnenicdgebdbainaiasiaaiin 11

I ia nine csicditcsiotdlsicda hossadedbacidaiiesiiaemisceuiéudaenied 18

I sialic ikaanitnncattal ithe iaamebiaties 12

EST eee ee ee Oa 12

iia sities cic taetateenatiannadaieadaiaecanee 13

SII nis ccliasiociacaiuistacatsshdeipeetaniceiapemanddabicnuiesibednanieieis 12

STITT uicintas iccsicnncidectpacclabiaciesledcabinasin tancadaamcomeenoumentses 8

IEE III scciccasaincvasukarcdndehaneatuenbvameniessasenimobinntice 21

PITTA ricicissipniccsiaihi as cesckanipetncnigepnanmmabineeaaennendeiines de 12

IT Ica silica cactescepsuienpuntmisadsetnalinamndeinubideediey 24

ROD EP eee NOES IN IN OT ee 6

PE Haitians svcd sescnaicaicinsusouadabiakosedbvonssasnins 8

RE eee eee 24

O THER AUTHORITIES

17 D. Martin Luthers Werke: Kritische

Gesamtausgabe (1883).............::cceeeeseceeeeseeeeeees 21

Calvin, John, Institutes of the Christian

Religion (1559) (John T. McNeill ed., Ford

Lewis Battles trans., 1960) ..............0.cccc0eeeeeees 18

Compact Oxford English Dictionary............. 14, 18

Confession of Faith in a Mennonite

Porapective, 1906, Artache 17 ........ccccso.cccccsresceseos 7

Foxe, John, Acts and Monuments (1563).............. 9

Gonzalez, Justo L., The Story of Christianity

SNC aE RANE eee i]

Guinness, Os, The Call: Finding and

Fulfilling the Central purpose of Your Life

TED tasiiiiisisninexcuunvontévhiessneimsenndmaianiimaanannae 20

Keller, Timothy, Every Good Endeavor:

Connecting Your Work to God’s Work 38

IIIT 7 s.-0s. sis daisenninssesnsioensiaiciebicsipetiadalesisiaimabaidiaaiaaaaa 13

Law, William, A Serious Call to a Devout and

ET EE TIED encinsissdissnasencnasisincidiecdaiahaneinaaaeaae 17

Luther, Martin, Luther’s Works, Vol. 332:

Career of the Reformer LIT (1972) .........222...006+- 10

Mather, Cotton, Two brief Discourses. One

Directing A Christian in his General

Calling; Another Directing him in his

Personal Calling (B. Green, et al. eds.,

SI diaissscts scsi cencsinnillidsitiisarcoriattompamadéimnaainaa 7, 16, 19

vil

Mennonite Church USA Confession of Faith,

Art. 23, The Church’s Relation to

Government and Society .........2..cccccccceeeeseeeeeeees 23

Perkins, William, A Treatise of the Vocations

Ce aac cieiisinbonnns 15, 23

Placher, William C., ed., Callings: Twenty

Centuries of Wisdom on Vocation (2005) ........ 18

Presbyterian Church in America, Preface to

the Book of Church Order...........::csccccessseeseeeeeeees

Rienzi, L., The Constitutional Right Not to

Kill, 62 Emory L.J. 121 (2012)................ cece 26

Ryken, Leland, Work and Leisure in

Christian Perspective (1987) ............... 12, 13, 15

Sayers, Dorothy, Creed or Chaos? Why

Christians Must Choose Either Dogma or

Disaster (Or, Why It Really Does Matter

What You Believe) (1949)..............0:.ccccceeeeeseeees 12

Schuurman, Douglas J., Vocation: Discerning

Our Callings in Life (200A) ...............222202+- 15, 23

The Baptist Faith & Message 2000. .......... T, 22, 29

The Large Catechism by Martin Luther

(1529), reprinted in Triglot Concordia: The

Symbolical Books of the Ev. Lutheran

SEE Ee 25

The Larger Catechism of the Westminster

TE TEN ee 24

The Pew Forum on Religion & Public Life,

U.S. Religious Landscape Survey (2008)........ 15

Vill

Trueblood, Elton, Your Other Vocation (1952) ... 20

U.S. Census Bureau, 2012 Statistical

Abstract, American Religious

Identification Survey 2008: Self-Described

Religious Identification of Adult

Pc iccihitionsssenstsguncsenmiondiaedaciobniaimaessisheisn 15

Veith, Gene Edward, Jr., God at Work: Your

Christian Vocation in All of Life

SII -sidsesnsiiescueidiahscieecibecbiabiannsipeasaibiehasabiancisihisona 14, 15

Vincent, Thomas, An Explanation of the

Assembly’s Shorter Catechism (1806). ............ 25

Watts, Isaac, The Poetical Works of Isaac

I, Ne ee Hi icascusnsasvecenssonsstientniiitneneeonnnes 6

Webster’s Third New Int. Dictionary (2002) . 14, 18

Westminster Confession of Faith (1646).............. 21

Wingren, Gustaf, Luther on Vocation (Carl

RES > : Ra Ee REN 21

INTEREST OF AMICI CURIAE '

The Southeastern Baptist Theological

Seminary (“SEBTS’) is a seminary of the Southern

Baptist Convention located in Wake Forest, North

Carolina. The seminary exists to train, educate, and

prepare ministers of the gospel for faithful service. In

addition, SEBTS is home to the L. Russ Bush Center

for Faith and Culture, which seeks to bring the

Christian faith to bear upon all areas of the human

experience in a spirit of Christian love and respect

and to provide a responsible voice in the public

square, speaking Christian truth to the issues and

concerns facing contemporary culture. The seminary

believes that as a matter of long-standing Protestant

theology, the government regulations at issue in this

appeal jeopardize the ability of Christian believers to

exercise their religion in obedience to its demands.

The Coalition of African American Pastors

(“CAAP”) is a nonpartisan association of Protestant

African American clergy and Christians who support

the role of religion in American public life and

encourage Christians of all races and backgrounds to

live in accordance to their faith, both in their private

and public lives. CAAP is concerned that the

government regulations at issue in this appeal

substantially burden Christians’ ability to do so.

| The parties’ counsel were timely notified of and consented to

the filing of this brief. Neither a party nor its counsel authored

this brief in whole or in part. No person or entity, other than

the amici curiae, their members, or their counsel made a

monetary contribution to the preparation and submission of

this brief.

