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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0556%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0556%3A23. Public record. Not legal advice.