Amicus Curiae Brief — Zubik v. Burwell, 136 S. Ct. 444 (2015) (No. 14-1418)

Nos. 14-1418, 14-1453, 14-1505,

15-35, 15-105, 15-119 & 15-191

IN THE

Supreme Court of the Anited States

DAVID A. ZUBIK, ET. AL.,

Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET. AL.,

Respondents.

On Writ of Certiorari to

the United States Courts of Appeals

for the Third, Fifth, Tenth, and D.C. Circuits

BRIEF OF THE ANTI-DEFAMATION LEAGUE,

ET. AL., AS AMICI CURIAE SUPPORTING

RESPONDENTS

STEVEN M. FREEMAN DEREK L. SHAFFER

DAVID L. BARKEY Counsel of Record

MICHAEL LIEBERMAN VICTORIA F. MAROULIS

DEF CAROLYN HOMER THOMAS

ANTI-DEFAMATION LEAGUE QUINN EMANUEL URQUHART &

605 Third Avenue, 10% FI. SULLIVAN, LLP

New York, N.Y. 10158 777 6th Street NW, 11% FI.

(212) 885-7700 Washington, D.C. 20001

(202) 538-8000

derekshaffer@quinnemanuel.com

February 17, 2016 Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ................c22ccccess0000 1

SUMMARY OF ARGUMENT. ..........0.............ccccceeeeeees 6

ETE SET PE nev neae oReTee Tae NT 7

I. DEMONSTRATION OF A

SINCERELY-HELD RELIGIOUS

BELIEF IS INSUFFICIENT TO

PROVE A SUBSTANTIAL BURDEN

ON RELIGIOUS EXERCISE........................... 7

A. Religious Sincerity Is A

Threshold Inquiry Into A

Claimant’s Subjective State Of

Sit iciesinseisinsiseiindiiteiiataaitaaadinicettiaheaiemamenamunines 7

B. Finding A Substantial Burden On

Religious Exercise Requires An

Objective Inquiry Detached From

EE ne aaa 10

C. Conflating Sincerity With

Substantial Burden Threatens

TERT eR ll

Il.

lu

OBJECTIVE INQUIRY INTO

WHETHER GOVERNMENT ACTION

SUBSTANTIALLY BURDENS

RELIGIOUS EXERCISE ASSESSES

THE EFFECTS OF THE

CHALLENGED ACTION ON BOTH

ADHERENTS AND THIRD PARTIES.......

A. Objective Assessments Of

Substantiality Inform Other

Areas Of First Amendment Law......

B. Courts Have Already Developed

Objective Factors To Consider In

Assessing Substantiality ..................

C. Constitutionally Valid

Assessments Of Substantial

Burdens Must Account For

Effects On Third Parties......................

D. Objective Analysis Of Substantial

Burdens Best Promotes Religious

T E OF

Page

Cases

Bowen v. Roy,

4 eee 10, 11

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014)... cece cceeeeeee 10, 20

Cutter v. Wilkinson,

I iil 8, 21

DaimlerChrysler Corp. v. Cuno,

| AT 13

Davis v. Fed. Election Comm'n,

I i 15

Employment Div. v. Smith,

Ge Fe CD cccccccecessccesecsccccccoes 10, 12, 14, 24

Estate of Thornton v. Caldor,

TT RE 21

Frazee v. Illinois Dep’t of Employment Sec.,

i cuhinscennesand 9

Goldberg v. Kelly,

gE ae en el 14

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal,

546 U.S. 418 (]O06).............0iccccccccccscccccscees 9, 11, 19

Griswold v. Connecticut,

381 U.S. 479 (1965) .......................cccccccccsssccccessvees 24

Hoffman v. United States,

I 13

lv

Holt v. Hobbs,

136 S. Ct. 863 (2015).............................. 7, 8, 11, 22

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. E.E.O.C.,

132 S. Ct. 694 SEES er cea 17, 18

John Doe No. 1 v. Reed,

561 U.S. 186 (2010).................c..eecceees 15, 17, 18, 20

Lujan v. Defs. of Wildlife,

| A ane an ee 23

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

485 U.S. 439 (1988)...................cceceeees 10, 11, 19, 25

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th ET TTT 19

Mitchell v. Helms,

a cae 14

N.L.R.B. v. Catholic Bishop of Chicago,

Ne Ace cccncrerniisititaticaecicnsinnnds 14

Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058 (9th Cir. 2008)...0.......... ccc ccc cece eee 19

Patrick v. LeFevre,

745 F.2d 153 (2nd Cir. 1984) .................cccccecceeseeees 8

Priests for Life v. U.S. Dept. of Health and Human

Services,

772 F.3d 229 (D.C. Cir. 2014) ...........ccccccccessccceeces 23

Roman Catholic Bishop of Springfield v. City of

Springfield,

724 i yg | 4 orn 18, 19

— v. Review Bd. of Indian Employment Sec.