2

The Manhattan Declaration is a coalition of

theologians, Christian leaders, and philosophers

united to build a movement of Christians who will

stand together alongside other men and women of

goodwill to advance the sanctity of life, rebuild and

revitalize the marriage culture, and protect religious

liberty. The theological and philosophical treatise,

“The Manhattan Declaration: A Call of Christian

Conscience,” authored by Princeton professor Robert

P. George, Charles W. Colson, and Dr. Timothy

George, has been signed by more than 150 American

religious leaders and more than 540,000 lay

Christians. The Manhattan Declaration fears the

regulations giving rise to this appeal threaten both

the lives of the unborn and the vitality of American

religious liberty.

InStep International (“InStep”) is a religious

organization in Atlanta, Georgia, that partners with

Christian leaders, ministries, and lay Christians to

coordinate resources and efforts to spread the gospel

of Jesus Christ through teaching, training, and

humanitarian efforts both domestically and overseas.

The President of InStep, Rev. Gregory Smith, serves

in part as a corporate chaplain, providing executive

coaching and leadership, to for-profit Christian

business leaders seeking to create a faith-friendly

corporate culture. InStep believes that the

inseparability of a Christian’s faith and vocation is

consistent with the Bible, the Christian faith,

Protestant teaching and denominational

requirements, and thereby enables business owners

to faithfully exercise their religious beliefs under

their First Amendment rights afforded by the United

States Constitution.

3

The 38 individual signatories, listed in full in

the Appendix, are theologians, scholars, and pastors,

who study, write, teach, and minister in a broad

spectrum of Protestant seminaries, colleges, and

churches. They have collectively amassed tens of

thousands of hours studying the Holy Scripture and

Protestant theology, have taught thousands of

seminarians and ministers, written several New

York Times Bestselling books, authored hundreds of

theology treatises and devotional works, overseen

seminaries, headed a number of theological journals,

and preached thousands of sermons. Each of the

signers affirms that Scripture, Protestant doctrine,

and church tradition established throughout the 500-

year history of Protestant theology require

Christians to conduct themselves in their business

and occupational affairs in obedience to Scriptural

commands and Christian doctrine, and that the

government regulations at issue here substantially

burden Christians’ ability to comply with this

spiritual obligation.

4

SUMMARY OF ARGUMENT

This brief demonstrates, historically and

theologically, that requiring a Protestant Christian

to choose between violating the Government’s

regulations or violating his sincerely held religious

beliefs substantially burdens his exercise of religion

in violation of the Religious Freedom Restoration Act

and the First Amendment to the United States

Constitution.

A fundamental aspect of Christian doctrine is its

requirement that faith must govern every aspect of a

Christian’s life. As a matter of scriptural teaching,

church tradition, denominational requirement, and

conscience, the exercise of the Christian religion

must guide and determine a Christian’s decisions,

choices, words, and deeds, both in private and in

every facet of life.

The holistic nature of the Christian faith extends

to a believer’s vocation. The Christian doctrine of

vocation teaches that all work—whether overtly

sacred or ostensibly secular—is spiritual activity,

that Christians are called by God to specific

occupations and businesses, and that Christians

must conduct themselves in their vocations in

accordance with their Christian beliefs. A Christian

may not simply check his faith at the workplace door.

Accordingly, Christian business owners, as a matter

of scriptural requirement, are obligated to conduct

their business as an expression of their faith and in

accordance with the dictates of faith and conscience.

The theological requirement that Christians

comply with scriptural commands in their occupation

prohibits not only direct and personal wrongdoing,

but also the enabling, authorizing, or aiding of

5

another in doing what the Christian believes to be

sin. Christian doctrine teaches that one who

knowingly aids or abets another's wrongdoing has

himself done wrong. Accordingly, a statute or

regulation requiring a Christian business owner's

complicity in conduct that his or her faith teaches is

morally wrong forces a Christian into an impossible

position and imposes a substantial burden on his or

her exercise of religion.

6

ARGUMENT

I. Christian doctrine requires that faith

govern every aspect of a Christian’s life.

A fundamental aspect of Christianity is its

requirement that the Christian faith govern all

aspects of the believer’s life. This teaching is drawn

directly from the Holy Scripture and stems from the

Christian belief that God’s sovereignty extends over

every area of human endeavor. See, e.g., Psalm 24:1

(“The earth is the Lord’s and the fullness thereof, the

world and those who dwell therein.”).2 In the words

of the English theologian and poet Isaac Watts, God’s

“love, 80 amazing, so divine, demands my life, my

soul, my all.” Isaac Watts, The Poetical Works of

Isaac Watts, Vol. IV 173 (1782).

Accordingly, Christianity has never limited its

reach merely to matters of theology and ceremonial

observance. See, e.g., Hosanna-Tabor Evangelical

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

713 (2012) (Alito, J., concurring) (agreeing with the

Court’s unanimous opinion that the job duties of a

Lutheran minister engaged in education “reflected a

role in conveying the Church’s message and carrying

out its mission” and observing that “[rjeligious

teachings cover the gamut from moral conduct to

metaphysical truth.”); Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) (per curiam) (finding a

Christian humanitarian organization “working with

children, families and their communities worldwide

to reach their full potential by tackling the causes of

poverty and injustice” was a religious activity); see

2 All quotations of Scripture herein are taken from the Holy

Bible, English Standard Version.

7

also Confession of Faith in a Mennonite Perspective,

1995, Article 17 (“In all areas of life, we are called to

be Jesus’ disciples.”) (emphasis added), available at

http:/Awww.mennoniteusa.org/about/confession-of-

faith-in-a-mennonite-perspective-1995/article-17-

discipleship/; The Baptist Faith & Message 2000,

Article XIII (“God is the source of all blessings,

temporal and spiritual; all that we have and are we

owe to Him... . [Christians] are therefore under

obligation to serve Him with their time, talents, and

material possessions; and should recognize all these

as entrusted to them to use for the glory of God and

for helping others.”), available at http://www.sbc.net/

bfm/bfm2000.asp (all links last visited January 22,

2014).

