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 Hnited States

Most REVEREND DAVID A. ZUBIK, ET AL.,

Petitioners,

Vv

SYLVIA MATHEWS BURWELL, IN HER OFFICIAL

CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT

OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Third,

Fifth, Tenth, and District of Columbia Circuits

BRIEF OF AMICI CURIAE THE CENTER FOR

INQUIRY AND AMERICAN ATHEISTS

IN SUPPORT OF THE RESPONDENTS

NICHOLAS J. LITTLE EDWARD TABASH

RONALD A. LINDSAY Counsel of Record

CENTER FOR INQUIRY 11500 West Olympic Blvd.

1020 19th Street, NW Suite 400

Washington, DC 20036 Los Angeles, CA 90064

(202) 629-2403 (310) 279-5120

legal@centerforinquiry.net etabash@centerforinquiry.net

AMANDA KNIEF

AMERICAN ATHEISTS

225 Cristiani St.

Cranford, NJ 07016

(908) 276-7300

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .................cccccseeeeeeees

STATEMENT OF INTEREST ..................::00:0000

SUMMARY OF ARGUMENT ......0........cccccccceeeees

I.

Il.

PERMISSIVE RELIGIOUS EXEMPT-

IONS TO LAWS OF GENERAL

APPLICABILITY ARE SUBJECT TO

ESTABLISHMENT CLAUSE REVIEW...

GRANTING AN EXEMPTION WOULD

VIOLATE THE ESTABLISHMENT

CLAUSE BY BURDENING THIRD

PETITIONERS CANNOT DEMONS-

TRATE A SUBSTANTIAL BURDEN ON

THEIR RELIGIOUS BELIEP6.................

A. Any cognizable burden is relieved by

the existing accommodation.................

B. A requirement to inform the govern-

ment one has a religious objection to a

regulation is not a ‘substantial

IIIT ‘sanicentsnctenmtinienbeninanenntnnsmanetinien

C. Compliance penalties are not a

‘substantial burden’.........................00.

D. The accommodation ensures monies

will not be commingled........................

(i)

a rwo re

10

10

ii

TABLE OF CONTENTS—Continued

IV. PETITIONERS’ POSITION DOES NOT

CONCERN A BURDEN ON RELIGIOUS

LIBERTY, BUT IS RATHER AN

ATTEMPT TO LEGISLATE THROUGH

Re SD csnscnsecresscsssescevecenmensnsesssnveses 22

V. THE GOVERNMENT HAS A COMPEL-

LING INTEREST IN ENSURING THE

WIDESPREAD AVAILABILITY OF

CONTRACEPTIVE SERVICES TO

ili

TABLE OF AUTHORITIES

CASES Page(s)

Adams v. Commr.,

170 F.3d 173 (3d Cir. 1999), cert denied

. ' , EEE eerE 23

Bowen v. Roy,

i) Rl) eee 24, 25, 26

Burwell v. Hobby Lobby Stores, Inc.,

8 | ee passim

City of Boerne v. Flores,

i icerincinitinieiisiidainndenienson 6

Edison Co. v. Labor Bd.,

I, i iseetsinins 15

Empl. Div., Dept. of Human Res. of Ore. v.

Smith,

Ce ey ee GR ccsecescenscnsnsccecnstosccenssees 3, 5,6

Epperson v. Ark.,

Te i nicrccinntnescrennentesecsictnenionss 7,8

Est. of Thornton v. Caldor, Inc.,

ein cinicscteenyensonte 8-9

Geneva College v. Sec. U.S. HHS,

778 F.3d 422 (3d Cir. 2015)... 17

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006).............cccccceceseeees 7-8, 13, 19

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013)................. 5

INS v. Cardoza-Fonseca,

I A I cs cncenstscnatecosoosssennnes 14, 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Locke v. Davey,

og eee 10

Marbury v. Madison,

ey i ciinstcnrsniussnunciniimabiinintii 6

Priests For Life v. U.S. HHS,

772 F.3d 229 (D.C. Cir. 2014), cert.

granted, Priests for Life v. HHS, 193 L.

hs EES eEso Se 14, 16, 21

Richardson v. Perales,

ee es Ce icniccnietiniccnsiesncnsiintaani 15

Sharpe Holdings, Inc. v. U.S.

ee ET CIEE ccictrtncsnscccnnisccitanianniaons 18

Sherbert v. Verner,

Be es i cccccssscnnsiccsvinwiiniiiniinins 5

T.W.A. v. Hardison,

Se es ee iitientntincetinniciisiiintinieidianaan 9

Thomas v. Review Bd. Of Ind. Empl. Sec.

Div., 450 U.S. 707 (1981)...................ceeeee 27-28

U. of Notre Dame v. Burwell,

786 F.3d 606 (7th Cir. 2015), petition for

cert. filed (Dec. 18, 2015) ...................00000 26

U. of Notre Dame v. Sebelius,

743 F.3d 547 (7th Cir. 2015)..................... 17, 27

U.S. v. Lee,

455 U.S. 252 (1982)...................000008 9, 24-25, 28

Welsh v. U.S.,

Be Cy St i ccracscccsvesmesannsvasenescnioans 26

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Wis. v. Yoder,

CT 13, 19

CONSTITUTION

ATE passim

STATUTES AND REGULATIONS

ee 14

42 U.S.C. § 300 gg—13(a) ............ceccceeeeseeeeeees 2,8

42 U.S.C. § 300gg—13(an(4).........ccecceeeeeees 11

ca 19

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148 (March 23, 2010) ....passim

Religious Freedom Restoration Act of 1993,

107 Stat. 1488, as amended, 42 U.S.C. §§

EE passim

42 U.S.C. § 2000bb-1(a)......... eee ceccecseeeeeeees 12

42 U.S.C. § Z000bb-1(b)...............cccccceseeseeees 12

IIE asnricrnccnssemnneeestannsttaninensnnce 13

I ts rnncinscetenerannsennenensaase 19

26 C.F.R. § 54.9815-2713 1.0... cceecceeceeeees 11

29 C.F.R. § 2590.715-2713A(a) .................... 12, 13

29 C.F.R. § 2590.715—-2713A(b)(1) ............... 12

29 C.F.R. § 2590.715—-2713A(b)(1 ii)....... 2, 12,13

29 C.F.R. § 2590.715-2713A(b)\(1(ii(B) ...... 12

I 0P SEED wsntceccscccssnnassesensncccsnssessesese 20

vi

TABLE OF AUTHORITIES—Continued

Page(s)

es eI ccsinticnininsnsidenduninnintnesmniennnsiin 20

ey I iicirnicicnnesinnienicnniniiinianiiineitats 20

es Or He ecetcccnsveninennieniatnnnncemndneie 21

ok ee 11

ee 11

eee Oe ED cccennsencscssmeeesemnienitian 12, 13

a a 0 a cccrscnsnccnnecennsscmnconsens 2, 12,13

4B C.F BR. § UOT BBRGRID) ncccccccccccccscccsccccceseses 12

45 C.F.R. § 147.13 1(c)1)ii)..............cceeeeeees 12

45 C.F.R. § 147.131(cM2)(i).............0cceceeeees 21

45 C.F.R. § 147.13 1(e)(2)............ccecceeeseeseeeees 12

es Bs ee Be bnnccnsmnemausssnntnsntemnccnnes 13, 19

OTHER AUTHORITIES

Catechism of the Catholic Church, http://

www.vatican.va/archive/ENG0015/_P80.