v

450 U.S. 707 Sap ITaIElE iisiiecibaiiinsannsindniclpuiaininnivieisaiieiiiiia 8, 24

v

Trans World Airlines v. Hardison,

i ccsieaieiiaiel 22

United States v. Quaintance,

608 F.3d 717 (10th Cir. 2010)....... el la 8

United States v. Seeger,

Ca eRe ae an 8

United States v. Williams,

a 16, 17

Univ. of Notre Dame v. Burwell,

786 F.3d 606 (7th Cir. 2015).............0000000..00.. 19, 23

Walz v. Tax Commission of City of New York,

gS A CTT 25

Wisconsin v. Yoder,

NEE a ee 18

World Outreach Conference Ctr. v. City of Chicago,

591 F.3d 531 (7th Cir. 2009)..............0.0....000. 11, 18

Zelman v. Simmons-Harris,

ee 22, 23

Statutes

I i ica tatiaedtaencaaiaaiaataeiiaehits 13

SERRE sere noe eer nme Seen ners 13

i 13, 18

Ee ee ee 13

al eae 12

DR etal 10

ae ee ae I terenisicmnntesevnntinimnecninmiensiin 1,7

42 U.S.C. § 2000DD-4 ...........c.cce--ccecccscceceececcscessecceeees 22

45 C.F.R. 147.131(C)(1) ..cccceccscessesecsecsesecseseeseesesneeeesee 21

139 Cong. Rec. S14352 .......cccccccscssessesessecessesesseeecseeees 12

Other Authorities

Frederick Mark Gedicks, Substantial Burdens, (J.

Reuben Clark Law School, Brigham Young

University, Working Paper No. 15-18 (2015)......22

Kara Lowentheil, When Free Exercise is a Burden:

Protecting “Third Parties” in Religious

Accommodation Law,

62 Drake. LR. 433 (BO14)..........cccccccccscccccscccceceees 12

1

BRIEF OF THE ANTI-DEFAMATION LEAGUE,

ET. AL., AS AMICI CURIAE SUPPORTING

RESPONDENTS AND URGING AFFIRMANCE

INTERESTS OF AMICI CURIAE

The religious and civil liberties organizations

joining this brief represent a diversity of theologies and

worldviews. Although their beliefs and missions vary,

Amici are united in supporting robust religious

freedom for all, including for individuals whose

personal actions may not align with their employers’

beliefs. !

The Anti-Defamation League (“ADL”) was

organized in 1913 with a dual mission to stop the

defamation 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,

discrimination, 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

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

as a means to protect individual religious exercise, but

not as a vehicle to enable some Americans to impose

their religious beliefs on others.

1 Pursuant to this Court’s Rule 37.6, Amici Curiae state that

no counsel for any party authored this brief in whole or in part

and no entity or person, aside from Amici and their counsel, made

any monetary contribution toward the preparation or submission

of this brief. Pursuant to this Court’s Rule 37.3(a), Amici note

that all parties have filed letters with the Clerk of Court reflecting

their blanket consent to the filing of amicus briefs.

2

Bend the Arc: A Jewish Partnership for

Justice (“Bend the Arc”) is the nation’s leading

progressive Jewish voice empowering Jewish

Americans to be advocates 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 civic engagement, and robust

progressive advocacy.

The Hindu American Foundation (“HAF”) is an

advocacy organization for the Hindu American

community. HAF seeks to cultivate leaders and

empower future generations of Hindu Americans. The

Foundation educates the public about Hinduism,

speaks out about issues affecting Hindus worldwide,

and builds bridges with institutions and individuals

whose work aligns with HAF’s objectives. Since its

inception, HAF has made legal advocacy one of its

main areas of focus. From issues of religious

accommodation, religious discrimination, and hate

crimes to defending fundamental constitutional rights

of free exercise and the separation of church and state,

HAF informs the public and the courts about various

aspects of Hinduism and issues impacting the Hindu

American community.

Interfaith Alliance Foundation is a 501(c)(3)

nonprofit organization that celebrates religious

freedom by championing individual rights, promoting

policies to protect both religion and democracy,

and uniting diverse voices to challenge extremism.

Founded in 1994, Interfaith Alliance Foundation’s

members belong to 75 different faith traditions as well

as no faith tradition. Interfaith Alliance Foundation

has a long history of working to ensure that religious

freedom is a means of safeguarding the rights of all

3

Americans and is not misused to favor the rights of

some over others.

Founded in 1929, the Japanese American

Citizens League is the nation’s largest and oldest

Asian-American non-profit, non-partisan organization

committed to upholding the civil rights of Americans of

Japanese ancestry.

The Jewish Social Policy Action Network

(“JSPAN”) is a non-profit organization dedicated to

protecting the constitutional and civil rights of

minorities and the vulnerable as a reflection of the

Jewish commandment to engage in tikkun olam, the

“repair of the world.” JSPAN’s interest in this case

stems from the longstanding commitment of the

American Jewish community to ensure religious

pluralism and the free expression of religion by citizens

of diverse faiths. Deeply committed to protecting the

interests of all those who wish to express themselves

on matters of conscience, JSPAN recognizes that a

careful judicial balance needs to be struck so that

purely subjective claims of a substantial burden on

religious rights by one group do not impede others’

ability to enjoy their own rights under the law.

Keshet is a national grassroots organization that

works for the full equality and inclusion of lesbian, gay,

bisexual, and transgender (“LGBT”) Jews in Jewish

life. Led and supported by LGBT Jews and straight

allies, Keshet strives to cultivate the spirit and practice

of inclusion in all parts of the Jewish community.

Through training, community organizing, and resource

development, Keshet partners with clergy, educators,

and volunteers to equip them with the tools and

knowledge they need to be effective agents of change.