Rather, Christianity teaches that one’s faith

influences even those areas of life that appear

superficially unrelated to worship, prayer, or

theology. See, e.g., Colossians 3:17 (‘And whatever

you do, in word or deed, do everything in the name of

the Lord Jesus.”). Indeed, Christianity teaches there

is spiritual significance in every part of life, including

seemingly mundane acts like eating, drinking, and

working. See 1 Corinthians 10:31 (“So whether you

eat or drink or whatever you do, do all for the glory of

God.”); Colossians 3:23-24 (“Whatever you do, work

heartily, as to the Lord.”); Ecclesiastes 3:1-13 (noting

“[flor everything there is a season, and a time for

every matter under heaven” and that “everyone

should eat and drink and take pleasure in all his

toil—this is God’s gift to man”). From the earliest

days of Protestant faith in America, theological

leaders have proclaimed this principle. See, e.g.,

Cotton Mather, Two brief Discourses. One Directing

A Christian in his General Calling; Another Directing

8

him in his Personal Calling 64 (B. Green, et al. eds.,

1701) (“{Ljet every Christian Walk with God, when

he Works at his Calling, and Act in his Occupation

with an Eye to God, Act as under the Eye of God.”).

These holistic demands of Christianity require

consistency in familial, business, and social relations

and are not limited to sacerdotal, ecclesial, or ritual

matters.

This integration of a Christian’s entire life in

relation to God is an outgrowth of the Christian

gospel, which provides that God, completely

righteous and without sin, by His infinite grace,

justifies man who is by nature unrighteous and

sinful. This cannot be accomplished by any work or

merit by man to somehow achieve good standing

with God, but instead is accomplished by and

through the work of Jesus Christ’s death on the

cross. Thus, by faith alone in Christ alone, man is

counted righteous by God.

This doctrinal requirement that a Christian must

pursue all aspects of his or her life in obedience to

Christ compels Christians to do more than give mere

intellectual assent. The Christian faith requires not

only belief, but also conduct, and this requirement

extends to every facet of the Christian's life. See

James 2:17 (“So also faith by itself, if it does not have

works, is dead.”); Romans 12:1 (urging Christians,

“in view of God’s mercy,” to devote their entire being

to Him as “true and proper worship”); see also Korte

v. Sebelius, 735 F.3d 654, 681 (7th Cir. 2013) (noting

that religious belief is not confined to the home and

the house of worship because “[rJeligious people do

not practice their faith in that compartmentalized

way. ); Presbyterian Church in America, Preface to

the Book of Church Order, Part II.4 (“{T]here is an

9

inseparable connection between faith and practice,

truth and duty. Otherwise it would be of no

consequence either to discover truth or to embrace

it.”), available at http://www.pcanet.org/beliefs/ (last

visited January 22, 2014).

Christian doctrine requires a Christian to honor

his or her conscience according to the faith. /

Timothy 1:19 (“[H]old{] faith and a good conscience.

By rejecting this some have made shipwreck of their

faith.”); 1 Timothy 3:9 (“[H]old the mystery of the

faith with a clear conscience”). Scripture and history

are replete with instances in which believers who

were presented with a choice either to violate their

consciences by complying with the state’s demands or

to face draconian penalties chose to maintain the

integrity of their faith in every aspect of life and

accept the consequences. See generally John Foxe,

Acts and Monuments (1563) (recounting anecdotes of

early Protestant martyrs). For example, the Old

Testament Scripture recounts the stories of three

Hebrew men who refused to worship an image of

Babylonian King Nebuchadnezzar, despite the threat

of execution for noncompliance. See Daniel 3:1-30.

Shadrach, Meshach, and Abednego were cast “into

the burning fiery furnace” for refusing to worship the

kings image. Jd. Whereas the Babylonian

government conceived the requirement of bowing

down to the image as merely an act of political

loyalty, the three young men perceived it as a

requirement to violate their faith through idolatry.

Id.

Similarly, the second-century Christian martyr

Polycarp was put to death for his refusal to state

“Caesar is Lord.” See Justo L Gonzalez, The Story of

Christianity, Vol. 1, 43-44 (1984). To the Roman

10

government, the law was merely a political issue, but

to Polycarp, it was an issue of idolatry. Likewise, the

Protestant reformer Martin Luther, when asked to

recant his beliefs, famously stated to Emperor

Charles V, “[M]y conscience is captive to the Word of

God. | cannot and | will not recant anything, since it

is neither safe nor right to go against conscience.

May God help me. Amen.” Martin Luther, Luther’s

Works, Vol. 33: Career of the Reformer III (1972).

In sum, because Christian doctrine requires that

faith govern every aspect of a Christian’s life and

teaches that a Christian’s conscience is captive to the

word of God, a Christian must act in accordance with

his beliefs and in integrity of conscience in every

aspect of life. Simply stated, the exercise of Christian

faith must, as a matter of scriptural teaching, church

tradition, and denominational requirement, guide

and determine a Christian’s decisions, choices,

words, and deeds, both in private and in every facet

of life.

Ii. Christian doctrine teaches that an

individual’s vocation is ordained by God as

a spiritual enterprise in which Christians

must serve in accordance with their

spiritual callings.

Contrary to the government's position in this

appeal, there is no dichotomy between commercial

work and Christian religious exercise. To the

contrary, Christianity teaches the exact opposite:

that the holistic nature of the Christian faith

encompasses a believer's vocation, imbuing it with

spiritual significance. To assert that a Christian can

compartmentalize his faith and religious practices

separately from his vocation is a _ gross

11

misapprehension of the guiding religious principles

at issue in this case. As explained below, the

Christian doctrine of vocation teaches that any

occupation to which a Christian is called has a sacred

dimension and is a venue on which Christians must

conduct themselves in accordance with their

Christian beliefs and the dictates of their

consciences.

A. The Christian doctrine of vocation

teaches that all work is _ spiritual

activity.

Christianity has long taught that work is divinely

ordained and that even seemingly commercial

endeavors have spiritual significance. The apostle

Paul—the most prolific writer of the Christian New

Testament—exhorted early Christians to engage in

seemingly secular work because of its concomitant

spiritual dimension. See, e.g., Ephesians 4:28 (stating

Christians “must labor, doing honest work with his

own hands, so that he may have something to share

with anyone in need”); Colossians 3:23-24 (exhorting

Christians in ostensibly secular employment to work

diligently “as for the Lord”); see also Korte, 735 F.3d

at 681 (“There is nothing inherently incompatible

between religious exercise and profit-seeking.”).