HTM (last visited Feb. 15, 2016).............. 28-29

Department of Health and Human

Services, Center for Medicaid and State

Operations, http:/Awww.medicaid.gov/Fe

deral-Policy-Guidance/downloads/smd02

1298.pdf (last visited Feb. 9, 2016).......... 21

Frederick M. Gedicks & Rebecca G. Van

Tassell, RFRA Exemptions from the

Contraception Mandate: An Unconstitu-

tional Accommodation of Religion, 49

Harv. C.R.-C.L. Rev. 343 (2014)............... 31

vii

TABLE OF AUTHORITIES—Continued

Page(s)

J.J. Frost, et al., Return on Investment: A

Fuller Assessment of the Benefits and

Cost Saving of the US Publicly Funded

Family Planning Program, 92 Milibank

IE inchiinnssamtuseininssgenvinianinntesentnnds

Planned Parenthood, IUD: Where can I get

an IUD? How much does an IUD Cost?,

https://www.plannedparenthood.org/lea

rn/birth-control/iud (last visited Feb. 9,

Planned Parenthood, Morning After Pill

(Emergency Contraception), https://www.

plannedparenthood.org/learn/morning-

after-pill-emergency-contraception (last

NG

Substantial, Black’s Law Dictionary (10th

OED, BP ccccenecenaeneenssssenmncmsscsemennmnessmemnece

Substantial New Oxford Am. Dictionary

(3d ed., Oxford U. Press 2010)..................

The Religious Freedom Restoration Act Is

Unconstitutional, Period, Marci A.

Hamilton, I U. Pa. J. Const. L. 1 (1998-

PERS ENS SEIS Le Ne eC

U.S. Drug Enforcement Agency, Federal

Drug Trafficking Penalties, http://www.

dea.gov/druginfoo/ftp3.shtm! (last visited

Ps Te Et cclncestaihciniiecienidecmnianenieatameaiainnenin

32

31

TABLE OF AUTHORITIES—Continued

Page(s)

Walgreens, Plan D One-Step Emergency

Contraception, http:/Awww.walgreens.

com/store/c/plan-b-one-step-emergency-

contraceptive/ID=prod6212563-product?

ext=gooPersonal_Care PLA Emergency

_Contraception_prod6212563_pla&adty

pe=pla&kpid=sku6186077&sst=29fc349

b-abfc-52a9-c30f-000046b50d6b

(last visited Feb. 9, 2016) ......................... 31

STATEMENT OF INTEREST'

This amici curiae brief in support of the Government

is being filed on behalf of the Center for Inquiry (“CFT”)

and American Atheists, Inc. (“American Atheists”).

CFI is a non-profit educational organization dedi-

cated to promoting and defending reason, science, and

freedom of inquiry. Through education, research,

publishing, social services, and other activities, includ-

ing litigation, CFI encourages evidence-based inquiry

into science, pseudoscience, medicine and health,

religion, and ethics. CFI believes that the separation

of church and state is vital to the maintenance of a free

society that allows for a reasoned exchange of ideas

about public policy.

American Atheists is a national educational, nonpo-

litical, non-profit corporation. American Atheists is a

membership organization dedicated to advancing and

promoting the complete and absolute separation of

religion and government, and to preserving equal

rights under the law for atheists. American Atheists

encourages the development and public acceptance of

a humane, ethical system that stresses the mutual

sympathy, understanding, and interdependence of all

people and the corresponding responsibility of each

individual in relation to society.

Amici comprise secular and humanist organizations

that advocate on behalf of the separation of religion

' All parties have granted blanket consents to the filing of

amicus briefs; their written consents are on file with the Clerk of

the Court. No counsel for a party authored this brief in whole or

in part, and no party or counsel for a party made a monetary

contribution intended to fund its preparation or submission. No

person other than amici and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

and government and offer a unique viewpoint

concerning the importance of religious freedom in

the United States. The question of whether the

accommodation to the contraceptive mandate is a

substantial burden on an entity’s religious exercise at

issue in this case goes to the core of amici’s humanist

and secular interests in the separation of religion and

government. Amici are accordingly deeply invested

in preserving appropriately stringent judicial scrutiny

of what constitutes a “substantial” burden on religion

when an exemption has already been granted to a law

of general applicability.

SUMMARY OF ARGUMENT

Petitioners, who are religious non-profit groups,

claim a religious-based objection to the requirement

under the Affordable Care Act (“ACA”) to provide

health insurance which covers, at no cost to the

employee, contraceptive care. 42 U.S.C. § 300gg-13(a).

In response to these religious objections, the govern-

ment offered such non-profits an accommodation,

allowing them to sign a form stating their objection,

relieving them of the requirement to provide the

insurance, and instead requiring the insurance

company, at no cost to the non-profit, to provide the

required coverage to the employees. 45 C.F.R.

§ 147.131(c); 29 C.F.R. § 2590.715-2713A(bX1Xii).

Instead of accepting such an accommodation, petition-

ers now claim that the act of signing such a form is, in

and of itself, a burden on religious exercise. Amici

claim that granting a further exemption to petitioners

is not only unnecessary and not required by the

Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb et seg., but would also be a violation

of the Establishment Clause.

3

First, there is no First Amendment, Free Exercise

Clause right to the claimed exemption. Congress does

not impinge on the right to free exercise by enacting a

law of general applicability, even if that law impacts

an individual’s or a group’s ability to practice religion.

Empl. Div. v. Smith, 494 U.S. 872, 879 (1990). Any

exemption granted under RFRA is a legislative, not

constitutional, protection, and so must withstand

constitutional scrutiny. Exemptions to laws granted to

protect individual religious expression are unconstitu-

tional as violative of the Establishment Clause when

they shift the burden from the petitioner to a third

party. Here, petitioners seek to eliminate their alleged

religious burden by creating a burden on their

employees who will be denied the seamless and

copayment-free contraceptive benefits guaranteed by

the ACA.

Second, petitioners cannot demonstrate that they

have suffered the requisite “substantial burden” on

religion to warrant relief under RFRA. Petitioners

have already been offered an accommodation which

fully removes any substantial burden on their

religious beliefs, which amici maintain already

violates the Establishment Clause. What petitioners

object to is the requirement that they must inform the

government of their intention to exercise this

accommodation. Such a requirement has never been

held to be a burden by this Court. Recognizing it as a

substantial burden, as petitioners request, would

render the word “substantial” in RFRA meaningless.

RFRA has been held to require that when a

substantial burden on religion is found that the

government cannot justify by pointing to a compelling

interest, an accommodation is to be offered to the

burdened party. This is precisely what the government

has already done. This Court has never held that a

4

requirement to notify the government of a desire to

avail oneself of such an accommodation can itself be

considered a substantial burden on religion.

Third, petitioners’ theory of causation, allowing

them to claim a religious burden caused by requiring

them to notify the government of a desire to take

advantage of an accommodation, knows no bounds. If

accepted, it would not only allow religious groups to

refuse to directly participate in legitimate governmen-

tal activities, but also to demand that no person act in

their place to fulfil the government’s intentions. RFRA

was never intended to grant religious groups an

absolute veto over government policy in this fashion.

Fourth, even if this Court determines that a

substantial burden on religion exists, the interest of

the government in the widespread provision of

contraceptive services to women at zero copayment

cost is a compelling one, sufficient to overcome any

burden to petitioners.