4

National Council of Jewish Women (“NCJW’) is

a grassroots organization of 90,000 volunteers 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 principles state that

religious liberty and the separation of religion and

state are constitutional tenets that must be protected

and preserved in order to maintain our democratic

society. NCJW also endorses and resolves to work for

comprehensive, confidential, and accessible family

planning and reproductive health services, regardless

of age or ability to pay.

The Organization of Chinese Americans

(“OCA”) was established in 1973 as an Asian Pacific

American civil rights organization. Through its over

100 chapters and affiliates, OCA continues to advocate

for equal protections and equitable application of the

law for all Asian Pacific Americans, including the

protection of civil liberties and religious freedom.

People For the American Way Foundation

(“PFAWF”) is a nonpartisan civic organization

established to promote and protect civil and

constitutional rights, including religious liberty.

Founded in 1981 by a group of civic, educational, and

religious leaders, PFAWF now has hundreds of

thousands of members nationwide. Over its history,

PFAWF has conducted extensive education, outreach,

litigation, and other activities to promote these values.

PFAWF strongly supports the principles of the

Religious Freedom Restoration Act and the Free

Exercise Clause as a shield for people of all faiths when

their free exercise is substantially burdened. Indeed,

PFAWF’s advocacy affiliate, People For the American

5

Way, was deeply involved in drafting and helping

secure the enactment of RFRA in order to restore by

statute the protection that the Free Exercise Clause

had previous provided. PFAWF is concerned, however,

about efforts to transform this important shield into a

sword to attack the rights of third parties.

Religious Coalition for Reproductive Choice

(“RCRC”) was founded in 1973 to bring the moral

power of religious communities to the reproductive

health, rights and justice movements. RCRC is a

national community of religious organizations and

faithful individuals dedicated to achieving reproductive

justice through education, organizing and advocacy.

RCRC seeks to elevate religious voices wherever faith,

policy and reproductive lives intersect.

Religious Institute is a multi-faith organization

advocating for sexuality education, reproductive

justice, and the full inclusion of women and LGBT

people in faith communities and society. The Religious

Institute calls-for a faith-based commitment to sexual

and reproductive rights, including widespread access to

safe family planning and reproductive health services.

The Religious Institute affirms the rights of all

individuals to apply or reject the principles of their

faith without legal restrictions and opposes any

attempt to make specific religious doctrine the law for

all Americans.

Women’s League for Conservative Judaism

(“WLCJ”) is the largest synagogue-based women's

organization in the world. As an active arm of the

Conservative/Masorti movement, WLCJ serves

hundreds of affiliated women’s groups in synagogues

across North America. WLCJ opposes any legislative

efforts to deny a woman’s right to meaningfully access

6

the full range of reproductive health services and fully

exercise her constitutionally protected reproductive

rights. WLCJ also opposes any effort that would

restrict funding of an institution or program which

provides health services including education, birth

control or abortion.

SUMMARY OF ARGUMENT

Congress enacted RFRA to provide a judicial

method for accommodation from federal laws which

impose substantial burdens on religious exercise.

While the Constitution defers to what a person’s beliefs

are, that same level of deference does not extend to

defining what a substantial burden is. The

Government may accept that persons sincerely believe

their religion is being violated without conceding that

the perceived violation is substantial. Substantial

burdens are not measured by the fervency of subjective

belief, but rather the significance of objective effect.

The relative burden on religious exercise is an

objective question of fact appropriate for courts to

decide. Evaluating the substantiality of a burden is

not a task unique to religion law. It has long been

undertaken in related—yet indisputably secular—First

Amendment contexts. This inquiry is not easily

reduced to bright-line rules. Rather, it calls for an

assessment of all relevant factors. These factors may

include the difficulty (in terms of, e.g., time and cost)

for the person to comply with the law absent an

accommodation, the success of prior government

actions to alleviate the burden, and the extent to which

the requested accommodation would affect the

religious person’s actions only, versus affecting the

independent actions and civil rights of third parties.

7

In these consolidated cases, the objective facts do

not support a substantial burden. The Government’s

opt-out procedures, including Employment Benefits

Security Administration (“EBSA”) Form 700, allow

organizations to self-certify that they have religious

objections to providing contraceptive insurance

coverage. The form requires an organization to write

in just four boxes, providing its name, authorized

agent’s name, contact information, and signature. The

form is itself an accommodation to alleviate religious

objections to directly providing contraceptive coverage.

Once an organization opts-out, both the provision of

insurance and any purchase or use of contraceptives is

ultimately undertaken by the independent actions of

third parties. Under these circumstances, submitting

EBSA Form 700 does not substantially burden

Petitioners’ religious exercise.

ARGUMENT

I. DEMONSTRATION OF A SINCERELY-

HELD RELIGIOUS BELIEF IS

INSUFFICIENT TO PROVE A

SUBSTANTIAL BURDEN ON RELIGIOUS

EXERCISE

A. Religious Sincerity Is A Threshold

Inquiry Into A Claimant’s Subjective

State Of Mind

To request an accommodation for religious exercise

under the Religious Freedom Restoration Act, a person

must first demonstrate that he or she holds a sincere

religious belief. See 42 U.S.C. § 2000bb-1(a).

Accommodation claims based on political or

philosophical beliefs do not qualify. See, e.g., Holt v.

Hobbs, 135 S. Ct. 853, 862 (2015); United States v.

Seeger, 380 U.S. 163, 165 (1965).