These scriptural commands are reflected in

longstanding Christian practice and doctrines, most

notably the doctrine of vocation. Ordinary human

work is a key theological topic from the beginning of

Scripture:

A biblical understanding of work

reaches back to the very beginning of

the world. As we look at the doctrine

of creation, we find human work

12

placed into a context of God’s work, of

human creation in the image of God,

of God’s command for people to work

as part of his provision for human life,

and human cooperation with God in

work.

Leland Ryken, Work and Leisure in Christian

Perspective 128 (1987). Several theological truths

shape the foundation of the Christian understanding

of vocation. First, God is a worker. He is a creative

craftsman, setting out the heavens and the earth and

forming mankind from the dust. Genesis 1:1, 2:7

(noting that “God created the heavens and the earth”

and that “God formed the man from the dust of the

ground”). Similarly, Jesus Christ himself, during his

time on earth, labored as a carpenter. See Mark 6:3.

God’s creative work has doctrinal implications for

human work: “The Christian doctrine of creation at

once renders impossible any dichotomy between the

earthly and the sacred. The world has value to God

and therefore to his creatures who live and work in

it.” Ryken, Work and Leisure at 122.

Second, Christian doctrine teaches that human

beings are created in God’s image. See Genesis 1:27

(“So God created man in his own image, in the image

of God he created him.”). Accordingly, humans work

because God is a worker, and their work is modeled

on His. In Christian theology, then, work is never a

purely financial transaction, but something rooted in

the very nature of the human person. See Dorothy

Sayers, Creed or Chaos? Why Christians Must Choose

Either Dogma or Disaster (Or, Why It Really Does

Matter What You Believe) 89 (1949) (“[M]an, made in

God’s image, should make things, as God makes

13

them, for the sake of doing well a thing that is well

worth doing.”); Timothy Keller, Every Good

Endeavor: Connecting Your Work to God’s Work 38

(2013) (“What is the Christian understanding of

work? ... [It] is that work is not, primarily, a thing

one does to live, but the thing one lives to do. It is...

the medium in which he offers himself to God.”).

Third, work is divinely ordained and prescribed

by God. In what theologians call “the creation

mandate,” the Biblical account of creation recounts

that in God’s first spoken words to His newly created

image bearers, He tasked them with tending and

stewarding the earth. See Genesis 1:28 (“And God

blessed them. And God said to them, ‘Be fruitful and

multiply and fill the earth and subdue it, and have

dominion over the fish of the sea and over the birds

of the heavens and over every living thing that

moves on the earth.”). The immediacy of this charge

indicates the fundamental nature of work in

mankind’s raison détre. The “link between work and

God’s creation of the world confirms that work has

the character of a natural law. Like gravity, it is

simply one of the ‘givens’ of the world God created.”

Ryken, Work and Leisure at 124.

B. The Christian theology of vocation

encompasses both overtly sacred and

seemingly secular occupations.

The foundational principles of the spirituality of

work apply to the clergy and laity alike, and the

Christian doctrine of vocation makes no distinction

between “sacred” and “secular” occupations. A

particular calling is no less religious because the

worker is paid or because the work is ordinary or

mundane:

14

[N]o one should be ashamed of being

called to a vocation through which God

blesses people in more tangible ways:

waiting on tables, digging foundations,

hauling away garbage. Nor should

those of us who are blessed by God

through these vocations look down

upon them. As for those who work

with their hands—on a shop floor on a

factory line, on a construction site—

they are especially honored in the

Bible, in a text that says much about

vocation, ambition, and the Christian’s

life in tke world: “Aspire to live

quietly, and to mind your own affairs,

and to work with your hands, as we

instructed you, so that you may live

properly before outsiders and be

dependent on no one (1 Thessalonians

4:11-12).

Gene Edward Veith, Jr., God at Work: Your

Christian Vocation in All of Life 74 (2002). Indeed,

the word “vocation”’—a term often used merely to

mean an occupation—is weighty with spiritual

meaning. See Webster’s Third New Int. Dictionary

2561 (2002) (defining “vocation” as “a summons from

God to an individual or group to undertake the

obligations and perform the duties of a particular

task or function in life”); The Compact Oxford

English Dictionary 723 (2002) (defining “vocation” as

“(t]he action on the part of God of calling a person to

exercise some special function, especially of a

spiritual nature, or to fill a certain position” and

noting its Latin root vocare, meaning “to call” or

15

“summon”); see also William Perkins, A Treatise of

the Vocations 750 (1631) (“A vocation or calling is a

certain kind of life, ordained and imposed on man by

God for the common good.”).

The inseparability of sacred and secular work is

particularly relevant to the 82 million Americans

who identify themselves as Protestant or as members

of a Protestant denomination. See U.S. Census

Bureau, 2012 Statistical Abstract, American

Religious Identification Survey 2008: Self-Described

Religious Identification of Adult Population,

available at http://www.census.gov/compendia/statab

/cats/population/religion.htm] (last visited January

22, 2014); see also The Pew Forum on Religion &

Public Life, U.S. Religious Landscape Survey 5

(2008) (noting that 26% of American adult population

identifies as Evangelical Protestant, 18% identify as

mainline Protestant, and seven percent identify as

members of a historically black Protestant church),

available at http://religions.pewforum.org/pdf/report-

religious-landscape-study-full.pdf (last visited

January 23, 2014).

Historically, the Protestant Reformation of the

16th and 17th centuries brought about a revitalized

view of vocation, wherein all work done in faith by

God’s people was sacred, whether accomplished in

the church and monastery or in the fields and

courthouse. See Veith, God at Work 19; Ryken, Work

and Leisure at 68-69 (noting the Reformers “began by

rejecting the medieval division of work into sacred

and secular” and that “[t]he result of this was to

make all work done for God’s glory sacred”); Douglas

J. Schuurman, Vocation: Discerning Our Callings in

Life 5 (2004) (“As Luther saw it, the labors of the

cobbler and the preacher are equally holy and

16

equally valued by God if undertaken in faith. [Bjoth

reformers insisted that all legitimate social roles

were holy if undertaken in faith.”).