The exemption sought here by petitioners is there-

fore not required by the Free Exercise Clause or by

RFRA, and, in fact, would violate the Establishment

Clause, by creating a burden for third-party employees

in order to relieve the alleged burden on petitioners’

religious exercise. It must be rejected by this Court.

ARGUMENT

I. PERMISSIVE RELIGIOUS EXEMPTIONS

TO LAWS OF GENERAL APPLICABILITY

ARE SUBJECT TO ESTABLISHMENT

CLAUSE REVIEW

For many years, the availability of exemptions for

religious groups or individuals from laws which did

not specifically target those religions was governed by

5

the Sherbert Test, expounded in Sherbert v. Verner,

374 U.S. 398 (1963). This test granted exemptions to

laws that placed substantial burdens on an individ-

ual’s or group’s ability to practice religion based on the

Court’s interpretation of the First Amendment right to

free exercise of religion. In Sherbert, a factory worker

was terminated for refusing to work on Saturday — the

Sabbath for her religion of Seventh Day Adventism.

Id. at 399. South Carolina denied her unemployment

benefits, claiming she was voluntarily unavailable for

work. Id. at 401. This Court ruled that the state could

not, absent a compelling government interest,

condition access to a governmental program such as

unemployment benefits by placing a substantial

burden on a person’s religious freedom — here the right

to observe the Sabbath as that person saw fit. Id. at

403-04.

However, twenty-seven years later, in Smith, the

Court ruled that a law which did not specifically target

religion, but which had the incidental effect of

burdening religious adherents, did not require an

exemption. 494 U.S. at 878-79 (“We have never held

that an individual’s religious beliefs excuse him from

compliance with an otherwise valid law prohibiting

conduct that the State is otherwise free to regulate.”).

Consequently, the state had no obligation to show that

the law served a compelling government interest.

In response, Congress enacted RFRA with the

express purpose of restoring the Sherbert Test and

making the compelling interest test once again the

standard of review for government-imposed burdens

on religion. Hobby Lobby Stores, Inc. v. Sebelius, 723

F.3d 1114, 1133 (10th Cir. 2013); Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751, 2791 (2014)

(Ginsburg, J. dissenting, citations omitted) (“RFRA’s

6

purpose is specific and written into the statute itself.

The Act was crafted to ‘restore the compelling interest

test as set forth in Sherbert v. Verner.”). It is

important to note that this grants a legislative, not a

constitutional right. This Court, in Smith, 494 U.S. at

867-82, determined the extent to which the Free

Exercise Clause protects individuals from burdens on

their religious practice imposed by laws of general

applicability. RFRA, as a legislative enactment,

granted protections beyond those constitutional

rights. Such permissive rights granted by an Act of

Congress are subject to constitutional scrutiny. An

exemption sought under RFRA which violates the

Establishment Clause is not permitted. Congress does

not have the authority to violate the Constitution, nor

can Congress overrule a Supreme Court determina-

tion of the extent of constitutional protections, short of

the passage of an actual constitutional amendment.

Marbury v. Madison, 5 U.S. 137, 177 (1803) (The

Constitution is “superior, paramount law, unchangea-

ble by ordinary means... . [It is not] alterable when

the legislature shall please to alter it.”). Any exemp-

tion claimed under RFRA, such as that sought by

claimants here, must therefore pass constitutional

review under the Establishment Clause.

Despite being ruled unconstitutional as applied to

the states by this Court, City of Boerne v. Flores, 521

U.S. 507, 536 (1997), RFRA has been treated as

facially constitutional regarding the federal govern-

ment.? Facial constitutionality does not end the

2 Amici do not concede the constitutional validity of RFRA,

noting that it grants special privileges to religion which violate

the Establishment Clause. See The Religious Freedom

Restoration Act Is Unconstitutional, Period, Marci A. Hamilton, I

U. Pa. J. Const. L. 1, 19 (1998-99). Without conceding this, amici

7

scrutiny, as laws may still be applied in ways which

violate the Constitution. The Establishment Clause

“mandates government neutrality between religion

and religion, and between religion and non-religion.”

Epperson v. Ark., 393 U.S. 97, 104 (1968). A decision

that claimants are substantially burdened by a notice

requirement set forth in a law of general applicability

would make a mockery of RFRA’s intent to provide an

avenue of relief when the government truly does

substantially burden religious practices.

Il. GRANTING AN EXEMPTION WOULD

VIOLATE THE ESTABLISHMENT CLAUSE

BY BURDENING THIRD PARTIES

As discussed, supra, the express purpose of RFRA is

to defend the freedom of an individual or group to

practice religion against restrictions imposed by

government. For example, in Gonzales v. O Centro

Espirita Beneficente Unaio do Vegetal, 546 U.S. 418,

423 (2006), members of a Brazilian church located in

New Mexico were denied permission to use a tea

brewed from plants unique to the Amazon Rainforest,

because the tea contained a hallucinogen controlled

under federal law. Church members drank the tea as

part of a religious ritual. This Court ruled unan-

imously that because the government did not demon-

strate a compelling interest in denying the church

access to the plants, it must under RFRA accommo-

date the religious exercise of the church. Id. at 439.

The fundamental difference between the exemption

requested by the religious group in O Centro — the

right to take a hallucinogenic substance as part of a

religious ceremony — and that sought by petitioners —

emphasize herein that RFRA should not be extended to legitimize

further violations of the Constitution.

8

the ability to not only not pay for contraceptive

insurance for their employees, but also to prevent the

insurance company’s providing it free of charge — lies

in the impact on third parties. When the church

members were permitted an exemption from the

Controlled Substances Act to drink hallucinogenic tea,

no other party was harmed, or indeed impacted at all.’

The government imposed the burden on the church,

and could remove it without impacting the rights of

others. Petitioners, however, seek to remove from

their employees a right guaranteed to them by the

ACA - the right to receive contraceptive coverage with

zero copayments. 42 U.S.C. § 300gg-13(a). RFRA

permits the government to remove a burden on

religious practice created by government action.

Shifting a burden from petitioners to third parties, in

order to accommodate petitioners’ religious beliefs,

however, represents a preference being granted to

those religious beliefs over and above the beliefs, or

lack thereof, of the employees. Such a preference

strikes at the very heart of the Establishment Clause.

Epperson, 393 U.S. at 104.

This Court has rejected religious exemption requests

which impose a burden on a third party. A Connecticut

law requiring businesses to honor requests from their

employees not to work on their Sabbath day was

struck as violative of the Establishment Clause

because it “took no account of the convenience or

interests of the employer or those of other employees

who do not observe a Sabbath.” Est. of Thornton v.

Caldor, Inc., 472 U.S. 703, 709 (1985) (emphasis

5 Amici maintain such a religion specific exemption itself is a

violation of the Establishment Clause. Supra, n.2. Where

exemptions are granted, however, the Constitution mandates

that they do not impose harmful burdens on third parties.

9

added). Similarly a Sabbatarian airline employee was

not entitled to a change in his shift structure to

accommodate his religious preference for Saturdays

off work, as granting that request would “deprive

another employee of his shift preference at least in

part because he did not adhere to a religion that

observed the Saturday Sabbath.” 7. W.A. v. Hardison,

432 U.S. 63, 81 (1977). And in U.S. v. Lee, Amish

employers were required to continue to pay social

security contributions for their employees despite

their sincere religious objections because granting

such an exemption would harm the interests of the

employees who should be able to make their own

choice as to the moral implications of involvement in

the program. 455 U.S. 252, 261 (1982) (An exemption

would “operate[] to impose the employer’s religious

faith on the employees.”).