8

Sincerity calls for a factual determination regarding

an adherent’s subjective state of mind. When

investigating sincerity, the Government “may

appropriately question whether a [person’s] religiosity,

asserted as the basis for a requested accommodation, is

authentic.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13

(2005). Because courts are “ill-equipped to sit in

judgment on the verity of an adherent’s religious

beliefs,” however, the sincerity inquiry is limited to a

credibility assessment; inquiry into whether a

subjective belief is objectively true trespasses on the

domain of the Establishment Clause. Patrick v.

LeFevre, 745 F.2d 153, 157 (2nd Cir. 1984). To

demonstrate sincerity, a claimant need only show “an

honest conviction” that the Government is requiring

her to act contrary to her religion. Thomas v. Review

Bd. of Indian Employment Sec. Div., 450 U.S. 707,

715-16 (1981).

Although limited, the sincerity inquiry is

nonetheless meaningful: courts have found insincerity

where the asserted beliefs suspiciously align with

secular self-interests or are otherwise incredible. E.g.

United States v. Quaintance, 608 F.3d 717, 718-19

(10th Cir. 2010) (professed religious beliefs in

worshiping marijuana could not be used “as cover for

secular drug activities”); see also Holt, 135 S. Ct. at 867

(officials may investigate whether a prisoner is using

religion to “cloak illicit conduct”).

The Government frequently has little desire to

dispute individual religiosity and often concedes

sincerity upfront. See, e.g., Holt, 135 S.Ct. at 862

(conceding that Muslim prisoner sincerely believed his

religion required growing a beard); Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 423 (2006) (conceding that Brazilian Christian

9

Spiritualist sect sincerely believed a sacrament

required hoasca tea); Frazee v. Illinois Dep't of

Employment Sec., 489 U.S. 829, 833 (1989) (conceding

nondenominational Christian sincerely believed he

should not work on Sundays). Unsurprisingly, the

Government has likewise conceded sincerity here. See

Resp’t’s Br. 33 (“We do not suggest that petitioners’

assertion of a substantial burden rests on any

theological error or misjudgment, or that their beliefs

are not sincerely held.”). There is no dispute that

Petitioners believe that submitting EBSA Form 700

will “facilitate” use of contraception, “make them

complicit in wrongdoing and create ‘scandal’ in

violation of Catholic moral teaching.” Pet’rs’ Nos. 14-

1418, 14-1453 & 14-1505 Br. 2; see also Pet’rs’ Nos.

15-35, 15-105, 15-119, & 15-191 Br. 2 (Petitioners

“sincerely object to being forced to facilitate access to

contraceptives’).

The Government’s concession on sincerity should

mark the end of any inquiry into Petitioners’ subjective

beliefs. The concession guarantees that Petitioners’

claims fall within the RFRA framework—but it does

not alone suffice to make out Petitioners’ prima facie

case, establish a substantial burden, and trigger strict

scrutiny. Meaningful judicial review requires the rest

of the RFRA analysis to be conducted pursuant to

doctrines of law, not faith. Petitioners’ uncontested

belief that submitting EBSA Form 700 facilitates sin

indicates that a burden may exist; it does not

simultaneously prove that the burden is substantial.

10

B. Finding A Substantial Burden On

Religious Exercise Requires An

Objective Inquiry Detached From

Sincerity

The determination of whether a burden on religious

exercise is substantial requires an _ objective

assessment of the actual-effect of state action. It

should not duplicate the inquiry into subjective

religious belief.

Even prior to Employment Div. v. Smith, 494 U.S.

872 (1990), the substantiality of a burden was an

objective inquiry.2 In Bowen v. Roy, the Court held

that despite a sincere religious conviction that a Social

Security number robbed the unique spirit of his

daughter, the Government requiring a parent to use

the number on a form did not impose a substantial

burden. 476 U.S. 693 at 696, 702—03 (1986). Likewise,

when faced with a religious challenge to the

construction of a Forest Service road through sacred

ground, the Court accepted that Indian tribes believed

the road posed a “grave” threat to their religious

practice, but it declined to measure the burden by

comparison to that religious belief. Lyng v. Nw. Indian

Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988).

Objectively, the Government’s choice to build a

government road on government property did not

2 As explained in Burwell v. Hobby Lobby Stores, Inc., 1345S.

Ct. 2751, 2760-62 (2014), Congress passed RFRA to provide

religious accommodations to generally-applicable laws, with the

purpose of tracking pre-Employment Div. v. Smith Free Exercise

Clause jurisprudence. See 42 U.S.C. § 2000bb (RFRA “restore[s]

the compelling interest test [to]...all cases where free exercise of

religion is substantially burdened.”).

11

impose a “heavy enough” burden to trigger strict

scrutiny and warrant a religious accommodation. Id.

at 447, 453 (“Whatever rights the Indians may have to

the use of the area, however, those rights do not divest

the Government of its right to use what is, after all, its

land.”).

The “location of the line” between permissible and

impermissible burdens “cannot depend on measuring

the effects of a governmental action on a religious

objector’s spiritual development.” Jd. at 451. “[C}laims

of religious conviction do not automatically entitle a

person to fix unilaterally the conditions and terms of

dealings with the Government. Not all burdens on

religion are unconstitutional.” Bowen, 476 U.S. at 702.