Subsequent generations of Protestant theologians

likewise emphasized the spiritual significance of

“secular” work. For example, the influential

American Puritan minister Cotton Mather wrote:

“When you Handle the Plough, or Handle the Axe, or

use either Nerves or Brains in your Occupation, and

whatsoever ye do, you may do all for the Lord Jesus

Christ.” Mather, Two brief Discourses 69. Similarly,

according to the Puritan clergyman William Law,

[Wlorldly business is to be made holy

unto the Lord, by being done as a

service to Him, and in conformity to

His Divine will.

s° & @

Men of worldly business, therefore,

must not look upon themselves as at

liberty to live to themselves, to

sacrifice to their own humors and

tempers, because their employment is

of a worldly nature. But they must

consider, that, as the world and all

worldly professions as truly belong to

God, as persons and things that are

devoted to the altar, so it is as much

the duty of men in worldly business to

live wholly unto God, as it is the duty

of those who are devoted to Divine

service.

17

Men may, and must differ in their

employments, but yet they must all

act for the same ends, as dutiful

servants of God, in the right and pious

performance of their several callings.

Clergymen must live wholly unto God

in one particular way .... But men of

other employments are, in their

particular ways, as much obliged to

act as the servants of God, and live

wholly unto Him in their several

callings.

William Law, A Serious Call to a Devout and Holy

Life 20 (1728); see also Hosanna-Tabor, 132 S. Ct. at

709 (rejecting the supposed dichotomy between

religious and secular duties and noting that “(t]he

heads of congregations themselves often have a mix

of duties, including secular ones”). In sum, as a

matter of longstanding and widely recognized

Protestant Christian doctrine, all work—whether

overtly sacred or seemingly secular—is spiritual

activity ordained by God, and every believer's

vocation is a spiritual calling.

C. The Christian doctrine of vocation

teaches that Christians are called by

God to specific occupations and

activities.

In addition to the Christian belief that ostensibly

secular work is divinely ordained and weighted with

spiritual significance, the doctrine of vocation

teaches that Christians are called by God not merely

to work generally but to specific occupations and

activities. See, e.g., 1 Corinthians 7:17 (“Only let each

person lead the life that the Lord has assigned to

18

him, and to which God has called him. This is my

rule in all the churches.”); Esther 4:14 (noting that

Esther’s unexpected elevation to Persian nobility was

a providential appointment to a station in which she

should serve God and others through her unswerving

devotion to God and his calling). Indeed, “vocation” is

defined in part as “[t]he particular function or

station to which a person is called by God.” The

compact Oxford English Dictionary (emphasis

added); see also Webster’s Third New Int. Dictionary

2561 (2002) (defining “vocation” as “a summons from

God to an individual or group to undertake the

obligations and perform the duties of a particular

task or function in life”) (emphasis added).

This specificity of calling was a theme of the

Protestant reformers. Martin Luther taught that

every Christian had at least two vocations or

callings: “the call to become part of the people of God”

and “the call to a particular line of work.” William C.

Placher, ed., Callings: Twenty Centuries of Wisdom

on Vocation 206 (2005). Similarly, John Calvin wrote

that “each individual has his own kind of living

assigned to him by the Lord as a sort of sentry post

so that he may not heedlessly wander about

throughout life.” John Calvin, Institutes of the

Christian Religion 3.X.6 (1559) (John T. McNeill ed.,

Ford Lewis Battles trans., 1960).

Like the Reformers, subsequent generations and

Protestant denominations continued to recognize the

specificity of one’s divine occupational calling. For

example, the Puritan theologian William Perkins

taught that the call of God is often a call to a

particular type of ordinary work:

19

A personal calling is the execution of

some particular office, arising of that

distinction which God makes between

man and man in every society. First I

say, it is the execution of some

particular office, as, for example, the

calling of a Magistrate is to execute

the office of government over his

subjects, the office of a Minister is to

execute the duty of teaching his

people, the calling of a Master is to

execute the office of authority and

government over his servants, the

office of a Physician is to put in

practice the good means whereby life

and health are preserved. In a word,

in every estate the practice and

execution of that particular office,

wherein any man is placed, is his

personal calling.

Perkins, A Treatise of the Vocations at 754 (emphasis

in original); see also Mather, Two brief Discourses 37-

38 (“[E]very Christian hath also a Personal Calling;

or a certain Particular Employment, by which his

Usefulness in his Neighbourhood is distinguished

.... It is not only necessary, That a Christian should

follow his General Calling, it is of necessity, that he

follow his Personal Calling too.”).

Contemporary theologians continue to recognize

the specificity of one’s vocational field: “We can

therefore properly say as a matter of secondary

calling that we are called to homemaking or to the

practice of law or to art history.” Os Guinness, The

Call: Finding and Fulfilling the Central purpose of

20

Your Life 31 (1998). The twentieth-century Quaker

theologian Elton Trueblood, who served as chaplain

to both Harvard and Stanford universities, noted

that this specificity of calling means that “[mJost

men ought to stay where they are and make their

Christian witness in ordinary work rather than

beyond it.” Elton Trueblood, Your Other Vocation 58

(1952).

This specificity of calling magnifies the dilemma

faced by a Christian business owner, who is forced to

choose between violating his conscience or leaving

his business. Because God calls men and women to

particular vocations and businesses, both of these

choices are aptly characterized as violations of

conscience. In the absence of accommodation of his

religious belief, his choice is not whether to violate

God’s calling and commands, but how he will violate

them.

D. The Christian doctrine of vocation

requires that Christians act in their

vocations in accordance with their

Christian beliefs.

Christian doctrine teaches that a central task of

the Christian is to fulfill his vocational work as

spiritual service to God and for the aid of his fellow

man. Whether he is an unskilled laborer, a highly

educated professional, an executive, or a business

owner, a Christian is called to work, and he violates

the fundamental tenets of the faith if he checks his

faith at the workplace door. The doctrine of vocation

is a key element of the Christian’s duty to life in the

world, because it gives specific content to the manner

in which Christian believers love their neighbors, as

commanded by Jesus. See, e.g., Mark 12:31 (“You

21

shali love your neighbor as yourself.”). In other

words, in Christian doctrine, the calling to ordinary

work is a primary means by which the people of God

love their neighbors.

There are important implications to this

theological requirement. The doctrine of vocation

teaches that God does His work in the world through

Christians loving and serving others through their

vocations. Gustaf Wingren, Luther on Vocation 8-9

(Carl Rasmussen, tr.) (1957) (“ ‘[God] gives the wool,

but not without our labor. If it is on the sheep, it

makes no garment.’ .. . [I]t must be sheared, carded,

spun, etc. In these vocations God’s creative work

moves on, coming to its destination only with the

neighbor who needs the clothing.”) (quoting 17 D.