This Court’s decision in Hobby Lobby, 134 S. Ct.

2751, that the contraceptive mandate could not be

imposed on for-profit, closely held corporations that

expressed a religious identity that conflicted with the

provision of certain types of contraception, does not

change this analysis. Key to the willingness of this

Court to grant Hobby Lobby its requested exemption

was the existence of the very exemption for non-profits

at issue in the instant case. Jd. at 2786 (Kennedy, J.

concurring) (“[T]he Government has not met its

burden of showing that it cannot accommodate the

plaintiffs’ similar religious objections under this

established framework.”). By allowing for-profit reli-

giously identified corporations to access the same

exemption that petitioners, non-profit religious

corporations, could access, the burden would not be

placed on the third-party employees, who would still

receive their coverage. Here, petitioners seek the

creation of a whole new scheme that will create

10

obstacles to their employees’ ACA rights, without any

consideration of whether those employees will

continue to receive the promised benefit and the

degree of increased burden they will suffer seeking to

obtain it.‘

The exemption sought in this case therefore replaces

any alleged burden on petitioners with a significant

burden on a third party — petitioners’ employees.

Granting such an exemption and imposing such a

burden violates the Establishment Clause, and cannot

therefore be required by RFRA.

Ili. PETTTIONERS CANNOT DEMONSTRATE

A SUBSTANTIAL BURDEN ON THEIR

RELIGIOUS BELIEFS

A. Any cognizable burden is relieved by

the existing accommodation

For the purposes of this brief, amici assume that the

contraceptive mandate does impose a substantial

burden on petitioners’ religious beliefs. What petition-

ers have failed to acknowledge, however, is that the

government has already met any requirement it might

have under RFRA to ease that burden, by providing

‘ The baseline from which we must consider whether a burden

has been imposed on a third party is the situation that would

exist absent the exemption. See Locke v. Davey, 540 U.S. 712, 726

(2004) (Scalia, J., dissenting) (“[W]hen the State makes a public

benefit renerally available, that benefit becomes part of the

baseline against which burdens on religion are measured.”).

Therefore the benefit, the availability of contraception without

copayment, is considered the baseline for employees. Granting

this exemption, and thus removing the benefit from the

employees, cannot be seen in any way other than imposing a

burden on those third parties in order to accommodate the

religion of petitioners. See supra.

11

religious objectors with an accommodation which

permits them to opt out of the contraception coverage.

Religious claimants such as petitioners cannot demon-

strate that a requirement merely to give notice of

their religious objection to the contraception coverage

requirement represents a “substantial” burden on

their religious exercise rights. Absent such a demon-

stration of a substantial burden, no RFRA claim is

cognizable. In the final analysis, petitioners are not

claiming that there remains a burden on their

religious beliefs. They are claiming that they don’t like

the method the government provided them to avoid

that burden. RFRA provides religious plaintiffs with

exemptions in certain limited situations. It does not,

however, guarantee to a religious plaintiff the right

to dictate to the government the method for imple-

menting that exemption.

As part of regulations established by the Depart-

ment of Health and Human Services (“HHS”) under

the ACA, employer group health plans are required to

provide “preventive care and screenings” for women

per the Women’s Health Amendment and “shall not

impose any cost sharing requirements.” 42 U.S.C.

§ 300gg-13(aX4). This preventive care requires employ-

ers to provide coverage for all forms of contraceptive

methods approved by the Food and Drug Administra-

tion (“FDA”). 26 C.F.R. § 54.9815-2713; 45 C.F.R. §

147.131(a).

However, HHS also provided a religious exemption

to the contraceptive coverage requirement that is

available to certain religious entities and to for-profit

closely held corporations with a religious objection to

the mandate. 45 C.F.R. § 147.131; Hobby Lobby, 134

S. Ct. 2571 (extending the contraceptive mandate

accommodation to closely held for-profit corporations).

12

To be eligible for a religious exemption from the

contraceptive coverage requirement of the ACA, an

organization must certify that it has a sincere reli-

gious objection to arranging contraceptive coverage. 45

C.F.R. § 147.131(b); 29 C.F.R. § 2590.715-2713A(a).

The organization opts out by affirming that it meets

those eligibility criteria via a self-certification form

sent to its group health plan issuer or third-party

administrator (“TPA”), or a letter to the HHS

Secretary. 45 C.F.R. § 147.131(c); 29 C.F.R. §

2590.715-2713A(b\(1Xii). The notice to HHS must

include a list of the forms of contraceptive services that

the employer objects to providing, and specify the

name of the plan, the plan type, and the contact

information for the plan issuer or TPA. 45 C.F.R. §

147.131(c\1)Gi); 29 C.F.R. § 2590.715-2713A(b\(1)

(ii)(B). Once an eligible organization avails itself of the

_accommodation, it has discharged its legal obligations

under the regulations. 45 C.F.R. §§ 147.131(c)(1),

(eX2); 29 C.F.R. § 2590.715-2713A(b\(1).

RFRA prohibits the federal government from

“substantially burden{ing] a person’s exercise of

religion even if the burden results from a rule of

general applicability” unless the government “demon-

strates that application of the burden to the person—

(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42

U.S.C. §§ 2000bb-1(a), (b). As this Court has deter-

mined that the contraceptive mandate imposes a

substantial burden on religious exercise, within the

meaning of RFRA, and ruled against the government,

Hobby Lobby, 134 S. Ct. at 2785, it is necessary to see

what solution has been held to satisfy the

requirements of RFRA. Courts have been satisfied

when the government has provided a successful

13

plaintiff with an accommodation to the objectionable

aspects of the law. E.g. 21 C.F.R. § 1307.03° (after O

Centro, 546 U.S. 418, government created accommoda-

tion allowing a person to file for an exception to the

Controlled Substances Act); Wis. Stat. § 118.15 (after

Wis. v. Yoder, 406 U.S. 205 (1972), accommodation

allowing parents to remove students from school

before age eighteen for religious reasons upon notice

to school officials.).

In the present case, the government has already

provided an accommodation for those non-profit

employers who object on religious grounds to the

contraceptive coverage requirement. 45 C.F.R.

§ 147.131(b); 29 C.F.R. § 2590.715-2713A(a). These

employers may opt out of the requirement, and by

self-certifying their religious objection, they are

guaranteed to be granted their accommodation.

45 C.F.R. § 147.131(c); 29 C.F.R. § 2590.715-

2713A(bX1Xii). This is a much less rigorous process

than applying for a religious exemption for hoasca tea

under the statutorily imposed process of the

Controlled Substances Act where there is no

guarantee of the accommodation’s being granted. 21

C.F.R. § 1307.03.

HHS has provided a regulatory accommodation

allowing a religious employer who objects to paying or

5 The relevant regulation states: “Exceptions to regulations.

Any person may apply for an exception to the application of any

provision of this chapter by filing a written request with the

Office of Diversion Control, Drug Enforcement Administration,

may grant an exemption in his discretion, but in no case shall

he/she be required to grant an exception to any person which is

otherwise required by law or the regulations cited in this section.”

21 C.F.R. § 1307.03.

14

participating in the ACA’s contraceptive coverage

requirement to avoid doing so. Petitioners, though,

seek an exemption from the exemption, claiming that

filing the paperwork to indicate they do not wish to

participate in the contraceptive mandate for religious

reasons itself burdens their religion.