Neither are all burdens, in the post-RFRA world,

substantial. Cf. World Outreach Conference Ctr. v. City

of Chicago, 591 F.3d 531, 538 (7th Cir. 2009) (“Any

land-use regulation that a church would like not to

have to comply with imposes a ‘burden’ on it, and so

the adjective ‘substantial’ must be taken seriously lest

RLUIPA be interpreted to grant churches a blanket

immunity from land-use regulation.”).3

C. Conflating Sincerity With Substantial

Burden Threatens Due Process

When Congress modified burden with “substantial,”

it intended substantial to have legal import. As

Senator Kennedy explained, the word substantial

eliminated the requirement that the Government

8 RLUIPA is a sister statute to RFRA that allows state

prisoners and land-use applicants “to seek religious

accommodations pursuant to the same standard as set forth in

RFRA.” Holt, 135 S. Ct. at 860 (quoting Gonzales, 546 U.S. at

436).

12

satisfy strict scrutiny “for every government action

that [has] an incidental effect on religious institutions.”

139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993)

(emphasis added). Unless “substantial” has

“significant meaning, the RFRA standard becomes a

lazy gatekeeper, requiring the state to meet a high

burden in order to refute almost any religious

accommodation.” Kara Lowentheil, When Free Exercise

is a Burden: Protecting “Third Parties” in Religious

Accommodation Law, 62 Drake L.R. 433, 497 (2014).

RFRA’s qualifying language would be rendered a

nullity if an individual’s self-attested belief sufficed to

establish that a burden is substantial.

If professed belief alone could serve as the driving

force behind substantiality, innumerable federal

regimes would be thrown into question. Petitioners

state that they “do not object to any government action

that provides contraceptives to their employees,” only

to “government-prescribed actions to facilitate that

coverage.” See Pet’rs’ Nos. 15-35, 15-105, 15-119, & 15-

191 Br. 2. But despite this assurance, Petitioners

propound no test which would impose such a limit;

instead, they define “facilitate” by reference to religious

belief, not secular law. See Resp’t Br. 46—47

(“Petitioners’ religious beliefs do not accept the

distinction between their own act of opting out of the

contraceptive coverage requirement and_ the

government's subsequent arrangements with third

parties.”).

By Petitioners’ same subjective logic, religious

exercise could be substantially burdened by the Health

Insurance Portability and Accountability Act’s privacy

protections (which enable employees to obtain a

contraception prescription without the employer's

knowledge), 42 U.S.C. § 1320d—6; by the Fair Labor

13

Standards Act’s wage protections (which provide

employees with money to purchase contraception), 29

U.S.C. § 206; or by the payment of any Internal

Revenue Service taxes (which may ultimately reach

the Department of Health and Human Service’s budget

and fund the provision of contraceptives).* Violations

of each of these laws carry significant penalties,

indistinguishable from the Affordable Care Act. See

e.g., 42 U.S.C. §1320d—5 (imposing penalties for

violations of HIPPA); 29 U.S.C. § 216 (imposing

penalties for failing to comply with FLSA); 26 U.S.C. §

6651 (imposing penalties for failure to file tax return or

pay tax). If sincerity alone proved substantiality, each

of these hallmark provisions would be improperly

subjected to RFRA’s strict scrutiny.

Petitioners’ subjective logic also converts factual

questions into incontestable legal conclusions. This

Court has long declared that legal elements cannot be

satisfied by self-interested factual declarations alone.

See, e.g., Hoffman v. United States, 341 U.S. 479, 486,

(1951) (a witness cannot invoke Fifth Amendment

rights “merely because he declares that in so doing he

would incriminate himself—his say-so does not of itself

establish the hazard of incrimination. It is for the court

to say whether his silence is justified.”). As James

Madison once advanced, “No man is allowed-to be a

judge in his own cause; because his interest would

certainly bias his judgment.” The Federalist No. 10

4 Relatedly, the Court recognizes that federal

taxpayers do not have “standing under Article III to

object to a particular expenditure of federal funds

simply because they are taxpayers.” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 343 (2006).

14

(1787). The American adversarial process is based on

the ability of opposing parties to contest proffered

facts, so that courts can make the ultimate

determination of legal effect. “In almost every setting

where important decisions turn on questions of fact,

due process requires an opportunity to confront and

cross-examine adverse witnesses.” Goldberg v. Kelly,

397 U.S. 254, 269 (1970).

Adopting Petitioners’ articulation of substantial

burden would violate these principles, because it would

allow religious persons to serve as their own arbiters.

The Government’s ability to conduct a meaningful

cross-examination would be effectively negated if

burdens were weighed by self-reference to religious

doctrine. After all, particular sensitivities surrounding

the Establishment Clause forbid courts “from trolling

through a person’s or institution’s religious beliefs.”

Mitchell v. Helms, 530 U.S. 793, 828, (2000) (plurality

opinion) (citing Employment Div., 494 U.S. at 887

(collecting cases)). “[T]he very process of inquiry” into

religious positions “may impinge on rights guaranteed

by the Religion Clauses.” N.L.R.B. v. Catholic Bishop

of Chicago, 440 U.S. 490, 502 (1979). To permit claims

of substantial burden to go unchecked without

objective limits would “make the professed doctrines of

religious belief superior to the law of the land, and in

effect [ ] permit every citizen to become a law unto

himself.” Employment Div., 494 U.S. at 879 (quoting

Reynolds v. United States, 98 U.S. 145, 166-67 (1878)).

** *

To effectuate proper application of RFRA, the Court

should clarify that the substantiality of a burden on

religious exercise is an objective inquiry, wholly

15

independent from the limited subjective inquiry into

sincerity of religious belief.