Martin Luthers Werke: Kritische Gesamtausgabe 414-

18 (1883)).

Christianity, however, teaches that Christians

are incapable of performing these requisite “good

works” on their own. The Westminster Confession of

Faith, researched and drafted in the 1640s, and

which is among the foundational doctrinal

statements of many mainline American Protestant

denominations today, provides that “[g]ood works are

only such as God hath commanded in his holy Word,

and not such as, without the warrant thereof, are

devised by men, out of blind zeal, or upon any

pretense of good intention.” Westminster Confession

of Faith § 16.1 (1646). They “are the fruits and

evidences of a true and lively faith,” id. § 16.2, and

Christians’ “ability to do good works is not at all of

themselves, but wholly from the Spirit of Christ,” id.

§ 16.3.

Christians—including the owners of Hobby

Lobby, Mardel, and Conestoga Wood Specialties—

22

perceive a religious duty to work for the good of their

employees, the communities in which they are

located, and their families. See The Baptist Faith &

Message 2000, Article XV (“All Christians are under

obligation to seek to make the will of Christ supreme

in our own lives and in human society.), available at

http://www.sbe.net/bfm/bfm2000.asp (last visited

January 22, 2014).

Christian doctrine has long taught that

Christians of every occupation must practice their

business in accordance with their general calling to

be Christian:

Every particular calling must be

practiced in and with the general

calling of a Christian. It is not

sufficient for a man in_ the

congregation and in common

conversation to be a Christian, but in

his very personal calling he must show

himself to be so. As for example .. . [a]

Schoolmaster must not only be a

Christian in the assembly, when he

hears the Word and receives he

Sacraments, but he must also show

himself to be a Christian in the office

of his teaching. And thus must every

man behave himself in his particular

calling.

Perkins, A Treatise of the Vocations at 756-57.

Furthermore, because a Christian’s occupational

endeavors are a fulfillment of God’s call, those acts

must be in conformity with His commands, and a

23

Christian must abstain from any action in his work

contrary to his faith:

If the duties and obligations of these

spheres serve the neighbor, they

should be fulfilled “as to the

Lord” .... If the duties and obligation

of these spheres harm the neighbor,

they should be rejected for the sake of

the Lord, who died for all. Those

spheres should be transformed, if at

all possible, so that they issue in

actions that serve the neighbor. One is

not called to be a Christian “in

general”; one is called to be a

Christian in the concrete social

locations one presently occupies.

Schuurman, Vocation at 29; see also Mennonite

Church USA Confession of Faith, Art. 23, The

Church’s Relation to Government and Society (“We

may participate in... society only in ways that do

not violate the love and holiness taught by Christ

and do not compromise our loyalty to Christ.”),

available at http://www.mennoniteusa.org/about/

confession-of-faith-in-a-mennonite-perspective-1995/

article-23-government/ (last visited January 19,

2014).

In sum, according to Christian thinking,

Christians—including the owners of for-profit

businesses—are called by God to work in particular

occupations and businesses and to do so as an

expression of their faith and in accordance with the

dictates of their faith and conscience.

24

Ili. Christian doctrine states it is a sin for a

Christian to enable or aid another in doing

what the Christian believes to be sin.

Christian doctrine, like the civil and criminal law

of this nation, teaches that one who knowingly aids

or abets another's wrongdoing has himself done

wrong. See, eg., 1 Corinthians 8:9-13 (warning

Christians to take care not to be a “stumbling block”

to others and noting that “sinning against your

brothers and wounding their conscious when it is

weak, you sin against Christ”); Romans 14:13-14

(“Therefore let us not pass judgment on one another

any longer, but rather decide never to put a

stumbling block or hindrance in the way of a brother”

and thus cause them to sin); Matthew 18:6

(“[W]hoever causes one of these little ones who

believe in me to sin, it would be better for him to

have a great millstone fastened around his neck and

to be drowned in the depth of the sea.”); The Larger

Catechism of the Westminster Assembly 245 (1841)

(“That what is forbidden or commanded to ourselves,

we are bound, according to our places, to endeavour

that it may be avoided or performed by others.”); see

also Gilardi v. U.S. Dept. of Health and Human

Servcs., 733 F.3d 1208, 1215 (D.C. Cir. 2013) (noting

that “even attenuated participation may be

construed as a sin”) (citation omitted).

This principle applies with particular force to

situations in which a Christian’s action or inaction

involves the taking of life. See, eg., The Large

Catechism by Martin Luther (1529), reprinted in

Triglot Concordia: The Symbolical Books of the Ev.

Lutheran Church (1921) (“So also, if you see any one

innocently sentenced to death or in like distress, and

do not save him, although you know ways and means

25

to do so, you have killed him.”); Thomas Vincent, An

Explanation of the Assembly's Shorter Catechism

171-72 (1806) (“We are forbidden to kill .. . others,

either directly . . . or indirectly, by doing any thing

that tendeth thereunto. ... We may be guilty of the

murder of ... others, indirectly, by doing any thing

that tendeth to take away .. . others lives.”).

Courts and legislatures have long recognized that

one’s sincere religious beliefs may prevent him from

approving, authorizing, or aiding another in

something the believer considers to be wrong, even if

the believer is not himself committing the underlying

wrong. For example, Congress exempts religious

conscientious objectors not only from combat roles

but from participation “in any form” in war. 50

U.S.C. App. § 456G); Hanna v. Secretary of the Army,

513 F.3d 4 (is “ir. 2008) (upholding permanent

injunction exe apving Coptic Christian physician

from active duty because she could not perform her

chosen profession in the military context without

violating her deeply held religious beliefs). Also,

physicians and hospitals with a religious objection to

abortion are exempt not only from performing

abortion but also from assisting, making facilities

available, or even making referrals for abortion. 42

U.S.C. § 300a-7; 42 U.S.C. § 238n. Similarly, “eleven

states and the federal government have adopted

some type of statute or regulation to ensure that

individuals are not forced to participate in executions

against their will.” Mark L. Rienzi, The

Constitutional Right Not to Kill, 62 Emory L.J. 121,

139 (2012).