B. A requirement to inform the govern-

ment one has a religious objection to a

regulation is not a ‘substantial burden’

RFRA does not outlaw any and all burdens on

religious freedom which cannot be justified by a

compelling government interest implemented in

the least restrictive manner possible. It outlaws

substantial burdens on religious exercise which cannot

be so justified. Congress included the word

“substantial,” and when Congress writes a statute, it

does so giving deliberate meaning to the words it uses.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)

(“[Wle have considered ourselves bound to ‘assume

that the legislative purpose is expressed by the

ordinary meaning of the words used.”) (citations

omitted). “In other words, if the law’s requirements do

not amount to a substantial burden under RFRA, that

is the end of the matter.” Priests for Life v. U.S. HHS,

772 F.3d 229, 244 (D.C. Cir. 2014), cert. granted,

Priests for Life v. HHS, 193 L. Ed. 2d 345 (2015).

In Hobby Lobby, 134 S. Ct. 2751, this Court was

faced with determining the meaning of the word

“person” in RFRA. It noted that the first step to be

taken was to look to the Dictionary Act, “which we

must consult ‘[iJn determining the meaning of any Act

of Congress, unless the context indicates otherwise.”

Id. at 2768 (citing 1 U.S.C. § 1). Nothing in that act,

however, provides a definition of the word “substan-

tial.” Courts have, however, interpreted such a word

15

frequently, and its meaning is apparent. Dictionary

definitions show a common thread. “Substantial”

means “[rjeal and not imaginary; having actual, not

fictitious existence. ... Important, essential, and

material; of real worth and importance.” Substantial,

Black’s Law Dictionary (10th ed. 2014). It is that

which is “[o]f considerable importance, size, or worth.”

New Oxford Am. Dictionary (3d ed. Oxford U. Press

2010).

A substantial burden, then, stands in stark

comparison to a de minimis one. It is a burden which

carries a certain degree of weight or impact, one that

is considered real and significant, as opposed to minor

and trivial. Where this Court has been required to

determine the meaning of “substantial” in similar

situations, it is this element of importance which is

emphasized. For example, when determining the

meaning of “substantial evidence,” this Court found

that it is evidence which is “more than a mere scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971). To be

substantial, evidence must be enough so as to convince

a reasonable person of the conclusion it is put forward

to support. Edison Co. v. Labor Bd., 305 U.S. 197, 229

(1938).

Petitioners rely on a fundamental misunderstand-

ing of RFRA. They claim that the court system has no

place in determining the substantiality of a burden on

religious practice. While it is true that courts cannot

determine religious doctrine, and may therefore accept

a claim of a burden on religious belief as sincere, the

word “substantial” has a meaning, and it is the role of

the court system to determine if a particular burden

reaches that level.

16

In the present case, the claimants have stated that

providing the government notice of their religious

objection is in and of itself a substantial burden on

their religious exercise. Pet.’s Br. Little Sisters, et al.,

21-22 (Jan. 4, 2016); Pet.’s Br. Priests for Life et al., 11-

13 (Jan. 4, 2016). But providing written notice of an

objection is “the written equivalent of raising a hand

in response to the government’s query as to which

religious organizations want to opt out.” Priests for

Life, 772 F.3d at 235. This Court can accept that the

religious employer believes that providing this notice

is against its religious beliefs without finding that

doing so is a substantial burden on its religious

exercise.

While the courts may allow religious organizations

to determine themselves if an activity or prohibition of

an activity constitutes a burden for the purposes of

that religion, the courts maintain a responsibility to

determine if that burden proclaimed by religious

groups rises to the level of “substantial,” triggering

protection under RFRA.* With regard to the burden

imposed by signing a piece of paper to indicate that a

religious non-profit or closely held for-profit is seeking

an exemption from the requirements of the contracep-

tive mandate of the ACA, both the Third and the

® Indeed, petitioners’ argument would, by rendering the word

“substantial” superfluous, reduce any decision to be made under

RFRA to a determination as to whether a belief is sincere (a

highly subjective exercise and one which both the courts and the

government are wary of wading into) followed by a determination

of whether the government had a compelling interest, imple-

mented in the least restrictive manner possible. Congress

determined that plaintiffs should have to show a “substantial

burden” before their claim was cognizable under RFRA.

Petitioners should not be permitted to rewrite an Act of Congress

in such a fashion.

17

Seventh Circuits found, rightly, that any such

complicity with a future alleged sin undertaken by a

third party after numerous intervening steps was too

attenuated to rise to the level of substantiality

required to be cognizable under RFRA. Geneva College

v. Sec. U.S. HHS, 778 F.3d 422, 442 (3d Cir. 2015)

(“[W]here the actual provision of contraceptive cover-

age is by a third party, the burden is not merely

attenuated at the outset but totally disconnected from

the appellees.”); U. of Notre Dame v. Sebelius, 743 F.3d

547, 557 (7th Cir. 2015). (“The accommodation in this

case consists in the organization’s (that is, Notre

Dame’s) washing its hands of any involvement in

contraceptive coverage, and the insurer and third-

party administrator taking up the slack under

compulsion of federal law.”). Indeed, were such an

extended and tortured view of causation by distant

complicity to be accepted by this Court, it would lead

to illogical and unacceptable consequences. See infra §

IV.

Given that all government requirements or prohibi-

tions that can impose any burden on religion come,

by definition, with the threat of a substantial penalty,

the meaning of “substantial burden” cannot be tied in

this way to the penalty threatened. Interpreting it in

this fashion renders it meaningless, and when

interpreting an Act of Congress, courts should not

assume Congress inserted language without any

meaning. See Cardoza-Fonseca, 480 U.S. at 432 (The

“ordinary and obvious meaning ... is not to be lightly

discounted.”). Instead, the word “substantial” should

be given its common sense, everyday meaning, as this

Court has found when looking at the meaning of

“substantial evidence.” See, supra.

18

C. Compliance penalties are not a

‘substantial burden’

Petitioners claim that refusing to provide the

required notice of their religious objection will lead to

the imposition of fines which are a substantial burden.

This argument was accepted by the Eighth Circuit in

Sharpe Holdings, Inc. v. U.S. 801 F.3d 927, 932 (2015)

(“When the government imposes a direct monetary

penalty to coerce conduct that violates religious belief,

there has never been a question that the government

imposes a substantial burden on the exercise of

religion.”). But the presence of a government sanction

of some sort cannot in and of itself make compliance

with the law a substantial burden. If all it takes for a

burden on religion to be substantial is the claim of the

religious group allegedly impacted, and a penalty for

non-compliance, then the word “substantial” in RFRA

loses all meaning.

All government requirements to act, or to refrain

from action, carry a penalty for non-compliance. Any

refusal to obey the requirements of government is

punishable. If a government requirement is not

accompanied by such threat of penalty, that is, if a

person is told to take an action, or refrain from an

action, but is not penalized for ignoring the govern-

ment mandate, then there is no burden on the

individual. Refusal to participate would have no cost,

and without a cost for refusal, there is no burden,

substantial or otherwise, on religious exercise.

Moreover, petitioners’ argument fails because of one

simple, yet unavoidable, fact — the government has

already provided an accommodation, and the

accommodation provides a way for the petitioners to

avoid the involvement, and the penalties, they find

objectionable. All they have to do is let the government

19

know they want to avail themselves of the

accommodation.

It has never been held that religious objectors are

permitted to simply ignore a federal or state statute.