Il. OBJECTIVE INQUIRY INTO WHETHER

GOVERNMENT ACTION SUBSTANTIALLY

BURDENS RELIGIOUS EXERCISE

ASSESSES THE EFFECTS OF THE

CHALLENGED ACTION ON BOTH

ADHERENTS AND THIRD PARTIES

A. Objective Assessments Of Substantiality

Inform Other Areas Of First Amendment

Law

There is nothing unique about the religion context

that prevents courts from making an objective

assessment of substantial burdens. This Court, in

other First Amendment-related contexts, has readily

assessed substantiality by reference to objective facts.

The approach adopted by these cases is instructive.

Campaign finance and other election-speech cases

conduct a legal inquiry similar to the burden-shifting

strict scrutiny required by RFRA. If a campaign

finance restriction “imposes a substantial burden on

the exercise of the First Amendment right,” the

provision cannot stand unless it is “justified by a

compelling state interest.” Davis v. Fed. Election

Comm'n, 554 U.S. 724, 740 (2008) (internal citation

omitted). This Court recently grounded an inquiry in

objective factors to assess the facial constitutionality of

Washington’s disclosure requirements for signatories

to state law referenda petitions. John Doe No. 1 v.

Reed, 561 U.S. 186, 190 (2010). The Court looked to

the actual speech affected (signing a petition), the

scope of Washington’s laws related to that speech, the

potential consequences of that speech (possible

disclosure online if a third party submitted a public

16

records act request), and how other similarly situated

actors had responded to the same burden. Id. The

Court ultimately found it unrebutted “that only modest

burdens attend the disclosure of a typical petition,” and

dismissed the facial challenge. Jd. at 201. Justice

Stevens concurred, explaining that government action

should not “be upset upon hypothetical and unreal

possibilities.” Jd. at 219 (Stevens, J., concurring

(citation omitted)). “Just as we have in the past, I

would demand strong evidence before concluding that

an indirect and speculative chain of events imposes a

substantial burden on speech.” Id.

This Court also frequently examines substantiality

when evaluating whether statutes are facially invalid

for “prohibit[ing] a substantial amount of protected

speech.” United States v. Williams, 553 U.S. 285, 292

(2008). Here again, the Court has “vigorously enforced

the requirement that a statute’s overbreadth be

substantial, not only in an absolute sense, but also

relative to the statute’s plainly legitimate sweep.” Id.

(emphasis in original). In Williams, the Court

evaluated the language, purpose and history of a

criminal child pornography statute, as well as the

actual and likely fact patterns arising under it, to

assess its substantive scope. Jd. The Court ultimately

found just one area where it was possible the law could

have an unconstitutional application—the production

of documentaries. This was not enough to render the

statute substantially overbroad. Jd. at 302-03. All

other objections were likewise insubstantial,

“demonstrat[ing] nothing so forcefully as the tendency

of our overbreadth doctrine to summon forth an

endless stream of fanciful hypotheticals.” Jd. at 301.

In both of the foregoing examples, the Court looked

to define the scope of the law, then narrowed down to

17

the specific action challenged, listed the actual harms

that could reasonably follow, and made a relative

assessment of how attenuated, unlikely, or speculative

those harms were. In each case, the Court explained

some of the parties’ subjective thoughts to provide

context, but did not rely on subjective evidence when

reaching an ultimate conclusion of objective effect. The

same principles should dictate examination of

substantial burdens in the RFRA context.

Indeed, this Court has already modeled how to

evaluate objective facts even when religion is central to

the underlying claim. When setting forth the bounds

of the ministerial exception, this Court recently

illustre:ed how to draw an analogous line between

subjective religious perception and objective fact.

Without either accepting by Lutheran Church fiat that

an elementary school teacher qualified as a minister or

resorting to exegesis of religious doctrine, the Court

conducted a secular evaluation of an elementary school

teachers formal title, education, substantive

responsibilities, self-referential admissions, and

participation in rituals. See Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 132

S. Ct. 694, 701-708 (2012). Only after undertaking

this assessment of objective facts did the Court make

the legal determination that the teacher “was a

minister covered by the ministerial exception.” Id. at

708.

John Doe, Williams, and Hosanna-Tabor provide a

model framework for the inquiry the Court should

undertake here into substantiality. Whether a burden

on religious exercise is substantial requires a flexible

assessment of all relevant facts. Just as the Court

declined “to adopt a rigid formula for deciding when an

employee qualifies as a minister,” Hosanna-Tabor, 132

18

S. Ct. at 707, so too should the Court decline to adopt

any rigid lines for assessing substantiality.

B. Courts Have Already Developed

Objective Factors To Consider In

Assessing Substantiality

Courts of Appeals have already developed objective

factors to assess the “actual, tangible burdens” that

government action imposes on religious exercise. See

Roman Catholic Bishop of Springfield v. City of

Springfield, 724 F.3d 78, 99 (1st Cir. 2013). Flexible

application of these and other factors informs whether

a burden on religious exercise is substantial. See, e.g.,

World Outreach, 591 F.3d at 539 (“[S]ubstantiality is a

relative term—whether a given burden is substantial

depends on its magnitude in relation to the needs and

resources of the religious organization in question.”).