The courts, like the legislatures, have recognized

that one’s religious belief may prevent him from any

attenuated authorization or complicity in conduct he

26

considers to be wrong. See, e.g., Thomas v. Anchorage

Human Rights Comm'n, 165 F.3d 692 (9th Cir. 1999)

(recognizing a Christian landlord’s sincere religious

belief that unmarried cohabitation was sin merited

exemption from state and local housing laws),

vacated en banc as not ripe for judicial review, 220

F.3d 1134 (9th Cir. 2000); Attorney Gen. v. Desilets,

636 N.E.2d 233 (Mass. 1994) (same); State by Cooper

v. French, 460 N.W.2d 2, 7 (Minn. 1990) (same).

The statutory and judicial religious exemptions

enumerated above are notable for several reasons.

First, none of them make the applicability of the

exemption dependent on the religious believer's tax

status, i.e, whether the religiously motivated

conduct involves commercial or non-profit activities.

See, e.g., Desilets, 636 N.E.2d at 238 (“The fact that

the defendants’ free exercise of religion claim arises

in a commercial context .. . does not mean that their

constitutional rights are not substantially

burdened.”). Second, they recognize that religious

belief not only prevents the believer from engaging

directly in sin but also prevent any participation,

authorization, or enabling of what he considers to be

sin. See Rienzi, 62 Emory L.J. at 139 (noting that

statutory exemptions from participating in capital

punishment “protect the individual nut only from

direct involvement—such as personally

administering a lethal injection or turning on the

electric chair—but also less direct involvement such

as preparing the individual and apparatus used,

supervising other people who will do these things, or

even attending the execution.”) (citation omitted).

Finally, many of these exemptions involve situations

involving the taking of human life, recognizing that

to compel an individual to participate in what he

27

believes to be an unjustified taking of life imposes a

grievous burden on his exercise of his beliefs.

IV. Requiring a Christian to choose between

violating the Government’s regulations or

violating his sincerely held religious beliefs

substantially burdens his exercise of

religion.

The Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb et seq., prohibits the

federal government from substantially burdening “a

person’s exercise of religion,” id. at § 2000bb-1(a),

unless applying that burden is the “least restrictive

means of furthering . . . [a] compelling governmental

interest,” id. at § 2000bb-1(b). In enacting RFRA,

Congress sought to restore the compelling interest

test for defenses to claims that a facially neutral law

of general applicability “substantially burdens” the

free exercise of religion—a test that had been

abandoned by the Supreme Court in Employment

Division, Department of Human Resources v. Smith,

494 U.S. 872 (1990). See 42 U.S.C. § 2000bb(b)(1)

(“The purposes of this chapter are: (1) 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.”) (emphasis added). Thus,

RFRA creates a statutory right to exemption from

laws that substantially burden sincere religious

beliefs, even if the law is neutral and generally

applicable, unless the government can prove that

“strict scrutiny” is met. O’Bryan v. Bureau of Prisons,

349 F.3d 399, 401 (7th Cir. 2003).

28

The existence of a substantial burden is most

apparent when the government forces a person or

group to “perform acts undeniably at odds with

fundamental tenets of their religious beliefs.”

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (finding

that compulsory formal secondary education was an

undue burden on the free exercise of Amish parents’

religion). Further, a substantial burden can arise

indirectly if the receipt of benefits is conditioned on

the performance of conduct proscribed by a religious

faith, or benefits are denied because of conduct

required by a religious faith. Thomas v. Review Bd.

of Indiana Employment Sec. Div., 450 U.S. 707, 717-

18 (1981) (determining that a denial of

unemployment benefits to an employee who had a

religious objection to war was a burden on his

religion).

As a threshold matter, the religious objection or

conduct at issue must be both sincere and religious.

See United States v. Seeger, 380 U.S. 163, 184-86

(1965) (holding an objection to military conscription

must be protected only if it arises from sincerely held

religious beliefs rather than persone] morals). The

religious belief is not, however, required to be central

to the person’s faith, 42 U.S.C. § 2000cc-5(7)(A), nor

is it required to be a correct interpretation. See

United States v. Lee, 455 U.S. 252, 257 (1982)

(‘Courts are not’ arbiters oof scriptural

interpretation.”); but see Hernandez v. C.I.R., 490

U.S. 680, 699 (1989) (finding that “hav[ing] less

money available” for religious purposes due to an

exemption from tax breaks is not a substantial

burden on religion). Instead, a party must only show

an “honest conviction” that the pressure from the

government substantially conflicts with his religion.

29

Thomas, 450 U.S. at 716. Rather than questioning

the validity of the belief, the court undertaking the

substantial burden analysis under RFRA should

focus on the intensity of the coercion applied by the

government, requiring that the restrictive law

protect “interests of the highest order.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 546 (1993).

Christian doctrine requires a Christian worker or

business owner to conduct his business in line with

his beliefs. See Part II.D, supra. Furthermore, under

the doctrine of vocation, a Christian should not be

required to find a new job or change his business—to

which he has been specifically called by God—solely

because of governmental intrusion. See Part II.C,

supra; see also The Baptist Faith & Message 2000,

Article XVII (“Civil government being ordained by

God, it is the duty of Christians to render loyal

obedience thereto in all things not contrary to the

revealed will of God. . . . The state has no right to

impose penalties for religious opinions of any kind.”),

available at http:/Awww.sbc.net/bfm/bfm2000.asp

(last visited January 23, 2014). To force a Christian

business owner to choose between paying crippling

fines by conducting his business in line with his

religious tenets or sacrificing his core values in order

to preserve his business is exactly the type of

coercion the substantial burden test encompasses.

This Court has previously recognized that

sincerely-held religious beliefs subject to government

pressure at the workplace can result in a substantial

burden on religion. See Thomas, 450 U.S. at 716

(finding a substantial burden existed when an

employee, who had a religious belief against

producing war materials, was denied unemployment

30

benefits after quitting because of a transfer to a tank

turret production factory); Sherbert v. Verner, 374

U.S. 398, 404 (1963) (holding that denial of

unemployment benefits placed a substantial burden

on a Seventh-day Adventist who quit her job after

being forced to work on a Saturday).

Significantly, in the Affordable Care Act (“ACA”),

Congress has recognized this substantial burden by

establishing exemptions for other religious groups

cornered into making this choice. See 45 C.F.R.