A conscientious objector cannot simply refuse to turn

up when drafted, but must instead file a claim of

religious or philosophical objection to combat and may

still be required to serve in a noncombatant role. 50

U.S.C. § 3806(j). The religious adherents in O Centro,

546 U.S. 418, who continue to drink hoasca tea

ceremonially, must still file for an exemption under

the Controlled Substances Act or face substantial

criminal penalties of up to 20 years in prison or

$5 million for a first trafficking offense.’ 21 C.F.R.

§ 1308.11. Likewise, looking back to Yoder, 406 U.S.

205, parents who wish to remove their children from

school on religious grounds are still required by law to

inform school officials of this fact or they may be

charged with a misdemeanor. Wis. Stat. § 118.15.

The government is not barred by RFRA from

creating a rational, efficient mechanism for imple-

menting a religious exemption, and requiring those

seeking the exemption to notify the government of

their desire to avail themselves of it is indisputably

rational and efficient. Petitioners have been granted a

method of exempting themselves from a requirement

they claim burdens their religious beliefs. RFRA does

not under any reasonable interpretation require that

petitioners be granted the right to refuse to inform the

government of their desire to be exempted.

’ U.S. Drug Enforcement Agency, Federal Drug Trafficking

Penalties, http://www.dea.gov/druginfoo/ftp3.shtm! (last visited

Feb. 9, 2016).

20

The nature of the exemption to the draft offered to

conscientious objectors is instructive. In order to

qualify for status as a conscientious objector, a regis-

trant must submit a claim to the government. This

claim “must be made by the registrant in writing.” 32

C.F.R. § 1632.2. The individual then appears before a

board which considers the documentation submitted,

the oral statements of the claimant and of any wit-

nesses presented, and the demeanor of the claimant.

32 C.F.R. § 1632.8. The board then determines which

draft classification to give to the claimant. To be

exempted, claimants must demonstrate their beliefs

and show sincerity. 32 C.F.R. § 1632.6. Were current

petitioners to be successful in achieving their

requested exemption, this entire structure of seeking

conscientious objector status would need to be altered.

Petitioners’ requested relief would not only permit

draftees to prevent the military's replacing them if

exempted, but also allow them to claim that even filing

a written claim or explaining their grounds for

objection to the draft board itself would trigger a

future sin and thus is a burden on their religious

practices.

D. The accommodation ensures monies

will not be commingled

It has been suggested there is a religious exercise

burden for the religious employer because there is no

way to prevent the monies paid by the religious

employer from being commingled with those collected

separately for contraceptive coverage by the insurer or

TPA. Brief for School of the Ozarks as Amicus Curiae

p. 3-4.

Justice Alito in his opinion in Hobby Lobby

addressed this issue, recognizing that the ACA does

not create a pool of employers’ contributions, but

21

rather that the HHS regulations require the plan

issuers to have a “mechanism by which to keep

premium revenue” from the religious employers segre-

gated from contraceptive coverage payments. 134 S.

Ct. at 2784 (citation omitted) (“Recognizing a religious

accommodation under RFRA for particular coverage

requirements, therefore, does not threaten the

viability of ACA’s comprehensive scheme in the way

that recognizing religious objections to particular

expenditures from general tax revenues would.”).

The D.C. Circuit Court of Appeals also addressed

this. After the religious employer provides notice that

it does not wish to provide contraceptive coverage,

the government has provided a way to ensure the

employer is separated from the process by arranging

for another entity to fill the coverage gap. Priests for

Life, 772 F.3d at 235.

Separation of funds is a common idea in federal law.

Under the federal faith-based initiative, grants

awarded to religious organizations cannot be commin-

gled with non-federal funds unless the organization

follows all federal grant rules when using all the funds

regardless of the source. 34 C.F.R. § 75.52(f).

Similarly, the Hyde Amendment, legislation originally

passed in 1976, requires segregation of federal funds

in the Medicaid program relating to abortion.®

In the present case, the contraceptive accommoda-

tion provides a similar monetary segregation plan. 45

CFR § 147.131(c)(2)(ii). If the law (which amici oppose)

expects the American people to trust religious

® Department of Health and Human Services, Center for

Medicaid and State Operations, http://www.medicaid.gov

/Federal-Policy-Guidance/downloads/smd021298.pdf (last visited

Feb. 9, 2016).

22

organizations to act responsibly with tax dollars,

religious entities must also trust insurers to act

responsibly with their funds. See Hobby Lobby, 134 S.

Ct. at 2784. An argument that the monies from the

religious employer, for health plan costs that are not

related to contraceptive coverage, would somehow be

commingled or are fungible with insurer-provided

contraceptive coverage is not valid and should be

rejected by this Court.

IV. PETITIONERS’ POSITION DOES NOT

CONCERN A BURDEN ON RELIGIOUS

LIBERTY, BUT IS RATHER AN

ATTEMPT TO LEGISLATE THROUGH

THE COURTS

As shown, supra, petitioners have failed to demon-

strate a substantial burden on their religious beliefs.

Indeed, this case represents a concerted effort on the

part of petitioners to rewrite RFRA itself. If successful,

Congressional intent in passing the law will be

overridden. Rather than having to show a substantial

burden, any plaintiff claiming religious harm will

simply be able to assert that a burden is substantial,

and this view will be unchallengeable by the courts,

however attenuated and unconnected the government

required action and the alleged sin may be. Petitioners

have made clear in their briefs their belief that courts

have no place in determining whether a burden is

substantial. Pet.’s Br. Priests for Life et al., 4

(“Accepting Respondents’ view of the court’s role in

deciding a religious exercise case would fundamen-

tally transform and thus weaken religious freedom by

permitting the government (and the courts) to become

the arbiters of what does and what does not burden a

private party’s religious beliefs.”). By so doing,

petitioners seek to eliminate the word “substantial”

23

from the text of RFRA, pretending that Congress

never included it in the first place.

This case does not involve any substantial burden

on religious beliefs. Instead, this case represents no

more than a complaint about government policy.

Simply put, petitioners do not want their employees to

participate in a scheme established by the government

for the provision of certain types of health care

services. Opposing the use of contraception is

petitioners’ fundamental right under the First

Amendment. However, seeking to prevent an

insurance company from providing such services to

their employees on asserted religious grounds is

different, and this Court and lower courts have

repeatedly concluded that such claims founded on

dislike for a policy have no merit. Religious disap-

proval of government policy is entitled to no more

deference than political disapproval.

Individuals and employers have often been expected

to put their own personal disapproval of a policy, even

when based on sincerely held religious convictions,

aside and participate in a scheme with which they

disagree, when the participation is sufficiently attenu-

ated. While a conscientious objector may not be

compelled to serve in the military, for example, a

similarly sought exemption from paying taxes to

support the military has been repeatedly denied, even

to Quakers whose sincere religious belief in pacifism

is unquestioned. Adams v. Commr., 170 F.3d 173 (3d

Cir. 1999), cert denied, 528 U.S. 1117 (2000). In

Adams, the Third Circuit found that, despite the

feasibility of exempting individuals from tax

payments, the government had a compelling interest

in the uniform collection of taxes, and refused to

permit the sincere beliefs of Adams to excuse her from

24

participation in societal responsibilities such as the

payment of tax. 170 F.3d at 180-82.

Participation in a government scheme to which a

plaintiff had sincerely held religious opposition was

also required by the Court in Bowen v. Roy, 476 US.