These objective factors include:

1. What concrete actions must the religious person

take, because of the government imposed burden? This

includes an assessment of the resources, in terms of

time and money, the religious person must devote to

compliance. Frequent, resource-intensive steps

towards compliance may constitute a substantial

burden, see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 218

(1972) (undue burden existed where state required

Amish to daily attend secondary school), while one-

time events will not. See, e.g., John Doe No. 1, 561

U.S. at 216 (a one-time act lessens the force of the

burden). Heavy monetary expenses may constitute a

burden, while “the mere existence of some expenses,”

“only some of which are .. . traceable” to the

challenged ordinance do not. Roman Catholic, 724

F.3d at 99. Indirect effects or mild logistical

inconveniences do not rise to a substantial level. See,

19

e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058

(9th Cir. 2008) (no substantial burden where, even

though it offended religious sensibilities, artificial

snow production on a sacred mountain required no

direct action from and imposed no punishment on the

adherents); Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004) (only

minor burden where zoning decision would cause

parishioners to walk a few extra blocks to synagogue).

2. Has the Government made any prior attempts to

alleviate the burden? See, e.g., Lyng, 485 U.S. at 454

(crediting Government with taking “numerous steps...

to minimize the impact that construction ... will have

on the Indians’ religious activities”); Univ. of Notre

Dame v. Burwell, 786 F.3d 606, 615-16 (7th Cir. 2015)

(federal government had alleviated the substantiality

of the contraception coverage burden by offering a

religious opt-out form). Steps to lessen the burden may

succeed in rendering it insubstantial.

3. What is the punishment for non-compliance?

See, e.g., Gonzales, 546 U.S. at 425 (substantial burden

exists when religious sect faces criminal prosecution

for possession of small amounts of controlled substance

used in sacramental tea). But see Roman Catholic, 724

F.3d at 99) (the possibility of statutory penalties for

non-compliance “does not mean that the process of

application” is itself burdensome).

Applying these factors to the situation before the

Court demonstrates that Petitioners have not been

substantially burdened. First, “[i]t is important at the

outset to define the scope of the challenge.” John Doe

No. 1, 561 U.S. at 194. Petitioners’ challenge is

ostensibly not to the act of filling out EBSA Form 700

or notifying the Government of a religious objections in

20

and of itself—they just wish that the opt-out process

“triggered” different consequences. But these

consequences of opting out are at best indirect:

Petitioners are excused from providing, paying for,

contracting for, or otherwise legally facilitating

contraceptive coverage. Petitioners’ subjective offense

at third parties arranging independent contraceptive

coverage for their employees is not an objective,

concrete burden on them. See Hobby Lobby, 1345S. Ct.

at 2763 (opt-out accommodation “effectively exempt{s]”

employers from contraceptive-coverage requirement).

To the extent Petitioners do object to the notification

itself—filling out a one-time, four-box form to obtain a

permanent religious accommodation is minor, not

substantial.

Second, the Government’s numerous steps to credit

Petitioners’ religious beliefs during the history of the

contraceptive coverage debates show that the extent of

any burden has been reduced. See Coverage of Certain

Preventative Services under the Affordable Care Act,

78 Fed. Reg. at 39, 878 (objecting employer may opt out

of any requirement to “contract, arrange, pay or refer

for contraceptive coverage”); see also generally Resp’t

Br. 11-19.

Third, Petitioners face no direct punishment for

failing to fill out EBSA 700—that form is not a

government mandate, it is an optional accommodation.

The punishments that the Petitioners fear come only if

Petitioners either do not directly provide contraceptive

coverage or are not excused by virtue of an exemption.

See 45 C.F.R. 147.131(c)(1). EBSA 700 is the

mechanism by which they both are exempted from

providing coverage and avoid penalties. In other

words, penalties do not flow from Petitioners’ assertion

of a religious objection; rather, they flow from

21

Petitioners’ insistence that their religious objection

should prevent third parties from separately providing

contraceptive coverage. Petitioners’ subjective belief

regarding the nature of these penalties is not a

substantial burden as a matter of objective law.

In sum, objective assessment of the burdens

imposed on Petitioners through the Government’s

religious opt-out process show that those burdens are

minimal.

C. Constitutionally Valid Assessments Of

Substantial Burdens Must Account

For Effects On Third Parties

The foregoing factors, however, are incomplete, if

they fail to wrestle with burdens on third-party non-

beneficiaries. See Cutter, 544 U.S. at 720. This Court

has long held that shifting adverse effects of religious

exercise onto third parties—who possess their own

First Amendment and RFRA rights—is an

unconstitutional Establishment Clause violation. See

Esiate of Thornton v. Caldor, 472 U.S. 703 (1985).

Statutes cannot “impermissibly advance[ ] a particular

religious practice” and force “others [to] adjust their

affairs” to accommodate it. Jd. at 709-10. Just as a

religious accommodation statute cannot absolutely

require an employer to conform her business to the

religious practices of a Sabbatarian employee, id. at

709, RFRA cannot absolutely require employees to

unyieldingly conform their personal contraception

practices to the religious beliefs of their bosses. See 42

U.S.C. § 2000bb—4 (RFRA allows accommodations “to

the extent permissible under the Establishment

Clause”). Cf. Trans World Airlines v. Hardison, 432

U.S. 63, 80 (1977) (Title VII religious accommodations

cannot prefer religious employees over all others).