§ 147.131 (2013) (allowing HRSA to exempt religious

employers from requirement to cover contraceptive

services under group health plan); see generally 78

Fed. Reg. 39870 (July 2, 2013) (“[G]roup health plans

established or maintained by certain religious

employers (and group health insurance coverage

provided in connection with such plans) are exempt

from the otherwise applicable requirement to cover

certain contraceptive services”). The inherent

discrimination involved in the Government's

recognition of exempt groups only compounds the

burdensome nature of the fines imposed by the

Government's regulations on non-exempt groups that

share exactly the same religious views. See Sherbert,

374 U.S. at 406 (recognizing that a prohibition

against requiring employees to work on Sunday

compounds the unconstitutionality of forcing a

Sabbatarian to work on Saturday).

In sum, the government’s regulations

substantially burden a Christian business owner’s

exercise of his religion by imposing draconian fines

on him as a result of his acts that are specifically

mandated by Christian doctrine.

31

CONCLUSION

For the reasons set forth above, amici respectfully

request this Court hold that RFRA allows a for-profit

corporation to abstain from providing its employees

with certain abortifacient contraceptives based on

the religious objections of the corporation’s owners.

January 28, 2014

Respectfully submitted,

Jay T. Thompson

Counsel of Record

Miles Coleman

Brandon Smith

NELSON MULLINS RILEY &

SCARBOROUGH, LLP

1320 Main Street

Columbia, SC 29201

jay.thompson@nelsonmullins.com

(803) 799-2000

Counsel for Amici Curiae

APPENDIX

List of Amici Curiae

la

List of Amici Curiae!

Southeastern Baptist Theological Seminary

Coalition of African American Pastors

Manhattan Declaration

InStep International

Daniel Akin, Ph.D.

President, Southeastern Baptist Theological

Seminary

Bruce Ashford, Ph.D.

Provost and Dean of Faculty, Associate

Professor of Theology and Culture,

Southeastern Baptist Theological Seminary

E. Calvin Beisner, Ph.D.

Founder and National Spokesman, The

Cornwall Alliance for the Stewardship of

Creation

John A. Bloom, Ph.D.

Professor of Physics and Academic Director for

M.A. Program for Science and Religion, Biola

University

Linwood Bragan, J.D.

Executive Director,CapStand Council for

Policy and Ethics

1 Identification of organizations, institutions, and businesses

with which individual amici curiae are affiliated does not imply

endorsement by the respective organizations, institutions, and

businesses.

Za

Chad O. Brand, Ph.D.

Professor of Christian Theology, Southern

Baptist Theological Seminary

Donald Arthur “D.A.” Carson, Ph.D.

Research Professor of New Testament, Trinity

Evangelical Divinity School

David O. Dykes, D.Min.

Senior Pastor, Green Acres Baptist Church

Tyler, Texas

Matthew Flannagan, Ph.D.

Teaching Pastor, Takanini Community

Church,

Auckland, New Zealand

Norman L. Geisler, Ph.D.

Professor of Apologetics and Co-Founder of

Southern Evangelical Seminary and Veritas

Evangelical Seminary

Rev. Trevon Gross

Senior Pastor, Hope Cathedral

Jackson, New Jersey

Wayne A. Grudem, Ph.D.

Research Professor of Theology and Biblical

Studies, Phoenix Seminary

Danny Han, D.Min.

Senior Pastor, JOY Christian Fellowship

Englewood, New Jersey

Daniel R. Heimbach, Ph.D.

Senior Professor of Christian Ethics,

Southeastern Baptist Theological Seminary

3a

Joseph M. Holden, Ph.D.

President and Professor of Theology and

Apologetics, Veritas Evangelical Seminary

Hershel Wayne House, Th.D., J.D.

Distinguished Research Professor of Theology

Law and Culture, Faith Evangelical College

and Seminary

Bishop Harry R. Jackson, Jr.

Senior Pastor, Hope Christian Church and

Presiding Bishop of International Communion

of Evangelical Churches

Clay Jones, D.Min.

Associate Professor of Christian Apologetics,

Biola University

David W. Jones, Ph.D.

Associate Professor of Christian Ethics and

Director of Th.M. Studies, Southeastern

Baptist Theological Seminary

Kenneth D. Keathley, Ph.D.

Professor of Theology and Director of the L.

Russ Bush Center for Faith & Culture,

Southeastern Baptist Theological Seminary

Kevin A. Lewis, M.Div., J.D.

Associate Professor of Theology and Law,

Biola University

Rev. Art Lindsley, Ph.D.

Vice President of Theological Initiatives,

Institute for Faith, Work and Economics

4a

Scott Matscherz, D.Min.

Academic Dean and Professor of Ministry and

Religion, Veritas Evangelical Seminary

Alex McFarland, D.Div.

Director for Christian Worldview and

Apologetics, Christian Worldview Center of

North Greenville University

Eric Metaxas

American Author and 2012 Keynote Speaker

for National Prayer Breakfast

Terry Mortenson, Ph.D.

Speaker, Writer, and Researcher, Answers in

Genesis

Andrew D. Naselli, Ph.D.

Assistant Professor of New Testament and

Biblical Theology, Bethlehem College and

Seminary

J. Randall Price, Ph.D.

Executive Director, Center for Judaic Studies

and Distinguished Research Professor, Liberty

University

Scott B. Rae, Ph.D.

Professor of Philosophy of Religion and Ethics

and Dean of Faculty, Talbot School of

Theology, Biola University

Rick Schenker

President and CEO, Ratio Christi

Rev. Gregory S. Smith

President, [InStep International

5a

John Stonestreet

Speaker and Fellow, Chuck Colson Center for

Christian Worldview

Derek W.H. Thomas, Ph.D.

Professor of Systematic and Historical

Theology. Reformed Theological Seminary

Senior Pastor, First Presbyterian Church

Columbia, South Carolina

Frank Turek, D.Min.

Author and Theologian

Eric Teetsel

Executive Director, Manhattan Declaration

Richard D. Warren, D.Min.

Founder and Senior Pastor, Saddleback

Church

Lake Forest, California

Hugh C. Whelchel, Th.M.

Executive Director, Institute for Faith, Work

and Economics

Ravi Zacharias, D.Div.

Founder, Ravi Zacharias International

Ministries