693 (1986). Native American parents claimed that

obtaining a social security number for their daughter,

Little Bird of the Snow, violated their religion, and

therefore they should be exempted from the require-

ment to produce such a number to qualify for welfare

benefits. Id. at 695. Chief Justice Burger was

dismissive of the idea that actions undertaken by the

government, even when attached to the plaintiffs

name in this fashion, could create a religious burden.

Id. at 700. (“Roy may no more prevail on his religious

objection to the Government’s use of a Social Security

number for his daughter than he could on a sincere

religious vbjection to the size or color of the

Government’s filing cabinets.”). The use of the number

by the government “d[id] not itself in any degree

impair Roy’s freedom to believe, express, and exercise

his religion.” Id.

This Court has been clear that simply because a

religious believer claims substantial harm, “not all

burdens on religion are unconstitutional.” Lee, 455

U.S. at 257. In Lee, id., this Court unqualifiedly

enforced the rule that religious accommodations

sought by an employer, where the exemption granted

to the employer would impose burdens on third parties

would not be permitted, refusing to grant an Amish

employer an exemption permitting him to avoid

- paying social security contributions for his employees,

which would “operate[] to impose the employer’s

religious faith on the employees.” Id. at 261.

Importantly, this Court acknowledged that Congress

25

had exempted self-employed Amish from paying social

security contributions for themselves, but refused to

extend the exemption to contributions for employees,

who might not share the same religious convictions.

Id.

These cases reveal the weakness of petitioners’

argument. In Lee, id., this Court made clear that,

despite current petitioners’ repeated assertions, the

existence of one or more exemptions does not require

further exemptions, even when the religious belief

involved is similar. That self-employed Amish were

exempted from social security payments did not allow

Amish employers to refuse to pay contributions for

their employees. Jd. This Court recognized that the

government was entitled to draw a line and limit the

exemptions. Id. at 260 (“Congress has accommodated,

to the extent compatible with a comprehensive

national program, the practices of those who believe it

is a violation of their faith to participate in the social

security system.”). In this case, as in Lee, the govern-

ment has already provided generous exemptions for

churches, and an accommodation for religious non-

profits and closely held for-profit corporations. It is not

required to tailor the exemption process to suit every

individual or group claiming an exemption nor is it

required to broaden the scope of the exemption such

that the accommodation has an adverse effect on the

rights of third parties.

Bowen, 476 U.S. 693, demonstrates that petitioners

simply do not have a sufficient interest at stake in how

the government chooses to administer its program.

Roy, Little Bird of the Snow’s father, sincerely believed

that giving his daughter a social security number

harmed her spirit, much as petitioners feel that

providing the government with a form indicating their

26

unwillingness to participate in a program that

provides contraception involves them in sin. But, as

the Seventh Circuit has noted, this belief did not

entitle Roy to an accommodation that removed the

burden of his providing that social security number on

an application for welfare. U. of Notre Dame uv.

Burwell, 786 F.3d 606, 618 (7th Cir. 2015), petition for

cert. filed, Dec. 18, 2015. Like Roy’s claim, petitioners

claim is, in the final analysis, a complaint about how

the government administers a program. Just like

Roy’s desire to stop the government’s using a social

security number for his daughter, petitioners’

objection to complying with the current procedures of

the exemption to the contraceptive mandate in order

to exempt themselves from providing contraceptive

coverage is no more of a legitimate basis for an

exemption than “a sincere religious objection to the

color of the Government’s filing cabinets” in which

such a form would be stored. Bowen, 476 U.S. at 700.

Petitioners’ claim that the court system is powerless

to even consider the nature of the causation claimed

by a religious group seeking an exemption leads to

illogical and unacceptable results. The United States

has a long history of granting exemptions to conscien-

tious objectors who oppose taking part in military

action. However, were petitioners’ theory of causation

to become accepted, pacifists would have the right not

only to insist that they themselves not be sent into

® For many years, these exemptions were available only to

those whose objections to war were based on religious beliefs, as

opposed to philosophical objections to armed conflict. Welsh v.

U.S., 398 U.S. 333, 343 (1970) (“[I]t should be remembered that

the former § 456(j)’s exclusions are definitional and do not

therefore restrict the category of persons who are conscientious

objectors by ‘religious training and belief.”).

27

combat, but that the military not be permitted to draft

someone in their place to fill the space. U. of Notre

Dame, 743 F.3d at 556. It is inconceivable that such a

theory of causation is what the drafters of RFRA had

in mind. Id. at 557. (“What makes this case and others

like it paradoxical and virtually unprecedented is that

the beneficiaries of the religious exemption are

claiming that the exemption process itself imposes a

substantial burden on their religious faiths.”).

Granting such a power to individual conscientious

objectors — to not only remove themselves from

selection for the military, but also to permanently

deprive the military of a replacement out of a belief

that their refusal triggered someone else to be sent,

and that would be equally as sinful — would be

granting religious individuals and groups not only the

power to seek exemptions for themselves, but also the

power to legislate from the pulpit against the

democratic wishes of the population at large.

The breadth of perverse results of such causation is

unending. In Thomas v. Review Bd. Of Ind. Empl. Sec.

Div., 450 U.S. 707, 709 (1981), a Jehovah’s Witness

was found to have been wrongly denied unemployment

benefits after quitting his job in a roll foundry when

he was transferred to a department where he would be

producing turrets for tanks for the military, a use he

found incompatible with his religious beliefs. While, as

petitioners repeatedly assert, the Court did not

challenge his personal willingness to make rolled steel

which would later be used to make tank turrets, id. at

715, petitioners would have us extend Thomas’

exemption further. Not content with a right for

Thomas to seek a transfer to another position that did

not challenge his religious beliefs, petitioners would

grant him the right to ensure that no other employee

could take over the position he had left, and the spot

28

on the production line for tank turrets would be

permanently empty, in order to spare Thomas the

religious burden of having triggered someone else’s

having to make tank turrets, however willing that

person might be to fill that job.

Jewish employers may choose not to purchase pork

products, and it would violate their religious rights to

require them to do so. Yet no court could hold that the

same Jewish employers have the right to insist that

their employees refrain from using their earnings to

purchase bacon. While a Muslim employee may have

a religious right to be transferred from a job that

involves the sale of alcohol, it is implausible to suggest

that the employee possesses an equal right to seek to

have that position remain unfilled on the grounds

some other cashier who scans a bottle of Cabernet

Sauvignon is only in that position because the Muslim

employee refused to fill it. And, as noted supra, the

Amish who were self-employed were permitted to not

pay their own social security contributions, as such

contributions would potentially undermine the Amish

religious principle of self-reliance. This did not,

however, allow them to avoid such payments for their

employees. Lee, 455 U.S. at 261. That employees might

possibly be triggered to move away from self-reliance

was not held to be a burden sufficient to require an

exemption.

The most extreme example of the logical extent of

petitioners’ theory of causation confronts this Court,

and every other court in the United States. Petitioners

have argued the Roman Catholic doctrine of “scandal,”

the act of “leading, by words or actions, other persons

to engage in wrongdoing,” Pet. for Writ of Cert., 13 n.3

(May 29, 2015) (citing Catechism of the Catholic

29

Church { 2284), to claim that by signing the notifica-

tion, they are triggering the insurance company to

provide the objected-to contraceptive coverage, and

are therefore morally complicit in the sin. In order for

this Court to find for petitioners, it is necessary to find

such a “trigger” theory legally cognizable; or, at the

very least, to be sincerely held by petitioners as part of

their self-professed Catholic faith.