22

Evaluating the impact on third parties should be

accomplished through a sliding assessment of the

extent to which the requested accommodation directly

affects the religious person’s actions, versus the extent

to which it dictates third parties’ independent actions

and imposes upon third parties’ independent civil

rights. See, e.g., Holt, 135 S. Ct. at 867 (Ginsburg, J.,

concurring) (accommodating a prisoner’s religious

belief to grow a half-inch beard does not “detrimentally

affect others who do not share petitioner’s belief’). As

religious claimants’ core objections become more

subjective, indirect and attenuated from the claimants’

cwn objective actions, the burden on religious exercise

should become less substantial.®

In addressing First Amendment claims, this Court

has already held that intervening “private choice”

breaks the causal chain between government action

and religious choice. Zelman v. Simmons-Harris, 536

U.S. 639 (2002). In Zelman, government’s “incidental”

advancement of religion by providing tuition vouchers

to private religious schools was “reasonably

attributable to an individual recipient, not to the

government.” Id. at 652. The same principle applies

to the substantial burden analysis—it can only be an

“incidental” burden on religion if the ultimate offensive

act is reasonably attributable to the independent

5 This sliding assessment can be aided by reference to

proximate cause, vicarious liability. and other well-developed

legal doctrines regarding the attribution of one’s actions to

another. See generally Frederick Mark Gedicks, Substantial

Burdens, (J. Reuben Clark Law School, Brigham Young

University, Working Paper No. 15-18 (2015)).

23

choice of a third party. “A religious adherent’s

distaste for what the law requires of a third party is

not, in itself, a substantial burden.” Priests for Life v.

U.S. Dept. of Health and Human Services, 772 F.3d

229, 256 (D.C. Cir. 2014).

The interests of third parties dictate the balance in

the instant cases. See, e.g., Univ. of Notre Dame, 786

F.3d at 619 (7th Cir. 2015) (“[W]hen we compare the

burden...of having to establish some entirely new

method of providing contraceptive coverage with the

burden on Notre Dame of simply notifying the

government that the ball is now in the government's

court,” there is no substantial burden.). Petitioners’

attempt to prevent the Government from requiring

insurance companies to separately provide

contraception coverage threatens a detrimental effect

on the independent choices of its employees—indeed,

limiting their employees’ access to contraception is the

entire point of their request.? Yet employees have

independent rights to access contraception as part of

their sexual privacy, as first recognized in Griswold v.

Connecticut, 381 U.S. 479, 486 (1965); they also have

independent religious beliefs, which may or may not

6 Article III also recognizes this limitation: injuries must be

“fairly traceable to the challenged action of the defendani, and not

the result of the independent action of some third party not before

the court.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

RFRA itself defines standing under the Act by reference to Article

Ill. 42 U.S.C. § 2000bb—1(c).

7 This is no corner-case concern: Petitioners’ objections, if

credited, would adversely affect tens of thousands of employees

and dependents who are eligible to receive third party

contraceptive coverage through the current accommodation

system. See Resp’t Br. at 20.

24

converge with their employers’. In order to uphold

employees’ important constitutional interests, RFRA’s

substantial burden analysis must take into account

third party agency.

D. Objective Analysis Of Substantial

Burdens Best Promotes Religious

Freedom

Amici all cherish the protections for free exercise

enshrined in the Constitution, expanded by RFRA, and

afforded to all Americans. But they likewise cherish

the constitutional precept that all individuals are

entitled to the equal protection of our nation’s laws. As

this Court recognized at the apex of the pre-Smith era,

“(T]he guarantee of free exercise is not limited to

beliefs which are shared by all of the members of a

religious sect. Particularly in this sensitive area, it is

not within the judicial function and judicial

competence to inquire whether the petitioner or his

fellow worker more correctly perceived the commands

of their common faith.” See Thomas, 450 U.S. at 716.

This insight applies not only to religious claimants

before the courts, but also to the individuals who are

not present but profoundly affected. The Court should

not choose to prefer a religious organization on the one

hand, or its individual employees or members on the

other, when their religious beliefs may conflict.

After all, “[a] broad range of government

activities—from social welfare programs to foreign aid

to conservation projects—will always be considered

essential! to the spiritual well-being of some citizens,

often on the basis of sincerely held religious beliefs.

Others will find the very same activities deeply

offensive, and perhaps incompatible with their own

search for spiritual fulfillment and with the tenets of

25

their religion. The First Amendment must apply to all

citizens alike, and it can give to none of them a veto

over public programs that do not prohibit the free

exercise of religion.” Lyng, 485 U.S. at 452.

Amici encourage the Court to strike a balance.

RFRA’s accommodations should be granted after an

objective multi-factored assessment of whether

government action substantially burdens religious

exercise, taking care to account for the independent

actions of religiously diverse third parties. There is

room for “play in the joints,” Walz v. Tax Commission

of City of New York, 397 U.S. 664, 669 (1970), where all

are respected within the fair bounds of their own

religious persuasions, while none are substantially

burdened.

CONCLUSION

The decisions below should be affirmed.

Respectfully submitted,

DEREK L. SHAFFER

Counsel of Record

VICTORIA F. MAROULIS

CAROLYN HOMER THOMAS

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

777 6th St. NW, 11% F'.

Washington, D.C. 20001

(202) 538-8000

derekshaffer@quinnemanuel.com

26

STEVEN M. FREEMAN

DAVID L. BARKEY

MICHAEL LIEBERMAN

ANTI-DEFAMATION LEAGUE

605 Third Avenue, 10th Floor

New York, N.Y. 10158

(212) 885-7700