It is uncontroverted that obtaining or providing an

abortion is a sin under Catholic doctrine. Under the

doctrine of scandal, or the accompanying doctrine of

“material cooperation with evil,” id. at 13, facilitating

abortion, making an abortion easier to obtain, or,

indeed, not making an abortion harder to obtain when

such an opportunity presents itself, would be a sin.

Under this theory of causation, any judge whose

personal morality held that abortion was a sin, would

also be committing a sin by not restricting abortion.

Under petitioners’ theory, any court decision which

found a constitutional right of a woman to choose an

abortion would facilitate such a choice. Of course, no

one would suggest that a judge’s personal religious

or moral code should determine a case

constitutional rights. Such matters are to be put aside

while a judge applies the law of the land — the United

States Constitution. Yet petitioners’ theory suggests

otherwise, indicating that a judge who ruled, contrary

to personal belief, but constitutionally correctly, would

be guilty of the sin of scandal.

This then is the logical end of petitioners’ theory of

causation. If signing a piece of paper indicating a

religious-based opposition to providing contraceptive

health services, and thereby taking advantage of an

exemption to a requirement to provide such services,

is in and of itself a substantial burden on religion

30

through an attenuated “trigger” theory, then so would

countless other actions become substantial burdens.

Employers would find themselves unable to replace

workers they moved to accommodate the individual’s

religious beliefs. The military would find itself unable

to fill its ranks in times of conscription as religious

objectors could not be replaced, even by individuals

without a religious objection to being drafted. A juror

excused from duty on a capital case because of a

religious opposition to capital punishment could not be

replaced with a substitute, as the presence of a

substitute juror’s voting in favor of the death penalty

was in some way triggered by the initial person’s

refusal to serve on the panel. Such outcomes were

never the intention of RFRA, and must be avoided.

V. THE GOVERNMENT HAS A COMPEL-

LING INTEREST IN ENSURING THE

WIDESPREAD AVAILABILITY OF CON-

TRACEPTIVE SERVICES TO WOMEN

There are enormous benefits that accrue to society

from the widespread availability of no-cost contracep-

tion to women. There can be no doubt regarding the

central role that preventive and reproductive health

care plays in enabling women to participate fully in

society, and the cost of the provision of such care if it

is left up to the individual. Under the ACA, millions of

women were, for the first time, given a legal guarantee

that their health insurance would cover the cost of all

FDA-approved contraceptive services. Petitioners seek

to remove that legislative right not only from their own

employees, but also, by extension, from millions of

other women who are employed by corporations which

may seek such religious-based exemptions.

The cost of contraceptive care is far from de minimis.

Studies have shown that the cost of an intrauterine

31

device (“IUD”), including the fees for the required

medical examinations, insertion, and ongoing follow-

up visits, may reach as high as $1,000.° Oral

contraceptives cost on an annualized basis between

$180 and $960, with the cheaper, generic contracep-

tives often being reported as causing unpleasant side

effects." Emergency contraception, such as _ the

“Morning After Pill,” ranges in cost from $30 to $65 per

dosage.”

The costs of purchasing contraception fall largely

upon women. Women of child-bearing age pay 68%

more than men of the same age in out-of-pocket

medical costs. Hobby Lobby, 134 S. Ct. at 2788

(Ginsburg, J., dissenting). A significant part of this

cost can be attributed to the cost of contraception.

Removal of this disparity between health care costs for

men and women is, in and of itself, a compelling

government interest. This government interest,

© Planned Parenthood, IUD: Where can I get an IUD? How

much does an IUD Cost?, https://www.plannedparenthood.org/

learn/birth-control/jiud (last visited Feb. 9, 2016).

'! Frederick M. Gedicks & Rebecca G. Van Tassell, RFRA

Exemptions from the Contraception Mandate: An Unconstitu-

tional Accommodation of Religion, 49 Harv. C.R.-C.L. Rev. 343,

376 (2014) (noting also that the lower-cost contraceptive pills

were less effective in preventing conception).

Planned Parenthood, Morning After Pill (Emergency

Contraception), https:-//www.plannedparenthood.org/learn/morn

ing-after-pill-emergency-contraception (last visited Feb. 9, 2016);

purchasing one brand of emergency contraception, Plan B, over-

the-counter costs about $50 per use. E.g. Walgreens, Plan D One-

Step Emergency Contraception, http://www.walgreens.com/store/

c/plan-b-one-step-emergency-contraceptive/ID=prod62 12563-pro

duct?ext=gooPersonal_Care_PLA_Emergency_Contraception_pr

0d6212563_pla&adtype=pla&kpid=sku6 186077 &sst=29fc349b-

abfc-52a9-c30f-000046b50d6b (last visited Feb. 9, 2016)

32

however, even goes beyond the desire to seek greater

equality for women. The widespread availability of

contraceptives without copayment benefits the

government and society by reducing the numbers of

unplanned and unwanted pregnancies. This reduces

the burden on medical facilities, reduces the burden on

schools and social services, and even reduces the

number of abortions performed.” Studies have

indicated that each dollar spent on helping women

avoid unwanted pregnancy reduces Medicaid expendi-

tures by $7.09.'* These savings, combined with the

increased ability of women to make their own repro-

ductive choices, enabling them to fully participate in

society on an equal basis, represent a compelling

interest for the government in ensuring the wide-

spread availability of contraception without copayments.

Petitioners argue repeatedly that the existence of

exemptions for some groups indicates that the

government interest cannot be considered compelling.

This, however, misrepresents the governmental and

societal interest at stake in the contraceptive

mandate. It is fallacious to suggest that unless the

mandate can cover everyone, the government has no

interest in enforcing it. The compelling interest here is

not that all women in the United States should have

access to contraception without copayments, but that

as many women as possible should have this access.

‘3 While amici fully defend a woman’s right to a legal and safe

abortion, they also believe that the availability of low-cost ead no-

cost contraception, combined with effective education as t» their

use, would prevent many unwanted or high-risk pregnancies,

thus reducing the need for abortions.

4 J.J. Frost, et al., Return on Investment: A Fuller Assessment

of the Benefits and Cost Saving of the US Publicly Funded Family

Planning Program, 92 Milibank Q. 667, 668 (2014).

33

Government programs are not an all or nothing

matter. The compelling governmental interest in

preventing malnutrition among poor children through

the SNAP program is not diminished when the

program does not reach every child in need. Further-

more, if petitioners’ logic were followed through to its

end, then no exemption, religious or otherwise, could

be offered to any group, as offering it would

immediately indicate that there was no compelling

interest behind the law in the first place."* The

government, as is its right, has drawn the line for

exemptions. This in no way diminishes the compelling

nature of the interests at stake.

CONCLUSION

For the above reasons, this Court should affirm the

judgments of the U.S. Courts of Appeals for the Third,

Fifth, Tenth, and D.C. Circuits.

Respectfully Submitted,

NICHOLAS J. LITTLE EDWARD TABASH

RONALD A. LINDSAY Counsel of Record

CENTER FOR INQUIRY 11500 West Olympic Blvd.

1020 19th Street, NW Suite 400

Washington, DC 20036 Los Angeles, CA 90064

(202) 629-2403 (310) 279-5120

legal@centerforinquiry.net etabash@centerforinquiry.net

AMANDA KNIEF

AMERICAN ATHEISTS

225 Cristiani St.

Cranford, NJ 07016

(908) 276-7300

February 17, 2015 legal@atheists.org

‘6 While amici maintain that all religious exemptions are

unconstitutional, supra n.2, their existence does not diminish the

compelling nature of the government interest.